Blue v. Tetrick

• Citation: 69 W.Va. 742,72 S.E. 1033
• Parties: BLUE, Tax Com'r, v. TETRICK, CountyClerk.
• Decision Date: 14 November 1911
• Court: Supreme Court of West Virginia

72 S.E. 1033

69 W.Va. 742

BLUE, Tax Com'r,

v.TETRICK, CountyClerk.

Supreme Court of Appeals of West Virginia.

Nov. 14, 1911.

(Syllabus by the Court.)

1. States (§ 44^*)—Creation of Office—Constitutional Provisions.

Chapter 4. Acts 1904, Ex. Sess., found in Code, edition 1906, c. 29, is not unconstitutional in its provision creating the office of tax commissioner. He is a lawful state executive officer.

[Ed. Note.—For other cases, see States, Dec. Dig. § 44.*]

2. States (§ 44*)—Creation of Office—Constitutional Provisions.

The Legislature has power under the Constitution to create subordinate executive state offices in addition to those specified in section 1 of article 7 of the Constitution (Code 1906, p. lxiv).

[Ed. Note.—For other cases, see States, Dec. Dig. § 44.*]

3. States (§ 44*)—Duties of Officers—Statutory Provisions.

Chapter 33, Acts of 1908, Ex. Sess. (Code Supp. 1909, c. 10b), is not unconstitutional in its provisions requiring public officers in keeping accounts of public moneys to conform to the system and forms prescribed by the State Tax Commissioner and board of public works.

[Ed. Note.—For other cases, see States, Dec. Dig. § 44.*]

(Additional Syllabus by Editorial Staff.)

4. Officers (§ 3*) — Creation of Appointment—Constitutional Provisions—"Create."

In Const, art. 7, § 8 (Code 1906, p. lxv), providing for the appointment of officers whose offices "shall be created by law, " the word "create" means to bring into existence that which did not exist, and gives to the Legislature power to originate an office.

[Ed. Note.—For other cases, see Officers, Dec. Dig. § 3.*

For other definitions, see Words and Phrases, vol. 2, pp. 1708-1709.]

5. States (§ 44^2-*)—Officers—Constitutional Provisions—"Office."

In Const, art. 7, § 8 (Code 1906, p. lxv), providing for the appointment of officers whose offices shall be created by law, the word "office" differs in its legal signification from "employe, " an employe being a mere agent, and the State Tax Commissioner holds an office which the Legislature is authorized to create.

[Ed. Note.—For other cases, see States, Dec. Dig. § 44.*

For other definitions, see Words and Phrases, vol. 6, pp. 4921-4931; vol. 8, p. 7736.]

Original proceeding by Fred O. Blue, State Tax Commissioner, for mandamus to W. Guy Tetrick, Clerk of the County Court of Harrison County. Motion to quash and demurrer to alternative writ overruled.

L. S. Echols, E. R. Kingsley, and Fred O. Blue, for petitioner.

Philip P. Steptoe, forrespondent.

BRANNON, J. Fred O. Blue, State Tax Commissioner, and as such chief inspector of public offices, filed in this court a petition, alleging that W. Guy Tetrick, clerk of the county court of Harrison county, had failed to keep his accounts conformably to the system of accounting by public officers prescribed by chapter 33 of the Acts of the Extra Session of the Legislature in 1908 (Supplement Code of 1909, c. 10b), and praying for a mandamus to compel said clerk to so keep his accounts. The defendant moved the court to quash the alternative writ and demurrer to it, and we hear the case on that motion and demurrer, not on any facts not in that writ stated.

One defense against the issuance of the mandamus is that the act found in Code of 1906. ch. 29, creating the office of tax commissioner is unconstitutional, and that in law there is no such office as tax commissionership, and that the plaintiff is no officer at all, and has no power as such. This position rests on the theory that the act establishes another executive officer in addition to those specified in the Constitution; indeed, that the act creates another executive department. The provision of the Constitution relied upon for this contention is section 1, art. 7 (Code 1906, p. lxiv), reading as follows: "The executive department shall consist of a governor, secretary of state, state superintendent of free schools, auditor, treasurer and attorney general." The claim is that the Tax Commissioner is a state officer, of the same nature and character as the Governor and other officers named in the clause of the Constitution just quoted, and that that clause contains all the executive officers to fill and execute the duties of the state executive department, and no more can be added. We cannot concur in this contention. In the first place, we must remember the well-known rule that, as the Legislature is the supreme lawmaking power, it can enact any law where it is not prohibited by state or federal Constitution. 3 Encyclo. Digest, 161. Our Constitution has no prohibition in this matter.

