State ex rel. Hammond v. Maxfield

Decision Date24 December 1942
Docket Number6432
CourtUtah Supreme Court
PartiesSTATE ex rel. HAMMOND et al. v. MAXFIELD et al

Rehearing denied March 1, 1943.

Quo warranto proceeding by the State, upon the relationship of W D. Hammond and George Abbott, against Layton Maxfield and John S. Evans to determine the right to office as members of the State Road Commission.

Writ quashed.

Mulliner Prince & Mulliner, of Salt Lake City, for plaintiffs.

Grover A. Giles, Atty. Gen., and A. U. Miner and Calvin L. Rampton Asst. Attys. Gen., for defendants.

WOLFE, Justice. McDONOUGH, J., concurs. WADE, District Judge, concurring in result. LARSON, Justice, MOFFAT, Chief Justice, dissenting. PRATT, Justice, on leave of absence.

OPINION

WOLFE, Justice.

Quo warranto to determine right to office as members of the State Road Commission. The facts, all admitted or stipulated, are as follows: By Section 36-2-1, R. S. U. 1933, there was constituted a State Road Commission consisting of three members appointed by the governor with the consent of the State Senate, each for a term of six years; the term of one member to expire December 1, 1933; the term of one to expire December 1, 1935, and the term of the third member to expire December 1, 1937. In 1933, Henry H. Blood, then the governor of the State of Utah, by and with the consent of the Senate, appointed Preston G. Peterson a member of the State Road Commission for a term of six years ending December 1, 1939; and at the expiration of said term gave Peterson an interim appointment until the next meeting of the legislature, which was in 1941. In 1937, with the consent of the Senate, Governor Blood appointed as a member of the State Road Commission relator, George Abbott, for the unexpired term of Jake Parker, deceased, ending December 1, 1941; and relator W. D. Hammond for a six year term ending December 1, 1943. Relators qualified as required by law and commissions to each of them were duly issued. Relators thereupon became members of the State Road Commission for the terms indicated, and as such were officers of the State of Utah. On January 6, 1941, Herbert B. Maw succeeded Henry H. Blood as governor of the State of Utah for a four year term.

The first special session of the twenty-fourth legislature, convening in March 1941, enacted an act creating a new body or commission known as the Engineering Commission. Chapter 9. It also amended some sections of the statutes of Utah relative to the State Road Commission, enacted a new section numbered 3, chapter 13, which provided for the termination of the tenure in office of the persons then members of the State Road Commission in the following language:

"The terms of office of the members of the state road commission heretofore appointed shall terminate as and when the members of the engineering commission shall have been appointed and shall have qualified."

It also provided,

"The members of the engineering commission shall serve as the members of the state road commission." 36-2-1.

Defendants, Layton Maxfield and John S. Evans, Democrats, together with one Lester Blackner, a Republican, were with the consent of the Senate, duly appointed by Governor Herbert B. Maw as members of the newly created engineering commission, and qualified and assumed office as such.

On July 1, 1941, defendants and Lester Blackner, as members of the Engineering Commission, and as such claiming to be ex officio the members of the State Road Commission, entered into and took possession of the offices of the latter, and ever since have occupied such offices, exercised the functions thereof and excluded relators therefrom.

For a period of time antedating by many years the appointment of any person involved in this action to office as a member of the State Road Commission, the statute has provided, and still does provide, that no more than two members of the Commission may belong to the same political party. The relators are both Democrats; the defendants are both Democrats. The term of Preston G. Peterson, Republican, had expired and the third appointee of Governor Maw to the Engineering Commission, Lester Blackner, is a Republican. He therefore was not joined as a party defendant, and no question is raised as to the failure to join him as a party. Relators, Hammond and Abbott, claiming to be entitled to the offices of State Road Commissioners, bring this action in quo warranto against defendants, Maxfield and Evans, to determine their right to office as members of the State Road Commission for the period from July 1, 1941.

The main question presented is as to whether the legislature, as a part of a plan of reorganization, could provide for the termination of the incumbency of the occupants of the offices of State Road Commissioners upon the appointment and qualification of the members of the newly created Engineering Commission for the purpose of permitting the members of such Engineering Commission to serve ex officio as members of the State Road Commission.

In the last analysis the power of the legislature to truncate the incumbency of one who has been appointed for a fixed term will be found to depend on the purpose for which it was done. On no other basis can the various concepts of legislative power under constitutional provisions such as ours be reconciled or fitted together with the power given the executive. We shall endeavor to illustrate this thesis by what follows:

