State ex rel. Anderson v. Chapman, 43890

• Decision Date: 04 December 1975
• Docket Number: No. 43890,43890
• Citation: 543 P.2d 229,86 Wn.2d 189
• Parties: The STATE of Washington on the relation of Kay D. ANDERSON, Petitioner, v. Bruce CHAPMAN, Secretary of the State of Washington, et al., Respondents, Robert T. Daly and Richard E. Van Horn, Intervenors-Respondents.
• Court: Washington Supreme Court

Page 189

86 Wn.2d 189

543 P.2d 229

The STATE of Washington on the relation of Kay D. ANDERSON, Petitioner, v. Bruce CHAPMAN, Secretary of the State of Washington, et al Respondents Robert T. Daly and Richard E. Van Horn, Intervenors-Respondents.

No. 43890.

Supreme Court of Washington, En Banc.

Dec. 4, 1975.

Kafer, Wilson & Good, Randall L. St. Mary, John F. Wilson, Everett, for petitioner.

Slade Gorton, Atty. Gen., Wayne Williams, Olympia, Collier, Kukuk & Kennedy, Gerald F. Collier, Thomas N. Bucknell, Seattle, for respondents.

WRIGHT, Associate Justice.

This case involves the application of Const. art. 2, § 13, which reads:

No member of the legislature, During the term for which he is elected, shall be appointed or elected to any civil office in the state, which shall have been created, or the emoluments of which shall have been increased, During the term for which he was elected.

(Italics ours.)

The facts which gave rise to this litigation are not in dispute. An act (SSHB 1007, Laws of 1975, 1st Ex.Sess., ch. 263, p. 869) which raises the annual salary of the Secretary of State from $15,800 to $21,400 was passed by the legislature. Respondents Dave Ceccarelli and Eugene L. Laughlin were members of the House of Representatives and in fact, were present and voted in favor of the bill which was signed by the Governor on June 30, 1975 and took effect July 1, 1975.

Early in the year 1975, A. Ludlow Kramer resigned from the office of Secretary of State and the Governor appointed Bruce K. Chapman to fill the vacancy. The legislature then passed chapter 3, Laws of 1975, 2d Ex.Sess., which provided, Inter alia, for election at odd year elections for the office of Secretary of State to complete an unexpired term. This court held the unexpired term should be filled in the 1975 elections. Daly v. Chapman, 85 Wash.2d 780, 539 P.2d 831 (1975).

The respondents, Ceccarelli and Laughlin, filed for the office of Secretary of State to be voted on in the 1975 elections. Thereafter, the petitioner, Kay D. Anderson, instituted this action seeking an original writ of mandamus or in the alternative a writ of prohibition to prevent the respondents, Ceccarelli and Laughlin, from being candidates.

The legislature attempted to engraft upon chapter 263, the following proviso:

Provided further, That a member of the legislature whose term of office is partly co-extensive with or extends beyond the present term of office of any of the officials whose salary is increased by virtue of the provisions of sections 1 through 5 of this act shall be eligible to be appointed or elected to any of the offices the salary of which is increased hereby but he shall not be entitled to receive such increased salary until after the expiration of his present term of office and his subsequent election or re-election to the office to which he was appointed or elected respectively during his term of office as legislator.

The question before us relates to the validity of the proviso and specifically if respondents, Ceccarelli and Laughlin, can file for and seek the office of Secretary of State in the 1975 elections. We have heretofore held by order that they are not eligible.

The first rule of constitutional construction which we should consider is the rule that if a constitutional provision is plain and unambiguous on its face, then no construction or interpretation is necessary or permissible. In State ex rel. Evans v. Brotherhood, etc., 41 Wash.2d 133, 247 P.2d 787 (1952) the court (per Finley, J.) said in part at 145, 247 P.2d at 794: 'It is a cardinal principle of judicial review and interpretation that unambiguous statutes and constitutional provisions are not subject to interpretation and construction.' In State ex rel. O'Connell v. Slavin, 75 Wash.2d 554, 452 P.2d 943 (1969) the court (per Rosellini, J.) said in part at 557, 452 P.2d at 945: 'If the constitutional language is clear and unambiguous, interpretation by the courts is improper.' In State ex rel. Swan v. Jones, 47 Wash.2d 718, 289 P.2d 982 (1955) the court (per Finley, J.) said in part at 722, 289 P.2d at 985: '(W) here the intention is clear there is no room for construction and no excuse for interpolation or addition.' The last quoted language was quoted by the court from United States v. Sprague, 282 U.S. 716, 75 L.Ed. 640, 51 S.Ct. 220, 71 A.L.R. 1381 (1931).

