Wentz v. Thomas
| Decision Date | 23 September 1932 |
| Docket Number | 23652. |
| Parties | WENTZ v. THOMAS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Under our code procedure and system of code pleadings, the district court is endowed with the dual power of a court of equity and a court of law, and redress for every remediable wrong may be had by civil action upon the pleadings and agreed statement of facts.
2. Where plaintiff's petition alleges that she is the duly appointed, qualified, and acting commissioner and member of the state highway commission of the state of Oklahoma, under and by virtue of the laws of the state of Oklahoma, and that she is in possession of such office and exercising its duties and functions in the manner provided by law, and that the defendant has been and is unlawfully claiming the right and title to the office occupied by and now in her possession and the defendant filed a general denial thereto held, that the pleadings raised the issue as to whether the plaintiff had been duly appointed, which necessarily carried with it a determination of her title to the office.
3. The power of the Governor to remove a statutory executive officer, who is not under the direct control and responsible for his acts to the Governor, where the Legislature provided the causes for which the officer may be removed, and has given a court of competent jurisdiction exclusive power to hear and determine the grounds for removal, is not necessarily implied from the provisions of the Constitution which define the powers of government and divide it into the executive, legislative, and judicial departments, and vest the supreme executive power in the Governor and direct that he shall cause the laws of the state to be faithfully executed.
4. There is a fundamental difference between the federal and state Constitutions, and the authority of Congress under the one and the Legislature under the other. The federal government is one of delegated, enumerated, and limited power, and, when an act of Congress is assailed as void, it is necessary to look to the Federal Constitution for a grant of specific power broad enough to embrace the act; the power of the state Legislature to enact a law is subject to no restrictions except those imposed by the federal and state Constitutions. There must be a grant of authority in the national Constitution to support an act of Congress; but an act of our Legislature on a rightful subject of legislation is valid, unless prohibited by the state or Federal Constitution.
5. There is a fundamental difference between the executive powers of the president of the United States under the Federal Constitution, and the executive powers of the governor under the state Constitution. There is no division of the federal executive department. The president has power and control over all of the executive branches of government and the heads of all executive departments each act as his agent and perform his discretion. Myers v. U. S., 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160.
6. Under our state Constitution by section 1, article 6, the executive authority is vested in a Governor, Lieutenant Governor, secretary of state, state auditor, Attorney General, state treasurer, superintendent of public instruction, state examiner and inspector, chief mine inspector, commissioner of labor, commissioner of charities and correction, and commissioner of insurance, and other officers provided by law and the Constitution, each of whom shall perform such duties as may be designated in the Constitution or provided by law.
7. Section 1, art. 16, of the Constitution, directs the Legislature to establish a department of highways, and grants to it the power to provide how the commissioners thereof shall be appointed, and how and upon what conditions they may be removed from office.
8. Under mandatory provision of the Constitution, it was the duty of the Legislature to establish a highway commission and, the Governor not having the power under the Constitution to appoint the commissioners, it was competent for the Legislature to authorize him to appoint, by and with the advice and consent of the Senate, and by the same act provide for what causes the commissioners could be removed, and vest exclusive power in a court of competent jurisdiction to hear and determine the grounds for removal.
9. In the absence of an express provision in our Constitution to the contrary, legislative restrictions upon the power of the Governor to remove his appointees, who are not made directly responsible to him for their acts, are valid when applied to one who holds a statutory office.
Appeal from District Court, Oklahoma County; Sam Hooker, Judge.
Action by Maude O. Thomas against Lew H. Wentz, wherein the defendant filed a cross-petition. From an order sustaining plaintiff's demurrer to the defendant's cross-petition, the defendant appeals.
Order reversed, and judgment rendered in accordance with opinion.
Geo. S. Ramsey, of Tulsa, John H. Miley, of Oklahoma City, and Felix Duvall, of Ponca City, for plaintiff in error.
J. B. A. Robertson, Haskell, Hirsh & Hirsh, and Leon S. Hirsh, all of Oklahoma City, for defendant in error.
In the court below Maude O. Thomas, defendant in error, was plaintiff and Lew H. Wentz, plaintiff in error, was defendant; they will hereinafter be referred to as they appeared in the trial court.
Plaintiff commenced this action by filing her petition wherein, among other things, she alleged that she was the duly appointed, qualified, and acting commissioner and member of the state highway commission, under and by virtue of the laws of the state of Oklahoma, and that she was in possession of the office and exercising the duties provided by law. She also charged that the defendant had been, and was still, unlawfully claiming the right and title to the office occupied by and in her possession, and prayed that he be restrained and enjoined from obstructing or interfering, other than by proper action at law, with the plaintiff in her possession and exercise of the duties of said office. The court issued a restraining order, and assigned the application for temporary injunction for hearing. Defendant filed his answer and cross-petition, and on the same day an agreed statement of facts was filed, by which both parties waived trial by jury and agreed to submit the application for temporary injunction, and the case for trial on the facts and on the pleadings.
The agreed statement of facts is quite lengthy, but we think it will be sufficient to say that it was agreed that on April 1, 1929, the defendant was regularly appointed highway commissioner for the six-year term by Governor Holloway; and that Governor Murray, on April 1, 1932, filed an executive order of removal wherein he undertook to remove the defendant from office; and that on the same day he issued a commission to the plaintiff as commissioner to fill the alleged vacancy caused by the removal of defendant.
After the case had been argued upon the pleadings and agreed statement of facts, the trial court entered an order sustaining plaintiff's demurrer to the cross-petition on the ground that it was not germane to the subject of plaintiff's action; and then adjudged that plaintiff had no prima facie title to the office and was in the unlawful possession thereof; and that the Highway Act approved April 1, 1929 (Laws 1929, c. 68), was the Governor's only authority for appointing a member of the highway commission, and that said act was constitutional; and that the provisions thereof conferring exclusive power of removal on the courts were valid and binding; and that the Governor had no power to remove the defendant.
Plaintiff first raises a question of pleading in that she contends that the court was without authority to try the title to the office in this proceeding; that the action is an injunction action to protect her in the possession of the office and that the court will not, in such action, try title to the office; that the demurrer to defendant's counterclaim was therefore properly sustained. To determine whether she is correct in this contention, it is necessary to look to the pleadings filed herein, and especially to the allegations in her petition.
The first and second paragraphs thereof are as follows:
In her prayer, she asks for both special and general relief.
In reply to this petition, defendant, among other things, filed a general and special denials, and prayed for both special and general relief. When plaintiff alleged that she was a duly appointed, qualified, and acting commissioner and member of the state highway commission of the state of Oklahoma under and by virtue of the laws of the state of Oklahoma, and that she was in possession of such office and exercising the duties thereof, and that defendant had been and then was unlawfully claiming the right and title to the...
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