LEGISLATURE ‑- VACANCY ‑- PROSPECTIVE APPOINTMENT

LEGISLATURE ‑- VACANCY ‑- PROSPECTIVE APPOINTMENT

The death of a newly elected member of the House of Representatives subsequent to his election, but prior to this taking of office on the second Monday in January following his election, does not create any vacancy in the office at the time of his death, but the county commissioners may make a prospective appointment now to take effect January 8, 1951, so long as the county commissioners are not interfering with the rights and prerogatives of their successors, should there be any, taking office January 8, 1951.

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                                                               December 29, 1950

Honorable James E. Wickwire
Prosecuting Attorney, Grant County
Ephrata, Washington                                                                                                              Cite as: AGO 49-51 No. 408

Dear Sir:

            This is in reply to your telephone call of December 19, 1950, in which you requested our opinion on the following facts:

            Mr. Nat Washington at the time of the last general election was a member of the House of Representatives.  Prior to the last election, he declared his candidacy for election to the State Senate.  Mr. James Brain filed for the House seat held by Mr. Washington.  The election determined that Mr. Washington had won the Senate seat and that Mr. Brain had won the House seat.  Since the election, but prior to the commencement of the next session of the legislature, Mr. Brain died.

            Your question is whether the death of Mr. Brain created a vacancy in the office at the time of his death so that the acting county commissioners may appoint his successor now, rather than wait until the time legislature convenes in January 1951.

            Our conclusion may be stated as follows:

             [[Orig. Op. Page 2]]

            The death of a newly elected member of the House of Representatives subsequent to his election, but prior to his taking of office on the second Monday in January following his election, does not create any vacancy in the office at the time of his death, but the county commissioners may make a prospective appointment now to take effect January 8, 1951, so long as the county commissioners are not interfering with the rights and prerogatives of their successors, should there be any, taking office January 8, 1951.

                                                                     ANALYSIS

            Our Constitution, Article II, sections 4 and 5 respectively, provide:

            "Members of the house of representatives shall be elected in the year eighteen hundred and eighty-nine at the time and in the manner provided by this constitution, and shall hold their offices for the term of one year and until their successors shall be elected.

            "The next election of the members of the house of representatives after the adoption of this constitution shall be on the first Tuesday after the first Monday of November, eighteen hundred and ninety, and thereafter members of the house of representatives shall be elected biennially, and their term of office shall be two years; and each election shall be on the first Tuesday after the first Monday in November, unless otherwise changed by law."

            It is to be noted that both of the above provisions are silent as to when the term commences.

            However, since the adoption of the Constitution, section 7, chapter 2, Laws of 1931 (Rem. Rev. Stat. 8137-6 was enacted, which provides in part:

            "The term of office of all senators and representatives elected under the provisions of this act shall commence on the second Monday in January following the date of his election."

             [[Orig. Op. Page 3]]

            This section has provided what the constitution failed to provide; to wit:  The date of the commencement of the term.  Thus, a representative's two year term begins on the second Monday in January following the general election, and runs to the same time two years hence.  The result then, is that until the second Monday in January following the general election, the incumbent, Mr. Washington, is still the elected and acting representative, and the death of his elected successor prior to that time creates no vacancy until January 1951.

            The rule is clear that the death of a newly elected officer prior to the expiration of his predecessor's term does not create a vacancy until the end of such term.  67 C.J.S., section 50, page 208.  Nevertheless, the fact that no vacancy exists now and that there will be no vacancy until January 8, 1951, does not mean that a prospective appointment may not be made now for the admitted vacancy to arise January 8, 1951.  Since the term of the incumbent will definitely expire on January 8, and there can be no holding over, the existence of a vacancy after that date is a certainty and this is not within the holding inState ex rel. Vanderveer v. Gormley, 53 Wash. 543, 102 Pac. 435.

            Prospective appointments to fill an anticipated vacancy are recognized when the incumbent is not entitled to hold over.  42 Am.Jur. 979, sec. 136, 74 A.L.R. 492.  In Mechem, Public Officers, section 133, page 66, it is stated:

            "A prospective appointment to fill an anticipated vacancy in a public office, made by the person or body which, as then constituted, is empowered to fill the vacancy when it arises, is, in the absence of express law forbidding it, a legal appointment, and vests title to the office in the appointee.  Thus where a public officer resigns his office to take effect at a future day, and his resignation is accepted, the appointing power being, as then organized, authorized to fill the vacancy when it shall occur, may appoint a successor, the appointment to take effect when the resignation becomes operative."

            There is, however, an accepted qualification to this right to make prospective appointments.  This qualification is well stated in the above text on page 67 as follows:

             [[Orig. Op. Page 4]]

            "But the appointing power can not forestall the rights and prerogatives of their own successors by appointing successors to offices expiring after their power to appoint has itself expired.  'It is plain,' says the court, 'that an appointment thus made by anticipation has no other basis than expediency and convenience, and can only derive its binding force and effect from the supposition that there will be no change of person and consequently, of will, on the part of the appointing power between the date of the exercise of that power by anticipation and that of the necessity for the exercise of such power by the vacancy of the office.'"

            Thus, in conclusion we are of the opinion that Mr. Brain's death prior to the commencement of his term created no vacancy at that time, but that the county commissioners do have the right to make a prospective appointment now to take office on January 8, 1951, so long as the county commissioners are not interfering with the rights and prerogatives of their successors, should there be any taking office January 8, 1951.

Very truly yours,

SMITH TROY
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General