State Ex Rel. Hammond v. Maxfield , 103 Utah 1 ( 1942 )

Quo warranto to determine right to office as members of the State Road Commission. The facts, all admitted or stipulated, are as follows: By Section 36-2-1, R.S.U. 1933, there was constituted a State Road Commission consisting of three members appointed by the governor with the consent of the State Senate, each for a term of six years; the term of one member to expire December 1, 1933; the term of one to expire December 1, 1935, and the term of the third member to expire December 1, 1937. In 1933, Henry H. Blood, then the governor of the State of Utah, by and with the consent of the Senate, appointed Preston G. Peterson a member of the State Road Commission for a term of six years ending December 1, 1939; and at the expiration of said term gave Peterson an interim appointment until the next meeting of the legislature, which was in 1941. In 1937, with the consent of the Senate, Governor Blood appointed as a member of the State Road Commission relator, George Abbott, for the unexpired term of Jake Parker, deceased, ending December 1, 1941; and relator W.D. Hammond for a six year term ending December 1, 1943. Relators qualified as required by law and commissions to each of them were duly issued. Relators thereupon became members of the State Road Commission for the terms indicated, and as such were officers of the State of Utah. On January 6, 1941, Herbert B. Maw succeeded Henry H. Blood as governor of the State of Utah for a four year term.

The first special session of the twenty-fourth legislature, convening in March 1941, enacted an act creating a new body or commission known as the Engineering Commission. Chapter 9. It also amended some sections of the statutes of Utah relative to the State Road Commission, enacted a new section numbered 3, chapter 13, which provided for the termination of the tenure in office of the persons then members of the State Road Commission in the following language:

"The terms of office of the members of the state road commission heretofore appointed shall terminate as and when the members of the engineering commission shall have been appointed and shall have qualified."

It also provided,

"The members of the engineering commission shall serve as the members of the state road commission." 36-2-1.

Defendants, Layton Maxfield and John S. Evans, Democrats, together with one Lester Blackner, a Republican, were with the consent of the Senate, duly appointed by Governor Herbert B. Maw as members of the newly created engineering commission, and qualified and assumed office as such.

On July 1, 1941, defendants and Lester Blackner, as members of the Engineering Commission, and as such claiming to be ex officio the members of the State Road Commission, entered into and took possession of the offices of the latter, and ever since have occupied such offices, exercised the functions thereof and excluded relators therefrom.

For a period of time antedating by many years the appointment of any person involved in this action to office as a member of the State Road Commission, the statute has provided, and still does provide, that no more than two members of the Commission may belong to the same political party. The relators are both Democrats; the defendants are both Democrats. The term of Preston G. Peterson, Republican, had expired and the third appointee of Governor Maw to the Engineering Commission, Lester Blackner, is a Republican. He therefore was not joined as a party defendant, and no question is raised as to the failure to join him as a party. Relators, Hammond and Abbott, claiming to be entitled to the offices of State Road Commissioners, bring this action in quo warranto against defendants, Maxfield and Evans, to determine their right to office as members of the State Road Commission for the period from July 1, 1941.

The main question presented is as to whether the legislature, as a part of a plan of reorganization, could provide for the termination of the incumbency of the occupants of the offices of State Road Commissioners upon the appointment and qualification of the members of the newly created Engineering Commission for the purpose of permitting the members of such Engineering Commission to serve ex officio as members of the State Road Commission.

