State Ex Rel. Baker v. Wichman ( 1929 )

At the outset we assert that the office, position or employment, by whatever name it may be called, of chairman of a board of county commissioners is not a "public office" within the meaning of that term as used in Rev. Laws of Nevada, sec. 5656, relative to quo warranto. It is not an office so far as the constitution is concerned, because no such officer or office is mentioned in the constitution. The statute, sec. 1505, merely provides that the board shall elect one of their number as chairman. He takes no official oath, gives no official bond, draws no salary or other emolument, and has no duty or authority in regard to county government or other sovereign powers of the state, other than those common to all members of the board. He is merely the presiding officer in the meetings of the board, having some ministerial duties incident to signing the minutes. Sec. 1505, Rev. Laws, provides that the records of each day's proceedings shall be signed by the "chairman and the clerk." We say this is a mere clerical duty and not an exercise of power or authority bestowed by the law.

A "chairman" is a name given to the presiding officer of an assembly, convention, committee, etc. 11 C.J. 226.

"The great weight of authority holds the term ``office' to embrace the ideas of tenure, duration, fees, or emoluments and duties. (Citing a long list of cases.) It is held by a great many courts that to be an officer one must be charged by law with the sovereign power of the state." State ex rel. v. Cole, 38 Nev. 215, 148 P. 551-553. See, also, Attorney-General v. Tillinghast (Mass.), 89 N.E. 1060, 17 Ann. Cas. 449; State v. Hawkins (Mont.), 257 P. 411-414; State ex rel. v. Christmas (Miss.), 88 So. 881.

The mere fact that by legislative enactment the board is directed to elect one of its number as presiding officer, of itself indicates nothing as to whether such position is an office or mere employment. On this point we quote and cite: "But not all employments authorized by law are public offices in the sense of the constitution." Patton v. Board (Cal.), 59 P. 702-704, 28 Am. St. Rep. 66.

"The idea of an officer clearly embraces the idea of tenure, duration, fees or emoluments, rights and powers, as well as that of duty." Burrill's Law Dictionary.

See, also, Georgia etc. Co. v. Gordon (Ga.), 11 S.E. 584; Cochran v. McCleary, 22 Iowa, 75; Reynolds v. Baldwin, 1 La. Ann. 162; Brewer v. Kellum (Fla.), 50 So. 581; State v. Kiichli (Minn.), 54 N.W. 1069; 19 L.R.A. 779; Oehler v. St. Paul (Minn.),219 N.W. 760.

Inasmuch as the board can completely and legally function without any chairman or any presiding officer at all, we say the word "shall" in sec. 1505 is directory merely, and was so intended by the legislature.

The chairman by virtue of his position as such, has no more or greater power to do anything (except sign the minutes) than he would have if he were not chairman. Williams v. Board (Mont.),72 P. 775; Plumley v. Whiteside County, 164 Ill. App. 621.

That statute requires no official oath of office of chairman of the board is strongly significant that mere requirement that a presiding officer be elected was not intended as creating a public office. See State ex rel. Kendall v. Cole, 38 Nev. 215,148 P. 551; Baltimore v. Lyman (Md.), 48 A. 145, 52 L.R.A. 406, 84 Am. St. Rep. 524; Throop v. Langdon, 40 Mich. 673; Olmstead v. Mayor etc., 42 N.Y.S. 482; Collins v. Hun (N.Y.), 3 Hun. 680; Goud v. Portland (Me.), 51 A. 820.

The Nevada constitution provides: "The tenure of any office not herein provided for may be declared by law, or when not so declared, such office shall be held during the pleasure of the authority making the appointment." (Art. 15, sec. 11.) This constitutional provision was construed and applied in the case of Leeper v. Jamison, 32 Nev. 327, 108 P. 1. See, also, the following California cases: Sponogle v. Curnow, 69 P. 255; Higgins v. Cole, 34 P. 678; Briare v. Matthews, 258 P. 939; Patton v. Board, 59 P. 702, 78 Am. St. Rep. 74; People v. Hill,7 Cal. 97; Smith v. Brown, 59 Cal. 672.

