Untitled Texas Attorney General Opinion ( 1965 )

.
Hon. Ben Ramsey, Chairman Opinion No. C- 527
Railroad Commission of Texas
Tribune Bulldlng Re: Reconsideration of Attorney
Austin, Texas General's Opinion WW-201,
relating to the question of
whether a Railroad Commls-
slon employee may also serve
as a joint board member for
the State of Texas under
appointment by the Inter-
Dear Mr. Ramsey: state Commerce Commission.
you have requested a reconsideration of Attorney General's
Opinion WW-201 (1957) which held:
"A substitute member of a.joint board
appointed.by the Interstate Commerce.Com-
;lsSsE under the provisions of Title 49,
Section 395 (Interstate Commerce
Ait: ia?% II) hol.dsan offlce.of honor and
trust under the .Unlted.States Government
and while serving as a member of a joint
board he cannot receive any salary or
compensation for his services as an examiner
for the Railroad Commission of Texas under
the provisions of Article XVI, Section 33
of the Constitution of Texas. The office
of a joint board member and the position of
an employee of the Railroad Commission of
Texas are 'not incompatible."
An analysis of the provisions of Section 33 of Article
XVI of the Constitution of Texas, the cases construing Sections
12, 33 and.40 of Article XVI of the Constitution of Texas, and
opinions of this Office on the subject of dual offlceholding
in Texas leads to the conclusion that Attorney General's Opinion
W-201 should be overruled for the reasons hereinafter discussed.
The proper characterization of the service performed by a
joint board member is that of research,.advlce, and recommen-
dation for orders to be officially promulgated and enforced by
the Interstate Commerce Commission. The decision making and
-2482-
. .
Hon. Den Ramsey, Page 2 Opinion No. C-527
enforcement of orders Is the exercise of federal sovereign
powers by the Commission. 49 U.S.C.A., Ch. 8, Sects. 303,
305. Although the duties of hearing evidence and making
recommendations from findings may be likened to that of an
officer of the court, such as a Master in Chancery, It is held
that such officers of a court are.not deemed to be holding an
office or analogous position under the United States In the
sense of dual office*holding. See Benjamin Watkins Leigh's
Case, 15 Va. National Sav. Bank of D.of C. v. Ward,
100 U.S. 195 Kimberly v. Arms, 9 S. Ct. 355, 359,
129 U.S. 512
It thus appears that the joint board member for the State
of Texas has not been delegated any federal sovereign powers
to exercise, 'his duties are sporadic, and he receives no salary
or compensation for such service. His service may not be
characterized as rising to the dignity of an office or position
of honor or trust under the United States. Although his service
might be said to be anaddltlonal duty Imposed upon hlm as an
employee of the Railroad Commission, he Is nevertheless not
serving in such capacity as an office or position of honor or
trust under the State of Texas.
The key to any decision to the question propounded lies
In the construction of the Intent or meaning of the words
"Office of profit or trust, under the United States,:'as used
In the Texas Constitution In Sec. 12 of Art. 16, or "Civil
Office of emolument," as used in Sec.,43 of Art. 16, or "office
or position of honor, trust or profit under . . . the United
States," as used In Art. 16, Section 33. 1t.l.sevldent that
the real intent of these sections of the Constitution was to
trohlblt $a1 office holding:,whether the public "office" or
position be one of "profit or "emolument' or merely one of
%rustw or Ithonor." These .were additional strictures Inserted
therein for implementing the l%ndamental rule of law in this
country forbidding one person from holding at one time two
public offices or positions, the duties of which were
Incompatible or against public policy and which Is applicable
whether or not named in the excentlons in the Constitution.
Biencourt v. Parker, 27 Tex. 558; State v. Brlnkerhoff, 66 Tex.
45; Thomas v. Abernathy County Line Independent School Dlst.,
290 S.W. 152; Prultt'v. Glen Rose Indevendent School Dlst.,
84 S.W.2d 1004; Knuckles v. Board of Education of Dell County
(KY.), 114~S.W.2d.511, ,514; 22 R.C.L. 414, spar. 56; Atty.Gen.
Opinions Nos. v-63; 0-5145;.0-4957.
