Territory Ex Rel. Sylva v. Morita

I respectfully dissent.

The factual situation presented on these appeals is as recited in the majority opinion. The quo warranto proceedings seek ouster of the appellants upon the grounds that they unlawfully claim and unlawfully usurp their respective offices, and that at the time of institution of each proceeding, and at present, are and continue to unlawfully perform and discharge the duties and functions of their respective offices. Forthwith ouster is sought as to each.

In correlation to this and of paramount import, is the fact that it is conceded and admitted that an irreconcilable impasse exists and will continue to exist between the designated appointive authorities the resolving of which cannot be made the subject of conjecture. That the impasse had its inception in and continues to be conceived, premised and controlled upon political realities is, I consider, totally immaterial to the determination of the sole issue presented in the appeals. Also warranting paramount emphasis, is the further fact that it is conceded and admitted that the two-year appointive terms of office of each of the appellants have and did expire by operation of law on the third day of January, 1955.

Determination of what I deem to be the sole issue presented is premised upon interpretation of section 6575, Revised Laws of Hawaii 1945. That issue, concisely stated is: Whether, in an irreconcilable impasse between the appointive authorities such as is disclosed by the records on appeal, an appointed department head whose term of office has expired under the provisions of section 6575, Revised Laws of Hawaii 1945 is lawfully authorized, or should, under applicable provisions of law, continue histenure of office and as such public officer continue to lawfully discharge the public duties and functions of such officeuntil such time as his successor is appointed, confirmed and qualified according to law by said appointive authorities; or, in the alternative:

Whether the legislature, in enacting section 6575, Revised Laws of Hawaii 1945, in an effort to remedy and preclude the recurrence of situations as disclosed in the case of Ahia v.Cain, 27 Haw. 770, by expressly mandating it to be the duty of the mayor to appoint with the approval of the board of supervisors all appointive department heads whose terms have expired and further expressly limiting the term of office of those so appointed to the term ofoffice of the mayor and board of supervisors, contemplated and intended that vacancies in such appointive offices be condoned and allowed to exist in irreconcilable impasses such as here presented thereby necessitating the intervention of the attorney general of the Territory into every such irreconcilable impasse in order to enable and permit the orderly continuity of municipal functions.

Section 6575, Revised Laws of Hawaii 1945, provides in part:

"Power to appoint, remove and suspend. It shall be the duty of the mayor, on or immediately following the day from which histerm of office begins, to appoint, with the approval of the board of supervisors, all appointive department heads of the city and county, created or recognized by law or ordinance whoseterms have expired, and all other officials whose appointments are not otherwise provided for and whose offices or positions are vacant. The term of office of those so appointed shall not, unless otherwise specifically so provided, or unless they are included in the civil service under any law then in effect, extend over the term of office of such appointive and approval power * * *." (Underscoring added.)

In the absence of express statutory prohibitions precluding a lawful tenure of office extending beyond the duration of a designated term of office, invocation of the applicable common-law doctrine, which doctrine becomes operative under settled precedents in this jurisdiction to situations such as here presented, is mandated. That principle of law is:

"Holding over; no successor. Declining to adhere to the strict ancient English rule that, without express provisions therefor in the charter, the mayor or other chief officer could not hold over until his successor was appointed, the American courts early adopted the doctrine that, in the absence of express provision and unless the legislative intent to the contrary is manifest, municipal officers hold over until their successors are provided * * *." (3 McQuillin, Mun.Corp., 400-401, § 12.110; see also 67 C.J.S., Officers, § 48 [a], 202; 43 Am. Jur., Public Officers, § 162, 20; 22 R.C.L.,Public Officers, § 257, 555; Mechem on Public Officers, § 397, 257; 50 L.R.A. [n.s.] 365 n; 29 Cyc. 1399.)

The principles of law established by that doctrine have been consistently recognized and adhered to in this jurisdiction in the following cases: Queen v. Costa, 8 Haw. 552; Canairo v.Serrao, 11 Haw. 22; Territory v. Mattoon, 21 Haw. 672;Wilder v. Colburn, 21 Haw. 701; Chinese Society v. Yap,24 Haw. 377.

Moreover, statutory silence upon the subject of extendedtenures of appointed municipal officials when such tenure is otherwise expressly authorized by statute for elected officials, does not constitute a similar legislative prohibition by inference or otherwise against extended tenures ofappointed officers. (State v. Johnson, 135 Wash. 109,237 P. 12; State v. Daggett, 28 Wash. 1, 68 P. 340; People v. Oulton, 28 Cal. 44; Hartford Indemnity Co. v. Tulare,30 Cal. 2d 832, 186 Pac. [2d] 121; State v. Johnson,176 Wis. 107, 186 N.W. 729; Robinson v. United States, 42 Court of Claims 52.)

