Montana Attorney General Opinion 16-329

Opinion No. 329. Offices and Officers-Civil Office- Montana Relief Commission- Legislature. HELD: The office of member of the Montana Relief Commission, un- der the provisions of Chapter 45, Laws of 1933, was a civil office even though the law did not provide for compensation for members of the Commission. Hon. Elmer Holt Governor of Montana The Capitol July 16, 1936. You have requested an opinion from this office on the question whether you were holding a civil office while connected with the Montana Relief Commission in 1933-34, prior to the time when the present Montana Re- lief Commission was created. In our opinion to you dated Febru- ary 3, 1936 (Vol. 16, No. 245), as well as in the opinion of the Supreme Court in State v. Kelsey, 55 Pac. (2d) 685, 102 Mont. --, five rules for de- termining the question whether a per- son is holding a civil office, were stated. While our opinion, as well as that of the court, was oased on Chap- ter 109, Laws of 1935, if the rules there laid down are applied, the same conclusion would have to be reached in regard to the law as it existed prior to the enactment of said Chap- ter 109. (See Chapters 20 and 56, Laws Of 1933-34, Extraordinary Ses- 328 OPINIONS OF THE ATTORNEY GENERAL sion, and Chapter 45, Laws of 1933.) One difference between the law as amended by Chapter 109, Laws of 1935, and as it was prior thereto, is that by Chapter 45, Laws of 1933, the members of the commission were re- quired to serve "without compensa- tion" (Section 1). It seems to be the rule, however, that the receipt of emoluments is not necessary to es- tablish the status of an office (46 C. J. 931, note 30, and cases cited), al- though the fact that a position car- ries no salary may be considered. In State ex reI. Boyle v. Hall, 165 Pac. 757, 53 Mont. 595, our Supreme Court said: "While the elements of fixed term and compE.nsation cannot- be said to be indispensable to a pub- lic office, they are indices the pres- ence of which points to the existence of such a position, and the absence of which indicates to some extent the contrary conclusion." While our court has not passed on the question directly, it is my opinion, however, that inasmuch as the re- quirements of all five rules stated by our court in the Kelsey case, and prior cases, are met by the law as it existed at the time of your appoint- ment, including taking an official oath and giving an official bond, after January 2, 1934 (Section 5, Chapter 20, Laws of 1933-34, Extraordinary Session), our court would not regard the fact that you did not receive com- pensation for your services as deter- minative.