Hence, unless sec. 1505 is construed to declare the tenure of the office of chairman of the board of county commissioners, the demurrer should be sustained. Chairman of a board of county commissioners is a public office within the meaning of sec. 5656, Rev. Laws of Nevada. If the chairman is an officer at all, his office partakes of a public character, and, therefore, he must be a public officer. The office of county commissioner is created by the constitution, sec. 26 of art. 4 (Rev. Laws, sec. 284). Rev. Laws, sec. 1501, provides the tenure of office of county commissioners. Sec. 1505, Rev. Laws, provides that: "They shall elect one of their members as chairman of the board, and the county clerk shall be clerk thereof." The official duties of the chairman are manifold, as is shown by a mention of part of them. Sec. 1505 provides: "The record of each day's proceedings of said board shall be signed by the chairman and the clerk." He is chairman of the rabies board (Stats. 1921, sec. 2, p. 230). He has certain duties in regard to public roads (Rev. Laws, sec. 3023). He is chairman of the town board of towns organized under the cities and towns acts, and signs all bonds issued by the town (Rev. Laws, sec. 941). Under the act establishing the Mineral County power system (Stats. 1921, p. 80) all bonds issued by the power system are required to be signed by the chairman of the board of county commissioners. Under the amendment (Stats. 1925, p. 59) the chairman of the board of county commissioners becomes chairman of the board of management of the power system. The statute of 1929, p. 103, made the chairman of the board of county commissioners general manager of the power system with a salary not to exceed an additional thirty dollars per month. It will be seen that in addition to being an officer under the constitution and laws of this state, the chairman performs certain other ex officio duties incidental to his duties as county commissioner.

County commissioners in practice exercise all of the sovereignty exercised by a county. The chairman of the board exercises all of the duties of county commissioner as well as his ex officio duties, and his position is one of dignity and honor from which he derives certain emoluments.

In the case of Fuller v. Miller, 4 P. 175, 32 Kan. 130, in a proceeding in quo warranto, it was held that a chairman of a board of county commissioners was an officer for the purposes of such proceeding, and in the absence of a qualifying statute the chairman's tenure of office was from the date of his election until the expiration of his term following the next succeeding election.

In the case of Clayton v. Green (N.J.), 39 A. 667, the statute was held to restrict the removal of a director of a board of chosen freeholders to cases where he was absent or refused to act. This case is in point to the extent that it recognized a tenure, and that removal could be had only upon the grounds specified in the statute.

The case of Prichard v. McBride (Ida.), 154 P. 624, was decided under a statute very similar to ours, and is more squarely in point upon the question here presented as to tenure of office of chairman of a board of county commissioners than any other case we have been able to find. The statute did not expressly fix the tenure of office of the chairman, but, like our statute, it did fix the tenure of office of the commissioners, and the case clearly holds that the tenure of the office of chairman follows that of his tenure as commissioner. The opinion of the court in that case sounds very much like what was said in the Florida case of Brewer v. Kellum, 50 So. 581, but it is urged that this case must be distinguished because the Idaho statute provides that a chairman "must" be elected, while our statute provides that a chairman "shall" be elected. It is said the word "shall" is often used in a permissive sense, and is not always mandatory, but it is equally true that the word "shall" is either directory or mandatory as the text in which it is contained by fair construction requires. It is not apparent that the word "must" in the Idaho statute is any more mandatory than the word "shall" in the Nevada statute, where both prescribe the duty of the board of county commissioners to appoint a chairman.

The rule that the power to appoint generally carries with it as an incident the power to remove "does not apply when a definite term is attached to an office by law * * *. Further it has been held that the rule is applicable only when the power to appoint is a continuing one." Nocholson v. Thompson, 5 Rob. La. 367; Irving v. Ferguson, 118 Wash. 37, 202 P. 269; Field v. Poe,3 Ill. 79; Bergen v. Powell, 94 N.Y. 591.

OPINION This is a proceeding in quo warranto to restore relator to the position of chairman of the board of county commissioners of Mineral County. The petition alleges that he was elected a member of the board of county commissioners of said county at the general election in 1926, for the term of four years from the first Monday in January, 1927, and that the respondents were elected members of said board at the general election in 1928, to take office on the first Monday in January, 1929; that at the first meeting of said board, on the first Monday in January, 1929, relator was elected chairman of said board; that at a regular meeting of said board of county commissioners held on the 5th day of April, 1929, a resolution was offered and adopted by a majority vote declaring the chairmanship of said board vacant, and thereafter at the same meeting a motion was made and carried by a majority vote to the effect that the respondent Wichman be the chairman of said board. The reason recited for such action was the enactment of a certain statute by the legislature of Nevada at the session in 1929 (Stats. 1929, c. 70), making the chairman of the board of county commissioners of Mineral County the manager of the Mineral County power system. To the petition a general demurrer was filed.

It is the contention of the relator that he was elected chairman for a term of two years; that such chairmanship is a public office; and that the resolution removing him from said position and the electing of the respondent Wichman was illegal, null, and void; and hence he should be ordered restored to said position of chairman. The election and qualification of members of the boards of county commissioners of the state, the holding of meetings of the board, and the like, is controlled by the county government act, Stats. 1865, p. 257 Rev. Laws, sec. 1501 et seq., as amended.

