State ex rel. Jugler v. Grover

• Decision Date: 29 April 1942
• Docket Number: 6393
• Citation: 125 P.2d 807,102 Utah 41
• Court: Utah Supreme Court
• Parties: STATE ex rel. JUGLER v. GROVER et al

125 P.2d 807

102 Utah 41

STATE ex rel. JUGLER v. GROVER et al

No. 6393

Supreme Court of Utah

April 29, 1942

Original proceeding in quo warranto by the State of Utah upon the relationship of Frank A. Jugler, against Wendell Grover and another, to determine the right to office of a member of the Industrial Commission.

Writ of ouster ordered to issue.

Wade M Johnson, of Ogden, for relator.

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

LARSON, Justice. MOFFAT, C. J., concurs. PRATT, J., concurs in the result. WOLFE, Justice, McDONOUGH, Justice, dissenting.

OPINION

LARSON, Justice.

An action in quo warranto to determine the right to the office of a member of the Industrial Commission of Utah. Pursuant to Section 42-1-1, R. S. U. 1933, Henry H. Blood as governor of the State of Utah, by and with the advice and consent of the State Senate, had in 1934 appointed O. F. McShane; in 1936 had appointed Wm. M. Knerr; and in 1938 had appointed the relator, Frank Jugler, as members of the Industrial Commission of Utah, each for a term of six years. Each of said members had duly qualified, taken office, and were discharging the duties thereof. Under the terms of the statute, McShane's term of office expired April 1, 1941; Knerr's term would expire April 1, 1943, and the term of Jugler, relator herein, would expire April 1, 1945. In March, 1941 the legislature passed and the governor signed an act amending several sections of Title 42, R. S. U. 1933, commonly called the Industrial Commission Act, and enacting four new sections. Laws 1941, 1st Sp. Sess., c. 15. This action involves Section 42-1-1, as amended, and a new section, numbered Section 3. The original section, 42-1-1, as far as material here reads:

"The industrial commission of Utah shall be composed of three members, appointed by the governor by and with the consent of the senate, whose terms of office shall be six years, beginning on the 1st day of April. Each commissioner shall hold office until his successor is appointed and has qualified. * * *"

As amended it reads:

"Section 42-1-1, Laws of Utah 1941:

"The industrial commission of Utah shall be composed of three members, appointed by the governor by and with the consent of the senate, whose terms of office shall be six years except as hereinafter provided in this section. Of the members first appointed the term of one shall expire March 1, 1943, the term of one shall expire March 1, 1945, and the term of one shall expire March 1, 1947. Each commissioner shall hold office until his successor is appointed and has qualified. * * *" (Italics added.)

And the new section, Section 3, reads as follows:

"The terms of office of the present members of the industrial commission of Utah shall terminate upon the appointment and qualification of the three members of the industrial commission appointed pursuant to this act." (Italics added.)

Pursuant to this action Governor Herbert B. Maw, on June 3, 1941, nominated and sent to the Senate for its advice and consent:

"For members of the Industrial Commission:

Wendell Grover, 6 year term, Salt Lake County

Otto A. Wiesley, 4 year term, Salt Lake County

Wm. M. Knerr, 2 year term, Salt Lake County."

Three days later the senate confirmed the appointments. The appointees took the oath, filed a bond, and assumed to act as the Industrial Commission of Utah. In 1940, one of the appointees, defendant Wendell Grover, was elected to the state senate for a term of four years, to wit, from the 1st day of January, 1941 to the 1st day of January, 1945, qualified as such senator and was president of the senate during the regular and the first special session of the legislature in 1941 when the foregoing changes were made in the industrial commission law.

Article 6, Section 7, of the Constitution of the State of Utah reads:

"[Ineligibility of members to office created, etc.] No member of the Legislature, during the term for which he was elected, shall be appointed or elected to any civil office of profit under this State, which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected."

Frank Jugler, hereinafter called the relator, instituted this action against Wendell Grover and Otto Wiesley, as defendants, to determine the right to the office as a member of the Industrial Commission of Utah. Hereafter defendants will be referred to by name for clarity of record. Knerr was not made a defendant because he was a member of the old commission with two years to serve, and if relator's position is well taken, Knerr would now be lawfully holding his office under his prior appointment by Governor Blood.

