Mayor of Westernport v. Green

Urner, J., delivered the opinion of the Court. As a Delegate from Allegany County, Charles F. Peters Was a member of the General Assembly when the charter of Westernport was amended by Chapter 85 of the Acts of 1922. The .amendment had in part the effect of changing the method of electing the clerk of the town and of imposing upon that official the duty, previously performed by the bailiff, of collecting the municipal taxes. Prior .to the Act of 1922, the clerk was elected by the voters of the town, but that statute provided that he should thereafter b© chosen by the Mayor and Commissioners, who Were also authorized and directed to prescribe the amount and obligation of the clerk’s bond and !his “rate of compensation” and duties.

After the passage of the amending act, and during the term for which Mr. Peters had been elected as1 a D’eleglate in the General Assembly, the Mayor and Commissioners of Westernport increased th© salary payable to the clerk of the town and appointed Mr. P'eters to’ that position. In this mandamns proceeding for his removal from the office, -the question is whether he is disqualified to accept and hold it in view of the following provision of the State Constitution (article 3, section 1Y) : “No Senator or Delegate, after qualifying as such, notwithstanding that he may thereafter resign, shall during the whole period of time for which he was elected be eligible to any office which shall have been created, or the salary or j>rofits of which shall have been increased, during such term.” The eligibility of Mr. P’eters to the office of clerk of Westemport is disputed off two grounds, first, that the 'office was ⁸⁷ created by the Act of 1922, passed during his term as a member of the General Assembly, and, secondly, that the salary of the position was increased during that period. The first of these theories was rejected by the court below, but the second was accepted as a sufficient basis for a decision that Mr. Peters is ineligible to the clerkship. With the conclusion that the office was not created by the Act of 3922 we can agree.

The effect of that statute was not to bring a new office into existence. To “create^ is to> bring into being or cause to exist, as the term is commonly understood and defined. 2 Words and Phrases, 1708. It was applied in that generally accepted sense by the Supreme Court of Idaho, in the construction of a constitutional provision, relating to eligibility to office, in State v. Gooding, 22 Idaho, 128 . The position of clerk of the municipality of Western-port has existed since the original enactment of its charter by chapter 33 of the Acts of 1886.

One of the charter provisions, which the Act of 1922 did not amend, is a direction that the Mayor and Commissioners “shall define the duties of the clerk and allow 'him such compensation for his services as they may think proper.” In providing a different method of electing the clerk and in imposing upon him the additional duty of collecting taxes the Legislature was not creating the office within the meaning of the Constitution. The decision below that Mr. Peters Was; ineligible to tbe municipal clerkship because of the increase of the salary was influenced by the view of the court, that the increase was virtually directed by the statute passed during his legislative term. Pnless such an effect is attributable to the statute, the action of the municipal authorities in augmenting the salary would not, within the spirit and purpose of the Constitution, render ineligible to the office of clerk a legislator who participated in the passage of the act. It was the obvious intent of the Constitutional provision we have quoted to protect the members of the Legislature from the influence, upon their judgment and conduct, of any personal interest in the creation of new offices or the increase of the salaries ⁸⁸ or emoluments of any offices previously created.

When the provision