Untitled Texas Attorney General Opinion ( 1942 )

OFFICE OF THE ATTORNEY GENERAL 6F TEXAS
r of the State
lcm may imrve aa
lien Rmmy Bear-
the deeorlbed
Permit us to quote y
e legal opinion i this depa
"one of the melabe*
on the Alie t anembers of
such boards are not ret-
qaircd to gi
ended by the Department
have independentpovere.
'to the Attorney oeixmal.
.deolalonIn the matter,
therm hearing board*, In other vorda,
ly advisory capacity.
am advise whether la your opinion
for a member OS the State Board of
sanm tlms to uerve as a member of an
arlng Board under Seation 12 of Article
16 of the Constitutionof this state. Your early ad-
vice will be deeply apprealated."
State Board of Education, Page 2
Cur investigationdiscloses the SollovIng additional
fasts regarding the orlgln, status and eharactrr of an Allen
meary Bearing Board.
Pursuant to Section 21 of Title 50 of the United States
&&~"&~PZ+6sldent of the United St&t&e by proclamationcharged
ths/Wited States Attorney General vlth the duty of executing all
r&ilatlons contained in tha proclamtatlon cono~rnlngalien enemies
v~th%n continentalUnited 8tates.sad it8 possessions. In the
sxscution'6fhis responslbllit$in this regard, ths Attorney Gen-
&al has set up in,eaoh judicial district a,hearlng board for
alien enemy cases. Them, is no express conbtltutlonal'orstat-
utory provision for ths board. Its purpose aP4~tictlon Is to
hear and make recomnendat~onsto the Attorney QeZieral with respect
to the dlspoaltlon of the -aagesof alien enemies brought before
Written reports and reuo+wnd4tlons are made to the Attorney
&&al by the board. Firraldeatilenlneachcasels made by the
AttOrD3y General and this deaiaiom 18 enforoed by the United
StatesAttorney. The board is smely~a fact f3.zuUng6ad advisory
sdministratlvelnstmnwntality; It Mither makes,nor enforces
dsolslons.
The oath of office taken by members upon the Board 1s
prsaoribedand required by the Attorney General. The appointment
lstempo~rysadnotforanytlme certain. Itlnheres in, end
sxlsts only because of, the war emergency. The board meets only
oucaslonallyand its activities are spopadie.
Ton ask vhether a swsber of the State Board of Educatlo~
may ssrve as a member OS this board in view of the prohibition
containedin Section 12 of Article 16 of the Constitutionof Texas.
Section 12 reads as follows:
'Ho member of congress, nor person holding or
exercisingany office of &wilt or trust, under the
United States, or either of them, or under any
foreign paver, shall be eligible as a meinberof the
Legislature,or hold or exercise any office of profit
or trust under this State."
It la clear that a member of the State Board of Bduca-
tion holds and exercises SD.offiae of profit or trust under the
State of Texas.
Stste BOati Of ~UCation, Page 3
We must determine If membership upon sa Allen Enemy
gssring Bosrd constitutesthe holding or ese~alrlug of an office
of prqflt or trust under the United States. We have concluded
that ~$tdoes not.
Tils preolse question has never been before the courts
of T0iaB. Our conu~uslonfinds substsntlslsupport, hovever, In
other jurisdictions.
.The case of lo~toskvs. wltohinson, 59 P, (26) 1117,
by the Supreme Court of Weshbgtoa, presented the question of
ðer the aeceptsnoeby a State Sanstor of an appointmentas
District Supervisor of the Federal York8 ProgressAdninistrstlon
iacated his office. The constltutlonslprovision iavolved read
as follovs:
"And if any person after his election as 8 mm-
ber of the Legislature shell be eluoted to Cox&gress
or be appointed to any other offlae, civil or mlll-
tary, under ths Government of the Uuited States, or
any other power,,hissmxptsnee thereof shell v8cstb
his seat. l * +
The appointment of the Senator in question uas msde by
the State Director of ths Works Progress A&slnlstmatlon,the State
Director aatlag under the suthorlty of the Federsl mergemy Re-
lief ApproprlstlonAat oi 1935, -15U.S.C.A., par. 728 note. The
Pedersl lsglslstlonunder vhich the Dlreotor sated in m&k* the
appointmentcreatqd no district or dlvlslonal office for the ad-
mlnlatrstlonof the V. P. A. The dlvlslon of the state into
districtswas s mere Mttcr of convenienceand, as said by the
court, *not required Q1rmsde msndatory by the lsv."
