People ex rel. Warren v. Christian, 2232

Decision Date10 March 1942
Docket Number2232
Citation58 Wyo. 39,123 P.2d 368
PartiesPEOPLE EX REL. WARREN ET AL. v. CHRISTIAN ET AL
CourtWyoming Supreme Court

ORIGINAL quo warranto proceeding by the people of the state of Wyoming on the relation of Fred E. Warren, and others against James W. Christian, and others, to determine title to the offices of members of the Livestock and Sanitary Board.

For the relators, there were briefs and an oral argument by William E. Mullen of Cheyenne.

This action is between separate groups, each group claiming to be the lawfully constituted Wyoming Livestock and Sanitary Board. Relators prosecute jointly and severally for the reason that members of said Board are separately appointed confirmed and qualified, but are without power to function except when lawfully convened as a Board. Chapter 85, Sec. 3, Laws 1933. The material facts under the issues are admitted by the pleadings and a separate agreed statement of facts. Ernest P. Spaeth was appointed a member of said Board on February 18, 1933, for a six-year term beginning April 1 1933, and his appointment was confirmed by the Senate. Respondent Noblitt was appointed by the Governor on April 1, 1939, for six years to succeed Spaeth, but his appointment was never confirmed by the Senate. Spaeth died on November 6, 1939. Spaeth did not attend any meetings of the Board subsequent to March 31, 1939, but was not notified of any meetings. Noblitt attended meetings of the Board and performed all duties and claimed all emoluments as such member subsequent to March 31, 1939. Dan Burns was appointed and confirmed as a member of said Board for six years in February, 1933, his term beginning April 1, 1933. He resigned on January 5, 1937. Relator Hogue was appointed as a member of the Board to fill the unexpired term of Burns and his appointment was confirmed by the Senate on January 29, 1937. Respondent Christian was appointed by the Governor on April 1, 1939, for six years to succeed Hogue, but his appointment was never confirmed by the Senate. Hogue was not notified of meetings and did not attend meetings of the Board subsequent to March 1, 1939. Christian attended all meetings, performed duties and claimed emoluments as a member subsequent to March 1, 1939. Respondents Warren and Espy were appointed by the Governor and confirmed by the Senate on January 18, 1935, each for a six-year term from April, 1935. Respondents Greenough and Irvine were appointed members by the Governor on April 1, 1941, to succeed Warren and Espy, but their appointments were never confirmed by the Senate. It is stipulated by the parties that the primary question before the Court is whether the appointment of the respondents subsequent to the adjournment of the legislature and after the expiration of the term period stated in the respective appointments of relators must be confirmed by the Senate to qualify respondents as members of said Board. Relators contend: (1) That no vacancy occurred in the office of Spaeth on April 1, 1939, and that the attempted appointment of Noblitt on that date for a term of six years was void. (2) That the vacancy on said Board caused by the death of Spaeth on November 6, 1939, was never filled by lawful appointment as required by law. (3) That no vacancy occurred in the office of Hogue on April 1, 1939, and the attempted appointment of Christian on March 27, 1939, for a term of six years from April 1, 1939, was void. (4) That no vacancy occurred in the office of relator Warren on April 1, 1941, and the attempted appointment of respondent Irvine to succeed him for a term of six years from April 1, 1941, was void. (5) That no vacancy occurred in the office of relator Espy on April 1, 1941, and the attempted appointment of respondent Greenough to succeed him for a period of six years from April 1, 1941, was void. (6) That relators Warren, Espy, Hogue, Myers and Baskett, having been lawfully appointed as Board members, continue as such until their successors are lawfully appointed, confirmed and qualified. All of the relators claim official membership under the same franchise and law, being Chapter 85, Laws 1933, and the same may be said of respondents. The respective rights of the parties may be tried in one action. Sec. 89-4608, R. S. 1931; People v. Lawson (Colo.) 86 P. 251; People v. Prewett (Calif.) 56 P. 619. The legislature has been granted special police power in the enactment of laws for the protection of livestock. Constitution, Article XIX, Section 1; State v. Hall, 27 Wyo. 224. The Act of 1933 was intended to consolidate into one law the powers and duties theretofore included in separate laws providing for a board of livestock commissioners, a board of sheep commissioners and the office of state veterinarian, and for that reason it is clearly apparent that the legislature intended that said separate interests should each have a voice in the selection of members of the new board, to be expressed by the advice and consent of the state senate. The Wyoming Constitution also provides that any person holding a civil office under the state shall exercise the duties thereof untitl his successor is duly qualified. Constitution, Article VI, Section 16. The Act of 1933 expressly requires that members of the Livestock and Sanitary Board shall be appointed by the Governor, with the advice and consent of the senate. The laws repealed by Section 18 of said Act of 1933 provided for appointments of livestock boards with the advice and consent of the senate and that members should hold office until their successors were appointed and qualified, meaning successors legally chosen and duly qualified. 46 C. J. 970; Ballantyne v. Bower, 17 Wyo. 356. Under such laws, the hold-over period is as much a part of the term as the term period fixed by law. No vacancy is created by the expiration of such term period which may be filled by appointment by the Governor, without the advice and consent of the senate. 46 C. J. 969; Shackleford v. West (Ga.) 74 S.E. 1079; Wood v. Miller (Ark.) 242 S.W. 573; State v. Willott (Nebr.) 174 N.W. 429; Booth v. Board of Education (Ky.) 229 S.W. 84; Territory v. Mann (N. M.) 120 P. 313. This Court has approved this doctrine in three of its former decisions: State ex rel. v. Henderson, 4 Wyo. 535; Ballantyne v. Bower, supra; People v. Shawver, 30 Wyo. 366. Relators should therefore be accorded the relief prayed for in their petition.