Section 3 of the act as amended (Stats. 1921, p. 94, c. 54) reads: "The meetings of the board of county commissioners shall be held at the county seats of their respective counties * * *; and provided, that the first meeting of said board in odd-numbered years shall be held on the first Monday in January. * * *"

Section 5 of the act as amended (Rev. Laws, sec. 1505), provides: "A majority of the board shall form a quorum for the transaction of business. * * * They shall elect one of their number as chairman of the board. * * * In case the chairman shall be absent at any meeting of the board, all documents, records, or papers requiring the signature of the board shall be signed by the members present."

Pursuant to the election held in November, 1928, a new board of county commissioners of Mineral County came into existence on the first Monday in January, 1929. According to the allegations of the petition, it organized by electing the relator as chairman. It is the contention of the respondents that the provisions of section 1505, Rev. Laws, to the effect that the board shall elect one of their members as chairman, is directory merely, and hence the board is at liberty to remove a chairman at pleasure. This contention is based upon the use of "shall," instead of "must," in the section mentioned.

1. "Must" has often been construed as merely directory (Words and Phrases, First, Second, and Third Series); hence the failure to use that word means but little. As we said in Eddy v. State Board of Embalmers, 40 Nev. 329, 163 P. 245, whether a word is to be construed as mandatory or directory depends upon the intention to be gathered from the statute, if such intention can be ascertained. While we think the word "shall" as used in the section mentioned, should be construed as mandatory, we think it does not matter in this case whether or not it is so construed. The history of such bodies in this state is that it has been the uniform custom to elect a chairman at the first meeting of a new board. Orderly procedure requires that there should be a chairman, since the board has to hear many applications, grievances, and the like, and there must be some one to direct the proceedings. And it is clear that it was the intention of the legislature that, upon the incoming of a new board, a chairman should be elected. It is also clear that it was the intention that such board should organize for the period of its existence, subject to certain contingencies, not necessary here to enumerate. To take any other views would lead to serious consequences, for, as said in Prichard v. McBride et al.,28 Idaho, 346, 154 P. 624, 625: "A construction of the statute to the effect that the commissioners may, at any or all of their regular meetings, make a change in the chairmanship of the board, would result, in our judgment, in confusion and a lack of that orderly proceeding on the part of the board in dispatching public business which is contemplated by the statutes, and which the electors in the county have a right to expect."

While the case of Burgan v. New Jersey Civil Service Comm.,84 N.J. Law, 219, 86 A. 929, is not identical in its facts, by analogy it strongly supports the view we have expressed. In that case the court had under construction a question growing out of the employment of a secretary by a county tax board. The court said:

"A reading of this act makes it manifest that it compels a reorganization of the board annually, because by force of its provisions one member of the board goes out each year and a new member takes his place. And section 3 of the act provides: ``Each board shall, upon organization, elect from among their number a president, and shall have power to employ a secretary, and fix his compensation, which shall in no case be in excess of the amount paid to any member of such board. * * *' The statute clearly implies the employment of a secretary by the board, for the term of one year — that is, during the life of the board, which is limited to one year — or otherwise the provision for the organization of the board annually, and the election from their number (including the new member) of a president, and with power to employ a secretary, would be rendered senseless. We think that the term of the secretary is as definitely fixed by law for one year, by the statute, as if the act had in express terms stated that the term of employment of the secretary shall be one year. The logical sequence of this view is that Mr. Smith's term was fixed by law, and was properly filled by the new board."

The case of Woolley v. Flock, 92 N.J. Law, 65, 105 A. 489, is to the same effect.

2, 3. We are clearly of the opinion that the resolution purporting to remove the relator as chairman of the board of county commissioners was illegal, null, and void; however, we feel that these proceedings should be dismissed, since such chairmanship does not constitute a public office, but a mere position. In State v. Cole, 38 Nev. 215, 148 P. 551, we considered at great length the question of what constitutes a public office. Counsel point out that the board of county commissioners is authorized by the constitution, and various sections of the statute are called to our attention which it is claimed support such contention.

There is no doubt whatever but that a county commissioner is a public official. But it does not follow that the chairmanship of the board constitutes an office. The act which provides for the election of a chairman does not require that the chairman, as such, shall take an oath, and no sovereign power is intrusted to him. In fact, none of the elements essential to the existence of an office is expressed in the statute.

It is true that statutes subsequently enacted provide that the chairman shall perform certain duties, but they are not incident to the existence of the position, for, if these statutes were all repealed, the position would still exist.

For the reason given, it is ordered that this proceeding be, and it is hereby, dismissed.