Ahearn v. Bailey

• Decision Date: 26 February 1969
• Docket Number: No. 9522,9522
• Citation: 104 Ariz. 250,451 P.2d 30
• Parties: John L. AHEARN, Member of the Industrial Commission, Petitioner, v. Richard E. BAILEY, Robert W. Knox and Edmund Law, Respondents.
• Court: Arizona Supreme Court

Page 30

451 P.2d 30

104 Ariz. 250

John L. AHEARN, Member of the Industrial Commission, Petitioner, v. Richard E. BAILEY, Robert W. Knox and Edmund Law, Respondents.

No. 9522.

Supreme Court of Arizona, In Banc.

Feb. 26, 1969.

John L. Ahearn, in pro. per. and Allen L. Feinstein, Phoenix, for petitioner

Gary K. Nelson, Atty. Gen., by William E. Eubank, Chief Asst. Atty. Gen., Phoenix, for respondents.

STRUCKMEYER, Justice.

This is an original proceeding in quo warranto brought on the authority of A.R.S. § 12--2043 by John L. Ahearn to test the right of respondents to hold office as members of the Industrial Commission of Arizona.

In January, 1966, petitioner was appointed by the Governor of Arizona to serve a six (6) year term as a member of the Industrial Commission of Arizona. Petitioner qualified and took office after his appointment was confirmed by the State Senate as provided by A.R.S. § 23--101, subsec. B. ¹ At the time of petitioner's appointment the Industrial Commission was composed of three (3) members, whose terms were six (6) years. ²

Thereafter, the 4th Special Session of the 28th Legislature in May of 1968, amended paragraph B of A.R.S. § 23--101, shortening the terms of the members so that It is petitioner's position that the Legislature could validly increase the size of the Commission from three (3) to five (5) members but it could not by shortening his term remove him from office because it is in violation of Article III of the Constitution of Arizona in that it is an exercise by the Legislature of a power belonging to the Executive.

they ended on January 8, 1969, ³ and increasing the number of members to five (5) by new appointment of the Governor. The three (3) respondents in this action were appointed as new Commissioners on the same day, together with Commissioners Murphy and Thoeny who were reappointed.

Article III of the Constitution of Arizona, A.R.S. provides for the distribution of power among the three departments of government, the Legislative, the Executive and the Judicial.

'ARTICLE III

DISTRIBUTION OF POWERS

'The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.'

The concept of the separation of powers is fundamental to constitutional government as we know it. See Montesquieu, Spirit of the Laws (1748) Book XI, and Federalist Papers, Nos. 47 and 48. This language from Humphrey's Executor v. United States, 295 U.S. 602, 629, 55 S.Ct. 869, 874, 79 L.Ed. 1611 has often been quoted:

'The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open the serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential coequality.'

We have in the past recognized the independence of each branch of government and the constitutional injunction that no department may exercise the powers belonging to the others:

'All of the Constitutions of the different states recognize clearly the division between the three great branches of the government. All of them express more or less clearly the intent that each of said branches is to be independent of the other two, except as the Constitution provides otherwise, and that, except as the Constitution authorizes it, neither can exercise any power which directly or indirectly tends to limit the constitutional independence and power of the other branches of the government. Article 3, Constitution of Arizona. These general principles are so obvious to any one who is at all familiar with the constitutional history of England and America that no citations are necessary to support them, although hundreds of cases exist which declare them either in whole or in part. But with the natural and human desire for power, the representatives of the different branches of the government have at times, either intentionally or unintentionally, attempted to encroach on each other, * * *.' Crawford v. Hunt, 41 Ariz. 229, at 237, 17 P.2d 802, at 805.

By Article 5, § 4 of the Constitution of Arizona, the Governor is required to transact all executive business and 'He shall take care that the laws be faithfully executed.' Chief Justice Taft in speaking of the powers of the President of the United States said in Myers v. United States, 272 U.S. 52, 117, 118, 47 S.Ct. 21, 25, 71 L.Ed. 160:

'* * * As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible. Fisher Ames, 1 Annals of Congress, 474. It was urged that the natural meaning of the term 'executive power' granted the President included the appointment and removal of executive subordinates. If such appointments and removals were not an exercise of the executive power, what were they? They certainly were not the exercise of legislative or judicial power in government as usually understood.'

We ask the same question propounded by the Chief Justice. If appointments and removals are not an exercise of executive power in Arizona, what are they? Certainly not Legislative or Judicial as usually understood.

The Governor is charged with the duty of taking care that the laws are faithfully executed. He must, therefore, have the power to select subordinates and to remove them if they are unfaithful. Accordingly, we conclude that the power to remove is an executive function and while the Legislature may prescribe the grounds or causes for removal, as it has done by A.R.S. § 23--101 subsec. D, see Holmes v. Osborn, 57 Ariz. 522, 115 P.2d 775, it may not directly undertake to remove a public officer except as granted under the constitutional power of impeachment, Art. 8, part 2, Constitution of Arizona.

Respondents do not seriously quarrel with the proposition that the power of appointment and removal of public officers lies in the Executive Department. Their position is that it is within the exclusive province of the Legislative Department to create public offices and that necessarily the power to abolish such offices may be exercised by the Legislature at will. Respondents' position is correct subject to the limitations hereinafter discussed.

In Crawford v. Hunt, supra, an action by the legislative examiner for his salary, the appropriation for which had been vetoed by the Governor, we held that the Governor could not indirectly abolish that office by vetoing the appropriation. We said that the office of legislative examiner was not a constitutional office, but one created by statute by the Legislature and 'such being the case the Legislature has the power to abolish the office.' We have also held that, subject to constitutional limitations, the right of the Legislature to create and abolish offices in the public interest necessarily includes the power to fix or alter the term, the mode of appointment and compensation. Barrows v. Garvey, 67 Ariz. 202, 193 P.2d 913; High v. State, 14 Ariz. 429, 130 P. 311. Respondents rely principally on the cases of Lockwood v. Jordan, 72 Ariz. 77, 231 P.2d 428, and Shute v. Frohmiller, 53 Ariz. 483, 90 P.2d 998. These cases are inapposite. They concern the powers and duties of the Attorney General and not the Governor. By the Constitution, Article 5, § 9 'The powers and duties of Secretary of State, State Treasurer, State Auditor, Attorney-General, and Superintendent of Public Instruction shall be as prescribed by law.' The cases cited are authority for the proposition that the powers and duties of the office of Attorney General are wholly within the control of the Legislative Department. That is not the case here, for the Governor is required by the Constitution to execute the laws.

Respondents, nevertheless, resist the issuance of the writ sought in the case on the principle that the legislative power to abolish an office is supreme. But the absolute power to abolish an office does not necessarily include the right to remove an office holder. We are in agreement with the Supreme Court of Pennsylvania in its statement:

'* * * Obviously, the elimination of an office poses quite a different problem from the removal of an incumbent of an existing office and is wholly irrelevant to the latter issue. Legislative power to abolish unneeded positions established by it is unquestionable; legislative power to regulate removal of an officer, however, raises a constitutional question unrelated to problems of abolishing an office.' Bowers v. Pennsylvania Labor Relations Board, 402 Pa. 542, 167 A.2d 480, 500.

At the onset, it should immediately be stated that there is no vested right in the office holder to compel the continuation of an office:

'* * * With us, public offices are public agencies or trusts, and the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right. Every public office is created in the interest and for the benefit of the people, and belongs to them. The right, it has been said, is not the right of the incumbent to the place, but of the people to the officer. * * * The incumbent has no vested right in the office which he holds, * * *.' State ex rel....