State ex rel. Poole v. Peake
| Decision Date | 06 March 1909 |
| Citation | 120 N.W. 47,18 N.D. 101 |
| Court | North Dakota Supreme Court |
Original application by the State, on relation of Thomas H Poole, for a writ of quo warranto to be directed to Amasa P Peake. Application for writ denied, and alternative writ quashed.
Writ denied.
Ball Watson, Young & Lawrence, and Engerud, Holt & Frame, for relator.
Andrew Miller, Atty. Gen., and M. A. Hildreth, for respondent.
OPINION
This is an original proceeding, before this court, arising out of an information in the nature of quo warranto, presented by the State, on the relation of Thomas H. Poole, against Amasa P. Peake. Those allegations of the information that, in the view of the majority of the court, are material and controlling, are to the effect that on January 7, 1907, E. Y. Sarles, then Governor of the state of North Dakota, appointed the relator to the office of Adjutant General of said state, and issued to him a commission wherein he was designated as Adjutant General of the state of North Dakota with the rank of brigadier general; that relator accepted said appointment and commission, and immediately thereafter, on the same day, qualified by taking the oath of office and giving the bond required by law, and at all times since has acted as the Adjutant General of the state of North Dakota, and has not been removed from such office by the sentence or judgment of a court martial.
The information then sets out, at length, certain orders made on January 7, 1909, by John Burke, the successor in office, as Governor of North Dakota, of E. Y. Sarles, by whom relator's appointment was made. The evident purpose and intent of these orders was to relieve relator from further service as Adjutant General, and from further active duty as an officer of the state militia, and to place him on the retired list of the North Dakota National Guard. Relator, so the information recites, protested against the authority of the Governor to make these orders, and refused to obey any of them or in any manner to recognize the validity thereof. Thereupon, on January 12, 1909, Governor Burke issued to the respondent, Amasa P. Peake, a commission as Adjutant General of the state of North Dakota, with the rank of brigadier general, such appointment to date from January 7, 1909; and said Peake claiming the right, pursuant to such appointment and commission, to exercise the functions and powers of the office of Adjutant General, has intruded into said office and is interfering with and to a great extent preventing relator from properly discharging the duties of said office, to the great detriment of the public service, the disturbance of peace and good order, and the great prejudice of military discipline.
Relator's information, with the consent of the Attorney General that he might initiate the proceeding in the name of the state, was filed in this court, and a writ issued and directed to the respondent, Peake, requiring him to appear before this court and answer the information and make full disclosure of his right to intrude into and exercise the powers and duties of Adjutant General of this state and to exclude the relator therefrom.
In response to the mandate of the writ, respondent appeared and presented an answer in which, at considerable length, he traverses some parts of relator's information and admits others. He alleges many facts in explanation and justification of the course of Governor Burke in making the orders dated January 7, 1909, but the only part of respondent's return that bears with material force on the points controlling the decision of the case are the allegations to the effect that on the 12th day of January, 1909, Governor Burke, pursuant to and by virtue of sections 1720 and 1721, Rev. Codes 1905, appointed and commissioned the respondent as Adjutant General of North Dakota for a term of two years, ending January 7, 1911; and that, "pursuant to the said appointment and commission, respondent accepted said appointment and commission, and has filed his bond and in all other respects qualified in the manner and form prescribed by law, and has entered upon and assumed the duties of said office by virtue of said appointment and commission, and now is the duly appointed, commissioned, qualified and acting Adjutant General of North Dakota."
Upon the information as presented and the return of respondent thereto, a hearing before this court was had, in which relator and respondent appeared by counsel, and an elaborate argument of the issues arising in the proceeding was had. No denial of the allegation last quoted from respondent's return was made by relator. It was, in fact, admitted that appointments had been made by Governor Sarles and Governor Burke at the times and in the manner alleged in the moving papers; and that the only material issue presented by the proceedings is that of the right to the office of Adjutant General under the respective claims of the relator, Poole, and respondent, Peake.
The jurisdiction acquired under information in the nature of quo warranto has been most frequently exercised by the courts of the United States for the purpose of determining disputed questions of title to public office, and for deciding upon the proper person to hold the office and exercise its functions. High's Extraordinary Remedies, § 623. The point being, therefore, fairly and definitely presented in a proper proceeding, it remains only for this court to determine which of the contending parties is entitled to the office, and, if it then appears that a usurper has intruded into and is holding the office, to exclude him therefrom.
The Adjutant General's department in the state militia, to consist of one Adjutant General with the rank of brigadier general, was first provided for by the territorial law of 1887. Chapter 100, p. 258, Laws 1887. This statute was re-enacted by the State Legislature in 1891, and the right of appointment of the Adjutant General vested in the Governor. Chapter 86, p. 229, Laws of 1891. The term of office is not fixed or defined by this act. In accordance with a limitation of the state Constitution, the act provides that "all commissions shall be issued by the Governor and no commissioned officer shall be removed from office except by sentence of a court-martial."
The law of 1891, so far as it related to the Adjutant General's department, remained unaltered until 1905, when the legislative act was passed, entitled "An act providing that all appointments to the various departments of the National Guard of the state of North Dakota shall be made from officers of the field or line." This act, so far as its provisions are material or in point, is in words as follows: Chapter 136, p. 244, Laws 1905.
This act, if constitutional and valid, was in full force on January 7, 1907, at the time of relator's appointment by Governor Sarles to the office of Adjutant General. The Legislative Assembly is expressly authorized by the Constitution to provide the manner of appointment or election of all militia officers, and there seems to be no question but that this includes the right to fix a stated term of office. As the act of 1905 prescribes a maximum term of two years for appointments to the office of Adjutant General, relator's term expired on January 7, 1909, and on the appointment and qualification of the respondent, Peake, as his successor on January 12, 1909, his right to exercise the functions of the office fully terminated. Even assuming that relator was a "commissioned officer" within the meaning of section 192 of the state Constitution, a point which it is unnecessary in our view of the case to decide, the inhibition there set forth against removal from office can have no application to an officer who attempts to retain his office after the expiration of his term.
Relator strenuously contends, however, that that portion of chapter 136, p. 244, Laws 1905, which expresses a purpose to fix a term of office, is in conflict with section 61 of the state Constitution, in that the subject of term of office is not expressed in the title of the act, and is, therefore, invalid and void. If this contention is sound, it follows that there is no term fixed for the office of Adjutant General, and that the decision of this case depends upon other and different considerations. On the other hand, if it appears upon examination that the act is not vulnerable to the constitutional objection urged against it, it is very clear that relator's official term expired before respondent asserted his claim to the office, and that it is not necessary to look further in order to reach a determination of the only issue arising out of this proceeding.
The question of the unconstitutionality of legislative acts by reason of the fact that the purpose or subject of the act is not expressed in the title has been before this court in a number of cases. In 1907 certain rules or principles governing the construction of section 61 of the state Constitution were formulated by this court in the case of Powers Elevator Company v. Pottner, 16 N.D. 359, 113 N.W. 703. In the...
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