State ex rel. Warder v. Gainer, 12820

• Decision Date: 28 March 1969
• Docket Number: No. 12820,12820
• Citation: 153 W.Va. 35,167 S.E.2d 290
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Francis P. WARDER, Member of the West Virginia Board of Probation and Parole v. Denzil GAINER, Auditor of the State of West Virginia.

Page 290

167 S.E.2d 290

153 W.Va. 35

STATE of West Virginia ex rel. Francis P. WARDER, Member of

the West Virginia Board of Probation and Parole v. Denzil GAINER, Auditor of the State of West Virginia.

No. 12820.

Supreme Court of Appeals of West Virginia.

Submitted March 25, 1969.

Decided March 28, 1969.

Syllabus by the Court

1. Mandamus is a proper proceeding by which to require payment of salary earned by a public official in the performance of his official duties.

2. 'Except when a vacancy in a public office occurs by refusal to accept the office, by expiration of the term, by death, resignation or removal of the incumbent, or by disqualification of the incumbent by express legislation, a vacancy in such office does not exist until it is declared by competent authority.' Point 5 Syllabus, Stowers v. Blackburn, 141 W.Va. 328, 90 S.E.2d 277.

3. 'There is no vacancy in a public office when there is an incumbent legally authorized to discharge the duties thereof.' Point 2 Syllabus, Broadwater v. Booth, 116 W.Va. 274, 180 S.E. 180.

4. The purpose of statutory or constitutional provisions authorizing public officers to hold over is to prevent vacancies in offices and to prevent a hiatus in the performance of governmental functions.

5. The law abhors vacancies in public offices and courts generally indulge in a strong presumption against a legislative intent to create, by statute, a condition which may result in a public office becoming, for any period of time, unoccupied by one lawfully authorized to exercise its functions.

6. 'Repeal of a statute by implication is not favored in law.' Point 1 Syllabus, State ex rel. City of Wheeling v. Renick, 145 W.Va. 640, 116 S.E.2d 763.

7. Where a statute is amended and reenacted by an act of the legislature which relates to the same subject matter and which reenacts substantially the provisions of the earlier statute, and the amendment and reenactment occur simultaneously, the provisions of the original statute which are retained and reenacted in the new statute are not interrupted in their operation by the amendment and reenactment, but are regarded as having been continuously in force from the date they were originally enacted.

George W. Stokes, Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Cletus B. Hanley, Asst. Atty. Gen., Charleston, for respondent.

CALHOUN, Judge.

In this mandamus proceeding instituted in this Court pursuant to its original jurisdiction in cases of this character, Francis P. Warder, the relator, seeks to require the respondent, Denzil L. Gainer, Auditor of the State of West Virginia, pursuant to duties imposed upon him as such auditor by Code, 1931, 12--3--1, as amended, to issue a warrant to the relator in the sum of $367.20, representing the salary alleged to be owing to the relator as a member of the West Virginia Board of Probation and Parole for the first half of the month of March, 1969, being the period of March 1 to March 16, inclusive.

Pursuant to the prayer of the mandamus petition, a rule to show cause was issued by the Court and made returnable on March 25, 1969, at ten o'clock a.m., on which day the case was submitted for decision upon the mandamus petition, the demurrer and answer to the petition submitted and filed on behalf of the respondent, upon a stipulation of facts and upon briefs in writing and oral argument of counsel for the respective parties. The questions presented for decision are purely questions of law, the pertinent facts being undisputed.

By an order entered on March 28, 1969, the Court awarded a writ of mandamus as prayed for in the petition. Pursuant to a reservation in the order of the right to do so, this opinion has been prepared in order to state in greater detail the basis of and the reasons for the Court's decision.

The relator was appointed by Governor Hulett C. Smith as a member of the board of probation and parole. He qualified as such on June 16, 1966, and his appointment was duly confirmed by the state senate at its 1967 Regular Session.

