Montana Attorney General Opinion 15-478

Opinion No. 478. Legislative Assembly-Membel's- Assistant Income Ta....:: Auditor- Appointment-Civil Office. HELD: The office of Assistant In- come Tax Auditor is not a "civil of- fice" under the Constitution. There are no constitutional or statutory pro- ,;sions in this state which prohibit the employment of a Legislator in a posi- tion created by the assembly of whiCh he was a member, March 1, 1934. I ha "e your request for an opinion as follows: "This date the office of the State Auditor received a supplemental pay- roll of the State Board of Equaliza- tion for the month of February, 1934, which said payroll includes the name of Jerry O'Connell, who, according to the said payroll, is occupying the po- sition of Assistant Income Tax Audi- tor for the State of Montana at the rate of pay of $200.00 per month. "It would appear as if .Jerry O'Con- nell, named in the payroll, is the duly electec1, qualified and acting State Representative from Silver Bow County and has served as such elec- th'e memher of the Legislative branch of the State Government in the regu- lar and extraordinary sessions of the Twenty-third Legislative Assembly. "Section 7, Article V of the Consti- tution of the Sta te of Montana pro- vides interalia: 'No" * * representative shall, dur- ing the term for which he shall have been elected, be appointed to any civil office under the State;' "It is apparent to this office that the appointment of Mr. O'Connell to the office in question has been made during the term for which he was elected a State Representative. "Your opinion is respectfully rc- quested as to whether a warrant may be legally issued, pursuant to the above mentioned payroll, in light of the above quoted Constitutional pro- vision." The request does not state the exact duties of assistant income tax auditor but upon investigation we find nothing in the statutes which creates such a pOSition or defines its duties either di- rectly or indirectly. We enclose here- with copy of an opinion No. 477, this volume, upon the same question relat- ing to liquor vendors, which we think answers your question namely, that the position of Assistant Income Tax Auditor is not a "ch,n office" within the meaning of said constitutional pro- 330 OPI~IONS OF TH~ ATTOR~EY GENERAL vision. Further inquiry indicates that the duties of the position and the con- ditions surrounding it do not bring it within the fh'e tests set down in the case of State ex reI. Barney v. Hawk- ins, 79 Mont. 506, 257 Pac. 411, cited in the opinion referred to. There seems to he abundant curh- stone opinion to the effect that a legis- lator may not hold an office created hy the legislative assembly of which he was a member. There is an axiom to the effect that volunteer advice is worth no more than is paid for it. A number of states have constitu- tional or statutory pro\'isions prohibit- ing the employment of legislators in positions created by the assembly of which they were members. There is no constitutional or statutory provision in the State of Montana of the same im- port and we can find no established rule of law which prohibits such em- ployment in the absence of constitu- tional or statutory inhibition. The re- ported decisions dealing with the sub- ject invariably refer to constitutional or statutory provisions.