Another rule which is important to this matter is that the provisions of a constitution are mandatory unless otherwise stated. The general rule is stated in 16 C.J.S. Constitutional Law § 61 (1956) wherein it is said: 'Generally, constitutional provisions are to be construed as mandatory unless, by express provision or by necessary implication, a different intention is manifest.'

In this state the constitution itself expresses that rule in even more forceful language. Const. art. 1, § 29 reads: 'The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.'

That provision likewise being clear and unambiguous has been the subject of comparatively few judicial comments. The provision is mentioned in a few cases including State ex rel. Smith v. Neal, 25 Wash. 264, 65 P. 188 (1901); State ex rel. Lemon v. Langlie, 45 Wash.2d 82, 273 P.2d 464 (1954); and in a concurring opinion (per Finley, J.) in State v. Williams, 85 Wash.2d 29, 530 P.2d 225 (1975); a dissenting opinion (per Utter, J.) in Department of Revenue v. Hoppe, 82 Wash.2d 549, 512 P.2d 1094 (1973); and a dissenting opinion (per Wright, J.) in State ex rel. Graham v. Olympia, 80 Wash.2d 672, 497 P.2d 924 (1972).

The constitutional provision with which we are primarily concerned herein (Const. art. 2, § 13) has likewise been the subject of but few cases. Those cases may be grouped into several categories. Two cases are addressed to the question of what is a civil office.

State ex rel. French v. Clausen, 107 Wash. 667, 182 P. 610 (1919) involved membership on the Industrial Code Commission. The statute (Laws of 1919, ch. 184, p. 566) provided that one member of the commission should be a member of the Senate and one member should be a member of the House of Representatives. French, one of the legislators appointed to the commission, was a member of the 1919 legislature which created the commission. Briefly stated, the holding was that while the statute creating the commission was valid, the portion providing for membership by two legislators was not valid, because such membership was a 'civil office.' French was prevented from recovering his expenses of $6.54 for attending a session of the commission.

Oceanographic Commission v. O'Brien, 74 Wash.2d 904, 447 P.2d 707 (1968) involved membership on the unsalaried Oceanographic Commission. Laws of 1967, ch. 243, p. 1344, created the commission. Six members were by statute to be legislators. Without passing on the validity of the act as a whole, the court held legislators who had been members of the 1967 legislature were ineligible to membership on the commission, because such membership was a 'civil office.'

Two cases deal with the desire of one George F. McAulay to become a member of the Supreme Court by election. McAulay was a member of the Senate in the 1937 session which passed an act (Laws of 1937, ch. 229, p. 1172) which provided a pension system for judges. McAulay had never been a judge. The act provided one might be eligible for a pension if (a) he had served a total of 18 years on a court of record, or (b) he had served a total of 10 years and had reached to age of 70 years, or (c) he had served a total of 10 years and become incapacitated. The then Secretary of State refused to accept a filing from McAulay on the basis that the enactment of the pension act by a legislature of which he was a member would render him ineligible.

State ex rel. McAulay v. Reeves, 196 Wash. 1, 81 P.2d 860 (1938) held the Secretary of State had absolutely no power to determine the eligibility of candidates for public office. The courts, and only the courts, have the power and authority to determine who may be a candidate for public office. An original writ of mandate was issued requiring the Secretary of State do accept the filing. The matter was soon before the Supreme Court again, and McAulay was held to be eligible.

State ex rel. Todd v. Reeves, 196 Wash. 145, 82 P.2d 173 (1938) held the pension could not possibly be deemed an emolument of the office because McAuley was seeking a 6 year term and under no set of circumstances, as the law was then, could he be entitled to a pension until after 10 years of service on a court of record.

The next two cases to be discussed deal primarily with the matter of the relation of the end of the legislative term and the start of the term of office for which the emoluments had been increased.

State ex rel. Pennick v. Hall, 26 Wash.2d 172, 173 P.2d 153 (1946) held in essence that if the office were to be filled by an election held during the same legislative term of office of the legislator as the term in which the salary increase was enacted, the legislator would be ineligible. This would be true even if the term sought did not start until after the legislator's term as a legislator had expired. That holding was overruled in State ex rel. O'Connell v. Dubuque, 68 Wash.2d 553, 413 P.2d 972 (1966), which held the prohibition was against overlap of terms.

We are not concerned with the problem addressed in Pennick and in O'Connell because the term sought herein would start in December 1975 and the term of the respondents, Ceccarelli and Laughlin, as legislators would not end until January 1977. We, therefore, do not have to consider or discuss the matter of whether Pennick or O'Connell is the correct decision.

Some language in O'Connell makes clear the distinction. Therein it is said at 568, 413 P.2d at 981: 'if the legislator's term of office and the term for which the greater salary will be received coincide or...