State ex rel. Wayne v. Sims

• Decision Date: 22 November 1955
• Docket Number: No. 10759,10759
• Citation: 90 S.E.2d 288,141 W.Va. 302
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Ivanhoe S. WAYNE v. Edgar B. SIMS, Auditor.

Page 288

90 S.E.2d 288

141 W.Va. 302

STATE ex rel. Ivanhoe S. WAYNE v. Edgar B. SIMS, Auditor.

No. 10759.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 27, 1955.

Decided Nov. 22, 1955.

Syllabus by the Court.

1. When, in the recess of the Senate, the Governor makes an appointment, under proper constitutional or statutory authority, for a full term, which appointment must be approved by the Senate, and when the Senate fails to give its consent to such appointment, a vacancy occurs under the provisions of Article VII, Section 9 of the West Virginia Constitution.

2. The language 'next meeting of the Senate', contained in Article VII, Section 9 of the Constitution, means the next time the Senate is constitutionally convened.

3. When the Legislature is convened in Extraordinary Session, under the provisions of Article VII, Section 7, of the Constitution, the prohibition contained therein that it 'shall enter upon no business except that stated in the proclamation by which it was called together' precludes the Legislature from conducting any legislative business other than that contained in the proclamation, but does not preclude the Senate from confirming or refusing to confirm an appointment or nomination of an official made by the Governor.

4. When, in the recess of the Senate, a vacancy occurs, within the provisions of Article VII, Section 9 of the Constitution, it is the mandatory duty of the Governor to fill such vacancy by an appointment, until the next meeting of the Senate, when he shall make a nomination for such office, either of the person appointed to fill the vacancy, or some other person. If such nominee is confirmed at the next meeting of the Senate, he shall hold office during the remainder of the term, but if no nomination is made, at the next meeting of the Senate, the interim appointee ceases to have title to the office upon the adjournment of the Legislature.

M. E. Boiarsky, Milton S. Koslow, Charleston, for relator.

John G. Fox, Atty. Gen., Charles R. McElwee, Asst. Atty. Gen., for respondent.

BROWNING, Judge.

Relator, Ivanhoe S. Wayne, seeks a peremptory writ of mandamus, directed to Edgar B. Sims, Auditor of the State of West Virginia, requiring him to honor relator's requisitions for salary due for serving as Director of the Bureau of Negro Welfare and Statistics.

The relator alleges the creation of this Bureau, and the provision that it was to be in the charge of a Director, appointed by the Governor, by and with the consent and advice of the Senate, to hold office for four years, unless sooner removed according to law. The petition then alleges the appointment of C. F. Hopson as Director for the term expiring June 30, 1953. On June 24, 1953, the Governor again appointed Hopson 'until the next meeting of the Senate', which appointment was amended and corrected on January 7, 1955, to read 'for a term of four years, effective July 1, 1953 and ending June 30, 1957.' The Senate, on March 12, during the Regular Session of the Legislature, 1955, rejected the appointment of Hopson. The petition then alleges the appointment of relator as such Director on March 15, 1955, and on March 16, 1955, his qualification and entry upon his duties.

Under date of April 20, 1955, the Governor issued a proclamation calling the Legislature into Extraordinary Session on May 9, 1955, stating that such call was by virtue of the provisions of Article VII, Section 7 of the Constitution of this State, and limiting the session to consideration of matters incident to the school system, and to the appropriation of the money necessary to finance the Extraordinary Session. On May 10, 1955, the Governor submitted to the Senate a list of nominations to various offices, but the name of the relator was omitted. Consequently, on May 13, 1955, the Legislature adjourned the Extraordinary Session without the name of the relator having been considered by the Senate.

The petition then sets forth the salary claimed as due by the relator, his requisition therefor to the Auditor, and the Auditor's refusal to honor such requisition, and concludes with the prayer for a peremptory writ of mandamus.

The Auditor demurrer to the petition on the ground that it shows on its face that respondent has no clear legal duty to honor relator's requisitions because: (1) Relator's appointment expired upon the adjournment of the Senate on May 13, 1955; (2) the Governor did not nominate relator as Director at the next meeting of the Senate following his appointment on March 15, 1955; and (3) the Senate did not consent to the appointment of relator at its next meeting after his appointment on March 15, 1955.

