OFFICES AND OFFICERS ‑- STATE ‑- SUPERINTENDENT OF PUBLIC INSTRUCTION ‑- QUALIFICATIONS FOR OFFICE ‑- POWER OF LEGISLATURE TO PRESCRIBE

OFFICES AND OFFICERS ‑- STATE ‑- SUPERINTENDENT OF PUBLIC INSTRUCTION ‑- QUALIFICATIONS FOR OFFICE ‑- POWER OF LEGISLATURE TO PRESCRIBE.

The legislature does not have the authority to establish qualifications for the office of the state superintendent of public instruction in addition to those found in Article III, § 25, Amendment 31, of the Washington State Constitution.

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                                                                 October 9, 1962

Honorable Frank "Buster" Brouillet
Chairman, Interim Committee on Education
Meany Hall Room 111-B
University of Washington
Seattle 5, Washington

                                                                                                              Cite as:  AGO 61-62 No. 173

Dear Sir:

            This is in reply to your letter previously acknowledged in which you requested an opinion of this office on the following question:

            "May the legislature by statute establish qualifications for a constitutional officer, specifically, the state superintendent of public instruction?"

            We answer your question in the manner set forth in our analysis.

                                                                     ANALYSIS

            At the outset we must, of course, recognize that the legislature may enact any law not expressly or inferentially prohibited by the state or federal constitution.  State ex rel. Tattersall v. Yelle, 52 Wn. (2d) 856, 329 P. (2d) 841 (1958);Gruen v. State Tax Commission, 35 Wn. (2d) 1, 211 P. (2d) 651 (1949); AGO 57-58 No. 226 [[to R. R. (Bob) Greive, State Senator on October 31, 1958]].  As our court has said many times, ". . . the Washington constitution is a limitation upon the powers of the legislature, instead of a grant of powers, and so far as the power of the legislature is not limited by the constitution it is unrestrained. . . ."Yelle v. Bishop, 55 Wn. (2d) 286, 297, 347 P. (2d) 1081 (1959), and cases cited therein.

            The state superintendent of public instruction is an elected constitutional officer in the executive department of the state government.   [[Orig. Op. Page 2]] Article III, § 1, Washington State Constitution.  In respect to the powers and duties of his office, Article III, § 22, provides, in pertinent part, as follows:

            "The superintendent of public instruction shall have supervision over all matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law. . . ."

            The only qualifications prescribed in our constitution for candidates aspiring to offices in the executive branch of state government1/ are set forth in Article III, § 25, Amendment 31, which reads as follows:

            "No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office.  The compensation for state officers shall not be increased or diminished during the term for which they shall have been elected.  The legislature may in its discretion abolish the offices of the lieutenant governor, auditor and commissioner of public lands." 2/

            The qualifications of an elector are found in Article VI, § 1, Amendment 5, of the state constitution, see, Defilipis v. Russell, 52 Wn. (2d) 745, 328 P. (2d) 904 (1958), wherein the distinction between a qualified "voter" and "elector" is considered.

            In resolving your inquiry it is necessary to determine whether Amendment 31,supra, impliedly prohibits the legislature from imposing additional qualifications (that is, qualifications in addition to being a citizen and qualified elector) for the elective offices in the executive branch of state government.

            InState ex rel. Coon v. Hay, 51 Wash. 576, 99 Pac. 748 (1909), a quo warranto proceeding to oust the lieutenant governor, the court was faced with the construction of a statute disqualifying any candidate for public office who paid for a published article or statement  [[Orig. Op. Page 3]] relating to his candidacy.  As the concurring opinion of Judge Chadwick pointed out, the statute attempted to place restrictions upon the eligibility of the candidate in addition to those imposed by the constitution.  The court avoided a consideration of whether such restriction could be imposed by the legislature by holding that a photograph and a mere statement of whom it represented was not within the prohibition of the statute.

