ELIGIBILITY OF LEGISLATOR FOR COUNTY OFFICE WHEN EMOLUMENTS HAVE BEEN INCREASED

ELIGIBILITY OF LEGISLATOR FOR COUNTY OFFICE WHEN EMOLUMENTS HAVE BEEN INCREASED

A member of the 1949 legislature is not eligible to be a candidate for prosecuting attorney in a first class county in the election of November, 1950, since the emoluments to that office have been increased by the 1949 legislature.

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                                                                   May 11, 1950

Representative A. L. Rasmussen
622 South 35th Street
Tacoma, Washington                                                                                                              Cite as:  AGO 49-51 No. 273

Dear Sir:

            Receipt is acknowledged of your letter of May 1, 1950, inquiring whether a member of the House of Representatives elected to serve in the 31st session of the legislature would be eligible to run for the office of prosecuting attorney in Pierce County in the election to be held in the fall of 1950 for the term of office commencing in January, 1951.

            Our conclusion is that a member of the 1949 legislature would not be eligible to be a candidate for prosecuting attorney in the November, 1950 election.

                                                                     ANALYSIS

            The 31st legislature passed chapter 200, Laws of 1949, which increased the emoluments of prosecuting attorneys of first class counties from $4800 to $6600.  Section 13, Article II of the State 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."

             [[Orig. Op. Page 2]]

            The term of a member who served in the House of Representatives in the 31st legislature would expire in January, 1951.  In order for him to be elected prosecuting attorney for the term commencing in January, 1951, it would be necessary for him to run and be elected in the fall of 1950.  The Supreme Court of Washington in the case ofState ex rel. Reynolds v. Howell, 70 Wash. 467, 126 Pac. 954, decided a precisely similar question.  In that case one who had been elected judge sought to run for governor at an election to be held in November preceding the expiration of his judicial term the following January.  The term of the office which he sought would not begin until after the expiration of his judicial term.  Article IV, section 15, of the State Constitution provides:

            "The judges of the supreme court and the judges of the superior court shall be ineligible to any other office or public employment than a judicial office or employment during the term for which they shall have been elected"

            It will be noted that the language is very similar to that relating to the eligibility of legislators for positions whose emoluments have been increased during their term.  The court held that the candidate was not eligible for election during his judicial term notwithstanding that his term as governor might not commence until after his judicial term had expired.  In the case ofState ex rel. Pennick v. Hall, 26 Wn. (2d) 172, 173 P. (2d) 153, our Supreme Court specifically held that a member of the legislature was not eligible to be elected to a county office, the compensation for which had been increased at the session and the term of which would commence simultaneously with the expiration of her term as legislator.  The court said:

            "* * * It is prerequisite to eligibility for election in the sense of becoming a candidate and participating in the election process that a candidate be, at that time, eligible to hold the office."

            Thus, it will be seen that our Supreme Court has held that one who is ineligible for the office at the time of election may not be a candidate even though his disqualification would expire before the commencement of the term of office for which he might seek to run.

             [[Orig. Op. Page 3]]

            In view of these holdings of our Supreme Court it is our opinion that a member of the 31st legislature may not run for prosecuting attorney in Pierce County in the November election of 1950.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General