-2483-
Hon. Ben Ramsey, Page 3 OplnlotiNo. C-527
Section 33 of Article 16 of the Texas Constitution provides,
"The Accounting Offloers of this State
shall neither draw nor pay a warrant
upon the Treasury In favor of any
person, for salary or compensation
as agent, officer, or appointee, who
holds at the same time any other office
or position of honor;trust or profit,
under this State or the United States,
except as prescribed In this
Constitution. '. . .n (emphasis added)
This Section was not Included In the Constitution of 1876
a.sa'safeguard against a recurrence of the evils and abuses of
the "carpetbag" era, since It made Its first appearance In the
Constitution of 1869, a constitution drafted by Reconstruction
Republicans, and Its policy reasons are at best conjectural.
See Vol. 43, Tex.Law Review, p. 951; Tex.Const. .Art.XII, Sec.
42 (1869).
The only~pollcy basis for the section has been stated to
be that of Insuring fill value for state services rendered in
the payment of salary or compensation out of state monies.
Thus the safeguard was aimed at preventing a person from holding
at the same time two state offices or positions, or a state and
federal office or position, the effect of whlch.would cause
that person to divide his time and fidelity, to'the detriment. .
of hle state servlce.~ See Attorney General Opinion No. o-2637
(193); Vol. 43, Texas Law Review, p. 952.
In construing the meaning df the Constitutions and statutes,
a court will never adopt a construction that will make them
absurd or ridiculous or one that ~111 lead to absurd conclusions
or consequences If the language of the enactment Is susceptible
of any other meaning. 53 Tex.Jur.2d 241, 243, Sec. 165, Statutes.
Furthermore, wherever possible, that construction shall Abe
adopted which shall promote the public Interest in accord with
sound economic or governmental policy. State v. UeGress, 72
Tex. 242, 11 S.W. 1029 (1888).
In view of the urgent policy arguments against a too narrow
and restrictive consttictlon of Section 33, as set out in Vol.
431 Texas Law Review, pages 952-955,~it seems clear that a
liberal rather than a technical, narrow construction should'be
indulged so as to permit St&e employees to render valuable and
beneflclent service through intergovernmental,cooperation on
-2484-
Hon. Ben Ramsey, Page 4 Opinion No. C- 527
advisory or study committees. This 1s in the best interest
of state government, and It would be unreasonable to Impute a
meaning to the Constitution which would lead to the opposite
conclusion. In other words, a strict construction should be
given to the words "office or position of honor or trust" so.
as not to hold anything to be within the prohibition unless
clearly exvressed and named and not to exnand It bv lmolIcatlon
or constru&.lon. Commonwealth, ex rel B&he v. B&s,'17
Sergeant & Rowles Rep: 219 (1828).
Generally, in arriving at the meaning of the Constitution,
we find it should not be given a "narrow or technical construe-.
tlon" but It Is to be given a "liberal meaning in order to
effectuate the purpose of the provision of which it Is a part?'
and "words will be considered to have been used In their natural
sense and ordinary signification, unless the context Indicates
the contrary." 12 Tex.Jur.2d 362-363, Sec. 14; p. 364, Sec. 16,
Constitutional Law, and cases there cited. Furthermore, it is
to be construed to meet changed conditions as they arise. m
v. Schneider, 110 Tex. 369, 221 S.W. ,880 (1923).
The words In the phrase "Office or position of honor,
trust, or~proflt under the.United States," are each words having
a meaning ascertainable by reference to the other words with
whi&h they are associated under the maxim, noscltur a soclis.
53 Tex.Jur.2d 221, Sec. 154, Statutes.
Since the appointment to the Joint Board Is without compen-
satIon,-It is unnecessary to discuss whether It Is en office
or position of "profit" or "emolument" under the United States.
In this connection, the payment of "expenses" is to be dls-
tlngulshed from "compensation." "Compensation" Is synonymous
with salary, pay, or emolument and 1s Intended to convey the
Idea of reward or compensation for official services; It does
not convey the idea of re-payment of out-of-pocket expenditures
or exoenses. such as travelinn and.subsistence while awav from
home &d in-performance of duly, which may be,allowed by law.
Terre11 v. King?.118 Tex. 237, 241, 14 S.W.2d 786, 791 (1929),
State v.. Aronson~,314 P.2d 849, 853 (Sup.Ct., Montana 1957),
and many cases there cited.
