City Of Lynchburg v. Suttenfield

• Decision Date: 24 February 1941
• Citation: 13 S.E.2d 323
• Court: Virginia Supreme Court
• Parties: CITY OF LYNCHBURG et al. v. SUTTENFIELD.

13 S.E.2d 323

CITY OF LYNCHBURG et al.

v.SUTTENFIELD.

Supreme Court of Appeals of Virginia.

Feb. 24, 1941.

Error to Corporation Court of City of Lynchburg; Aubrey E. Strode, Judge.

Proceeding by John L. Suttenfield against the City of Lynchburg and others for a declaratory judgment determining whether petitioner's office as city councilman was vacated by his induction into the military service of the United States. Declaratory judgment for petitioner, and defendants bring error.

Affirmed.

Argued before HOLT, HUDGINS, GREGORY, EGGLESTON, and SPRAT-LEY, JJ.

T. G. Hobbs and Robert D. Morrison, both of Lynchburg, for plaintiffs in error.

Thomas J. Williams, of Lynchburg, for defendant in error.

EGGLESTON, Justice.

In August, 1940, John L. Suttenfield was re-elected to the office of councilman for the city of Lynchburg for a term of four years beginning the following September 1, and duly qualified as such. He receives from the city an annual salary of $500, payable in equal monthly instalments.

Since May, 1938, Suttenfield has held a commission as First Lieutenant--Chaplain in the 246th Coast Artillery Regiment (Harbor Defense) of the National Guard of Virginia, a unit of the National Guard of the United States.

Under authority of the joint resolution of Congress, approved August 27, 1940 (Resolution No. 96, S.J.Res. 286, ch. 689, Acts of the 76th Congress, 3d Session, 50 U.S.C.A.Appendix, § 401), the President of the United States, on August 31, 1940ordered certain units and members "of the National Guard of the United States into the active military service of the United States "for a period of twelve consecutive months, unless sooner relieved, " commencing September 16, 1940. Included in this call was the unit of the Virginia National Guard in which Suttenfield holds his commission. In conformity with this order, the Governor of Virginia, acting by the Adjutant General, ordered all units of the 246th Coast Artillery (Harbor Defense) of the Virginia National Guard into active military service of the United States, effective on September 16, 1940. On that date Suttenfield reported for duty and was duly inducted into th'e active military service of the United States. He is now with his unit at Fort Story, Virginia, and is receiving from the United States the salary appropriate to his military office.

On September 20, 1940, at a meeting of the council of the city of Lynchburg, there was presented an opinion from the city attorney to the effect that when Suttenfield was inducted into the active military service of the United States, his position as city councilman was ipso facto vacated under the provisions of section 290 of the Code of Virginia. Whereupon, by a majority vote, the council, over the protest of Suttenfield, adopted a resolution declaring his office as councilman vacated.

Shortly thereafter Suttenfield filed in the court below a petition against the city of Lynchburg, its mayor and remaining councilmen, praying for a declaratory judgment determining whether or not his office as councilman was vacated by his induction into the military service of the United States under the circumstances stated. The petitioner alleged that the provisions of Code, § 290, were not applicable to his situation, but that even if they were, he came within the exceptions to that section which are found in Code, § 291, as amended.

After answers had been filed to the petition the matter was heard under an agreed statement of facts by the court below, which in a written opinion upheld Sutten-field's contention that he came within the provisions of Code, § 291, as amended, and had, therefore, not forfeited his office as councilman. To a declaratory judgment carrying into effect this ruling, the city of Lynchburg and certain of the other defendants below sought and obtained this writ of error.

Code, § 290, provides: "No person shall be capable of holding any office or post mentioned in the preceding section, who holds any office, or post of profit, trust, or emolument, civil or military, legislative, executive, or judicial, under the government of the United States, or who is in the employment of such government, or who receives from it in any way any emolument whatever; and the acceptance of any such office, post, trust, or emolument, or the acceptance of any emolument whatever under such government, shall, ipso facto, vacate any office, or post of profit, trust or emolument under the government of this Commonwealth or under any county, city, or town thereof."

"The preceding section" referred to disqualifies persons for being concerned in a duel "to hold any office of honor, profit, or trust, under the Constitution of Virginia."

Code, § 291 (as amended by Acts 1918, ch. 315, p. 488; Acts 1920, ch. 98, p. 81; Acts 1924, ch. 433, p. 656; Acts 1928, ch. 440, p. 1125; Acts 1930, ch. 22, p. 22; Acts 1932, ch. 53, p. 48; Acts 1936, ch. 18, p. 33; Acts 1938, ch. 157, p. 217), provides that "The preceding section shall not be construed * * * to exclude from such office or post officers or soldiers on account of the recompense they may receive from the United States when called out in actual duty; * * *."

The question before us is, Does the defendant in error come within this provision of Code, § 291? Is he an "officer" who has been "called out in actual duty" as there intended? If so, he is clearly entitled to retain his present office.

As stated in their brief, "Appellants' contention is that so long as Mr. Suttenfield remained a member of the Virginia National Guard, and as such National Guard officer was called into active duty or active service, though he received recompense from the United States therefor, his City office was not vacated, but when he was inducted into the active military service of the United States under the order of the President issued pursuant to resolution of Congress, he lost his standing as a member of the Virginia National Guard and, upon his induction, became an active member of the United States Army, and thus does not fall within the exception of Section 291, and his City office was ipso facto vacated by the provisions of Section 290."

In other words, the plaintiffs in error contend that the provision in section 291 is to prevent the forfeiture of office by an officer or member of the National Guard who receives emolument from the Federal Government when he is "called out in actual duty" for weekly drills and annual maneuvers, and is not designed to apply to the present situation where an officer has been inducted into the active military service of the United States.

Neither in the history of the section nor in the language used do we find any basis for this narrow interpretation.

Code, §§ 290 and 291, have their origin in the Act of 1788, ch. 33, p. 694 (passed December 8, 1788). After a recital of the ratification by the "good people of this commonwealth, " on June 25, 1788, of "a constitution for the government of the United States of America, " and the further recital that, "it is adjudged expedient and necessary, that all those who shall be employed in the administration of the said government, ought to be disqualified from holding or administering any office, or place whatsoever, under the government of this commonwealth, " it is enacted "That the members of the congress of the United States, and all persons who shall hold any legislative,...