In the last analysis the power of the legislature to truncate the incumbency of one who has been appointed for a fixed term will be found to depend on the purpose for which it was done. On no other basis can the various concepts of 1 legislative power under constitutional provisions such as ours be reconciled or fitted together with the power given the executive. We shall endeavor to illustrate this thesis by what follows:

We are all agreed — and we are almost universally supported by the cases — that an office created by the legislature may be abolished by it. Appointment of an officer gives rise to no contract that he may retain the office for the term appointed. No person has a vested right to an office. 2, 3 He has a right to the emoluments of office if he is entitled to hold the office. There is no contract that an appointee may remain in office. Crozier v. Lyons,72 Iowa 401, 34 N.W. 186, 189; Eckerson v. Des Moines, 137 Iowa 452,115 N.W. 177, at page 189; Abbott on Municipal Corporation, Vol. 11, Sec. 479, p. 805 and cases cited in note; Prince v.Skillin, 71 Me. 361, 36 Am. Rep. 325; In re Milford Township,Supervisors' Removal, 291 Pa. 46, 139 A. 623; Visor v.Waters, 320 Pa. 406, 182 A. 241; Commonwealth ex rel.Braughler v. Weir, 165 Pa. 284, 30 A. 835; People ex rel.Moloney v. Waring, 7 A.D. 204, 40 N.Y.S. 275; Matter ofBreckenridge, 160 N.Y. 103, 54 N.E. 670; Malloy v. City ofChicago, 369 Ill. 97, 15 N.E.2d 861; Groves v. Board ofEducation of Chicago, 367 Ill. 91, 10 N.E.2d 403, 406; People v. McCormick, 261 Ill. 413, 103 N.E. 1053; State v. Wright,211 Ind. 41, 5 N.E.2d 504; Williams v. City of New Bedford,303 Mass. 213, 21 N.E.2d 265; 23 Am. Eng. Ency., Second Edition, 404; 12 Corpus Juris, 1017; 16 C.J.S., Constitutional Law, § 314; 8 Cyc. 954; Mecham on Public Officers, Ch. VII, p. 295; Cooley on Constitutional Limitations, 7th Ed., p. 388.

But it must be a genuine abolition not something merely colorable or done under pretense. Dillon Municipal Corporations, Vol. II, Sec. 479, p. 806; People ex rel. Vanderhoof v.Palmer, 3 A.D. 389, 38 N.Y.S. 651; People ex rel.Lazarus v. Coleman, 99 A.D. 88, 91 N.Y.S. 432; 4Williams v. City of New Bedford, 303 Mass. 213,21 N.E.2d 265 and cases cited therein. Cf. Evans v. Freeholders ofHudson County, 53 N.J.L. 585, 22 A. 56; McChesney v. Trenton,50 N.J.L. 338, 14 A. 578; Hunziker v. Kent, 111 N.J.L. 565,168 A. 825, 826.

If it abolishes one office and puts in its place another by the same or a different name but with substantially the same duties, it will be considered a device to unseat the incumbents. Cusack v. Board of Education, 78 A.D. 5 470, 79 N.Y.S. 803, (reversed but not on this principle, 174 N.Y. 136, 137, 66 N.E. 677); State ex rel.Birdsey v. Baldwin, 45 Conn. 134; McChesney v. Trenton,50 N.J.L. 338, 14 A. 578.

If on the other hand it abolishes two or more offices with substantially the same duties or different duties and bona fide combines the duties under an office with the same name as one of the abolished offices or under a different name or abolishes an office and distributes its duties among 6 other offices for reasons of economy or genuine reorganization, the abolition is permissible. People ex relCorrigan v. City of Brooklyn, 149 N.Y. 215, 43 N.E. 554;People ex rel Wardrop v. Adams, 51 Hun. 583, 4 N.Y.S. 522;City of Chicago v. People, 114 Ill. App. 145; Fitzsimmons v. O'Neill, 214 Ill. 494, at page 506, 73 N.E. 797; People v.Scannell, 48 A.D. 445, 62 N.Y.S. 930.