The questlon~Is thus narrowed to a determination whether
-it would be such an ofSlce .or position of honor or trust within
the,constltutlonal meaning. Even though.the.committee be
created by Congress and be subject to some quasi-gov.ernmental
supervision, through audit and by report to Congress, this
would not constitute a member thereof, with principal duties of
recommendation, research, study, and advice, the holder of an
-2485-
Hon. Ben Ramsey, Page 5 Opinion No. C- 527
office or position of honor and trust under the United States
withinthe purview of the meaning of such terms. as used in the
above provisions of the Constitution.
Thus, unless It Is an office or position of honor or trust
under the United States within the sense intended or meant by
the Constitution, a state employee may serve In such a capacity
and still draw his salary from the Comptroller.
The words "office or position of honor or trust" as used.
in Section 33 of the Constitution should be held to have been
used analogously, and as having the same characteristics and
general though not Identical meaning, when given a practical,
natural. ordinary, and reasonable construction. Webster's
Third New International Dictionary, p. 1769; Black's Law
m0ti0w, 4th Rd., p. 1234, 33 Words & Phrases, p. 53,
"Position;" and cases there annotated. The authorities hold
that .a "position" is analogous to an "office" in that the duties
that pertain to It are permanent and certain. The same
essentials, attributes, and characteristics are present ~lnsofar
as the duties are governmental. Frazier v. Elmore, -180 Tenn.
232, 173 S.W.2d 563, 565; Fredericks v. Board of Health of Town.
of West Roboken, 82 ~.528, 529, 82 N.J.L. 200; Rlsley'v. Board
of Civil Service Comr's. of City of Los Angeles, 140 P.2d 167,
169, 6CCal.App.2d 32; Murphy v. Board of Chosen Freeholders of
Bergen County, Sup., 163 A. 555, 556, 110 N.J.L. 9.
An "office" means "place'!or "position" and they.are deemed
atklogous and ltiterch eable as understood In law. 29 words 6c
Phrases, p. 270, unde?Cffice -- Place or position;" and 1965
Pocket Part pp. 97-98 and cases there annotated.
As stated in 22 R.C.L. 383, Sec. 16, Public Officers,
"Constitutions and la.ws.sometlmes
contain provisions applying to offices of
trust or honor and offices or'places of
trust or profit. The line between
'offices' and 'places of trust or profit'
within the meaning of such provisions
has not been clearly marked, and they~may
be considered as approaching each other
so closely that they are In all essential
features identical. A place of trust or
profit is not, however, Identical with an
office, yet it occupies the same general
level in dignity and importance. . . ..'
-2486-
Hon. Ben Hamsey, Page 6 Opinion No. C-527
We'have, therefore, heretofore correctly held on this .
subject In Opinion No. O-5341, dated July 19, 1943, that there
Is no material legal distinction in meaning as to essential
characteristics between the term "office and pos:tion of honor
or trust" and that as used In our Constitution, 'office under
the United States' means that the holder thereof must exercise
some governmental function, or be the depository of some
sovereignty of the United States (Federal Government) before It
rises to the dignity of an 'office' under the United States.
There must be delegated to the person holding such 'office'
some of the sovereign functions of the United States Government.
There are several persuasive, though not conclusive,
characteristics of what constltutes*a public office; or to
express it in another way, what constitutes holding an 'office
under the United States.' We mention a few: Tenure and
duration, oath of office, official bond, etc. But one indls-
pensable characteristic, as the cases hereafter noted affirm,
is that the duties performed shall Involve the exercise of
sovereign power, whether great or-small. Our own SuptiemeCourt,
in a,comparatlvely early case, Kimbrough v. Barnett, 93 Texas
301, 55 S.W. 120, quoted with approval Mechem on Public Officers
as follows:
"@A public office Is the right, authority,
and duty created and conferred by law, by
which, for a given period, either fixed
by.law or enduring at the pleasure of the
creating power, an.lndlvidual 'is Invested
with some portion of the sovereign functions
of the government, to be exercised by him
for the benefit of the~publ1c.l"
In the above Opinion No. O-5341, and from the authorities
we found that "office" had a definite legal meaning In the sensi
employed in the Constitution:
.'('Theterm "office" Implies a delegation of
a portion of the sovereign power to, and
possession of, lt.by the person filling the
office; a public office being an agency for
the state, and the person whose duty It is
to perform the agency being a public officer.
