Beasley v. Parnell

• Decision Date: 09 July 1928
• Docket Number: (No. 108.)
• Citation: 9 S.W.2d 10
• Parties: BEASLEY v. PARNELL, Governor, et al.
• Court: Arkansas Supreme Court

9 S.W.2d 10

BEASLEY v. PARNELL, Governor, et al.

(No. 108.)

Supreme Court of Arkansas.

July 9, 1928.

Rehearing Denied September 24, 1928.

Appeal from Circuit Court, Pulaski County; Richard M. Mann, Judge.

Action by J. Frank Beasley against Harvey Parnell, Governor, David A. Gates, and others, to contest the right of Gates to succeed him to the office of Commissioner of Revenues. From the judgment, plaintiff appeals. Affirmed.

J. Frank Beasley instituted this action in the circuit court against David A. Gates and others to contest the right of Gates to succeed him to the office of commissioner of revenues. The suit was defended on the ground that the Governor had a right to remove Beasley because he did not hold office for any specified term, and to appoint Gates as his successor.

The facts necessary for a decision of the issues raised by the appeal may be briefly stated as follows: On February 9, 1927, the Governor of the state appointed J. Frank Beasley to the office of commissioner of revenues, and he was duly qualified and inducted into office. On June 2, 1928, the Governor of the state wrote Beasley a letter requesting his resignation. Beasley refused to resign. The Governor then duly issued a commission to David A. Gates as his successor in office. Gates duly qualified and attempted to take possession of the office, but his right to do so was denied by Beasley; hence this lawsuit.

The circuit court found the issues in favor of Gates, and judgment was rendered accordingly. The case is here on appeal.

Martin Fulk and Cockrill & Armistead, all of Little Rock for appellant.

H. W. Applegate, Atty. Gen., Geo. R. Steel, Asst. Atty Gen., and W. R. Donham, of Little Rock, for appellees.

HART, C. J. (after stating the facts as above).

The office of commissioner of revenues was created by Act 88 of the Acts of 1925, as amended by Acts 79 and 115 of the Acts of 1927. Act 88 of the Acts of 1925 abolished the office of insurance commissioner and state fire marshal and created the office of commissioner of insurance and revenues, and prescribed his duties and powers. Act of 1925, p. 260. Inasmuch as the correctness of the decision of the circuit court in the main depends upon the construction to be placed upon section 5 of the act, we copy it in full. It is as follows:

"Sec. 5. The Governor, by and with the consent of the Senate, shall appoint a commissioner of insurance and revenues, who shall be a citizen of this state of well known business ability, at least thirty years of age, who shall hold office for a term of four years, or until his successor shall be appointed by the Governor. If the Senate be not in session when such appointment is made, the appointee shall qualify and hold office until his appointment be rejected by the Senate when it next convenes. Said commissioner of insurance and revenues shall receive a salary of four thousand dollars a year to be paid as other salaries are paid, and he shall devote his whole time to the duties of the office. Whenever there shall be a vacancy in the office of commissioner of insurance and revenues, the Governor shall fill such vacancy by appointment. The commissioner of insurance and revenues, his deputies and assistants shall take, subscribe and file in the office of secretary of state, the constitutional oath of office within five days from the time of the notice of their appointment."

Section 6 provides that the commissioner is empowered, with the approval of the Governor, to appoint two deputies and three stenographers, each of whom shall receive a salary as designated in the section.

Section 2 of the act says that for and during the period of 30 years from the time this act goes into effect, there is created and established the office of commissioner of insurance and revenues. In this connection it may be stated that the Legislature of 1927 passed an act to create the department of insurance commissioner and state fire marshal and to define his duties. This office is created for a period of 30 years, and the act provides that the Governor, by and with the consent of the Senate, shall appoint an insurance commissioner and state fire marshal, who shall hold office for a term of 6 years, and receive the annual salary provided for in the act. This act also provides that the commissioner is empowered, with the approval of the Governor, to appoint certain assistants with a stipulated salary.

It is a rule of universal application that, where an office is filled by appointment and a definite term of office is not fixed by a constitutional or statutory provision, the office is held at the pleasure of the appointing power, and the incumbent may be removed at any time. But the power of removal is not incident to the power of appointment, where the extent of the term of office is fixed by Constitution or statute. Patton v. Vaughan, 39 Ark. 211; Ex parte Hennen, 13 Pet. 230, 10 L. Ed. 136; and Blake v. United States, 103 U. S. 227, 26 L. Ed. 462.

No power of removal is expressly provided for in the statute under consideration, and this makes it necessary for us to decide whether the incumbent had a fixed term of office or not. The circuit court properly held that there are two methods of establishing a fixed term of office — one is where the statute provides that the appointed officer should hold for a given number of years and until his successor shall be appointed and qualified; and that the other is where a fixed period of time is provided in the statute when the appointment shall be made.

In the first case, where a statute provides that the appointed officer shall hold office for a definite period of years and until his successor is appointed, the word "and" must be given its ordinary meaning and be construed conjunctively. The period of years fixed by the statute and the phrase "and until his successor is appointed" form but one contingency; and both events must take place before the incumbent can be removed, in the absence of a statute providing for his removal.

Counsel for appellant claim that the language of the statute brings the case squarely within the rule announced in Bruce v. Matlock, 86 Ark. 555, 111 S. W. 990, and Warren v. McRae, 165 Ark. 436, 264 S. W. 940. We do not agree with counsel in this contention.

In Bruce v. Matlock, 86 Ark. 555, 111 S. W. 990, it was held that the Governor of the state did not have the power to remove a member of the board of trustees of the state charitable institutions. The decision was based upon the construction of the statute creating the board of trustees for the state charitable institutions and the application of the principle that, where a fixed period of time is provided in the statute for the appointment to be made, this is exclusive and prohibitory of any other mode of appointment and creates a fixed term of office. In that case the statute provided that the Governor shall biennially appoint one board of trustees for the School for the Blind, the Deaf Mute Institute, and Insane Asylum, to be composed of six members, one from each congressional district, who shall have charge of said institutions and discharge all duties now required by law. In discussing the question, the court said:

"The word `biennial' means once in two...