"* * * The conclusion thus reached is, in accordance with the general principle of law, well established, that, in the absence of any restrictive provision of statute, municipal officers hold over until their successors are elected and qualified. Tied. Mun. Corp. Sec. 81; People v. Oulton, 28 Cal. 45.

"Such conclusion is likewise in harmony with the policy of the law, which is to have some one, at all times, in a public office to discharge the duties thereof, and, in a doubtful case, such policy will greatly influence the interpretation of the law fixing the tenure of office. ``The law abhors vacancies in public offices, and great precautions are taken to guard against their occurrence.'" (State v. Swan,16 Utah 483, 52 P. 1092; underscoring added.)

Section 6575, Revised Laws of Hawaii 1945, contains no express or implied prohibition against an extended tenure in office of an appointive officer whose term of office has expired. The section was enacted to remedy the so-called "Cain situation," and to prevent recurrence of circumstances such as there presented. Its language, however, when construed in the light of Ahia v.Cain, 27 Haw. 770, as well as the specific mischief which it was designed to prevent, declares only that the terms of office of appointive officers which are not otherwise specificallyfixed as to duration, shall not extend over, but shall be coterminous with the term of office of the appointing administration in order to enable an incoming administration to appoint officers of its own choosing. (H.R. Rep. No. 453 and Sen. Rep. No. 50 on H.B. No. 200, Reg. Sess. [1925].) The section neither declares that such offices become vacant, nor does it prohibit a continued tenure in office after expiration of the two-year term of office.

The express limitation upon an appointive officer's term ofoffice does not, as a matter of law, prohibit his continued tenure, or prevent his lawful discharge of the powers and duties of the office after the expiration of his term of appointment. The limitation is directed at and applies only to the term ofoffice as such. It connotes no susceptible interpretation intended either to prohibit or terminate an extended tenure ofoffice in situations such as presented by the instant appeals. Tenure encompasses the total period of time of lawful holding of an office. A tenure may be of longer duration than that of a specific term of office, and may, by its very definition transpire after a term of office has expired. Upon the expiration of the appointive terms of office of the appellants on January 3, 1955, which termination is admitted by all parties to these proceedings, the respective appellants' lawful extended tenures commenced; and, in my opinion will lawfully continue until such time as their respective successors are duly appointed, confirmed and qualified according to law. Section 6575, Revised Laws of Hawaii 1945, was designed, and its legislative history so proclaims, that its intent and purpose is to prevent a term of office from extending into succeeding administrations. I cannot agree, in the light of that specifically declared intent, that it is amenable to a construction in the present impasse to prohibit or preclude extended tenures in office by these appellants, when such continuity has become imperative in order to avoid interim vacancies between two terms of office.

Statutory language intended to prohibit or preclude the salutary application of the extended-tenure doctrine must be manifestly and clearly expressed. (State v. Daggett, 28 Wash. 1, 68 P. 340.) I find no such prohibition or suggestion thereof contained in the wording of section 6575, Revised Laws of Hawaii 1945, even remotely warranting the ouster of the appellants upon the grounds asserted below by the appellee. The appellee contends that the section effects an automatic ouster of the appellants since there is no distinction between a "term of office" and a "tenure of office"; and argues that the termination of the former absorbs, dissolves and terminates the latter. With this interpretation I do not concur.

Ample precedent recognizes their interpretative distinctions and lawfully operative effects.

"Tenure in office means the right to perform the duties and to receive the emoluments thereof. It is not synonymous with the phrase ``term of office' * * *." (3 McQuillin, Mun. Corp. 393, § 12.108; underscoring added.)

"Term of Office. Since the term of an office is distinct from the tenure of an officer, ``the term of office' is not affectedby the holding over of an incumbent beyond the expiration of theterm for which he was appointed; and a holding over does notchange the length of the term, but merely shortens the term ofhis successor." (67 C.J.S. 206, Officers, § 48, 206; underscoring added.)

"``The term of an office relates to the office, and not to the incumbent,' Harrold v. Barnum, 8 Cal. App. 21, 25, 96 P. 104, 105. It is there not to be confused with the tenure of office and it is not affected by the holding over of an incumbentbeyond the expiration of the term. In a term of office there may be several tenures, but the term of the office remains thesame." (Holbrook v. Board of Directors, 8 Cal. [2d] 158, 64 P. [2d] 430; underscoring added.)

