State v. Sullivan
| Decision Date | 19 October 1909 |
| Docket Number | 11773 |
| Citation | 90 N.E. 146,81 Ohio St. 79 |
| Parties | The State, Ex Rel. Morris, v. Sullivan. |
| Court | Ohio Supreme Court |
Appointing power of governor - Act of April 2, 1906 (98 O. L., 342) creating railroad commission - Common law rule forbidding appointing officer - To forestall appointing rights of his successor - Statutes to be construed with reference to rules of common law, when.
1. The well settled rule of the common law forbids that an officer clothed with power of appointment to a public office, shall forestall the rights and prerogative of his successor, by making a prospective appointment to fill an anticipated vacancy in an office the term of which cannot begin until after his own term and power to appoint have expired.
2. This established rule of the common law is neither abrogated nor modified by the provisions of Section 1 of the act of the General Assembly of the State of Ohio passed April 2, 1906 (98 O. L., 342), creating a railroad commission, and requiring the governor to appoint thereto "in January 1909, and biennially thereafter, one commissioner for the term of six years from the first Monday in February of such year."
3. Statutes are to be read and construed in the light of and with reference to the rules and principles of the common law in force at the time of their enactment, and in giving construction to a statute the legislature will not be presumed or held, to have intended a repeal of the settled rules of the common law unless the language employed by it clearly expresses or imports such intention.
This action is one in quo warranto originally commenced in this court by the relator, James C. Morris, to recover possession of the office of member of the Railroad Commission of Ohio to which office he claims to have been duly and legally appointed on January 4, 1909, by Andrew L. Harris, then governor of the state of Ohio. The essential and controlling facts are sufficiently stated in the pleadings of the parties, and are not in dispute. The petition of James C. Morris, the relator herein, alleges and charges as follows:
Now comes James C. Morris, the relator herein, and gives the court to understand and be informed that on the fourth day of January, 1909, Andrew L. Harris, the then duly qualified and acting governor of the state of Ohio, duly appointed the relator to the office of member of the Railroad Commission of Ohio, subject to the advice and consent of the Senate of the State of Ohio, for the term of six years, to commence on the first Monday in February, 1909, and to terminate on the first Monday in February, 1915; and on said fourth day of January 1909, by written message addressed to said senate and signed by said Andrew L. Harris, governor as aforesaid, duly submitted said appointment to said senate for its confirmation; that on said fourth day of January, 1909, the General Assembly of Ohio, including said senate, was in session, and said message of said Andrew L. Harris, Governor of Ohio, was duly received by said senate on said fourth day of January, 1909, and by appropriate action on the part of said senate the said appointment of the relator to said office was duly assented to and confirmed by said senate. That thereupon, on the fifth day of January, 1909, the said Andrew L. Harris, Governor of Ohio, duly issued to the relator a commission to serve as a member of said Railroad Commission of Ohio for said term beginning on the first Monday in February, 1909, and ending on the first Monday in February, 1915, which commission was duly signed by said Andrew L. Harris, governor as aforesaid, and was duly countersigned by Carmi A. Thompson, who then was the duly elected, qualified and acting Secretary of State of the State of Ohio. And thereupon, on the twenty-ninth day of January, 1909, the relator took and subscribed the constitutional oath as an officer of the state of Ohio to support the Constitution of the United States and the Constitution of the State of Ohio, and that he would faithfully discharge the duties of the office as a member of the Railroad Commission of Ohio, to which he had been appointed according to law, to the best of his ability; and further took and subscribed an oath that he was not pecuniarily interested in any railroad in the state of Ohio or elsewhere, and that he did not then hold any other office of profit and that he did not then hold any position under any political committee or party, which oath was on said date last aforesaid duly filed in the office of the said secretary of state. That then and thereby the relator was duly commissioned a member of the Railroad Commission of Ohio under said appointment and lawfully entitled to exercise the powers and duties and to receive the fees and emoluments of said office during said term beginning on the first Monday in February, 1909, and ending on the first Monday in February 1915.