We cannot think that it was the intention of the framers of the Constitution to limit the power of the Legislature, so as to prohibit it from creating new offices to aid in state executive administration. It was not the intention to say that the Legislature, the lawmaking power, should be restrained from doing this, however necessary, as population and business has increased in future. We must not give such a construction to the Constitution as would so far militate against the public welfare and necessity. The Constitution of the United States provides that: "The executive power shall be vested in a president of the United States of America." It cannot be possible that it was intended that all the multifarious executive duties should rest on the President alone, without power in Congress to create offices and officers of great power, to carry on executive administrations. Congress has never taken that view, as it has created, during the whole history of the government, numerous officers to carry on high functions of government, cabinet officers, and others of high dignity and great powers. If that proposition be true, we have been a long time finding it out To so hold would turn back the tide of time. And we may say the same as to state. We cannot think that the statutes establishing a state board of health, commissioner of banking, chief inspector of mines, state board of control, state archivist, board of pharmacy, and state game and fish warden, besides others, are unconstitutional and void. All along the road during the life of this state and the life of Virginia the Legislature has provided additional offices and officers to perform executive functions. In Colorado was the same provision as that in our Constitution. The court said that: "In declaring that offices should constitute the executive department, it was not intended that the Legislature should not create new executive offices. Such a presumption would do violence to the intelligence of the framers of that instrument. It is, we think, the purpose of this section to provide for such offices of the executive department as the members of the constitutional convention deemed absolutely indispensable, leaving it to the Legislature to create new offices as the growth of the state and experience might suggest, and to abolish the same, but without authority to abolish any of those enumerated. The Constitution of the United States provides that the executive power of the nation shall be vested in the President; but it will certainly not be contended that it was intended by this that the President was to be the sole and exclusive executive officer of the nation."

State v. Womack, 4 Wash. 19, 29 Pac. 939, also so holds. The text of 36 Cyc. p. 854, roads thus: "The enumeration by the Constitution of certain officers as constituting the executive department of the state does not necessarily deprive the Legislature of the power of creating other executive offices, although it cannot abolish any of those created by the Constitution." The same rule is found in 23 Am. & Eng. Ency. of Law, 328. Such, I would say, would be the true construction of the above-quoted extract from article 7, § 1, of the Constitution, if the case rested upon that alone. But there are other clauses in the Constitution which clearly contemplate power in the Legislature to create additional offices, and authorize it to do so. Take section 8, article 7 (Code 1906, p. lxv). it says the Governor shall nominate, and by and with the advice and consent of the Senate appoint, all officers whose offices are established by the Constitution, "or shall be created by law, and whose appointment or election is not otherwise provided for." Section 8, art. 4 (Code 1906, p. liv) says: "The Legislature, in cases not provided for in this Constitution, shall prescribe by general laws the terms of offices, powers, duties and compensation of all public officers and agents, and the manner in which they shall be elected, appointed and removed." These sections clearly recognize the power of the Legislature to create additional offices in the executive department. I do not say that the Legislature could create an office with power in it incumbent to oust the Governor of his constitutional functions, though I think it could deprive him of powers given by statute, and transfer them to another officer; but I do say that it is very clear that the Legislature may create an additional office, and provide for filling it, as an auxiliary or aid in the executive department. It cannot be said that chapter 33, Acts of 1908 (extra session), makes the Tax Commissioner coequal with the Governor, since it provides that the Governor shall appoint him, and may remove him, and the Tax Commissioner shall report to the Governor. The Tax Commissioner is thus not the coequal of the Governor, but is a subordinate in the executive department.

[4， 5] It is virtually contended that the power to create additional officers applies only to subordinates, to employes, or inferior officers, but not to an officer like that of the Tax Commissioner, vested, as he is, with great and important supervision over the conduct of officers as to monetary matters; but the language of the Constitution above quoted is, "officers whose offices are established by this Constitution, or shall be created by law." The word "create" means to bring into existence that which did...