McCluskey v. Hunter

• Decision Date: 12 April 1928
• Docket Number: Civil 2732
• Citation: 33 Ariz. 513,266 P. 18
• Parties: H. S. McCLUSKEY, Plaintiff, v. WILLIAM E. HUNTER, Defendant
• Court: Arizona Supreme Court

266 P. 18

33 Ariz. 513

H. S. McCLUSKEY, Plaintiff, v. WILLIAM E. HUNTER, Defendant

Civil No. 2732

Supreme Court of Arizona

April 12, 1928

Original proceeding in quo warranto by H. S McCluskey against William E. Hunter. Motion to strike certain portions of the answer denied, demurrer thereto overruled and unless stipulation is filed case referred to the superior court for finding of the facts.

Mr Irving A. Jennings, for Plaintiff.

Messrs. Flanigan & Fields, for Defendant.

OPINION

McALISTER, J.

This is a quo warranto proceeding filed originally in this court by H. S. McCluskey and its purpose is to have the defendant, William E. Hunter, adjudged guilty of usurping and unlawfully holding the office of industrial commissioner of this state and the plaintiff declared to be the person entitled thereto and receive its emoluments.

It appears from the complaint that on June 12th, 1926, the plaintiff, H. S. McCluskey, was appointed by the Governor a member of the Industrial Commission of Arizona and that immediately thereafter he qualified and entered upon the duties of the office and ever since has been and now is the duly qualified and acting member of the Industrial Commission; that on January 17th, 1928, James H. Kerby, Secretary of State and acting Governor, issued a proclamation attempting to declare the office of industrial commissioner held by plaintiff vacant and that he attempted on January 20th thereafter to appoint the defendant, William E. Hunter, to fill it; that immediately following the attempted appointment the said William E. Hunter usurped and intruded into the office of industrial commissioner and ever since has and now does intrude into and unlawfully hold said office to the exclusion of the plaintiff; that the plaintiff had no notice that such action was contemplated and no opportunity to be heard on the charges upon which it was based; that the reasons given by the acting Governor for attempting to declare the office vacant appear in his proclamation and are as follows:

"Whereas, it further appears that after the said McCluskey qualified as such officer, the said McCluskey was on the sixth day of April, 1927, duly appointed a member of the Colorado River Commission of Arizona, and that thereafter the said McCluskey duly qualified and entered upon the discharge of his duty as such member of said Colorado River Commission, and ever since has continued, and now continues to exclusively perform the duties of his office as a member of said Colorado River Commission; and

"Whereas, it appears to my satisfaction that the said H.S. McCluskey has continuously ceased to discharge the duties of his office as a member of the Industrial Commission of the state of Arizona for a period of more than four months next preceding this date; the said McCluskey not being prevented from performing his duties as a member of said Industrial Commission by reason of sickness or by reason of being absent from the state of Arizona; and

"Whereas, section 3, of chapter 83, Session Laws 1925, creating said Industrial Commission provides as follows:

"'Limitation, Business and Political. No commissioner shall hold any office of trust or profit, or engage in any occupation or business other than his duties as such commissioner; and no commissioner nor any regular employee of the commission shall serve on any committee of any political party'; and

"Whereas, the two said offices now attempted to be held by the said H. S. McCluskey are incompatible, especially in view of the provisions of section 3 of said chapter 83; and

"Whereas, paragraph 221, Revised Statutes of Arizona, 1913 Civil Code, is in part as follows:

" 'An office shall be deemed vacant from and after the happening of either of the following events before the expiration of the term: . . . (7) His ceasing to discharge the duties of his office for a period of three consecutive months, except when prevented by sickness, or when absent from the state by permission of the Legislature.' "