            There are no cases which have been decided by the supreme court of this state which would provide a definitive answer to your question.  However, there are several decisions which must be considered for the reasoning contained therein.

            InHuntamer v. Coe, 40 Wn. (2d) 767, 246 P. (2d) 489 (1952), the constitutionality of the statute requiring the "loyalty oath" of candidates for state and congressional offices was tested.  The court upheld the constitutionality of the statute.  The two state offices in issue were that of governor and legislator.  One of the questions presented on appeal was:

            ". . . (2) Whether chapter 254, Laws of 1951, is unconstitutional, (a) in that it allegedly imposes qualifications for office upon candidates for Congress and candidates for certain state constitutional officesin addition to those qualifications required by the United States and theWashington state constitutions relative to the particular offices;. . ."  (p. 770) (Emphasis supplied.)

            Although the court did not specifically cite Amendment 31, supra, it is evident that this provision was considered since it is the only one that relates to qualifications for the office of governor (as an office in the executive branch of state government).  The court in a unanimous opinion concluded:

            "The requirement of an oath of loyalty or allegiance in a present, prospective sense relative to support and defense of our state constitution, government, and laws, is certainly consistent with the spirit of what we have said regarding a comparable oath relative to the United States constitution.  Such a requirement regarding the state constitution and government imposes no additional qualification upon the plaintiffs as candidates for office in this state.  Such a requirement has noex post facto,  [[Orig. Op. Page 4]] bill of attainder aspects, violative in such respect of either the state or the United States constitution."  (p. 778).3/ (Double emphasis ours.)

            In other words the court avoided a direct answer to the question of constitutionality of legislation imposing additional qualifications by concluding that no additional qualifications were imposed by the act.

            It would appear that the underlying assumption in the Huntamer case, supra, is that if the loyalty oath had been considered an additional qualification for office the act would have been held unconstitutional.  Accordingly, we view theHuntamer case as inferentially recognizing that Amendment 31 impliedly prohibits the legislature from imposing additional qualifications for state elected executive officers.  See, also,Defilipis v. Russell, supra, wherein the court stated in passing that the

            ". . . qualifications of an elector, found in Art. VI, § 1, of the state constitution, do not include registration to vote, and it cannot,by statute, be made an additional prerequisite of eligibility to hold office. . . ."  (pp. 746-747.)

            In the case ofIn re Bartz, 47 Wn. (2d) 161, 287 P. (2d) 119 (1955), the court was presented with the question as to whether Amendment 31, supra, controlled the qualifications of justices of the peace so as to prevent the legislature from constitutionally prescribing certain other qualifications.  The court concluded Amendment 31 was not applicable.  While it was not necessary to the decision (and therefore must be considered dictum) the court did make the following observation:

            "Appellant contends that justices of the peace are included within the meaning of the term 'state officers,' as used in Art. III, § 25; that, consequently, the constitution has prescribed qualifications for the office and, by implication, prohibited the legislature from imposing further qualifications.

             [[Orig. Op. Page 5]]

            "State constitutions which prescribe qualifications for office holders generally and specific qualifications for certain officers, but are silent as to the qualifications for a particular office, have been construed to prohibit the legislative imposition of any additional qualifications.  Thomas v. State ex rel. Cobb (Fla.) 58 So. (2d) 173, 34 A.L.R. (2d) 140;Humphreys v. Walls, 169 Md. 292, 181 Atl. 735; Wynn v. State, 67 Miss. 312, 7 So. 353.  Similar provisions in the Nebraska constitution, however, have been given an opposite construction.  State ex rel. Quinn v. Marsh, 141 Neb. 436, 3 N.W. (2d) 892.  The court held in that case that provisions in the constitution which laid down minimum age requirements for certain offices did not give rise to a presumption that the legislature would be without power to prescribe reasonable qualifications for other offices.  And, inBoughton v. Price, 70 Idaho 243, 215 P. (2d) 286, the court recognized the right of the legislature to prescribe additional reasonable qualifications for the office of district judge even though the constitution had provided specific qualifications for that office.

