The opinion
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Eonorable Robert D. Smither
County Attorney
Walker county
Buntsville, Texas
Dear Dr. Ssdther: opinion HO. 0
of your request
for an opinion from h respect to the
above-captionedsub
nature of the
Rlembershipint ard to see whether
or not its ooc tible with our consti-
tutional limit o dual offloe-holding.
e President, by Ezecutive
lonal War Labor Board, with
ttle labor disputes uhich
ontributesto the effective
giving it not only broad but final
ident's Executive Order No. 9260, of
the powers, functions and duties
ard by Eremtlve Order No. 9917, were
confirmed and made applicable sto cover all industries aud
all employees.*
On January 21, 1943, the Tational War Labor Doard
released its order establishiugc
‘Twelve Regional Tar Labor Boards, with
full authority to make final deaisions in
labor disputes and iwolunta?y wage and sal-
ary adjustment oases are being establishedby
the Rational War Labor Board under a sreep-
HOriOrableRobert R. Wither - page 2
ing decentralieationprogram announced
today by the Board.
sRach of the Regional Boards will be
set up on the same tripartite system of pub-
lic, employer and labor representativesas
the IiationalBoard. In addition the program
calls for establishmentof permauent tripar-
tite panels in all the maJoc cities of the
United States to handle dispute oases, and
to make recomeudations to the Regional
Boards. l * 0
*The National War Labor Board in Uaah-
ington, under the neu proeedure,will funo-
tion as a supreme court for labor,disputee,
reserving the right to revieu Regional
Board deoisions on its motion or by grant-
ing a petition to appeal filed by one of
the parties to a ease. l l e
'Any party will hare the right, within
ten days after the issuance of a dixeotire
order by a Regional Board, to petition to
the Rational Board for a revieu of the o8se.s
Further, we are advised that each member of the
Regional Board is required to take an oath of office and
to serve a ~~~xlmum time of four days monthly with resnmer-
ation of $18.00 per day and expeuses.
Section 40, of Article 5X1, of the Constitution,
deolarest
slioperson shall hold or exercise,at
the same time, more than one ciril office
of emoluments,(except certain enumerated
offioes aud positions).
tiembership
in such a board is not named in the
exceptions.
Se&ion 33 of the same Article declares:
'The accounting officers of this State
shall neither draw nor pay a warrant upon
the treasury in favor of any person, for
salary or oompeusationas agent, officer
Honorable Robert D. Slither - page S
or appointee,who holds at the same time
any other office or position of honor,
trust or profit, under this State or the
United States, except as prescribed in
this Constitution.*
The exceptionsdo not include the office or
position of the membership involved.
Ve beg to advise that in our opinion membership
in the Regional war Labor Doard does come within the pro-
hibitions of the Constitutionin both sections above quoted.
The general oharactoristicsof an office are, (a)
that its incumbent exercises some portion of the sovereign
pmer of the State; (42 Am. Jur. p. 832, Sec. 4); (b) that
;sf3emb&aeesthe idea of tenure and duration; (c) (ibid, p.
o. G)l and (d) that it embraces the further idea of
fee: or compensation;(ibid. p. 884, SAC, 6).
The position of member of the Regional War Labor
Board has all the indicia of an office as contra-distinguish-
ed from an employmentor other position whatsoever. While
no one, or even more of the above indicia are conclusivein
all cases, neverthelesseach is persuasive.
On June 2, 1242, the Attorney General of Louisiana
held that service as a member of the Parish (county)Ration-
ing Board (withoutcompensation)where the member was requir-
ed to take an oath of office, is an office within the meaning
of the constitutionof that state forbiddingdual offioe-
holding.
In the recent cases of Carpenter v. Sheppard, 1.46
9. #. (2) 662, Spears 0. Sheppard, 160 S. PI.(2) 769, and
Cramer v. Sheppard, 167 6. W. (2) 147, by our SUprem Court,
the dual office-holdingsinvolved were held to be within
specific exceptionsaf the Constitution,and thereforenot
forbidden, thus emphasizingthe necessity for such constitu-
tional exceptionsto take such Federal offices out of the
prohibitionof our Constitution.
That membership in the 12egionalWar Labor Board,
if not an office, is neverthelessa position of honor, trust
and profit Uryzerthe United States, within the meaning of
Section 33, of Article XVI, of the Constitutionabove quoted,
Sonorable Hobert D. Smither - Page 4
is, we think, beyond oontroversy.
This departmenthas made many rulings uPon very
similar, though not identical situations,as follows:
The Lieutenant Governor may not hold the position
of Professor of Journalism in the State University,and at
the same time receive from the treasury compensationfor his
official.servioes. (OpinionsAttorney General x912-1914,P.
873).
Other opinions deal with the question of scope of
Section 33, Article XVI, involving the followingdual services*
Head of Department of Genetics of the A. & U. Dal-
lege and State Seed and Plant Board membership. (OpinionHo.
04662).
A
State officer and Civilian Defense membership.
(OpinionNo. 04642).
State Representativeand employmentwith Federal
governmentas a printer under Civil Servioe. (OpinionNo.
0-364 2) l
Employee as medical oonaultantin the Crippled
Ohfldren*sDivision of the Department of Education,and
Director of the tlaternaland Child Bealth Division of the
State Department of Dealth. (Opinion No. o-s)aa).
State or county offioer and Supervisorin Soil Con-
veraationDistrict. (Opinion NO. O-3396).
Texas State Board of Yedioal Examiners and special
State aanger. (OpinionNo. O-3946).
Jlmployeeof a State eleemosynaryinstitutionand
of State Department of Public Welfare. (OpinionHo. o-3961).
Member State Board of Medical E!xaud.ners and a
special State Uanger. (Opinion No. o-3046).
&ember Board of Directors of the Texas College of
Arts and Industriesand County Superintendentof Public.In-
struction. (OpinionNo. 0-2SQl).
iionorablenobert D, sstither- page 5.
Old Age Assistance investigator and employee State
Dcpartnent of Public Welfare. (Opinion No. o-2701).
Inspector for the Texas Liquor Control Board and
trustee of an indeperbientsohool tistrict. (Opinion NO.
O-2628).
l&suber County Board of Soho Trustees and member
of local oornrmnitycomrldtteeAgrioultursl Aaadjustnlent
Aaudnis-
tration. (Opinion NO. O-2226).
Trusting that what we hare said fully ansuers your
inquiry, we are
Very truly yours