Holmes v. Osborn

• Decision Date: 16 July 1941
• Docket Number: Civil 4403
• Citation: 57 Ariz. 522,115 P.2d 775
• Parties: L. C. HOLMES and LYNN LOCKHART, Members of the Industrial Commission of Arizona, Petitioners, v. SIDNEY P. OSBORN, as Governor of the State of Arizona, Respondent
• Court: Arizona Supreme Court

115 P.2d 775

57 Ariz. 522

L. C. HOLMES and LYNN LOCKHART, Members of the Industrial Commission of Arizona, Petitioners, v. SIDNEY P. OSBORN, as Governor of the State of Arizona, Respondent

Civil No. 4403

Supreme Court of Arizona

July 16, 1941

[Copyrighted Material Omitted]

Original proceeding in Certiorari by petitioners for a review of respondent's action in removing them from office. Order of removal annulled.

Mr George M. Hill, Mr. Mark Wilmer and Mr. Charles L. Strouss, for Petitioners.

Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, Assistant Attorney General, for Respondent, Mr. Burt H. Clingan, of Counsel.

Mr. Jacob Morgan, Amici Curiae.

OPINION

ROSS, J.

The petitioners instituted this proceeding by certiorari against the respondent, Governor of Arizona, for the purpose of testing the legality of their removal by him as members of the Industrial Commission of Arizona.

Petitioner Holmes was appointed to such office in March, 1933, by the then governor, Honorable B. B. Moeur, and at the expiration of such term was reappointed, for the term beginning January 8, 1940, by the then governor, Honorable R. T. Jones, with the advice of the senate, and was acting under this last appointment when the respondent ordered his removal therefrom.

Petitioner Lockhart was appointed in 1939, also by Governor Jones, with the advice of the senate, to fill out a term which began January 9, 1938, and will end January 8, 1944, and was acting under such appointment when the respondent ordered his removal.

The respondent was inducted into office on January 6, 1941. On February 17 he formally notified the petitioners and E. T. Houston, the third member of the Industrial Commission (appointed by Governor Jones in 1940, and confirmed by the senate, to fill a vacancy caused by the death of Honorable Sam Proctor), that two complaints had been filed with him charging all of them with inefficiency, neglect of duty, malfeasance, misfeasance and nonfeasance in office and engaging in occupations and businesses other than their duties as industrial commissioners, and petitioning for their removal from office; appointed February 23 as the date he would hear evidence for and against such charges, and served copies of such complaints upon the petitioners and the said Houston, which complaints are as follows:

"Honorable Sidney P. Osborn

"Governor of the State of Arizona,

"Phoenix, Arizona.

"Dear Governer Osborn:

"I am writing you this letter to advise you that while certain appointed state officials have not seen fit to respond to your request for their resignations, it is, without doubt, the considered judgment of a tremendous majority of the people of Arizona that you have not fulfilled your duty in that respect until or unless you now proceed to effect the removal of some of these officials from office. I refer specifically to the members of the Industrial Commission of Arizona. Many Arizona workmen are looking forward hopefully to a change in the membership of the Industrial Commission.

"To the end that right and justice be served and that this matter be properly and legally determined, I present to you as charges for the removal of the members of the Industrial Commission of the State of Arizona, the following:

"(1) That the said Industrial Commissioners, L. C. Holmes, Lynn Lockhart and E. T. Houston, are guilty of inefficiency, neglect of duty, malfeasance, misfeasance and nonfeasance in their offices as such industrial commissioners.

"(2) I specifically charge Commissionel L. C. Holmes and Commissioner Lynn Lockhart with neglect of duty, inefficiency, malfeasance, misfeasance and nonfeasance in office, in that the said L. C. Holmes and Lynn Lockhart, as industrial commissioners of the State of Arizona, have throughout their holding of the said offices, failed and refused to provide fair and unbiased examinations and consideration and hearings to laboring men and women injured in the course of their employment in the industries of Arizona, and have failed and refused to provide for and pay the benefits and the compensations set forth in the Workmen's Compensation Laws of Arizona. That, on the contrary, they have continually taken action to minimize and even deprive laboring men and women of such benefits and compensation.