            "However, we willassume the preferable rule to be that, where the constitution has set forth qualifications for an office, either general or specific, in the absence of an express grant of power to the legislature, there is an implied prohibition against the imposition of additional qualifications by the legislature.  Unless Art. III, § 25, was meant to apply to justices of the peace, the constitution has failed to provide any qualifications for that office, and there is no language from which we can infer an intent to prohibit legislative action on the subject."  (pp. 163, 164.)  (Emphasis supplied.)

            Theassumption made by the court in the foregoing case, if it were a positive statement of the law in this jurisdiction, would provide a complete answer to your question.

            We have reviewed the code of 1881, § 3154, to determine if at the time our constitution was framed and adopted in 1889, there were any specific qualifications prescribed by law for the office of state superintendent.  None were found.  Furthermore, since statehood, there have been no qualifications for this office other than those contained  [[Orig. Op. Page 6]] in Amendment 31,supra.

            Reference toThe Journal of the Washington State Constitutional Convention 1889 at pp. 589-591 regarding Article III, § 25 (later amended) tends to support the conclusion that the provisions of Amendment 31 are exclusive.

            It will be noted that Amendment 31 is framed in negative language.  This factor has been held significant by some courts having similar constitutional provisions.  Other courts have held it to be of no significance.  In an extensive annotation in 34 A.L.R. 2d 155, we find at page 167, the following pertinent observations:

            "Courts sometimes make a point of the distinction between affirmative and negative constitutional provisions, in arriving at a determination as to the power of the legislature to add qualifications to those set forth in the constitution.  Thus, the negative wording of the constitutional provision was particularly emphasized in holding that it did not preclude the legislature from requiring an additional qualification, in Boughton v. Price (1950) 70 Idaho 243, 215 P.2d 286, stated infra, § 23, where the court's discussion of the matter is summarized.  See alsoDarrow v. People (1885) 8 Colo. 417, 8 P. 661, infra, § 18 (involving a statutory office); State v. Johnson (1927) 33 Del. 334, 138 Atl. 280, infra, § 20;State ex rel. Thompson v. McAllister (1893) 38 W. Va. 485, 18 S.E. 770, 24 L.R.A. 343, infra, § 56 (involving a statutory office).

            "On the other hand, the validity of the distinction was rejected and a constitutional prescription of qualifications for office generally was held to be exclusive, though negatively worded, in People ex rel. Hoyne v. McCormick (1913) 261 Ill. 413, 103 N.E. 1053, Ann. Cas. 1915A 338, infra, § 24, the court saying: 'In our judgment, when the constitution undertakes to prescribe qualifications for office its declaration is conclusive of the whole matter, whether in affirmative or in negative form.'  See also State ex rel. Powers v. Welch (1953)‑-Ore.‑-[[198 Ore. 670]], 259 P.2d 112, infra, § 47 (quoting (1953)‑-Or ‑-, 259 P 2d 112, infra, § 47 (quoting and in accord with the foregoing Illinois case).  Language to similar effect appears in the majority opinion in State ex rel. Stain v. Christensen  [[Orig. Op. Page 7]] (1934) 84 Utah 185, 35 P. 2d 775 (which, however, did not have to decide the question).  And seeBroughton v. Pursifull (1932) 245 Ky. 137, 53 S.W. 2d 200 (holding a general negative enumeration of qualifications for several designated offices to be exclusive, but not commenting on the negative character of the provision).

            "Inasmuch as many cases on the present subject do not bring out any reference to or notice of the foregoing distinction, it is difficult to say to what extent the distinction has entered into or should be a factor in the determination of the question of a legislature's power to prescribe qualifications for constitutional offices, but the impression derived, in general, is that where the constitutional provision is worded negatively, it is more likely to be construed as not exclusive and so to allow room for the legislature to prescribe additional qualifications than where it is worded affirmatively."