Rogers v. Frohmiller

• Decision Date: 28 October 1942
• Docket Number: Civil 4569
• Citation: 59 Ariz. 513,130 P.2d 271
• Parties: C. EARL ROGERS, Plaintiff v. ANA FROHMILLER, as State Auditor of Arizona, Defendant
• Court: Arizona Supreme Court

130 P.2d 271

59 Ariz. 513

C. EARL ROGERS, Plaintiff v. ANA FROHMILLER, as State Auditor of Arizona, Defendant

Civil No. 4569

Supreme Court of Arizona

October 28, 1942

Original Proceeding in Mandamus. Alternative writ quashed.

Messrs Laney & Laney, for Plaintiff.

Mr. Joe Conway, Attorney General, and Mr. Earl Anderson, Special Assistant Attorney General, for Defendant.

OPINION

LOCKWOOD, C.J.

C Earl Rogers, plaintiff, filed an original petition in mandamus in this court against Ana Frohmiller, as state auditor, defendant, requiring her to approve certain claims for salary presented by him.

The facts of the case are not in dispute, and may be stated as follows: Up to December 12, 1941, E.T. Houston was a duly qualified and acting member of the industrial commission of Arizona, for the term which expired on January 8, 1942. On March 11, 1941, the Governor of Arizona submitted to the state senate the nomination of I. Perle McBride as a member of said commission for the term commencing on January 8, 1942. The senate adjourned on March 17, sine die, without having taken any action relative to said appointment. On December 10, 1941, Houston sent to the Governor a letter of resignation from his office, which he requested to be accepted forthwith. On December 12 the Governor, in writing, accepted such resignation, but did not appoint nor attempt to appoint any one to fill the vacancy for the unexpired term caused by the resignation of Houston. Nothing further was done in the premises until April 7, 1942, when, the legislature having convened in special session on the previous day, the Governor withdrew from the consideration of the senate his appointment of McBride as aforesaid, and submitted the appointment of plaintiff herein for the term to which McBride had previously been appointed. On April 15 the senate attempted to confirm the appointment of McBride, made March 11, 1941 as above, but took no action upon the appointment of plaintiff. The Governor immediately refused to issue a commission to McBride or to approve his bond, on the ground he was not legally entitled to the office. The latter, notwithstanding, attempted to exercise the functions of industrial commissioner from April 15 to June 25, 1942, on which last date this court rendered its decision, holding that his claim to office was "wholly without any lawful basis." McBride v. Osborn, ante, p. 321, 127 P.2d 134, 138. On July 11, and while the senate was at recess, the Governor again appointed plaintiff to fill the term beginning on January 8, 1942 and expiring January 8, 1948. Plaintiff immediately took his oath of office, filed bond, and attempted to perform the duties and functions of the office. After he had so acted until the next regular semi-monthly payday as fixed by law, he presented to defendant his claim for salary from July 13 to July 16, 1942, which she refused to approve, whereupon plaintiff brought this proceeding.

The sole question for our consideration is whether plaintiff by virtue of the situation aforesaid is and has been since July 11, 1942, a legally chosen, acting and qualified member of the industrial commission. If he is, it is the duty, of defendant to approve the claim. If he is not, she acted properly in rejecting it.

There is no question that upon December 10, 1941, E.T. Houston was in all respects the commissioner de jure for the term which expired January 8, 1942. On that date he submitted his resignation to the Governor, which the latter accepted in writing on December 12. What, then, was the situation? Section 12-104, Arizona Code 1939, reads as follows:

"Term, where not fixed, must hold until successor qualifies. -- Every officer whose term is not fixed by law shall hold at the pleasure of the appointing power.Every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified. Vacancies occurring in any office, or in the membership of any board or commission, shall be filled only for the unexpired term of such officer or member." (Italics ours.)