The close parallel to the mstter before us is obvious.
In reaching Its decislcm that the Senstor was not appointed to.
8 civil office under the Oovemment of the U&It& St.&es snd that
his acceptsme of eatployment under the If.P. A. wsa not the ac-
oeptsnoeof a civil orrice, the court ulted the case of Bsrney vs.
Bsvkins, 79 Mont. 506, 257 P. 411, 53 A.L.R. 583, and that aourt*s
Malysla of the authoritiesupon the Question of vhst eonstltates
U office. 8s follows:
Swt,e Board of Eduaation, Page 4
"After an exhmkstlve eaMnetlon of the author-
ltiea, we hold thst five elapenta OH indispensable
In any position of.publlc eqlmnt,:'b order to
mske it a public offlee of a civll~nStucbt (1) It
must be created by the Constl~tlun OY?by the Legisls-
ture or crested by a ~lclpsllty or other body through
authority conforrti&.by.ths Leglslatureq (2) it stunt
possess a,dele$*tl~.of a portion of the sovereignpov6r
of governrpeqt,.,ki
b6 exercised for the benefit of the
publlCj (3) the povem~:coaferred,Uad the duties to be
discharged,wst be defined, dlreatly or implledly,by
ths legislatureor througk,leglalative*uthor%ty; (4)
the duties must.be performed Independentlyend vlthout
control of 8 superlar power, other than the lav, unless
they be those of sn lnferlop or subordlaat~ offlee,
crested or suthorisedby the Leglsl&ure, and by It
plsaed under'the general oontrol of a superior offlter
or bodyj (5) it must have some penBaaeaay @ad ilontlaulty,
and not be only temporary or oaoasloaal. Ia ddition,
in this state an officer must tske and file an offlolal
o&h, hold a eomslsslon or other writtea authwlty, utd
give sn offlol8l bomd, If the latter be required by
proper authority.'
Employing the wruhanlsl.of this snalysis in its applies-
tlon to the appointuent of a Dlstriat Supervisor of the Paleral
Works PzvogressAdminlstrstlon,the Sup= Court of Usshlngton
declared,flrst, that no office of dlstrlct.supsrrisorfor the ad-
mlaistratlonof the W. P. A. had ever been areated snd the super-
visor ves\no more than 8a enployee under the state Director:
second, ?$ere was no delegetlon of sm p&t of the sovereign
power of gorermsent to the District Znpervlsor; third, no pwers
Were coaferredand aoae could be defined; fourth, the Dlatrlot
Supervisorhad no duties to persons independentlyend vii&out the
control of his superior;and fifth, there van nothing to lndlcste
~pemmaeaeyor continuity of theappolntaentlnquestlon.
The Usshlagton Supreme Court concluded thst it van bound
to hold thst the Senator was not appoInted to 80 office because
*the great velght of authority veil supports the necessity of meet-
lng all of the conditions laid dovn by ths ltontsnaCourt and l l *
it is not made to appear that these condltlons,or any of them,
hsvebeenhereaet.***"
St&e Bemd of Zduakion, Pacle5
Of like hold- srs the eases of Blggs vs. corley, 172
Atl. 415 (I)el.)lCut-tin vs. State, 214 P. 1030 (Cal.) snd mir
vs. Elliott, 15.6P. 216 (~010.).