The courts are confronted with the principle that the power to create an office being in the legislature, ordinarily the power to abolish it must also reside there. At one and the same time the courts are confronted with another principle that the power to fill an office, at least if not otherwise 7-12 provided for in the act creating the office, is executive and under a constitutional provision such as Art. VII, Sec. 10, of our Constitution, absent at least any contrary expression of the legislature, such power lies with the governor. This being the case the legislature has no power summarily to remove the incumbent. Whether the governor has power so to do depends on whether the act makes the incumbent removable at the will of the governor or for cause which in turn may depend on whether the term is by statute a fixed one or indeterminate. In order that the legislature may not circumvent by indirection the governor's power to remove, the courts have scrutinized the new office set up in the place of the one abolished. If the office is completely abolished and no substitute created nor its duties distributed among other offices, it may be so abolished whatever the motive. Heath v.Salt Lake City, 16 Utah 374, 52 P. 602; People ex rel.Moloney v. Waring, 7 A.D. 204, 40 N.Y.S. 275; People exrel Croft v. Keating, 49 A.D. 124, 63 N.Y.S. 71; Downey v. Hastings, 160 Ind. 578, 67 N.E. 450; Com. ex rel. Kelley v. Clark, 327 Pa. 181, 193 A. 634; Matter of Breckenridge,160 N.Y. 103, 54 N.E. 670. Cf. Evans v. Chosen Freeholders ofHudson County, 53 N.J.L. 585, 22 A. 56; Newark v. Lyon,53 N.J.L. 632, 23 A. 274.

The chief characteristics of an office are the functions, duties and powers which appertain to it. If the newly created office has substantially new, different or additional functions, duties or powers, so that it may be said in fact to create an office different from the one abolished, even though it embraces all or some of the duties of the old office it 13, 14 will be considered as an abolition of one office and the creation of a new or different one. The same is true if one office is abolished and its duties, for reasons of economy are given to an existing office or officer. People v. Scannell, supra; People ex rel. Traphagen v. King, 13 A.D. 400,42 N.Y.S. 961; People ex rel. Nason v. Feitner, 58 A.D. 594,69 N.Y.S. 141.

But if the functions, duties and powers are substantially those of the office abolished, the abolition will be considered merely colorable and the pretended new office be considered in actuality a continuation of the old one. Consequently, where one office is purported to be abolished and a new office purported to be set up the courts will examine the 15-17 entire transaction for purpose or motive. See Cusack v. Board of Education, supra; State ex rel Birdsey v.Baldwin, supra; McChesney v. Trenton, supra. If the function, duties or powers are substantially the same it will be a strong indication that the purpose was to abolish the officer and not the office, but where offices are abolished and new ones set up in a general scheme of reorganization, abolition, merger, rearrangement or consolidation genuinely based on reasons of economy or efficiency, the court, if convinced that the purpose was that, will not interfere even though officers in the affected reorganization evolve with some offices whose functions, duties, or powers are substantially like those which were abolished. It is essentially a matter of good faith. See People ex rel. Dean v. Brookfield, 1 A.D. 68,69, 37 N.Y.S. 107; Matter of Kelly, 42 A.D. 283, 59 N.Y.S. 30; Matter of Kenny, 52 A.D. 385, 65 N.Y.S. 204; Cusack v. Board of Education, supra; reversing 78 A.D. 470,79 N.Y.S. 803; Jones v. Willcox, 80 A.D. 167, at page 169,80 N.Y.S. 420; People ex rel Nason v. Feitner, supra;Beirne v. Jersey City, 60 N.J.L. 109, 36 A. 778; Sutherland v. Jersey City, 61 N.J.L. 436, 39 A. 710; Caulfield v.Jersey City, 63 N.J.L. 148, 43 A. 433; Phillips v. Mayor,88 N.Y. 245; Langdon v. Mayor, 92 N.Y. 427; State ex rel.Goodnow v. Police Com'rs, 184 Mo. 109, 71 S.W. 215;Fitzsimmons v. O'Neill, supra.

In our structure of reasoning, we consider another facet of the problem: It is generally admitted that the legislature has the power to shorten the term of an existing office.Groves v. Board of Ed. of Chicago, 367 Ill. 91, 1018 N.E.2d 403; Malloy v. City of Chicago, 369 Ill. 97,15 N.E.2d 861; 23 Am. Eng. Ency. of Law, 404, 12 C.J. 1017; 16 C.J.S., Constitutional Law, § 314. But here again it must be done in good faith.

