State ex rel. Ayers v. Kipp
| Decision Date | 02 March 1898 |
| Parties | STATE ex rel. AYERS v. KIPP. |
| Court | South Dakota Supreme Court |
Proceedings in mandamus by the state, on the relation of Thomas H. Ayers against John H. Kipp, to compel defendant to surrender his office as insurance commissioner. Allowed.
Shunk & Hughes, for plaintiff. Horner & Stewart, for defendant.
The legislature, at its session in 1897, passed an act entitled "An act to provide for the creation of the office of commissioner of insurance, and defining the duties thereof," which was approved March 5, 1897, and constitutes chapter 69, Laws 1897. This act creates the office of commissioner of insurance, defines his duties fixes his salary, and, by the fifth section, provides as follows: "The governor shall appoint by and with the consent of the senate a commissioner of insurance, who shall hold his office for a term of two years, unless sooner removed by him." Under the provisions of this act, John H. Kipp, the defendant, was appointed to that office by the governor, by and with the consent of the senate; and on July 1, 1897, he entered upon the discharge of its duties, and has ever since continued to perform the same. On February 9 1898, the governor caused to be served upon said defendant a notice of his removal from said office. The governor thereafter, on February 10th, appointed the relator, Thomas H. Ayers, to said office; and he thereupon qualified by taking the prescribed oath, and executing and filing the required bond. On the same day, the relator demanded of the defendant possession of said office, the books, papers, and seal of the same, which demand the defendant refused to comply with. On the application of the relator, this court in the exercise of its original jurisdiction, made an order requiring the defendant to show cause why a peremptory writ of mandamus should not issue commanding him to deliver to said relator the said office, books, papers, and seal thereof. On the return day of the order to show cause the defendant, for cause why the writ should not issue, filed an answer in which he admitted the material facts stated in the affidavit of relator, except that he was legally removed, and that the relator was legally appointed to the office. He also alleged that he had not been impeached, as provided in section 3, art. 16; had not been guilty of any of the acts made causes for removal by section 4, art. 16, of the state constitution; had not been served with notice of any charges made against him; had not been given a hearing upon any charges whatever, either by the governor or any other person; that the relator was ineligible to hold the office; and that the order made by the governor was without authority, illegal, and void. Upon this answer the defendant moved the court to dismiss this proceeding, for the reason that the title to the office was involved, and title to the office could not be tried in a mandamus proceeding. The motion was denied. While it is true that the title to an office cannot be tried in a mandamus proceeding, the prima facie right of a party, holding a certificate of election or commission from an officer or tribunal authorized to issue the same, to be placed in possession of the office, books, papers, and seal of the same, is well settled. Driscoll v. Jones, 1 S.D. 8, 44 N.W. 726; State v. Archibald (N. D.) 66 N.W. 234; Bridges v. Shallcross, 6 W. Va. 562; Conklin v. Cunningham (N. M.) 38 P. 170; State v. Johnson (Fla.) 11 So. 845; Cameron v. Parker (Okl.) 38 P. 14; High, Extr. Rem. §§ 73-76; Merrill, Mand. §§ 142, 152, 154.
But the only question to be tried in such a proceeding is the prima facie right to the possession of the office, and the jurisdiction of the court to determine that question cannot be affected by an attempt to raise issues by the answer, not material to the determination of such prima facie right. The court therefore disregarded all allegations in the answer tending to raise such immaterial issues. The only questions properly before the court are questions of law, except as to the sufficiency of relator's appointment. The only objection made to the appointment of relator that we deem it necessary to consider is as to the approval of the bond of relator. This bond was only approved by the governor and secretary of state. Section 7 of the act referred to provides that the bond shall be approved by the governor, secretary of state, and attorney general. The approval of the bond by two of the persons designated was sufficient, under the provisions of section 4765, Comp. Laws, which reads as follows: "Words giving a joint authority to three or more public officers or other persons, are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority." We shall assume therefore, without further discussion, that the appointment of the relator was regular, and prima facie entitles him to the present possession of the office, if the legislature had the power to vest in the governor authority to, in effect, remove the defendant from the office.
The defendant contends that, assuming the legislature possessed the power to abridge his term of office, it has failed to confer authority upon the governor to remove the defendant, by the provisions of section 5 of the act; that the clause "shall hold his office for a term of two years, unless sooner removed by him," fixes the term for a period of two years, but is insufficient as an authority to remove the defendant or abridge his term. We are of the opinion that the contention of the defendant is untenable. In our view, it is quite immaterial whether the clause, in fact, authorized the governor to remove the defendant, or is to be regarded as a limitation upon the term. The term is not definitely fixed at two years, but at two years unless the incumbent is sooner removed, and, when that event occurred, his right to the office ceased. In other words, the effect of the clause is that the commissioner holds the office at the pleasure of the governor, not exceeding two years. In People v. Whitlock, 92 N.Y. 191, the court of appeals of New York says --citing Conner v. Mayor, etc., 5 N. Y. 285; Long v. Mayor, etc., 81 N.Y. 425. In State v. Mitchell, 33 P. 104, the supreme court of Kansas construed the tenure of railroad commissioners, fixed at three years, but subject to removal by the executive council, "as continuing in office the commissioners for the term of three years, unless sooner removed by the executive council." The intention of the legislature, in the case at bar, that the term of the commission should terminate at the pleasure of the governor, is too clear to admit of doubt; and we think the language used to authorize the governor to end the term at his pleasure, though not the most apt and appropriate, is sufficient to accomplish that purpose.
It is further contended that the clause of the section authorizing the removal of the defendant is in conflict with the provisions of sections 3 and 4, art. 16, of the state constitution, and the governor's order, removing the defendant, was made without authority, and was therefore void. The two sections of the constitution referred to read as follows:
To continue reading
Request your trial