The facts stipulated by counsel are briefly as follows: (A) There have been 32 Extraordinary Sessions of the Legislature since 1872, each of which was called pursuant to Article VII, Section 7 of the Constitution; (B) That of these 32, the subject of consideration of gubernatorial appointments was included in only 2 of the calls; (C) That the Senate acted upon gubernatorial appointments at 14 Extraordinary Sessions; (D) That the Senate did not act upon gubernatorial appointments at 5 Extraordinary Sessions; (E) That, at 11 of the Extraordinary Sessions there were no gubernatorial appointments to be acted upon; and (F) That, since March 14, 1955, the date of the adjournment of the Regular Session, the Governor has made but one appointment to the office of Director of the Bureau of Negro Welfare and Statistics, which is that of the relator.

It should be observed at the outset that the determination of the status of Hopson, which is necessarily incident to an adjudication of the issues presented herein, does not preclude him from any right or title which he may have to the office in question since Hopson is not a party to this proceeding. Stowers v. Blackburn, W.Va., 90 S.E.2d 277.

The office of Director of the Bureau of Negro Welfare and Statistics is a public office created by the Legislature, Code, 29-5-1, pursuant to Article IV, Section 8 of the West Virginia Constitution. Mandamus is a proper remedy by a de jure official to secure payment of his salary for services rendered in such office. State ex rel. Downey v. Sims, 125 W.Va. 627, 26 S.E.2d 161. However, by the greater weight of authority, a de facto officer cannot by mandamus, or other suit or action, recover the salary belonging to the office which he is filling. State ex rel. Brandon v. Board of Control, 84 W.Va. 417, 100 S.E. 215.

The controlling question then is whether the relator has the title to the office of Director of the Bureau of Negro Welfare and Statistics, and this issue is presented by the facts alleged in the petition and the demurrer thereto. Neither the Legislature, the Governor, nor any other official has any inherent power to appoint anyone to a public office. That power rests only in the people of this State, and in those to whom it has been delegated, by the people through their Constitution, or by valid legislative enactments pursuant thereto. It is necessary, therefore, to look to the Constitution primarily, and to the Acts of the Legislature, to resolve the issue here presented. Article IV, Section 8 of the Constitution of this State, provides that: '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.'

The office in question in this proceeding is not a constitutional office, but was created by the Legislature by the provisions of Code, 29-5-1, which reads as follows: 'The bureau of Negro welfare and statistics, heretofore established, shall be continued. It shall be in charge of a director who shall be a member of the Negro race, to be appointed by the governor, by and with the advice and consent of the senate, and shall hold office for four years, unless sooner removed according to law.'

Section 8 and 9 of Article VII of the Constitution provide:

Section 8: 'The Governor shall nominate, and by and with the advice and consent of the Senate, (a majority of all the Senators elected concurring by yeas and nays) appoint all officers whose offices are established by this Constitution, or shall be created by law, and whose appointment or election is not otherwise provided for; and no such officers shall be appointed or elected by the Legislature.'

Section 9: 'In case of a vacancy, during the recess of the Senate, in any office which is not elective, the Governor shall, by appointment, fill such vacancy, until the next meeting of the Senate, when he shall make a nomination for such office, and the person so nominated, when confirmed by the Senate, (a majority of all the Senators elected concurring by yeas and nays) shall hold his office during the remainder of the term, and until his successor shall be appointed and qualified. No person, after being rejected by the Senate, shall be again nominated for the same office, during the same session, unless at the request of the Senate; nor shall such person be appointed to the same office during the recess of the Senate.'

The relator contends that Section 9 is inapplicable since there was no vacancy in the office of the Director at the time of his appointment. This contention is based upon the provision of Code, 6-5-2, which reads: 'The term of every officer shall continue (unless the office be vacated by death, resignation, removal from office, or otherwise) until his successor is elected or appointed, and shall have qualified.'

The initial question of the import of the refusal of the Senate to confirm a gubernatorial appointment for a full term during the recess of the Senate is presented. Hopson was appointed to such a term as Director, effective July 1, 1953, and ending June 30, 1957. This Court holds that when the Senate failed to give its 'consent' to the appointment, as provided by...