The term embraces the idea of tenure, duration,
.emolument and duties, and has respect to a
permanent public trust to be exercised in
behalf of government, and not to a merely
transient, occasional or incidental employment.
A person In the.service of the government who
derives his position from a duly and legally
authorized election or appointment, whose
-2487-
Hon. Ben RamseY, Page 7 0pir;i.m No. C-527
duties are continuous in their nature
and defined by rules prescribed by govern-
ment, and not by contract, consisting of
the exercise of important public powers,
trusts, or duties, ag a part of the
regular administration of government, the
place and the duties remaining, though the
incumbent dies or is changed, every office
in the constitutional meaning of the term
implying an authority to‘exercise some
portion of the sovereign power, either in
making, executing or administering the
laws. Mechem on Public Officers, 0 l-9.'"
The recent case of Willis v. Potts (19641, 377 S.W.2d 622,
by the Supreme Court of Texas, construing Art. 3, Sec. 19, and
Art. 11, Sec. 5 of the Constitution, held that a City Council-
man of the City of Ft. Worth held an "office under the State."
Utilizing the reasoning of the earlier declslons, the Court's
decision is in harmony with our Opinion and not in conflict with
it or the distinctionsought to be made.
Those authorities so construing the meaning of ?office" or
"position" as comprehending continuous performance of defined
permanent publicduties, compensation, tenure, exercise of
sovereignty, and other essential requisites are in accord and
are thoroughly discussed and briefed in our Opinion O-5341.
See Witkowski-v. Rurke, 65 A.2d 781; Sowers v; Wells, 150 Nan.
630, 95 P.2d 281,.Abbott v. McNutt, 218 Cal. 225, 22 P.2d
510, 89 A.L.R. 1109; Howard v. Saylor, 305 Ky. 504, 204'S.W.2d
815; United States v. David Mouat, 124 U.S. 303, 307, 81 L. Ed.
463; People ex rel Attorney Qeneral v. Leonard, 14 P. 853; In
Re Doe's Estate. In Re. Wheeler. Mallory, as Public Adm'rTv.
Wheeler, 138 N.W. $97; Patten v. Miller, 8 S.E.2d 757, wherein
the Supreme Court of Georgia approved of a state employee
(member of the Highway Do&d) holding at the same time.a
position as a member of the Advisory Commlttee.of the Atlanta
Agency of the Reconstruction Finance Corporation, the'Court
holding that his office "is not an office of profit or trust
under the Government of,the United States"; Hartigon v. Board
of Regents of West Virginia University 38 S.E. 698; Hirsch-
feld Commonwealth ex rely Attorney GeneGal, 76 S.W.2d am(I(y.1;
State ex rel v. Hawkins, 257 P. 411, 53 A.L.R. 583; and
Kingston Assoclates'v. La Guardia, 281 N.Y. Supp. 390, wherein
it was held that members of the Advisory Committee .on Allot-
ments, created by the President of the U. S., were not holding
an "office of honor, trust, or emolument under the government
of the United States.:' The Court said:
-2488-
Hon. Ban Ramsey, Page 8 Opinion No. C- 527
"'Clearly, the members of the Advisory
Committee on Allotments possess none of
the powers of the sovereign. They
perform no Independent governmental
function. Such function In general is
either legislative, judicial, or executive.
It is too plain to require discussion
that the Advisory Committee exercises no
legislative or judicial prerogatives. It
appears to be fairly evident that It llke-
wise possesses no powers of the executive
. . . . The committee.thuslacks the most
Important characteristic or attribute
associated with the idea of public office,
,namely, the right to exercise some part
of the power of the sovereign."'
Opinion o-5341, of July 19, l943, that a District Attorney
could receive his salary and also serve as Chairman of the Local
Chapter of The American National Red Cross, a Corporation
chartered by Congress, because the latter was not an office or
position under the United States, Is consistent widthour earlier
Cplnlon No. O-5314, of July 2, 1943, holding that a state or
county official could not be excluded from drawing his salary
while serving as a member of an advisory board for registrants,
the latter not being a position of honor, trust or'profit under
this State or the United States within the contemplation of our
Texas Constitution.
-Our still earlier Opinion No. 0-4458, of.April 8, 1942,
holding that a s,tateemployee could serve without loss of salaT:
as a member of a County Tire Rationing Board for the same legal
reasons is likewise consistent with the above Opinions.
