Dunbar v. Cronin

• Citation: 164 P. 447,18 Ariz. 583
• Decision Date: 18 April 1917
• Docket Number: Civil 1525
• Parties: MARK DUNBAR, Appellant, v. CON P. CRONIN, Appellee
• Court: Supreme Court of Arizona

164 P. 447

18 Ariz. 583

MARK DUNBAR, Appellant, v. CON P. CRONIN, Appellee

Civil No. 1525

Supreme Court of Arizona

April 18, 1917

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Affirmed.

Messrs Kibbey, Bennett & Curtis, for Appellant.

Mr. G P. Bullard, for Appellee.

OPINION

ROSS, J.

This is an action in the nature of a writ of quo warranto brought to try the title to the office of state law and legislative reference librarian. The plaintiff-appellant claims title through appointment by the board of curators of the state library, and the defendant-appellee claims title by legislative appointment. A demurrer to the plaintiff-appellant's complaint was sustained by the trial court, and, he refusing and declining to amend his complaint, judgment was entered in favor of defendant-appellee, from which judgment this appeal is prosecuted.

Both the appellant and appellee claim title to the office by virtue of the provisions of chapter 62, entitled "An act establishing a state library, with a law and legislative reference bureau, providing for the appointment of a board of curators and librarian, defining their duties and making an appropriation therefor," passed at the second regular session of the legislature, effective June 10 1915. That act, or so much thereof as we deem important and material to the decision of this case, we here set forth:

"Section 1. A state library established to be located at the state capitol, to be under the control and direction of a board of curators, consisting of three (3) members, to be appointed by the Governor, by and with the advice and consent of the Senate. They shall be so appointed that the term of one member shall expire January 1, 1917, one January 1, 1919, and one January 1, 1921. The successor of the first appointed member of the board of curators whose term expires January 1, 1917, and all subsequent incumbents of the said office, shall serve for six years, or until their successors are duly appointed and qualify.

"Sec. 2. The board of curators shall have full control and management of the library and all its departments and shall provide rules and regulations for the government thereof; shall elect a chairman who shall preside at all meetings and shall appoint a law and legislative reference librarian who shall act as secretary of the said board and hold office at the pleasure of the board: Provided, however, that said board of curators are not empowered to appoint said legislative reference librarian during the incumbency in office of the said librarian as provided in section 3 of this act.

"Sec. 3. Until otherwise provided by law Con P. Cronin is appointed legislative reference librarian, and shall serve until his successor is appointed. Any vacancy shall be filled by the board of curators.

"Sec. 4. There shall be maintained in the state library a legislative reference bureau for the use and information of the members of the Legislature, the heads of the several departments of state government, and such citizens of the state as may desire to consult the same.

"Sec. 5. The librarian shall prepare, and have available for use, check-lists and catalogues of Arizona law, and all the current legislation of Arizona and other states; lists of bills and resolutions presented in either branch of the Legislature; check-lists of the public documents of the state, including all reports issued by the several departments, boards and commission; digests of such public law of this and other states as may be the best made available for legislative use; catalogues, files and clippings of newspapers, and of such other printed matter as may be proper for the use of the bureau. The librarian shall also, when requested by the Governor, heads of departments, or members of the Legislature, promptly procure available information, not on file in the bureau relating to pending legislation, and investigate the manner in which laws have operated in other states.

"Sec. 6. It shall be the duty of the librarian:

"(a) To keep and maintain at all times, in duplicate, a loose leaf set of statutes, including all sections in force, arranged numerically, and in connection with each section, subsection or paragraph of a subsection to designate the titles and subtitles, under which the same is indexed, and keep an alphabetical card index of all such titles and subtitles referring to such section, subsection or paragraph.

"(b) To keep and maintain, in duplicate, a loose leaf ledger of notes of court decisions and other matters, referring to any section, subsection or paragraph of the statutes, arranged numerically.

"(c) To supervise and attend to the preparation, printing and binding of a complete compilation of the statutes and index, or the statutes, index and notes whenever ordered by the Legislature.

"(d) To supervise and attend to the preparation, printing and binding of such compilations of the particular sections or portions of the statutes as may be ordered by the head of any department of the state.

"(e) To formulate and prepare a definite plan for the order, classification, arrangement, indexing, printing and binding of the statutes and session laws, and between and during sessions of the Legislature to prepare and at the beginning of each session thereof to present to the committee of revision of each house, in such bill or bills as may be thought best, such consolidations, revisions or other matters relating to the statutes, or any portion thereof, as can be completed from time to time. . . .

"Sec. 8. The librarian shall neither oppose nor urge legislation, but shall, upon request, aid and assist the members of the Legislature, the Governor, and the heads of departments by advising as to bills and resolutions and drafting the same into proper form, and by furnishing to them the fullest information upon all matters in the scope of the bureau relating to their public duties. No employees of the bureau shall reveal to any person outside of the bureau the contents or nature of any matter not yet published, except with the consent of the person bringing such matters before the bureau. . . ."

If the legislature had the power to do so, it is very plain that it has appointed the appellee the law and legislative reference librarian "until otherwise provided by law," and it has, by express language, deprived the board of curators of the power "to appoint said legislative reference librarian during the incumbency in office" of the appellee.

As to the intent of the legislature in this matter there is no room for controversy. To say that the legislature meant something else is to indict it of saying one thing and meaning another. The appellee's tenure of office, under the terms of this act, is determinable only by death, resignation, failure to perform the duties of the office, or willful misconduct therein, or by the legislature. In any event the board of curators cannot remove the legislative appointee.

"It is beyond question the duty of courts in construing statutes to give effect to the intent of the law-making power, and seek for that intent in every legitimate way. But . . . first of all in the words and language employed; and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation." Section 366, Sutherland on Statutory Construction.

Indeed the appellant and appellee are in agreement as to the meaning intended by the legislature, for the appellant in his brief says:

". . . The legislature provides that the board shall not exercise its power of appointment during the incumbency of an appointee of the legislature thereafter named."

If other proof than the very plain language used in making the appointment of appellee were needed, it might be mentioned that the legislature, convened in January, 1917, passed an act appropriating the sum of $500 to pay the expenses incurred by appellee in defending his title to the office of librarian in this very suit. This not only evidences the intention of the members of the legislature that he should not be removed by the board of curators, but it also may be considered as an expression of appreciation of the legislature of benefits secured to it through the legislative bureau. The learned counsel for the appellant, however, does not question the intention of the legislature to appoint the appellee to the office of state law and legislative reference librarian, and that his tenure should continue "until otherwise provided by law"; his principal contention being that the appointment "is invalid and ineffective for the reason that the appointment to an administrative office is not within the legislative power under the Constitution of the state." He makes other objections to the appointment, which we shall notice later on, but this is the principal one and the one toward which most of his very learned brief and argument are directed.

The appellant bases his contention that the legislature is without power to appoint a librarian upon article iii of the Constitution, which divides the powers of government into three departments, and declares that these departments shall be separate and distinct, and that no one of them shall exercise the powers properly belonging to either of the others. It is argued that an appointment to office is an executive function, and therefore properly belongs to the executive department. This position is a direct challenge of the constitutionality of the appointment by the legislature. The matter of declaring this act unconstitutional is a very serious one,...