We are all agreed--and we are almost universally supported by the cases--that an office created by the legislature may be abolished by it. Appointment of an officer gives rise to no contract that he may retain the office for the term appointed. No person has a vested right to an office. He has a right to the emoluments of office if he is entitled to hold the office. There is no contract that an appointee may remain in office. Crozier v. Lyon, 72 Iowa 401, 34 N.W. 186, 189; Eckerson v. Des Moines, 137 Iowa 452, 115 N.W. 177, at page 189; Abbott on Municipal Corporation, Vol. 11, Sec. 479, p. 805 and cases cited in note; Prince v. Skillin, 71 Me. 361, 36 Am. Rep. 325; In re Milford Township, Supervisors' Removal, 291 Pa. 46, 139 A. 623; Visor v. Waters, 320 Pa. 406, 182 A. 241; Commonwealth ex rel. Braughler v. Weir, 165 Pa. 284, 30 A. 835; People ex rel. Moloney v. Waring, 7 A.D. 204, 40 N.Y.S. 275; Matter of Breckenridge, 160 N.Y. 103, 54 N.E. 670; Malloy v. City of Chicago, 369 Ill. 97, 15 N.E.2d 861; Groves v. Board of Education of Chicago, 367 Ill. 91, 10 N.E.2d 403, 406; People v. McCormick, 261 Ill. 413, 103 N.E. 1053; State v. Wright, 211 Ind. 41, 5 N.E.2d 504; Williams v. City of New Bedford, 303 Mass. 213, 21 N.E.2d 265; 23 Am. & Eng. Ency., Second Edition, 404; 12 Corpus Juris, 1017; 16 C. J. S., Constitutional Law, § 314; 8 Cyc. 954; Mecham on Public Officers, Ch. VII, p. 295; Cooley on Constitutional Limitations, 7th Ed., p. 388.

But it must be a genuine abolition not something merely colorable or done under pretense. Dillon Municipal Corporations, Vol. II, Sec. 479, p. 806; People ex rel. Vanderhoof v. Palmer, 3 A.D. 389, 38 N.Y.S. 651; People ex rel. Lazarus v. Coleman, 99 A.D. 88, 91 N.Y.S. 432; Williams v. City of New Bedford, 303 Mass. 213, 21 N.E.2d 265 and cases cited therein. Cf. Evans v. Freeholders of Hudson County, 53 N.J.L. 585, 22 A. 56; McChesney v. Trenton, 50 N.J.L. 338, 14 A. 578; Hunziker v. Kent, 111 N.J.L. 565, 168 A. 825, 826.

If it abolishes one office and puts in its place another by the same or a different name but with substantially the same duties, it will be considered a device to unseat the incumbents. Cusack v. Board of Education, 78 A.D. 470, 79 N.Y.S. 803, (reversed but not on this principle, 174 N.Y. 136, 137, 66 N.E. 677); State ex rel. Birdsey v. Baldwin, 45 Conn. 134; McChesney v. Trenton, 50 N.J.L. 338, 14 A. 578.

If on the other hand it abolishes two or more offices with substantially the same duties or different duties and bona fide combines the duties under an office with the same name as one of the abolished offices or under a different name or abolishes an office and distributes its duties among other offices for reasons of economy or genuine reorganization, the abolition is permissible. People ex rel Corrigan v. City of Brooklyn, 149 N.Y. 215, 43 N.E. 554; People ex rel Wardrop v. Adams, 51 Hun 583, 4 N.Y.S. 522; City of Chicago v. People, 114 Ill.App. 145; Fitzsimmons v. O'Neill, 214 Ill. 494, at page 506, 73 N.E. 797; People v. Scannell, 48 A.D. 445, 62 N.Y.S. 930.

The courts are confronted with the principle that the power to create an office being in the legislature, ordinarily the power to abolish it must also reside there. At one and the same time the courts are confronted with another principle that the power to fill an office, at least if not otherwise provided for in the act creating the office, is executive and under a constitutional provision such as Art. VII, Sec. 10 of our Constitution, absent at least any contrary expression of the legislature, such power lies with the governor. This being the case the legislature has no power summarily to remove the incumbent. Whether the governor has power so to do depends on whether the act makes the incumbent removable at the will of the governor or for cause which in turn may depend on whether the term is by statute a fixed one or indeterminate. In order that the legislature may not circumvent by indirection the governor's power to remove, the courts have scrutinized the new office set up in the place of the one abolished. If the office is completely abolished and no substitute created nor its duties distributed among other offices, it may be so abolished whatever the motive. Heath v. Salt Lake City, 16 Utah 374, 52 P. 602; People ex rel. Moloney v. Waring...

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6 cases
  • Thaxton, In re, 8392
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    ...election in May of the appropriate year. * * *' See, also, Millard v. Guy, 334 Mich. 694, 55 N.W.2d 210 (1952). State ex rel. Hammond v. Maxfield, 103 Utah 1, 132 P.2d 660 (1942), is another case in which it is pointed out that the issue of whether the abolition is 'real' or 'colorable' is ......
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    ...of Education. But it remained a constitutional office with the same functions, duties and powers appertaining to it. State ex rel. Hammond v. Maxfield, 103 Utah 1, 132 [122 Utah 174] P.2d 660. It should be noted that none of the constitutional amendments changed Art. VII, Sec. 19, which pro......
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    ...See 67 C.J.S., Officers, § 10(b); 172 A.L.R. 1366 et seq.; Mattia v. City of Newark, 122 N.J.L. 557, 6 A.2d 662; State ex rel. Hammond v. Maxfield, 103 Utah 1, 132 P.2d 660; State ex rel. Birdsey v. Baldwin, 45 Conn. 134; Suermann v. Hadley, 327 Pa. 190, 193 A. 645; Smith v. Sells, 156 Tenn......
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    ...new one for this court, various other courts have so declared. * * *' 327 Pa. at p. 186, 193 A. 634, at p. 636. In State ex rel. Hammond v. Maxfield, 103 Utah 1, 132 P.2d 660, the majority of the Utah Supreme Court found that the law had crystallized in this country since the founding of th......
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