But the relator avers that the defendant, John Sullivan, has usurped and unlawfully holds and exercises said office, and as such officer assumes to do and perform all and singular the duties pertaining to said office and to receive the fees and emoluments thereof, to the exclusion and against the rights of the relator and under a claim of appointment to said office by Judson Harmon, Governor of Ohio, and a confirmation thereof by the Senate of the State of Ohio, and a commission issued in pursuance of said appointment and confirmation thereof by said Judson Harmon, Governor of Ohio. But the relator avers that the said pretended appointment of the defendant by the said Judson Harmon, Governor of Ohio, was made long subsequent to the appointment and qualification of the relator to said office and after the right and title of the relator to said office had become fixed and absolute.
Wherefore relator prays that defendant be required to answer by what warrant he claims to have, use, exercise and enjoy said office of member of the Railroad Commission of Ohio, and that he be adjudged not entitled thereto and that judgment of ouster therefrom may be pronounced against him, and that the relator may be adjudged entitled to said office and its franchises.
To this petition the defendant, John Sullivan, filed the following answer:
Now comes John Sullivan, the defendant herein, and for answer to the petition of the relator, denies that on the fourth day of January, 1909, or at any other time, the relator was duly appointed to the office of member of the Railroad Commission of Ohio for the term of six years, to commence on the first Monday in February, 1909, and to terminate on the first Monday in February, 1915; he denies that on the fourth day of January, 1909, or at any other time, the Governor of Ohio duly submitted said alleged appointment to the Senate of Ohio for its confirmation; he denies that on the fourth day of January, 1909, or at any other time, the Senate of Ohio duly assented to and confirmed said alleged appointment; he denies that on the fifth day of January, 1909, or at any other time, the Governor of Ohio duly issued to the relator a commission to serve as a member of said Railroad Commission for the term beginning on the first Monday in February, 1909, and ending on the first Monday in February, 1915; he denies that said alleged commission was duly signed by the Governor of Ohio or duly countersigned by the Secretary of State of the State of Ohio; he admits that on the twenty-ninth day of January, 1909, the relator took and subscribed the oaths mentioned in said petition; he admits that said Andrew L. Harris, as Governor of Ohio, at the time mentioned in said petition, attempted to appoint the relator to said office, and on said fourth day of January, 1909, submitted said pretended appointment to the Senate of Ohio for its confirmation, and that said senate in due form of law assented to said alleged appointment; that on the fifth day of January, 1909, said governor in due form of law issued to the relator a paper purporting to be a commission to serve as a member of said Railroad Commission for the term aforesaid, and that the same was countersigned by said secretary of state; but the defendant denies that the relator was then and thereby duly appointed to said office, denies that his said pretended appointment was duly confirmed, denies that he was duly commissioned a member of said Railroad Commission for said term, and denies that he was or is lawfully entitled to exercise the powers or to receive the salary and emoluments of said office for said term, for that, on the third day of November, 1908, Judson Harmon was duly elected Governor of the State of Ohio to serve for the term of two years commencing on the second Monday, which was the eleventh day, of the month of January, 1909, and, although said Andrew L. Harris was on the fifth day of January, 1909, the duly qualified and acting Governor of the State of Ohio, his term of office, as he then well knew, would by operation of law expire on the eleventh day of January, 1909, and, therefore, said Andrew L. Harris had no lawful right, power or authority to make said alleged appointment, and the Senate of Ohio had no lawful right, power or authority to confirm the same.
Further answering the defendant avers that he is, and at the times stated hereinafter was, a citizen, resident, inhabitant and elector of the county of Butler in the state of Ohio, and then had and still has all the qualifications required by law for a member of the Railroad Commission of Ohio; that on the twenty-first day of January, 1909, Judson Harmon, who then was the duly elected, qualified and acting Governor of the State of Ohio, as such governor duly appointed the defendant a member of said commission, subject to the advice and consent of the Senate of the State of Ohio, for the term of six...
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