We think there can be no question that on December 12, 1941, there was a vacancy existing in the term ending January 8, 1942, which the governor could have filled by appointment without the consent or confirmation of the senate. McCall v. Cull, 51 Ariz. 237, 75 P.2d 696; Graham v. Lockhart, 53 Ariz. 531, 91 P.2d 265. But under the statute until this vacancy was filled, it was the duty of Houston to continue to discharge the duties of the office. His resignation and the acceptance by the Governor of the resignation would not relieve him from this mandatory duty until his successor was qualified. Graham v. Lockhart, supra; Keen v. Featherston, 29 Tex. Civ. App. 563, 69 S.W. 983; Badger v. United States, 93 U.S. 599, 3 Otto 599, 23 L.Ed. 991; United States v. Green, 53 F. 769.

The Governor did not exercise his undoubted power before January 8, when the vacancy in Houston's old term ended and a new term began. But on that date, under the statute, Houston was still the locum tenens of the new term beginning on January 8, under the obligation of discharging the duties of the office, but subject to being relieved of that obligation any time that a successor had qualified. Graham v. Lockhart, supra. At that time the appointment of McBride by the Governor had not been revoked, but, as we stated in McBride v. Osborn, supra, such appointment was wholly ineffective and conferred no rights upon McBride, unless and until his appointment had been confirmed by the senate.

On April 7 the Governor withdrew the nomination of McBride. This, we have held, he had the right to do. McBride v. Osborn, supra. At the same time he submitted to the senate the appointment of plaintiff for the term beginning January 8, 1942 and expiring January 8, 1948. For the reasons stated in the McBride case, this appointment also was of no effect until confirmed by the senate. On July 11 the Governor again made an appointment of plaintiff, stating specifically this time it was for the balance of the unexpired term from January 8, 1942 to January 8, 1948, on the ground that after our decision in McBride v. Osborn, supra, there was a vacancy existing in such term which he, the Governor, had the power to fill.

The question then is, was the appointment of July 11 authorized by law. If it was, since it is admitted that plaintiff filed his bond and oath of office, Houston was then relieved from the further discharge of his duties, and plaintiff became the commissioner for the unexpired term. If, however, the appointment of plaintiff was not valid and complete, then the obligation still rests on Houston to perform such duties until he is relieved therefrom by the appointment of a legally qualified successor.

The Governor bases his right to make the appointment for the balance of the regular term, which commenced on January 8, 1942, on both constitutional and statutory provisions. Article 5, section 8, Constitution of Arizona, and section 12-404, Arizona Code 1939, read, respectively, as follows:

"(Governor to fill vacancies.) -- When any office shall, from any cause, become vacant, and no mode shall be provided by the constitution or by law for filling such vacancy, the governor shall have the power to fill such vacancy by appointment."

"Vacancy by law. -- An office shall be deemed vacant from and after the happening of either of the following events before the expiration of the term: Death of the incumbent; his insanity, when judicially determined; his resignation, and the lawful acceptance thereof; his removal from office; 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; his absence from the state, without permission of the legislature, beyond the period of three (3) consecutive months; his ceasing to discharge the duties of his office for the period of three (3) consecutive months, except when prevented by sickness, or when absent from the state by permission of the legislature; his conviction of a felony, or of any offense involving a violation of his official duties; the failure of the person elected or appointed to such office, to file his official oath or bond within the time prescribed by law; the decision of a competent tribunal declaring void his election or appointment."

By virtue of the constitutional provision the Governor has the right to fill all vacancies in office unless the legislature or the Constitution itself provides otherwise. The legislature, in section 12-404, supra, has stated certain circumstances under which vacancies occur. It will be noted on a careful reading of this section that this refers only to cases when there is first an incumbent of the office, and where the vacancy occurs during the term for which he has assumed the office.

It is the argument of plaintiff that a vacancy existed in the term of industrial commissioner from January 8, 1942, to January 8, 1948, because McBride was the incumbent of such office from April 15, 1941, to January 25, 1942, and that this court on the last named date declared void his appointment. This, plaintiff urges, created a vacancy for the unexpired portion of the term which the Governor was authorized to fill for the balance of the term, since the legislature had not provided for any method other than the one set forth in article 5, section 8, supra.

We have previously held that when a vacancy occurs on the industrial commission, by reason of the expiration of the term of one of its members, there is one and one only method of filling that particular kind of a vacancy, and that is by the appointment of...