Charearlier and thoroughly considered Opinion No. O-4313,
of Jan. 24, 1942, written by Zollie C. Steakley, now a member
of the Texas Supreme Court,-%s likewise consistent with the
above opinions In holdi that a state employee (member of
State Board of Education
7 could,still draw his salary and serve
on an Allen Enemy Hearing Board, created by the federal govern-
ment through the U. S. Attorney General, paying only nominal
compensation but requiring the member to -take an oath. The
Board appointment was temporary, for an lndefinite,term, with
only occasional meetings Andy sporadic activities. .It was
merely a fact finding and advisory administrative instrumen-
tality, which could neither make nor enforce decisions.. We
expressly held that membership upon such a Board, which would
-2489-
Hon. Ben Ramsey, Page 9 Opinion No. C~-527
be presumably identical to a National Study Committee, dld
not constitute the holding or exercising of an office of
trust, honor, or profit under the United States. We there
held that "It does not constitute a 'position' as that term
was intended by the Framers of the Constitution."
The precise question has still never been determlned,by
a Texas court but other $urlsdlct,ionsare in general accord
with our
'- cited holdings.
_( .
In McIntosh v. Hutchinson, 59 P.2d 1117, the Supreme Court
of .Washlngtonheld th t a State Senator could still draw his
salary and serve as aa"Distrlct Supervisor" of the Federal
Works Progress Administration, which was not deemed to be the
acceptance of a "civil office," cltlng Barney v. Hawkins, 79
Mont. 506, 257 P. 411, 53 A.L.R. 583, as to the meaning of
the term "office," to-wit:
"After an exhaustive examination of the
authorities, we hold that five elements
are Indispensable In any position of
public employment, In order to make'lt a
public ~offlce of a civil nature: (1) It
must be created by the Constitution or
by the Legislature or created by a
municipality or other body thro h authority
conferred by the Legislature; (27 It must
possess a delegation of a portlon of the
sovereign power of government, to be
exercised for the benefit of the public;
(3) the powers conferred, and the duties
to be discharged, must be defined, directly
or lmplledly, by the le lslature or through
legislative authority; ? 4) the duties must
be performed Independently and without
control of a superior power, other than the
law, unless they be those of an Inferior
or subordinate office, created or authorized
by the Legislature, and by It placed.under
the.general control of a superior officer or
body; (5),It must have some permanency and
contlnulty, and not be only temporary or
occasional. In addition, In this state an
officer must take and file an official oath,
hold a commission or other written authority,
and give an official bond, if the latter be
required by proper authority."
-2490-
.
Hon. Een Ramsey, Fage 10 Opinion No. C- 527
The Court concluded that the Senator was not appointed
to an office since "the great weight qf authority well supports
the necessity of meeting all of the conditions laid down by the
Montana Court and . . . it Is notmade to appear that these
conditions? or any of them, have been here met . . .'I.
In accord and Involving similar questions and constitutiona
prohibitions are , 172 A. 415 (Del.); Cut-tin
v. State, 214 P. , 156 p.216
m State v. OY v. Board of
g;er;lsors, 114 P.2d 569, citing Carpenter v. Sheppard, 135
13, 145 S.W.2d'562, fbr'the necessity of taking a liberal
view toward the encouragement of such enactments that their
protective purposes "may be fulfilled without undue Imposition
of constitutional limitations or hlderance through narrow
judicial construction."
In Parker v. Riley, 113 P.2d 873, 875. 876,.18 Cal.2d 83,
114 A.L.R. 1405, the California Supreme Court upheld a statute
pFovldlng for ihe creation of the ballfornla Coimisslon on
Interstate Cooperation and prqvidlng for members of the legis-
lature to serve thereon. Although the Constitution expressly
prohibited the members from accepting "any office, trust, or
employment under this state,' the Court held that the
constitutional meaning of "office" or "trust" was not.applicable
thereto as follows:
"'It may be note,d,however, that the
positions created by the statute where
attacked.lack certain elements usually
associated with an "offlce!'.or"trust .
Thus, It Is generally said that an office
or trust requires the vesting in an
Individual of a portion of the sovereign
powers of the state. (Citation of
authorities) The positions here created
do not.measure up to so high a standard.