Similar constitutions1prohibitionsvere involved in
State vs. Joseph, 78 So. 663, by the Supreme Court of ~ouislsna.
m this case the Clerk of %ourt and Xx officio Jury Commlsaioner
h& been appotited a member of the 'local board" westted by the
sat of Congress of Msy 18, 1917, the seLe.ettlve urviee lav of
that war. spooking of Article 164 of the ~siaaa constitution,
&MI contained a prohlbltlon slmS.larto thst under reviev of
the Texas Constitution,the court declared:
"In the instent cebseIt ma7 vell be oonuelved
thet artlele 164 of our Constitutionvam not irslbd
with referenae to the existence of 8 state of mkr,
whop It vould betoms necessary for the federal govem-
ISoPt,ill the t3UrOisS Of the POVOr iWXlftST6d aad Of
the obllgatlon Imposed upon it by the constitutionor '.
t.?leullltedstates, for thepreservetlonofours~tem
or government and the protection Of hmssnlty, to rva¶.l
itself of 8l.lthe resources at its ~cssmand, and an
exoeptlonmust be read into that srtlole and into every
artidLe of everystate Uemstltutlonvhlch may be can-
stmod as~obatRtctS.ng the ()t4rc4lse
of that power and
the discharge of thst obllgrtlon, for the Constitution
of theunited states is the paramom3tlawof the lam&
zr :I&? upon the congress the polfer'to provide
o3msoadafensei' to ~doclarsvar;' to 'wise
and,supportarmlesx ,'toprovide for oslling fonth the
sillltlato execute the 18~s of the IJnion``*to provide
for orgsxilzlng, ambg, and dl801p1lnln.g the mllltla
and for goveming such part of them as may be emplopd
in the service of the United States;' and 'to make sll
.%~a vhloh shall be necessary and proper for oaarging
into exeetltlonthe foregoingpavers.' Canat. 8.9. AFk.
1, I 8. And, In the exerelse 0S thepowers so40nTeAedr
the Cortgresshas enacted the statute k~%ovnas the
*Selectlve``:Semloe L8v9' oblch provides for the aonsurlp-
tlon of c&tens of the country for military service Pt
home and abroad, snd the conssrlption,it saaybe ssid,
of $ate officers and cltiaens for the dlsme of cer-
tain ftzuctlonsconnected therewIth>a~ follewsr
whereu~thaCQurteasveredthe follovl.Qg
@8stlollsn
the negative:
i
stati miard or Education, page 6
'The question in thla ease then Is ahoula artl-
c1e 164 of our Constitutionbe interpretedtoB6zm
that a citizen, holding 8 state offlae, upon whi?m,
under the C~onstltutlonand laws of the Onittd States,
addltlonal duties are iorr;oeed
by the President in
aid of the ralslug and xsalntenrmceof an arny for the
prosecution of a great and necessary nr, Sorfolts his
office by reason of his acceptance of that vhlch it
vould be unlswful aud unpntr%otic for him to dec13nePm
This latter language and the Texas Supreme Coxwt saw
of Cerpenter v. Sheppai'd,135 Tex. 413, 145 S. U. (2d) 562, ns
cited vlth approval by the Suprmte Court of California in the case
0s BIeCoyvs. Board of Supervisors.114 P. (26) 569, decided June
30, 1941. The C811foXTll8 court also de0lared:
"Rot only have State and !Katloml leglelatlre
bodiesbeen alert to meet the need for ape&al pro-
tectivem6a8ure~a.but atate taadPbd6ral courts have
kept paoe and have evinced d firm intention to ta!m
a llbersl vleu of there earrsrgencj
ensatFaantsin order
that their proteatlvepurpoasa ma)-be fulfilled vlthout
undus lmpoaltlon of conatitutlonalltiltatlansor
h%ndsrsnce through narrov judlclsl conatruetlon.
PPIiOrthXW8t0, On I&V 2% 1941, ths Z3Jp8iW COUPt Or C&
lfonala, in Parker vs.