"(3) I further charge that the said L. C. Holmes and Lynn Lockhart, as industrial commissioners of the State of Arizona, by their conduct in such office, have acted and voted to return and rebate to certain employers of Arizona approximately one million dollars of premiums paid by them in the past two years, thus making it apparent that either the Industrial Commission insurance rates to certain employers in Arizona are too high and should have been materially lowered, as is provided by law, or that said Industrial Commission is withholding, and has withheld, from injured laboring men and their widows and children one million dollars of the compensation rightfully due due them and provided for them by law.

"(4) I further charge the said L. C. Holmes, Lynn Lockhart and E. T. Houston with inefficiency, neglect of duty, malfeasance, misfeasance and nonfeasance in their offices as industrial commissioners of the State of Arizona, in that during their terms of office each of them, singularly and collectively, have shown unfairness, favor and discrimination in the making of awards to injured workmen; between employers and classes of employers in the fixing of rates and premiums for insurance under the Workmen's Compensation Law of the State of Arizona; in the distribution of medical work among the medical profession of the State of Arizona; all to the injury of the said compensation fund, and the injury of laboring men and women and of the people of the State of Arizona.

"(5) Upon information and belief, I further charge the said L. C. Holmes, Lynn Lockhart and E. T. Houston with inefficiency, neglect of duty, malfeasance, misfeasance and nonfeasance in their offices as such industrial commissioners, in the administration of the Workem's Compensation Law of the State of Arizona, in that in the investigation, hearing and adjudication of workmen's claims for compensation for injuries sustained in the course of their employment, that said commissioners, and each of them, have, during their terms as such commissioners, used undue influence, duress, and arbitrary tactics, thereby depriving said injured workingmen and women of their rights and benefits as provided by the said Workmen's Compensation Act.

"(6) Upon information and belief, I further charge the said L. C. Holmes, Lynn Lockhart and E. T. Houston with delegating judicial authority to employees of the Commission, in the adjudication of claims under the said Workmen's Compensation Act, and with condonation and ratification of arbitrary abuses of such judicial powers on the part of such employees.

"Wherefore, I request that you fix a time and place for the hearing of said charges and for the production of evidence in proof thereof, and that upon said hearing and at the conclusion thereof, you, as Governor of the State of Arizona, remove the said L. C. Holmes, Lynn Lockhart and E. T. Houston, as members of the Industrial Commission of the State of Arizona, as is provided by Chapter 56, Article 9, Section 901, Arizona Code Annotated, 1939; that you advise said Commissioners of the date of said hearing; that you summon them thereto to appear and defend with respect to these charges; and that, under your hand and the seal of the State of Arizona, you issue subpoenas as may be requested by myself and by the said Commissioners, for the attendance of witnesses in proof or in defense of these charges; and for such other and further proceedings as you may deem meet or proper in the premises.

"C. P. FLYNN."

"Honorable Sidney P. Osborn

"Governor of the State of Arizona

"Phoenix Arizona.

"Dear Governor Osborn:

"The undersigned, a citizen, resident and taxpayer of Phoenix, Arizona, and engaged as an employer in the storage and transfer business in Phoenix, hereby petitions you for the removal from office of Industrial Commissioners L. C. Holmes, Lynn Lockhart and E. T. Houston, as members of the Industrial Commission of Arizona, upon the charges hereinafter set forth:

"(1) Upon information and belief, I allege and charge the said L. C. Holmes, Lynn Lockhart and E. T. Houston with inefficiency, neglect of duty, malfeasance, misfeasance and nonfeasance in their offices as such industrial commissioners, as hereinafter more specifically set out;

"(2) I specifically charge L. C. Holmes, Lynn Lockhart and E. T. Houston with inefficiency, neglect of duty, misfeasance, malfeasance and nonfeasance in office, in that, in violation of the provisions of the Workmen's Compensation Law of the State of Arizona in respect to the fixing of rates and premiums, they have failed to determine the hazards of the different classes of occupations and industries and fix the rates of premiums therefor at the lowest rate consistent with the maintenance of a solvent state compensation fund with proper surpluses and reserve;

"(3) Upon information and belief, I further charge L. C. Holmes Lynn Lockhart and E. T. Houston with inefficiency, neglect of duty, malfeasance, misfeasance and nonfeasance in office, in the manner in which they, as industrial commissioners, have administered the funds in their charge, in the expenditure thereof of the operation of said Commission and the administration of said law; in the collection of premiums from certain employers; in the condonation of delinquencies in the payment of said premiums on the part of certain employers; in the employment of employees of said Commission; in the purchase of equipment; and in the...