The answer is an elaboration of the facts contained in the proclamation and alleges in substance that the plaintiff was appointed on June 12th, 1926, to fill the vacancy on the Industrial Commission caused by the resignation of Cleve W. Van Dyke, who had been on January 8th prior thereto placed upon the commission for a term of six years; that after qualifying and at all times since January 8th, 1927, plaintiff has failed and neglected to discharge the duties of the office though not prevented from so doing by sickness or by his absence from the state through permission of the legislature. It is alleged also that on April 6th, 1927, the Governor appointed plaintiff a member of the Colorado River Commission, that he accepted the appointment and immediately thereafter entered upon the discharge of the duties of such office, and has at all times since continued to perform such duties by participating in the deliberations of the commission and accompanying its other members to points outside the state to effectuate and accomplish the things the act creating the commission imposed upon them. It further alleges that on January 20th, 1928, the Governor, Geo. W. P. Hunt, being at the time absent from the state, James H. Kerby, Secretary of State and the officer upon whom the powers and duties of Governor devolve when the latter is not within the state, ascertained and declared the office of industrial commissioner held by plaintiff to be vacant, removed him therefrom and appointed the defendant, William E. Hunter, to fill the vacancy; that such action was taken because, first, the plaintiff ceased to discharge the duties of the office of industrial commissioner for three consecutive months when not prevented therefrom by sickness or absence from the state through permission of the legislature, and because, second, he accepted the office of Colorado River commissioner and at all times since has actively discharged the duties thereof; that since the appointment of defendant he has been in actual possession of the office of industrial commissioner and has performed all of the duties appertaining thereto.

The plaintiff moves to strike certain portions of the answer, demurs to it upon the ground that it does not state facts sufficient to constitute a defense to the complaint and replies specifically denying each and every allegation contained therein. The portions of the answer to which the motion and the demurrer both are directed deal with the plaintiff's failure to discharge the duties of the office and his acceptance of membership on the Colorado River Commission and the active performance of the duties of that position. A consideration of these two propositions will enable the court to determine the sufficiency of the answer and dispose of both the motion and the demurrer. To grant the former or sustain the latter will end the case in plaintiff's favor, but in view of the specific denials of the reply a contrary ruling on either will render the taking of testimony necessary.

It might be well to say here that under section 6, article 5, of the Constitution of Arizona, the powers and duties of the Governor, when that officer is absent from the state, devolve upon the Secretary of State and his acts at such times, whatever they may be, are just as valid and binding as though they had been performed by the Governor himself. Hence, if a condition existed in Arizona on January 20th, 1928, that gave the chief executive of the state the right to appoint a member of the Industrial Commission there can be no question but that the acting Governor could have exercised this right just as effectively as could the Governor himself had he been within the state. Whether, however, it was good policy under the circumstances for him to do so or in keeping with the proprieties which an acting Governor might be supposed to observe is a matter which cannot be considered by the court.

It will be observed from the proclamation that in issuing it the Governor relied upon paragraph 221, Revised Statutes of 1913, Civil Code, and section 3 of the Industrial Commission Act, which is chapter 83, Session Laws of 1925, and, hence, that the vacancy was declared upon two grounds, the first being that plaintiff accepted the office of Colorado River commissioner and continuously thereafter discharged its duties, and the second that he failed and neglected to perform the duties of industrial commissioner for three consecutive months when he was not prevented from doing so by sickness or absence from the state by permission of the legislature. The plaintiff considers the second ground first, and we follow the same order.

His position is that the proclamation declaring the office of industrial commissioner held by plaintiff vacant, in so far as it is based upon paragraph 221, section 7, is void for the reason that under this provision notice and an opportunity to be heard are necessary and neither was given him. This paragraph and the succeeding one, 222, read as follows:

"221. An office shall be deemed vacant from and after the happening of either of the following events before the expiration of the term:

" (1) Death of the incumbent. (2) His insanity, founded upon a commission of lunacy issued to determine the fact. (3) His resignation, and the lawful acceptance thereof. (4) His removal from office. (5) His ceasing to be an inhabitant of the state or, if the office be local, of the district county, city, or precinct for which he was chosen or appointed, or within which the duties of his office are required to be discharged. (6) His absence from the state without permission of the Legislature, beyond the period of three consecutive months. (7) His ceasing to discharge the duties of his office for the period...