Riley, 113 P. m, upheld 8 statute prod.&
ing for t&e creation cf the Callfornle Conrmissionon Saterstate
Caoperatlon,against the contentionthat it was unconstitutional
be&ause of the ~follovingprovision of the Cellfornla Constltutlonr
"Ho Senator or member of Assembly shal1, during
the tern for vhlch he&all have been elected, hold or
accept say ofzice, trust, or ainploymentunder t&Is
state; + + l
The statute meat* the cmmA3slon provided that nmmbem
of the Senate and Assermblrshould constitute its membership. It
vas cortended that mmbsrship upon tbe comisslon oonstltuted811
*office,trust, or employmxlt,Yvherefore members of the Laglsla-
hrs could not lavfully serve in such capacity. i ,.
I_/
In holtllngthat membership upon the eomissl.onvas not
t.beholding of an “office” or "trwt," the eomt said:
g&de Board of JSducatlon,
Pam 7
"It may be noted, howwer. that the positions
created by the statute here attacked Wok certain
elmsenta usually associatedwith an *office*or
'trust.' Thus, it is generally said that an office
or trust requires the vesting In an lndlvldual of
a portion of the severe powerad the state.
(Citationof euthorities'ep The positions here created
donotmeasure up to so hlgha standard. They ln-
solve merely the lnt8rchangeoi lnfonsatlon,the as-
sembling of data, and the fomulation of proposal to
be placed before the Legislature. Such tasks do not
require the exerolse of a part of the sovereignpower
of the state."
In Glllesplevs. Barrett, 15 H. B. (26) 513, the suprem
Court of IllInoIs held that a constitutionalprovlslon prohlblting
state legislatorsfrom rscelving any sclvll appoInt+smnt' vaa.not
vt6latedby aots creating the Qettysbwg XemorIal Casml6slon, the
.&oM.q%+?&e Camsis~sIon aud the BetzYork World's Fair CQIIILIssIon,
.to k toaposedpartly of hd43 lagislatom to eorve without sala-
rioa. The court declared that for swh an,appointmentto v$olate
sonstitutIona1provisionsof suoh nam the appoiatment must be
ef * pensanentnature and must lend itself to per6oual vise-
ment vith an opportunityfor private gain, pecuntsry or othervIm.
And the court pointed outt "The 8ppOiZLtXSeXXtS are mewly tempOV!APy;
the statute forbids the payment of 8alarlesdimtly or lndlreetly,
snd no policy-makingpower l.sdelegated. The members of the cop-
mlsslon ars merely intrustedvlth the supervision of the minister-
Iel details of a legislativeenaetrent.m
The applloatlonof these at&horltles to the question
you have propoundedappertaining to Section12 of Artiole 16 of
the Constitutionof Texas Is apparent. Therefore we hold.that t.hls
P``vIslonof the Constitutionof Texas does not prohlblt a aider
Of the State Board of Education fnm serving at the same time as
s member of an Allen Fin- Hearing Board, oonetitutedas we have
deacrlbed.
We Mgard it as proper to observe that we have COnsideP-
ed the appllcatlonof section 40 of Artlele 16 of the.TexasCon-
stitutionand are of the oplulon that it does not forbid the
Wmbemhlps under review.
Moreover, in order that the crcmplstte
r~mifIcatlonsof
thh qU88tiOnmay hSVe been explOP6d end passed upon, we h8V8 alao
COnsIderedthe applicationof Seetion 33 of Article 16 to the mat-
ter under revlev. Tbl.5Sectlollr6ads in part.as follovs:
I
St&o Board of Bduoatlon, Psge 0
"The aoooutitingOffiU8PS of this state shall
uelther draw nor pay a warrant upon the Treasury in
favor of any person,1ior salary or oompensatlonas
agent, officer or appointee,who holds at the ssme
time any other offloe,or poliltlonof honor, trust or
profit, under this State or the United States, !x-
oept es presorlbed in this Constitution.* l l
Clesrlg, of oourse, a ms4s?b6r
of ths State Board of
ausatlon is an agent, officer or appointee" of the atate 0r
TewM l
We have akeady de&led that SWSb8PShip upon an Alien
pnw Hearing Board Is not an "offioe." It 1s Our opinion,more-
ov.p, that it does not fJOXlStihlt8
a "positiOn*a5 that t8l%lYBS
intendedby th8 framers of the Constltutlon.
