State ex rel. Thompson v. Morton, s. 10692
| Decision Date | 01 December 1954 |
| Docket Number | 10693,Nos. 10692,s. 10692 |
| Citation | 84 S.E.2d 791,140 W.Va. 207 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, at the Relation of A. Garnett THOMPSON, Individually and as a Member of the West Virginia Turnpike Commission, v. D. Holmes MORTON. STATE of West Virginia, at the Relation of James M. DONOHOE, Individually and as a Member of the West Virginia Turnpike Commission, v. Hugh F. HUTCHINSON. |
Syllabus by the Court.
1. To effectuate an express repeal of a statute it must be so described, distinguished or referred to in the subsequent enactment as to make identification thereof reasonably certain.
2. To warrant the adjudication of the repeal of a statute by implication there must exist such a provisitive repugnancy between the statute claimed to be repealed and the subsequent enactment that they cannot, by any reasonable hypothesis, be consistently reconciled.
3. Code, 6-6-4, relating to removal of certain officers by the Governor, was not superseded or repealed, expressly or impliedly, by Chapter 139 of the Acts of the 1947 Legislature, commonly referred to as the Turnpike Act.
4. Code, 6-6-4, is not unconstitutional as being in conflict with Section 10 of Article VII, Section 1 of Article V, or Section 1 of Article VI of the State Constitution.
5. The removal of a person from office by the Governor, pursuant to and in accordance with a constitutional statute, does not deny such person due process of law, notwithstanding no notice was given or hearing afforded such person.
John G. Fox, Atty. Gen., T. D. Kauffelt, Asst. Atty. Gen., for relators.
Robert S. Spilman, Wood Bouldin, Jr., Stuart W. Thayer, Charleston, for respondents.
GIVEN, President.
In these original proceedings in mandamus the controlling facts are the same, and questions of law are identical. They are heard on the petition of the State at the relation of A. Garnett Thompson, in one of the proceedings; the petition of the State at the relation of James M. Donohoe, in the other proceeding; the demurrer and answer of the defendant D. Holmes Morton to the petition of the State at the relation of Thompson; the demurrer and answer of the defendant Hugh F. Hutchinson to the petition of the State at the relation of Donohoe; demurrers to the respective answers; very exhaustive briefs; and oral arguments. Only questions of law are involved. For convenience, Thompson and Donohoe may be referred to as petitioners.
Prior to July 6, 1954, defendants were duly appointed and serving as members of the West Virginia Turnpike Commission, for specified terms. The respective terms for which defendants were appointed and then serving would not expire until long after any date material in those controversies. On July 6, 1954, the Governor of West Virginia addressed letters of identical effect to defendants, which letters stated: 'By virtue of the authority vested in me as Governor of West Virginia, I hereby remove you from office as a member of the West Virginia Turnpike Commission effective July 15, 1954.'
On July 10, 1954, the Governor, in so far as he had power to do so, appointed the petitioner Thompson to fill the vacancy created by the removal of the defendant Morton, and appointed the petitioner Donohoe to fill the vacancy created by the removal of the defendant Hutchinson. Petitioners allegedly qualified as to the respective officers to which they had been so appointed, and proper demands for possession of the offices and the prerogatives thereof were made by petitioners. Defendants refused to comply with such demands, continue to deny petitioners the right to the respective offices, and continue in their attempts to exercise the powers and functions of such offices. Thus, the controlling issue, whether the Governor, under the Constitution and statutes, had authority to effect the removal of defendants, clearly arises.
By Chapter 139 of the 1947 Acts of the Legislature, Article 16A of Chapter 17 of the Michie Code of 1949, hereinafter referred to as the Turnpike Act, the West Virginia Turnpike Commission was created. Section 3 of that Act provided that the Commission should consist of five members. The State Road Commissioner was made a member ex officio and the other four members were to be * * *'
The only other provision of the Turnpike Act which we believe can have any possible bearing on the questions involved is the last sentence of Section 20, which reads: 'All acts and parts of acts inconsistent with this act are hereby repealed.'
Apparently the Governor's attempted exercise of power in the attempted removal of defendants from such offices rested principally, at least, on the provisions of Chapter 94 of the 1921 Acts of the Legislature, now Code, 6-6-4, which reads:
The wording, terms and meaning of the Code section just quoted appear clear and without any difficulty of understanding or application. It cannot be questioned, we think, that if the provisions thereof have not been repealed, and are constitutional, the authority or power attempted to be exercised by the Governor in the removal of defendants was vested in him. The controlling contentions of defendants are that Code, 6-6-4, was repealed by the Turnpike Act, expressly or by implication; or, if not repealed, that the Turnpike Act created an exception to the provisions thereof as to the offices of West Virginia Turnpike Commissioners; or if no repeal or exception was effected by the Turnpike Act, that Code, 6-6-4, is void as being violative of Section 10 of Article VII of the State Constitution, which reads: 'The Governor shall have power to remove any officer whom he may appoint in case of incompetency, neglect of duty, gross immorality, or malfeasance in office; and he may declare his office vacant and fill the same as herein provided in other cases of vacancy.'
Another constitutional provision, Article IV, Section 8, pertinent to a consideration of the question involved, reads: 'The Legislature, in cases not provided for in this Constitution, shall 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.'
Still another constitutional provision, Article IV, Section 6, may have some significance as to the questions involved. It reads: 'All officers elected or appointed under this Constitution, may, unless in cases herein otherwise provided for, be removed from office for official misconduct, incompetence, neglect of duty, or gross immorality, in such manner as may be prescribed by general laws, and unless so removed they shall continue to discharge the duties of their respective offices until their successors are elected, or appointed and qualified.'
The contention of defendants relating to express repeal of Code, 6-6-4, quoted above, by the Turnpike Act, appears to be based principally on the fact that the Turnpike Act provides for definite or fixed lengths of terms for the offices of Turnpike Commissioners, whereas Code, 6-6-4, makes the terms indefinite. Some reliance appears to be placed on the last sentence of Section 20 of the Turnpike Act, quoted above. In 82 C.J.S., Statutes, § 284, it is stated: 'In order to effectuate an express repeal, a statute must so describe and distinguish the statute to be repealed, as by designation of its name, title, or caption or by reference to its subject, contents, or substance, as to leave no doubt as to what statute is intended. * * *' See State v. Jackson, 120 W.Va. 521, 199 S.E. 876. A reading of the pertinent provisions of the Turnpike Act will disclose that it makes no mention or reference to Code, 6-6-4, so as to describe or distinguish it by name, title, caption, or otherwise. It would seem clear, therefore, that there was no express repeal. Our views regarding this question will more fully appear, and other supporting authorities will be cited, in the discussion herein of the question relating to repeal by implication.
Defendants' contention that Code, 6-6-4, has been repealed by implication is based principally on the assumption that there exists a clear conflict or repugnancy between that section and the Turnpike Act, in that the Turnpike Act provides for definite lengths of terms of Turnpike Commissioners, while Code, 6-6-4, constitutes terms of all officers to which it is applicable indefinite. We think, however, that the supposed conflict is not real. The statutory provisions can be readily reconciled. In 82 C.J.S., Statutes, § 288, it is stated: ...
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