People v. Shawver

CourtUnited States State Supreme Court of Wyoming
Citation30 Wyo. 366,222 P. 11
Docket Number1168
Decision Date08 January 1924

ORIGINAL proceedings in the nature of quo warranto by the People of the State of Wyoming upon the relation of Frank C Emerson, against Casper D. Shawver to determine the right and title to the office of State Engineer. Heard on demurrer to relator's reply.

C. L Rigdon for respondent.

D. J Howell, Attorney General and N.E. Corthell, amici curiae for the demurrer.

A vacancy in the office of State Engineer occurred on July 1st, 1919 by the resignation of James B. True; the Governor had power to fill the vacancy by appointment; Const. Art. 4, Sec. 7; relator was appointed to the vacancy; he continued to hold the office lawfully under Const. Art. 6, Sec. 16 until his successor qualified; People v. Henderson, 4 Wyo. 535, 35 P. 517; there was no vacancy in the office on April 11th, 1921, and the attempted reappointment of Emerson on that date for a six year term was without legal effect; the attempted confirmation of that appointment by the Senate at its next ensuing session was without legal effect, since it was an attempted confirmation of an appointment made by a Governor long since retired from office; it was not an appointment made "to the Senate" but in effect an appointment made until the legislature met. People v. Henderson, supra; the State Engineer is not subject to impeachment but an officer within the meaning of Const. Art. 3, Sec. 19, removeable by the Governor; it is not a state office within the meaning of Const. Art. 3, Sec. 18 which applies to elective officers of the same class and character as the Governor; State v. Grant, 14 Wyo. 54, 81 P. 795; State v. Hewitt, 3 So. Dak. 187, 52 N.W. 875; State v. Burke, 8 Wash. 412, 36 P. 281; People v. Dolan, 5 Wyo. 253, 39 P. 752; State v. Krueger, 134 Mo. 362, 35 S.W. 604; State v. Smith, 6 Wash. 496, 33 P. 974. The provision has been so construed by the legislature, Secs. 223, 318 C. S., 6 R. C. L. 63; State v. Trust Co., 143 La. 79; U. S. v. Graham, 250 F. 499; Martin v. Land Co., 94 Va. 28; Drainage Com'rs. v. Davis 108 S.E. 506; Hawley v. Anderson 195 P. 358. The power of the Governor under Sec. 318 C. S. is absolute when acting within the scope of his power; it cannot be reviewed by the courts; it gives the Governor a broad discretion not subject to review; State v. Grant, 14 Wyo. 54; State v. McGarry, 21 Wis. 496; State v. Prince, 45 Wis. 610; State v. Council, 9 Wis. 254; Atty. Gen. v. Brown, 1 Wis. 513; Yoe v. Hoffman, 59 P. 351; Lynch v. Chase, 40 P. 666; Lacey v. Young, 133 N.E. 90; Riley v. Crawford, 165 N.W. 345. Shawver's appointment was lawful and regular; allegations of the reply relative to the appointment of a commissioner under Chap. 120, L. 1921 are irrelevant; the statute fails to disclose a state policy such as is alleged in the reply; the demurrer should be sustained.