The Regular Session, 1969, of the Legislature convened on January 8, and adjourned sine die on March 11, 1969. The term of office of Governor Arch A. Moore, Jr., commenced on January 13, 1969. Governor Moore did not reappoint the relator, and has not appointed any other person in his stead, as a member of the board of probation and parole. In these circumstances, the state senate adjourned sine die without having had an opportunity to approve or to disapprove such an appointment. It is asserted in behalf of the respondent state auditor, as the basis of his refusal to honor and to sign the salary requisition in question, that, in the circumstances previously stated in this paragraph, and in the light of the provisions of Code, 1931, 6--7--2a, as last amended and reenacted on January 21, 1969, the office held by the relator became vacant upon the adjournment of the legislature on March 11, 1969. The basis of this contention will be stated more fully hereafter in this opinion.

Code, 1931, 6--7--2a, as a consequence of its amendment and reenactment by Chapter, 76, Acts of the Legislature, Regular Session, 1965, so far as pertinent to this case, was as follows:

'Notwithstanding any other provision of this Code to the contrary, on and after the effective date of this Section, each of [DELETED: the terms of] the following named appointive State officers [DELETED: Shall be terminated and thereafter each of such appointive state officers] shall be appointed by the governor, by and with the advice and consent of the senate. Each of such appointive State officers shall serve at the will and pleasure of the governor [DELETED: for the term for which the governor was elected] and until the respective state officer's successors have been appointed and qualified. Each of such appointive State officers shall hereafter be subject to the existing qualifications for holding each such respective office and each shall have and is hereby granted all of the powers and authority and shall perform all of the functions and services heretofore vested in and performed by virtue of existing law respecting each such office. The annual salary of each such named appointive State officer shall be as follows: * * *.' (Italics supplied.)

Section 2a, from which the above language has been quoted, was first enacted by Chapter 147, Acts of the Legislature, Regular Session, 1957. As originally enacted, the statute dealt solely with salaries of the appointive state officers therein enumerated. All the language of Section 2a quoted above was added by the 1965 amendment. The italicized portion thereof was deleted and omitted therefrom by the 1969 amendment and reenactment.

The 1969 amendatory act is referred to in the record in this case as Enrolled Senate Bill No. 35, which was passed January 21, 1969, and made effective from the date of its passage. In addition to the deletion or omission from the statute of certain language as previously indicated, the 1969 amendment and reenactment of Section 2a changed subsequent portions of the statute in other respects which are not here pertinent. Primarily the other changes accomplished by the 1969 amendment and reenactment of Section 2a resulted in increases in salaries of various appointive state officers therein enumerated. We believe it is common knowledge that the basic purpose of the legislature in amending and reenacting the statute in 1969 was to provide for increases in salaries of officers who might thereafter be appointed by Governor Moore, after the commencement of his term of office on January 13, 1969, and before the appointments became effective.

Both the demurrer and the answer to the mandamus petition raise the basic legal question presented for decision. The respondent admits in his answer that the relator, as a consequence of his valid appointment by the previous governor and the valid confirmation of such appointment by the senate, continued in office under the holdover provisions of the laws of this state after the expiration of the term of office of the former governor, Honorable Hulett C. Smith, after the commencement of the term of office of Honorable Arch A. Moore, Jr., as the newly-elected governor, and after the enactment and effective date of Enrolled Senate Bill No. 35. It is contended, however, by counsel for the respondent that the relator's holdover status as an appointive state officer terminated, by operation of law, upon the adjournment sine die of the senate. It is contended that this legal consequence arises from the enactment of Enrolled Senate Bill No. 35 which, as has been previously stated in this opinion, amended and reenacted Code, 1931, 6--7--2a, as previously amended.

As we understand the contention made in this respect in behalf of the respondent, reliance is placed upon the fact that Enrolled Senate Bill No. 35 was made effective from the time of its passage on January 21, 1969, and the fact that the statute as thus amended and reenacted, contained the following language: 'Notwithstanding any other provision of this code to the contrary, On and after the effective date of this section Each of the following named appointive state officers shall be appointed by the governor, by and with the advice and consent of the Senate. Each of such appointive state officers shall serve at the will and pleasure of the governor and until the respective state officer's successors have been appointed and qualified. * * *.' (Italics supplied.) Counsel for the respondent apparently rely primarily upon the italicized portion of Enrolled Senate Bill No. 35 in the quotation appearing immediately above, which was placed in the statute by the 1965 amendment and was retained without change in the statute as amended and reenacted in 1969.

Counsel for the respondent assert in their brief, that, as a consequence of the enactment of Enrolled Senate Bill No. 35, it became the mandatory duty of the...