Gentry v. Harrison

• Decision Date: 01 November 1937
• Docket Number: 4-4786
• Citation: 110 S.W.2d 497,194 Ark. 916
• Parties: GENTRY v. HARRISON
• Court: Arkansas Supreme Court

110 S.W.2d 497

194 Ark. 916

GENTRY v. HARRISON

4-4786

Supreme Court of Arkansas

November 1, 1937

Appeal from Pulaski Circuit Court, Third Division; J. S. Utley Judge; reversed.

W. G Riddick, J. H. Carmichael and Harry J. Lemley, for appellant.

Jack Holt, Attorney General, John P. Streepey, Assistant, Henry Donham, A. F. House and Trieber & Pope, for appellee.

OPINION

MEHAFFY, J.

Appellant filed suit in the Pulaski circuit court alleging that on March 6, 1933, he was appointed Insurance Commissioner and Fire Marshal of the state of Arkansas for a term of six years, his appointment being confirmed by the Senate; that he duly qualified and since the date above mentioned has been the duly appointed and acting Insurance Commissioner and Fire Marshal of the state of Arkansas.

That by act No. 2, approved January 15, 1937, the General Assembly attempted to abolish the office of Insurance Commissioner and Fire Marshal, and create the office of Insurance Commissioner; that pursuant to said act the Governor appointed M. J. Harrison, the defendant, Insurance Commissioner on January 15, 1937; the appointment was confirmed by the Senate, and the said Harrison, without the consent of plaintiff, took possession of the office of Insurance Commissioner and State Fire Marshal on January 19, 1937, and has exercised the authority and functions of the office since that time.

It is alleged that act No. 2 did not abolish the office of Insurance Commissioner and State Fire Marshal; that no substantial changes in the governmental agency were made by the act, only the name of the office being affected; that the act is invalid because it is merely an ouster of plaintiff from the office to make way for the appointment of a successor, denying the plaintiff the salary to which he is entitled, in violation of § 8 of art. 2 of the Constitution, and because the attempted removal was without cause and without hearing, in violation of art. 15 of the Constitution.

Plaintiff further alleged that if act 2 is valid, it did not become effective until 90 days after the adjournment of the legislature, because no fact is stated constituting the emergency, and that no emergency existed. It is alleged that the defendant was receiving, under the law, $ 350 a month. That being a usurper and without right in office, the defendant is liable to plaintiff for salary received by him up until date of judgment.

The prayer was for judgment for the salary. An amendment to the complaint alleged that act No. 2 was a special act.

A demurrer was filed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, appellant declined to plead further, and the complaint and amendment were dismissed. The case is here on appeal.

It is conceded that appellant has no property right in the office as against the state, nor to the salary provided for the Insurance Commissioner. It is conceded that the legislature has power to abolish any office which it has created. Appellant concedes that he is without remedy if the state abolishes the office or discontinues the department; but it is contended that the office is intangible and consists in the duties of the office, and that while those duties are continued, the office is continued, and that under a proper interpretation of the act in question, it did not abolish either the office of Insurance Commissioner, or the State Department of Insurance, but that it only had the effect of abolishing the officer, which it is contended the legislature had no power to do.

In 1917, the legislature passed an act to raise the tax of insurance companies and to create the office of Insurance Commissioner and State Fire Marshal. Acts of 1917, p. 1038.

In 1925, an act was passed by the legislature to abolish the office of Insurance Commissioner and State Fire Marshal and create the office of Commissioner of Insurance and Revenues. The act prescribed the duties and powers of said office. Acts of 1925, p. 260.

In 1927, an act was passed by the legislature to create the Department of Insurance Commissioner and State Fire Marshal and define the duties thereof. Acts of 1927, p. 340.

Section No. 1 of act 115 of the Acts of 1927 created and established the office of Insurance Commissioner and State Fire Marshal.

Section 1 of act 2 of the Acts of 1937 repealed § 1 of act 115 above mentioned, and abolished the office of Insurance Commissioner and State Fire Marshal. Section 2 of act 2 of 1937 created the office as the State Insurance Department. Act 2 repealed § 4 of act 115 of 1927. The other provisions of act 115 of 1927 were not repealed or amended.

The General Assembly has the right to repeal any law enacted by it, and to abolish any office created by it, but the person elected or appointed to office does not hold the office under contract, but under the law, and there is no contract between the state and the officer appointed which is within the protection of the constitution forbidding the impairment of the obligation of a contract.

"Those who take such temporary offices as may be created by the legislature do so with notice of the insecure tenure and the acceptance of the office creates no contract with the state." Greer v. Merchants & Mechanics Bank, 114 Ark. 212, 169 S.W. 802.

Section 1 of act 2 of 1937 repealed the act under which appellant was appointed, and abolished the office of Insurance Commissioner and State Fire Marshal as then constituted. That the legislature had the power to do this, there, of course, can be no question. The only serious contention is that act 2 was passed to abolish the officer and not the office; but it does, in express terms, abolish the office held by appellant and repeals the act under which he was holding office.

Section 2 of act 2 of 1937 creates an office to be known as State Insurance Department, and § 3 authorizes the Governor, by and with the advice and consent of the Senate, to appoint the Insurance Commissioner.

We think the legislature had the power to do this, and all doubts as to the constitutionality of any statute must be resolved in favor of the validity of the statute. There is some conflict in the authorities as to the right of the legislature to abolish the office, and we do not review or discuss these authorities. We think the rule is well established in this state that the legislature may repeal any law it enacts and may abolish any office created by it, and the motive or reason for the legislative action cannot be inquired into by the court.

Our conclusion is that the legislature had a right to enact the law and under it the Governor had a right to appoint the Insurance Commissioner.

But it is contended that if the law is valid and had the effect of ousting the appellant, still the act did not go into effect until 90 days after the adjournment of the General Assembly.

The emergency clause in that act reads as follows: "It is hereby found and declared that the regulation of the business of insurance is a function of the state government and necessary for the preservation of the public peace, health and safety, and that therefore an emergency exists, and this act shall take effect immediately upon its passage and approval."

The constitution provides that it shall be necessary to state the fact which constitutes such emergency. Certainly no one can claim that any fact is stated in § 6 of act 2 which constitutes an emergency. It simply states that the regulation of the business of insurance is a function of the state government. This certainly could not be an emergency, and yet this is the only fact stated in the section to constitute the emergency.

Appellee calls attention to the case of Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359. In that case, referred to and relied on, the court said:

"It is not sufficient, under this last amendment, for the legislation merely to declare that an emergency exists, but it is necessary to state the fact which constitutes such emergency. If therefore an act is passed which does not contain an emergency clause in which the fact is stated constituting the emergency, the act does not become effective until ninety days after the adjournment of the session of the...