If the terms as shortened result in an opportunity to appoint a new officer and appears to be for that purpose, there is grave doubt as to the validity of the act, for in such case the legislature would be in reality removing the incumbent. Unless the power of removal lay with the legislature it would be exceeding its powers.

If the shortening of the term is required to fit into a bona fide scheme of reorganization in order to consolidate offices under one officer or set of officers to take over the duties of another office for the sake of 19 economy or efficiency, we can see no constitutional objection. The loss of office by the incumbent is merely an incident and not the objective of the general scheme.

If a term may be shortened for the last above named purpose, there can be no difference between accomplishing the end in that manner and accomplishing it by keeping the term the same but providing that the incumbents are to be replaced by the appointees of another office, either newly created or existing, when it is done in pursuance of a bona fide reorganization statute. Whether the consolidation is accomplished by the abolition of one or more offices and consolidation of their duties with others under a new or existing office, or whether the consolidation of duties is accomplished by keeping the old office extant but requiring the holders of a new or existing office to perform those duties by also placing such holders as incumbents of the old office, and thus displacing the current officers who occupy that office, should make no difference provided it is done in good faith. Good faith is the test. If that is the case it would seem that the State Road Commission could have been abolished and its duties given to the State Engineering Commissioners. Exactly the same result may be accomplished by the obverse method of keeping the offices of the State Road Commissioners intact, removing the incumbents thereof, and giving the Engineering Commissioners their duties by inducting them into the offices of the State Road Commission, granted the Engineering Commission is a really new and bona fide office and granted the Engineering Commissioners are given the offices of the State Road Commission and thus the duties of that office in pursuance of a genuine and bona fide reorganization program. The consolidation of the offices is made by making one person occupy two offices. We arrive at exactly the same end through steps which involve form rather than substance. The touchstone for determining whether this can or cannot be done is the purpose and good faith for which it is done.

There is still another approach. As said previously, the legislature may shorten a term of office, at least if done for purposes of fitting into a scheme of reorganization, combination or merger of offices. If it can shorten or lengthen the term from one definite period to a shorter or longer definite period and thus sooner unseat an incumbent or prolong his incumbency, if done for the above objective, it would seem that it would accomplish exactly the same purpose by leaving the terms as they are but truncating the incumbencies on the contingencies of the governor acting to replace them by officers who are to take over their duties as officers ex officio of the terms which they vacate in pursuance of a bona fide plan of reorganization. And in all of the above analyses we are assuming that the truncating of the incumbency is by virtue of the force of the legislative act and not by virtue of the act of the governor. The act of the governor in appointing the three engineering commissioners was the act which made operative the force of the legislative act.

The abolition of an office and merging its duties with those of a bona fide new office; the shortening of a term for the purpose of combining two or more existing offices and continuing them under one office or keeping of the term the same but the substitution of one incumbent for another are all ways of reaching the same end or purpose, and if that end is legitimate and done in good faith in pursuance of a genuine plan of reorganization based on supposed reasons of economy or efficiency, we can see no reason why it cannot be done in any of the above three ways that the legislature thinks best.

It must be kept in mind that the reasoning which supports the view that an existing office cannot be abolished and a new one with substantially the same duties set up in its place, or which concludes that a term cannot be shortened when the same term is in effect continued under the guise of a new term, rests fundamentally on the 20 composite proposition that while the right to abolish an office is in the power which created it, the right to remove an officer (with certain exceptions) is generally a prerogative of the power which appoints the officer (whether at pleasure or for cause depending upon the statute creating the office) and therefore the legislature cannot use its power to create or abolish in such a way as to encroach on the power to remove. But where the power to create or abolish is rightfully used for legislative purposes, the fact that it incidentally results in the loss of office can make no difference.