For the respondents there was a brief by Ewing T. Kerr, Attorney General; H. I. Bacheller, Deputy Attorney General, and Arthur Kline, Assistant Attorney General (A. D. Walton, of Counsel), all of Cheyenne, and oral arguments by Messrs. Kerr and Walton.

The facts in this case are not in dispute and have been fairly summarized in the Agreed Statement of Facts filed by counsel. The only questions for determination by the Court are: (1) Whether respondents Christian, Noblitt, Irvine and Greenough having been appointed subsequent to the adjournment of the legislature and after the expiration of the terms of their predecessors, must be confirmed by the Senate, in order to qualify them to hold and perform the duties required of said office. (2) Whether relators abandoned their offices by failure to attend meetings, perform duties and claim emoluments for periods of more than two years, on the part of relator Hogue, and for nine months on the part of relators Warren and Espy. (3) Whether respondents are the duly appointed, qualified and acting members of said Board through having performed all the duties, attended all meetings and claimed emoluments for the periods of time aforesaid. (4) Does the Agreed Statement of Facts establish relators' title to the offices in question? Pertinent statutes and constitutional provisions involved are Chapter 85, Section 1, Laws 1933; Article VI, Section 16, Wyoming Constitution; Section 36-208, R. S. 1931. Attention is also directed to Section 108-505, R. S. relating to the appointment of trustees of the State University; Section 115-503, R. S relating to the appointment of members of the State Board of Equalization and Section 32-101, R. S. relating to members of the State Highway Commission. It will be noted that these statutes differ as to when appointments shall be made and are phrased in language different from that of Chapter 85, Laws 1933 involved in the present controversy, which does not expressly require appointments of members of the Livestock and Sanitary Board to be made while the legislature is in session. Respondents contend that upon the expiration of a term period, a vacancy occurred in the office of each of relators, which the Governor was authorized to fill by appointment without the advice and consent of the Senate. The following authorities are submitted in support of said principal: State ex rel. v. Scow (N. D.) 164 N.W. 939; State ex rel. Langer v. Crawford (N. D.) 162 N.W. 710; State v. Young (La.) 68 So. 241; State v. Ellis, 98 P.2d 879; Kline v. McKelvey, 49 S.E. 896. The facts in the case at bar are clearly distinguishable from the facts involved in the Wyoming cases of Richardson v. Henderson, 4 Wyo. 535 and People v. Shawver, 30 Wyo. 366, cited by counsel for relators. Relators Warren, Espy and Hogue have virtually abandoned their offices by permitting their successors to perform the duties thereof and by delay in the bringing of an action to test their right to hold said offices. This is clearly shown by the Agreed Statement of Facts. We submit the following authorities in support of the principal: 46 C. J. 980; United States ex rel. Arant v. Lane, 249 U.S. 367; 63 L.Ed. 650; Nicholas v. United States, 257 U.S. 73, 66 L.Ed. 134; Clark v. City of Chicago (Ill.) 84 N.E. 170; Stone v. Board of Commissioners, 176 S.W. 39; Attorney General v. Maybury (Mich.) 104 N.W. 324; Arioso v. De Guzman, 49...

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