They Involve merely the Interchange of
Information, the assembling of data, and
the formulation of proposal tom.
be placed
before the Legislature. Such tasks do
not require the exercise of;a tart of the
.soverelgn power of the state.'
The Riley case doctrine was recently recognized and re-
affirmed by the Supreme Court of California In State v. Aron-
son, 314 P.2d 849, 856-857 (1957). In accord, see also
Gillespie v. Barrett, 15 N.E.2d 513 (Ill.); Johnson v. Cham-
bers, 98 S.E. 263 (Ga.); and Readinp;.v.Maxwell, 52 P.2d 1155
-2491-
.
Hon. Ben Ramsey, Page 11 opi,nlOn NO. c- 527
(Arlz.), for the proposition that certain essential elements
are required to constitute an "office" or "position" as used
In such constitutional sense and the meaning of these terms
as so used do not preclude the acceptance of such duties and
service involving honor and trust and from which any citizen
could not escape without evading his civic or patriotic duty
to aid his government or country in times of temporary
emergencies.
The term "office or position of honor or trust" therefore
necessarily implies, among other elements, compensation,
stability, duration, permanency, continuity, taklng,oath and
giving bond, and the making and administering of governmental
declslonslndependentlyand without control of a superior power,
etc. The substantial absence of these essentials appertaining
to membership on the Joint Board frees a state employee from
the constitutional Inhibition to such service while continuing
to draw his state salary. We do not believe that the
constitutional framers in 1869 Intended by their use of the
words being construed to prohibit state officers and employees
from rendering free beneficial service,to the public on such
advisory boards In furtherance of their state duty and in the
interest and betterment of their federal government and its
administration.
If there are other Attorney General's Oplnions'which
necessarily conflict with this Opinion In Its result.and hold-
ing, they are overruled.' However, all of the Attorney General
Gplnlons appear to have tnvolved different facts or ClrCuSk
stances, such as the holding of two public "offices" or
"positions" of honor, trust, or profit, two offices deemed
incompatible at common law. They are thus distinguishable.
For example, in Opinion No.~O-1898, of February 19, 1943,
It was held that a State Health Officer or employee could not
accept a commission from the Secretary of Agriculture under
Sec. 702(a) of the Federal Food, Drug and Cosmetic Act and
thereby became an officer authorized to conduct examinations
and Investigations ln.administerlng the act. Such would be a
position of honor or trust under the United States within the
constitutional meaning of the~terms, ~though,no-compensation
was payable therefor. Likewise, in Opinion No. 0-58, of
February 14, 1939, we held that the position of ~"Speclal Agent"
of the Bureau of Census was one of honor, trust, or profit
under the United States, prohibiting the State Registrar from
.acceptingsame and drawing his state salary. Also, In Opinion
NOS. O-5232 and o-5107, we held on the 'samegrounds that the
President of the College of Mines and Metallurgy as well as
a District Judge could not accept the position of Public Panel
-2492-
Hon. Zen Ramsey, Page 12 Opinion No. C- 527
Member of.the Eighth Regional War Labor Board, which apparently.
required the making and carrying out of governmental decisions
and exercise of sovereignty, as distinguished from mere
investigative and advisory functions.
we held ln Opinion o-2226, May 23, 1940, that a member of
the County Board of School !Prusteescould not also serve as a
member of the local community committee of the Agricultural
Adjustment Admlnlstrat'lon,created by Congress, and by which.
the committeemen were elected by majority Vote of the producers-
in the county to serve a definite term and/or until their
successor was elected, and were pald at a Certain Per diem fork
each day served. Here, they apparently made decisions and
admlnlstered the program, and we pointed out that whlf;ethe
taking of an oath was not an "Indispensable criterloff to
constitute the appointment, an "office" or "position under
the case holding of Commissioners Court of Limestone County v.
Garrett (Com.App.), 236,S.W. 970, 972, nevertheless. the
committeeman "meets the prescribed essentials as an 'Officer'
and holds an 'office' within the ContemPlation of our
constl.tutlonallnhibltlons." Thus this opinion does not
sonfllct with the other Attorney General Opinions cited above
hut I::In harmony with them and clearly dlstingu~shable.
!b. Y-7*, dated December 16, 1948; ur:tten
air *JFIn:5r,
by cJ