To summarize: The right to create or abolish offices and the right to shorten terms is only limited by the condition that it must not be used for the purposes of removing an officer. If it is legitimately used for purposes of reorganization, combination or merger, it is within the legislative powers and purposes and no reason exists for curtailing such use of power even though incidentally an officer may be removed from his office by it. Likewise where an office is not abolished nor its term shortened but the incumbency truncated and present incumbent removed and another substituted for him merely as incidental to an exercise of the paramount legislative power legitimately to create or abolish offices as part of a bona fide plan or reorganization, the same principle applies. If the offices of the State Road Commission had been abolished and all the powers, rights and duties of the State Road Commission had been transferred to the State Engineering Commission, there could have been no complaint if in fact the Engineering Commission was a different office to be tested by determining whether the duties are substantially different in quality or volume. The ability of the legislature to reorganize or combine or merge offices or transfer the duties from one office to another or amalgamate duties under one officer or combine offices under one officer must remain as flexible as possible up to the point of actually using that power for the purpose of getting rid of incumbents. The legislature should be halted only where it is plain that it was using its powers for the purpose of usurping or circumventing the constitutional power of another who had in such case the only right of removal. The method adopted by the Legislature in this case served to avoid certain practical difficulties in legislative draftsmanship and the necessity of gathering from the acts pertaining to the Road Commission, certain provisions which would necessarily pertain to the Engineering Commission after consolidation.

If this case involved the removal of State Road Commissioners by the executive, there is a basis for the conclusion that the terms of the State Road Commission being fixed, the incumbents could not be so removed except for cause. There is authority to that effect. But in this case their removal results primarily by force of the legislative act. The appointments of the Governor to the office of the Engineering Commission automatically by force of the Act work a termination of the then existing incumbencies of the State Road Commission, and such termination, if brought about by a bona fide reorganization, does not infringe on executive power.

It must be assumed that the reorganization attempted by the legislature is bona fide if enough appears on the statute books from which it can be inferred that the 21 duties of the State Engineering Commission are substantially different or more comprehensive than those of the State Road Commission.

"Where there is doubt as to whether there is a substantial change supporting the exercise of the legislative power of abolition, it should be resolved in favor of abolition,"Suermann v. Hadley, 327 Pa. 190, 193 A. 645, 652.

An examination of Chap. 9, First Special Session Laws 1941 reveals that in addition to assuming the offices of the State Road Commission, the State Engineering Commission has supervision and control of the State Engineer as to all duties not set out in Title 100, R.S.U. 1933. Moreover, "they shall serve as the members of the State Building Commission and perform its duties." Furthermore, "they shall constitute the State Aeronautics Commission and shall receive and consider suggestions from the Engineering Advisory Council." We cannot say on the face of the act that the consolidation and reorganization of all these duties under the State Engineering Commission does not constitute it a substantially new office and that the reorganization was not bona fide.

It is contended that this law under consideration is a private or special law which has decreased the allowances of the incumbents of the State Road Commission to the point of zero and hence is contrary to Art. VI, Sec. 26, subsection 18 of our Constitution. Granting for the purpose of the 22-24 discussion that the term allowances embraces salaries, we think the contention untenable. No person appointed or elected to office has a contract with the state to be permitted to occupy the office. If Mayor, etc., of City of Memphis v. Woodward, 12 Heisk., Tenn., 499, 27 Am. Rep. 750, holds to the contrary, it is against the great weight of authority. See cases cited supra and note 27 Am. Rep., page 754. The incumbent of an office is entitled to the emoluments thereof when he has a right to the possession of the office. Emoluments are an incident to right of office. But if the office is abolished or if the incumbencies are properly terminated as we have above held in this case, there is no right to possess the office. This contention then must fail.

It follows from what has been said above that the writ of quo warranto should be quashed and such is the order.

McDONOUGH, J., concurs.