W. L. Walls and W. E. Mullen for Relator.

The demurrer to relator's reply will search the record as to the sufficiency of the answer and petition as to matters of substance; 6 Enc. P. P. 326, 31 Cyc. 338; Bliss C. P. 417, Philp. C. P. 85. In the absence of prior objections and rulings, 21 R. C. L. 530. The office of State Engineer was created by the Constitution, Art. 8, Sec. 5; it is a state office, State v. True, 26 Wyo. 324. It has a fixed term which cannot be shortened by the legislature, analogous to that of District Judge, Const. Art. 5, Sec. 19; State v. Schnitger, 17 Wyo. 77, 96 P. 238; nor vacated except in the manner prescribed by law, State v. Jefferis, 26 Wyo. 115, 178 P. 909; being an appointive office does not imply inferiority; it is a superior office with broad powers, 159-167 C. S.; it differs in certain important essentials from the office of State Examiner, Art. 4, Sec. 14; the rule announced in the Henderson case, 4 Wyo. 535 is distinguishable, that case being governed by a statute and the sweeping provisions of Const. Art. 6, Sec. 15. "Successor" means one legally chosen, Ballintyne v. Bower, 17 Wyo. 356, 99 P. 869. The Henderson appointment was made until the legislature met, State v. Henderson, supra; the State Examiner is appointed with the advice and consent of the Senate; the Engineer is appointed by the Governor and confirmed by the Senate; there is a distinction in language relating to these appointments, indicating a difference of intention, State v. Brooks, 14 Wyo. 393, Art. 8, Sec. 5. A regular appointment of State Examiner requires joint action of the Governor and the Senate; an appointment to the office of engineer may be confirmed by the Senate at its next ensuing session, State v. Williams, 222 Mo. 268, 17 Ann. Cas. 1006, and note. State v. Murphy, 32 Fla. 138, 13 So. 705; Shepherd v. Haralson, 16 La. Ann. 134; State v. Rareshide, 32 La. Ann. 934; State v. Lamantia, 33 La. Ann. 446; Mechem Pub. Ofc. 1st Ed. S. 134; Dyer v. Bayne, 54 Md. 87; State v. Kuhl (N. J.) 17 A. 102. Confirmatory powers of the Senate are executive and not legislative, State v. Schnitger, 16 Wyo. 514-516; State v. Barber, 4 Wyo. 56; relator's appointment in April 1921 for a full term was intended to comprehend extra service to be imposed by his appointment as a member of the Colorado River Commission under Chap. 120 L. 1921, but without extra compensation; the salary of engineer was increased by Chap. 95 L. 1921; the attempted removal of relator was without legal authority or grounds; the office is a state office, Art. 8, Sec. 5; State v. True, supra of broad discretionary powers, Laughlin v. Board, 21 Wyo. 99, 128 P. 517; Big Horn P. Co. v. State, 23 Wyo. 271; 836-850 C. S. The incumbent is liable to impeachment under Art. 3, Sec. 18, but not removal; under Art. 3, Sec. 19; he may be suspended pending impeachment, Art. 6, Sec. 16, 90-91 C. S. The removal statute Sec. 318 C. S. is broader than Art. 3, Sec. 19 and to that extent is void; the misconduct or malfeasance referred to must relate to duties of the office; Constitutional offices are immune from legislative changes, 22 R. C. L. 382; People v. Howland, 155 N.Y. 270, 49 N.E. 775; Richie v. Phila., 225 Pa. St. 511; 74 A. 430, 26 L. R. A. (NS) 289; Com. v. Reid, (Pa.) 108 A. 829. The reasons assigned for removal do not relate to official duties and are insufficient, 22 R. C. L. 571; McCully v. State, 102 Tenn. 509, 16 L. R. A. 567; State v. Duluth, 53 Minn. 238, 55 N.W. 118; Atty. Gen. v. Crowley, 75 N.H. 393; Village v. Kendrick, 89 P. 755. The statute may be upheld in part. State v. Frear (Wis.) 131 N.W. 832, 34 L. R. A. (NS) 480; Hunt v. Court, 173 P. 1097. "Misconduct or malfeasance in office" means unlawful behavior in relation to the duties of the office. Collier v. State, 55 Ala. 155; Dunlap v. Curtis, 10 Mass. 210, Cyc. L. Dict. 375; Breckenridge v. State, 27 Tex.App. 513; State v. Welch, 109 Ia. 19; 79 N.W. 369; Cutter v. State, 36 N.J.L. 125; White v. State, 56 Ga. 585; Yoe v. Hoffman, 61 Kan. 265, 59 P. 351; State v. Stover, 113 Mo. 208, 20 S.W. 788; Miller v. Roby, 9 Neb. 471, 4 N.W. 65; Section 318 C. S. is in conflict with the Constitution. It was upheld in State v. Grant, supra for the reason that the grounds of removal were not questioned. A statement of ground of removal by the Constitution is an implied prohibition of the inclusion of others by the legislature, Mechem 1st. Ed. 457; Com. v. Williams, 79 Ky. 42; 42 Am. Rep. 204. The legislature cannot add to the constitutional grounds for removal of officers, Lowe v. Comm., 3 Metc. (Ky.) 237; Brown v. Grover, 6 Bush 1; State v. Weltz, 11 La. Ann. 489; Goodin v. Thomas, 10 Kan. 191; State v. Draper, 50 Mo. 353; State v. McNeeley, 24 La. Ann. 19; People v. Draper, 15 N.Y. 532; State v. Baker, 38 Wis. 71; Comm. v. Sutherland, 3 Serg. & R. 145; "Removal of Public Officers," 25 A. L. R. p. 201. Especially where the term of office is fixed by the Constitution, People v. Dubois, 23 Ill. 547; State v. Messmore, 14 Wis. 163; Comm. v. Gamble, 62 Pa. St. 343. The misconduct must relate to official duties, Com. v. Williams, supra; Com. v. Chambers, 1 Marsh 160. An appointee cannot be removed by arbitrary will of the Executive, State v. Court, 92 Wash. 375, 159 P. 84; Biggs v. McBride, 17 Ore. 640, 21 P. 878, 5 L. R. A. 115, 22 R. C. L. 282; State v. Duluth, supra; Kendrick v. Nelson, 89 P. 755 (Ida.) , Ann. Cas. 1912A S. 1290; Cooley's L. 6th Ed. 78; 22 R. C. L. 265; People v. Holland, 155 (N. Y.) 270, 41 L. R. 838. The grounds of removal assigned by the Governor do not constitute misconduct or malfeasance in office; the Senate had independent power to act in confirming relator's appointment.

C. L. Rigdon for Respondent in Reply.

The office of State Examiner and State Engineer differ in no respect as to the method of appointment; the confirmatory power of the Senate is the same in each; relator's appointment in April 1921 was not made to the Senate and it could not confirm an appointment not officially communicated to it by the appointing power, even if the appointment of April 1921 was within the power of the Governor it expired upon adjournment of the succeeding legislative session, and the appointment of Shawver was legal; whether relator held under his first or under his second appointment, or whether the confirmation by the Senate was lawful, has no bearing on the right of removal; the grounds of removal constituted misconduct, and misconduct is not limited to misconduct in office. Balen v. Colfax Cons. Coal Co., 168 N.W 246; West Shore Ry. Co. v. State Board of Texas, 104 A. 335; Newman v. Garfield, 104 A. 881; State v. Follis, 205 S.W. 444; Appl. of Pa. St. Camp. 104 A. 590; State v. Bernquist 171 N.E. 101. Courts will attempt to give all portions of a statute a meaning where possible, State v. Embrey, 204 S.W. 1139; State v. Amos, 79 So. 433; State v. Lewis, 120 N.E. 129; Harris v....

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