State ex rel. Fox v. Brewster

• Decision Date: 12 October 1954
• Docket Number: No. 10665,10665
• Citation: 84 S.E.2d 231,140 W.Va. 235
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. John G. FOX, Attorney General, etc., v. Raymond BREWSTER.

Page 231

84 S.E.2d 231

140 W.Va. 235

STATE of West Virginia ex rel. John G. FOX, Attorney General, etc., v. Raymond BREWSTER.

No. 10665.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1954.

Decided Oct. 12, 1954.

Syllabus by the Court.

1. Section 1, Article 2, Chapter 72, Acts of the Legislature, Regular Session, 1947, amending and re-enacting Code, 18-2-1, creating the West Virginia Board of Education, providing how the board shall be constituted, the terms of office of the members thereof, the filling of vacancies on the board, the removal of members of the board, and the qualification of members thereof by taking the prescribed oath, was enacted pursuant to the provisions of West Virginia Constitution, Article IV, Section 8.

2. West Virginia Constitution, Article IV, Section 8 vests in and reserves to the Legislature, in cases not provided for in the Constitution, the plenary power to prescribe, by general laws, the terms of office, powers, duties and compensation of all public officers and agents, and the manner in which they shall be elected, appointed and removed.

3. In the application and interpretation of a state constitution, as distinguished from the Constitution of the United States, the constitution of a state is not a grant of powers to the Legislature thereof, but the Legislature is the supreme law-making body within the state, and, as such, may enact any law not prohibited by the Constitution of the United States or the state constitution.

4. 'Prescribing the 'manner' in which public officers shall be elected and removed, as expressed in the 8th section of art. 4 of the constitution of the State of West Virginia, when read and considered in connection with article 7, secs. 1 and 8, and sec. 40 of article 6 and other sections of the same constitution, includes the agent or person who may appoint, as well as the formality with which it should be done.' Pt. 3 Syl., Bridges v. Shallcross, 6 W.Va. 562.

5. Under the provision of Section 1, Article 2, Chapter 72, Acts of the Legislature, Regular Session, 1947, amending and re-enacting Code, 18-2-1, prescribing that the members of the West Virginia Board of Education, other than the state superintendent of schools, '* * * shall be * * * appointed by the governor, by and with the advice and consent of the Senate,' and the provision of West Virginia Constitution, Article VII, Section 8, excluding from the operation of Section 8 those officers 'whose appointment or election is not otherwise provided for', the members of the West Virginia Board of Education, other than the state superintendent of schools, shall be appointed by the governor, by and with the advice and consent of the senate, pursuant to the provisions of Section 1, Article 2, Chapter 72, Acts of the Legislature, Regular Session, 1947, amending and re-enacting Code, 18-2-1, and not nominated by the governor, and thereafter appointed by and with the advice and consent of the Senate, pursuant to the provisions of West Virginia Constitution, Article VII, Section 8.

6. The Senate may properly act on the appointment of a member of the West Virginia Board of Education by the governor during a legislative interim, notwithstanding the governor has not by direct message to the Senate submitted the name of the appointee for the Senate's approval.

7. The expiration of the term of office of a de jure member of the West Virginia Board of Education, other than the state superintendent of schools, during a recess of the Senate does not create a vacancy within the provision of Section 1, Article 2, Chapter 72, Acts of the Legislature, Regular Session, 1947, amending and re-enacting Code, 18-2-1, or West Virginia Constitution, Article VII, Section 9, which provides that in case of a vacancy in a nonelective office, occurring during a recess of the Senate, the governor shall, by appointment, fill such vacancy, until the next session of the Senate when he shall make a nomination for such office.

8. Section 1, Article 2, Chapter 72, Acts of the Legislature, Regular Session, 1947, amending and re-enacting Code, 18-2-1, read in connection with Sections 18, 19 and 22, Article VI, of the West Virginia Constitution, providing for sessions of the Legislature, the length thereof, and for the convening of extraordinary sessions of the Legislature, evidences an intent of the Legislature to vest in the governor the power to appoint a member of the West Virginia Board of Education, when the term of a de jure member thereof expires during a recess of the Senate.