The case of Johnston Y. Chambers, 98 S. 8. 263, by the
gwrase Court of Georgia, arose under the SeleotiveDraft Aob OS
the World Var. The Polioe Ccsmniaslon8r of the Olty of Atlanta
-5 appointed to the Bow-d of Exemption, sonstitutcsd ia all l *sea-
tlal8 actthe Al&n FinemyIfearingBoard we an oonsldering. It was
sante&8d that the Ccmslsslonerbemuse fbereby disqualifiedircm
hoMing the office of oU8sloner uudsr the charter of the City
ef Atlanta providing a8 follovst
"St shall be unlavful for any person holding
an off100or position of trust, or emolument, or
regular smpuysmnt, mder appointmentby the President
of the United States, or any department of the federal
government,l l itto ocoupy or hold the position of
laspor,alde1%1SU3,
or OOunCib5.1~Of the Olty Of Atlanta,
or m8mbershlp on any executive board of said olty, or
any other office or position of trust, honor, or
emolument, or regular employment in or under said olty
government, * l * .* (Undereooringours)
It is observed that the t8ISSS"off'ioeor pOsitiOn' were
present.'The oourt held that the CommlssIonerva8 not dirqudi-
fled, saying In part:
' l * l The dutl88 vhloh those thus called upon
were expected to fulfill ver8 of a pstPiOtiC natUM,
from whlth a oitlsen could not esoape vlthout evading
his patriotic duty to aid in 8 temporary emergemy
his country end his government,in seleot%ng and or-
genlelng an anay fit for the high and lmperlous duty
state Board of Eduaation, Pago,9
aonfx-ontlngle. The dutlee vhloh the80 board8
vere aalled upon to perform VOM of the met ex-
alted oharaoter,but they wore *8 trti8itov and
ephemeral ~8 they vere exalted;;'andit van the
duty of any olticen aealledto m$@fm~hlp upon one
of these board8 vhether a private olticen or the
holder of any ofiioe, to lay aride all other dutie8
for thehour.and~epondto the esll. The court
below properly denied the appllaatlon."
vhile ve think it is rnanlfestthat the term w~fffeeg
pnd "po8itionRare not s~onymous and vere not intended to aonvey
``saau,meanlng and oantaln the mme prohIbition,ve are of the
opf.&on that the dlfferenoebetveen the elgn2fi~etlonOS the
t+mt3 must neael3rar%lybe one or degreet that they vere used ill
a relative 08 a n q sp o %llta ent mua t h a r e l aortain
8enae. j\lllt
&i$&tr t0 O~lltitllte 811 Off$Cie, jU8t 80 lrmst Pp CrppOintit m8-
8080 Oel'tsin08WSltial elaWlt8 t0 OOMtitUtff a ~itiOZl. m
aluo Reading o.mmvell, 52 P. (26) U55 (Ark).
t9rpl 'bO6itiOn'
m islp11ef8,
BIP 0-3'8, 8kbility,
ompesmation, duratiorh The absenae, or re?atlve ablienoe,OS thewe
88WUitial.s,
appertalnf..ng
to member6hlp upon an Allem Enemy Eearlag
Bmrd,is mnifeest Mm our reviewof it8 c&gin, etatw and
obaraoter.~F7wtLcularlyoontroll&3ga* ~theaefaokt m661berehip
upca the Beard ls enttrely temporaryz It& memberr ‘we engaged in
the do&g of an emergsuxoy rervlca for the Government in glme of
raw the sarvlcs8 performdars erosnt``de8ult~ry, spoxmdia,
oaaarbm6l~ no 0ompenmtion 18 paid and there ia al% abrenoe of
pemmenoy and aontlntity in the Board Itself.
.
YOUX'8very‘truly