Relator's position is that defendant Grover is ineligible to the office under the constitutional provision quoted because he was a member of the legislature; that under the provisions of Section 3, quoted above, the term of office of the old members of the commission did not cease or terminate until three eligible new commissioners had been appointed and qualified. Since Grover could not qualify because ineligible, the tenure in the office of the old commissioners had not terminated under the terms of the statute and therefore neither defendant Grover nor Wiesley could assume the office.

It is evident from the wording of Section 3, quoted above, that the legislature intended that the term of office, the tenure in office of the old commissioners should all terminate at once, the time of termination being fixed as the time when the newly appointed commissioners had all been appointed and qualified to take over. It was not intended to fuse or mingle the two sets of commissioners. It is argued for Mr. Wiesley that since the term of McShane, the lone Republican on the commission, had expired and Wiesley was the only Republican appointed in 1941, Mr. Wiesley must be considered as appointed to McShane's place, and therefore be entitled to the office as an appointment to the old commission until the new commissioners are all appointed and qualified. This argument is not tenable. The term of office of McShane's successor under the prior law would be six years. The governor's appointments designated Grover for the six-year term and Wiesley for a four-year term, which would be under the prior statute the remaining period of the Jugler term. The communication of the governor to the senate, making the appointments and requesting confirmation clearly show that the appointments were made under the enactment of 1941 and not under the prior statute. If the defendant Grover is ineligible and therefore is not qualified, Wiesley is not yet a qualified member of the commission. Thus in Com. v. Hanley, 9 Pa. 513, Hanley was duly elected clerk of the orphan's courts in October, 1845, and was duly commissioned and qualified to serve for the period of three years from the 1st day of December of that year; and until his successor should be duly qualified. On the second Tuesday of October, 1848, Oliver Brooks was duly elected as his successor, but died before qualifying. The governor, assuming that Hanley's office became vacant at the expiration of three years, appointed a successor. In discussing the questions arising under these facts the Supreme Court of Pennsylvania said:

"Being duly qualified in the constitutional sense, and in the ordinary acceptation of the words, unquestionably means that he, the successor, shall possess every qualification; that he shall, in all respects, comply with every requisite before entering on the duties of the office; that, in addition to being elected by the qualified electors, he shall be commissioned by the governor, give bond as required by law, and that he shall be bound by oath or affirmation * * * to support the constitution of the commonwealth and to perform the duties of the office with fidelity. Until all these pre-requisites are complied with by his successor * * * the respondent is de jure, as well as de facto, the clerk of the Orphans' Court." (Italics added.)

And in State v. Berg, 50 Ind. 496, the Indiana Court held that where a township trustee was elected his own successor, and did not qualify under his second election that his office did not become vacant, and that he was entitled to hold under his first election until a successor was elected and qualified.

The weight of authority is that where there exists a constitutional provision such as we are now considering, that a term of office fixed by statute runs not only for the period fixed, but for an additional period between the date fixed for its termination and the date at which a successor shall be qualified to take the office, the period between the expiration of the term fixed by statute and the time at which a successor shall be qualified to take the office is as much a part of the incumbent's term as the fixed statutory period. Tuley v. State, 1 Ind. 500; Miller v. Burger, 2 Ind. 337; Baker v. Kirk, 33 Ind. 517; State v. Berg, supra; Elam v. State, 75 Ind. 518; People v. Whitman, 10 Cal. 38; Gosman v. State, 106 Ind. 203, 6 N.E. 349; and State v. Harrison, 113 Ind. 434, 16 N.E. 384, 3 Am. St. Rep. 663. The same court in Kimberlin v. State, 130 Ind. 120, 29 N.E. 773, 774, 14 L.R.A. 858, 30 Am. St. Rep. 208, said:

"The adjudicated cases seem to be harmonious in holding that where one is lawfully in the possession of an office under a constitutional or statutory provision to the effect that he shall hold until his successor is elected and qualified, his right to hold over continues until a qualified successor has been elected by the same electoral body as that to which such incumbent owes his election, or which by law is entitled to elect a successor. Gosman v....