9. 'In construing statutes, courts must presume knowledge on the part of the legislature, of the provisions of the organic law of the state, relating to the subject matter thereof, as well as of the principles of the common law, and will not impute to that body any intention to obstruct or impede the operation of constitutional provisions, or to innovate upon the settled policy of the law.' Webb v. Ritter, Pt. 5 Syl., 60 W.Va. 193 .

10. When, at the expiration of the term of a de jure member of the West Virginia Board of Education during a recess of the Senate, the governor reappoints the member whose term has expired, or appoints another person, for the ensuing term, the governor thereby exhausts all power in reference to the appointment vested in him under Section 1, Article 2, Chapter 72, Acts of the Legislature, Regular Session, 1947, amending and re-enacting Code, 18-2-1; and thereupon the appointee becomes a de jure member of the board for the term of office to which he has been appointed, subject to the confirmation of the Senate when it next convenes.

11. The executive power vested in the office of the governor of this State is, under West Virginia Constitution, a continuing power, not broken by succession, and where, pursuant to the provisions of Section 1, Article 2, Chapter 72, Acts of the Legislature, Regular Session, 1947, amending and re-enacting Code, 18-2-1, the power of the governor has been exercised by the appointment of a member of the West Virginia Board of Education during a recess of the Senate, and the appointee has qualified and become vested with the powers and emoluments of the office, neither the governor, who has made the interim appointment, nor his successor, has further control over the appointment, so that the name of another person may be substituted for the appointee, unless and until the original appointment has been rejected by the Senate.

12. Where the term of a member of the West Virginia Board of Education has expired during a legislative interim, and the governor has made an interim appointment of a member of the board for the ensuing term, the appointee becomes a de jure member of the board for the whole of the ensuing term, subject to confirmation by the Senate, and such appointee cannot be removed from his de jure office by the governor, unless the provisions of Section 1, Article 2, Chapter 72, Acts of the Legislature, Regular Session, 1947, amending and re-enacting Code, 18-2-1, providing for, specifying and limiting the grounds for the removal of a member of the West Virginia Board of Education by the governor, and the manner of such removal, have been complied with.

13. The clause contained in Section 1, Article 2, Chapter 72, Acts of the Legislature, Regular Session, 1947, amending and re-enacting Code, 18-2-1, providing for the removal of members of the West Virginia Board of Education by the governor is an enactment dealing generally with the removal of members of the West Virginia Board of Education, and is not a special act interdicted by the provisions of West Virginia Constitution, Article VI, Section 39, and as the grounds for removal specified in Section 1 of the statute are fairly contained in the several classes of grounds for removal contained in West Virginia Constitution, Article VII, Section 10, the clause is not violative of the West Virginia Constitution.

John G. Fox, Atty. Gen., Arden J. Curry, Asst. Atty. Gen., for plaintiff in error.

Estep, Chambers & Smith, Logan, for defendant in error.

Vincent V. Chaney, Charleston, amicus curiae for The Senate of the State of West Virginia.

RILEY, Judge.

The Attorney General of West Virginia, Honorable John G. Fox, filed in the Circuit Court of Kanawha County a petition praying for leave to file an information in the nature of a writ of quo warranto against the respondent, Raymond Brewster, praying that due process of law be awarded in the name of the State of West Virginia against Raymond Brewster, returnable to the next term of the circuit court to cause him to answer the information and disclose to the circuit court by what warrant, right or lawful authority he has intruded upon and usurped the public office of member of the West Virginia Board of Education from the Fourth Congressional District of West Virginia, for the unexpired term ending on June 30, 1961, and that the respondent be ousted and expelled by the judgment of the circuit court from such office for the unexpired term thereof. To the petition the respondent filed an answer, to which answer the petitioner filed a replication, and the respondent filed a rejoinder to the replication. To the final order of the Circuit Court of Kanawha County, entered on March 1, 1954, finding that no vacancy existed in the office of member of the West Virginia Board of Education, on June 30, 1952, upon the expiration of the five-year term for which the respondent Brewster had been lawfully appointed and had served as a de jure officer, adjudicating that the respondent has shown that he has a lawful right and title to the office of member of the West Virginia Board of Education for the term expiring on June 30, 1961, and refusing the judgment of ouster prayed for by the relator, this writ of error is prosecuted.

The proceeding was tried in the Circuit Court of Kanawha County upon the written stipulation of facts agreed to and entered into by Arden J. Curry, Assistant ...