State Ex Rel. Todd v. Reeves , 196 Wash. 145 ( 1938 )

BLAKE, MAIN, and MILLARD, JJ., dissent. This is an original application for a writ of prohibition directed to Belle Reeves, secretary of state, prohibiting her from certifying to the auditors of the several counties, for printing upon the ballots at the ensuing primary election, the name of George F. McAulay as a candidate for nomination to the office of judge of the supreme court, in position No. 3.

The conceded facts, as they appear in the relator's petition and in the answer of respondents Reeves and McAulay, are:

The respondent McAulay is a senator of the state of Washington, serving a four-year term commencing in January, 1937, and terminating in January, 1941. He has never held a judicial office in the state. He has duly filed with the secretary of state his declaration of candidacy for the office of judge of the supreme court, in position No. 3. The primary election will be held September 13, 1938, and the secretary of state is required by law (Laws of 1935, chapter 26, p. 60, § 1), Rem. Rev. Stat. (Sup.), § 5185 [P.C. § 2230], to transmit to each county auditor of the state, at least twenty days before the date of the primary, a certified list containing the names of all persons to be voted for at the primary as they appear by the nomination papers filed in her office.

The 1937 legislature, of which respondent McAulay was a member, enacted a law, chapter 229, p. 1172, Rem. Rev. Stat. (Sup.), § 11054-1 [P.C. § 4418-201] et seq., entitled:

"AN ACT providing for the retirement of judges of the supreme and superior courts; fixing the amount of their retirement pay; providing funds therefor; and making an appropriation."

Section 1 of the act, p. 1172, Rem. Rev. Stat. (Sup.), § 11054-1 [P.C. § 4418-201], provides, among other things, that judges of the supreme and superior courts who have served as judge of either or both of such courts eighteen years in the aggregate, or who, having served ten years in the aggregate, shall have attained the age of seventy years, may retire on half pay. Section 2 of the act, p. 1173, Rem. Rev. Stat. (Sup.), § 11054-2 [P.C. § 4418-202], provides for retirement on half pay of judges who shall, after a service of ten years in the aggregate, become incapacitated.

The act provides that 2 1/2 per cent of the monthly salary of each judge shall be deducted and placed in a retirement fund created by the act. The state is to contribute to the fund an amount equal to the accruals from salary deductions, and the act carried an appropriation of ten thousand dollars for that purpose for the ensuing biennium.

It is the relator's contention that the emoluments of the office of judge were increased by chapter 229, thereby disqualifying the respondent McAulay, under § 13 of Art. 2 of the state constitution, from holding the office during the senatorial term to which he was elected. The cited section of the constitution provides:

"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."

[1] That the relator, as a citizen and taxpayer, may maintain this action, is sustained by our decisions in State exrel. Reynolds v. Howell, 70 Wash. 467, 126 P. 954, 41 L.R.A. (N.S.) 1119; and State ex rel. Chandler v. Howell, 104 Wash. 99,175 P. 569.

[2] In view of the emergent nature of the controversy and the necessity for an early decision, we shall confine our discussion within the narrow limits fixed by the facts in the immediate controversy. Whether the retirement provision is to be classified as a pension, as adjusted or deferred compensation, or as a type of insurance, we do not feel called upon to discuss or decide at this time. Our inquiry will be limited to the question whether there is any increase in the emoluments of the office effective during the six-year term for which the respondent McAulay has filed his declaration.

The word "emolument" is defined in Webster's dictionary as "profit from office, employment, or labor; compensation; fees or salary." This definition is substantially the same as that found in the decisions of the courts. That the word was employed in the constitution in its ordinary sense, as implying actual pecuniary gain, rather than some imponderable and contingent benefit, can hardly be questioned.

From our summary of the pertinent provisions of the act, it is manifest that it is made a prerequisite to the receipt of any retirement allowance that a judge must have had, in the aggregate, a minimum service of ten years. To attain the minimum service entitling him to retirement, it would be necessary for respondent McAulay to be elected to a second term. Assuming he were elected for the six-year term for which he has filed, he would, unless re-elected, retire from office with no benefit, direct or contingent, but at a loss of $1,050, representing the contribution from his salary required to be made to the retirement fund. Of course, he would have to his credit six years of the minimum service required for participation in the benefits of the act, but to attain this goal, he would have to pass successfully the hurdle of a second election; during his first term he would have nothing more substantial than the hope of gaining a goal, the monetary value of which no actuary could evaluate.

It is true that a degree of uncertainty exists after the attainment of ten years' service. A judge, with ten years or more of service to his credit, but in good health and under seventy years of age, might be defeated for re-election, and thereby be deprived of any benefit under the act. But there is, at least, always, after ten years' service, the possibility of retirement in case of incapacity of an incumbent by reason of ill health.

The relator says in his brief:

"We believe that by passing chapter 229 of the session laws of 1937 the legislature made the office of justice of the supreme court more desirable. The fact that it becomes more desirable tends to induce an improper bias in the mind of a legislator who might subsequently aspire to election to that office. We believe, therefore, that the benefits to the office of justice of the supreme court derived from the Retirement Act fall within the ban of increased emoluments forbidden by the constitution."

Many things might be done by a legislature tending to render the office of judge more desirable which could not be classified as emoluments within the inhibitions of the constitution. For instance, liberal appropriations for clerical service, library, and other facilities, and the addition of more members, if a court were undermanned for the volume of its work, would make the office more desirable. While the provision for retirement makes the office more attractive, the fact remains that no emolument, within the meaning of § 13, Art. 2, supra, could attach during respondent McAulay's first six-year term.

We are satisfied that the constitutional provision invoked by the relator is not a bar to the eligibility of respondent McAulay. The writ is denied.

STEINERT, C.J., HOLCOMB, BEALS, ROBINSON, and SIMPSON, JJ., concur.