"* * * The provision of Section 14, article 16, that an officer shall continue in office after the expiration of his official term until a successor is qualified, is intended to prevent a hiatus State, ex rel. v. Murphy (In re Com'rs of Duval County),32 Fla. 138, 161, 13 So. 705; In re Advisory Opinion, 65 Fla. 434, 62 So. 363, 50 L.R.A. (N.S.) 365; 22 R.C.L. 550, and does not affect the cycle of the term fixed by law which ends at the expiration of the statutory term periodically whether the incumbent or another is the successor; otherwise the organic limitation as to terms may be violated by an officer holding over for a length of time after his term has expired and then being commissioned for a full term from the date of the commission and not from the end of the previous term as the Constitution contemplates." (State v. Amos, 101 Fla. 114, 133 So. 623, 625.)

The distinction between "term" and "tenure" is, in my opinion, further mandated and intended by certain of our Revised Laws themselves. Section 6528, Revised Laws of Hawaii 1945, specifically authorizes that the city attorney and public prosecutor be appointed for a term of two years; whereas section 6529, Revised Laws of Hawaii 1945 (entitled: "Tenure of Office"), provides that all elective officers shall hold office for a term of two years and until their successors are dulyqualified. Other statutory provisions authorizing an officer tocontinue in office for a fixed period and until properlysucceeded are entitled "``tenure of office" (see R.L.H. 1945, §§ 6207, 6314; Organic Act, § 80).

I conceive the term "tenure" as employed in our statutes to include and mean a fixed period of years plus such extended time of continued tenure beyond the expiration of the fixed term as is or may become necessary or required by the appointive authority to discharge their vested duty of selecting, appointing and confirming a successor according to law. A public officer lawfully discharging his duties and functions under an extended tenure of office following the expiration of his term of office possesses, in my opinion, sufficient title to such office to sustain his lawful acts where, as in these appeals, no lawfully appointed and confirmed successor is now or was at the inception of the quo warranto proceedings, appointed and confirmed according to law to succeed the officer sought to be ousted.

Writs of quo warranto issued in these proceedings were directed against the appellants to inquire by what authority they claimed and usurped their respective offices (R.L.H. 1945, § 10279); the findings below concluding that the appellants had in fact usurped their offices and continued in such offices unlawfully. (R.L.H. 1945, § 10284.) Judgments premised upon those findings were entered but execution stayed.

"* * * In cases, however, where there is no de jure officer, the line of decisions last mentioned hold that a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled tothe emoluments of the office and may, in an appropriate action, recover the salary, fees, and other compensation attached to the office. This doctrine is discussed and illustrated in the following cases: Erwin v. Jersey City, supra; Dickerson v. City of Butler, 27 Mo. App. 9; Behan v. Board, etc. 3 Ariz. 399, 31 P. 521; Adams v. Directors, etc. 4 Ariz. 327, 40 P. 185.

"* * * the rule should be different when there is no suchofficer in existence. * * *." (Peterson v. Benson, 38 Utah 286, 112 P. 801; underscoring added.)

Additional precedent recognizing the foregoing doctrine are:Elledge v. Wharton, 89 S.C. 113, 71 S.E. 657; State v.Kelly, 154 Wis. 482, 143 N.W. 153; State v. Otero, 33 N. Mex. 310, 267 P. 68; Franks v. Ponca City, 170 Okl. 134,38 P.2d 912; State v. Gordon, 245 Mo. 12, 149 S.W. 638;Cousins v. Manchester, 67 N.H. 229, 38 A. 724; O'Malley v. Parson, 59 Idaho 635, 85 P.2d 739.

The following precedents sustain the established rule that a public officer continuing in office after the expiration of histerm of office may maintain a valid and complete defense to quo warranto proceedings where, as here, there is no lawful successor due to the inability or failure of the duly constituted appointive authorities to appoint and confirm such successor; and where also, as here, no statute or other restriction prohibits such extended tenure. In such circumstances, proof of "de jure" title to such office is not required. (State v. Stratton,28 Cal. 382; Commonwealth v. Kelley, 322 Pa. 178, 185 A. 307;State v. Christensen, 84 Utah 185, 35 P. [2d] 435; Caskin v. Jones, 198 S.C. 508, 18 S.E. [2d] 454; Forristal v. People, 3 Ill. App. 470; Kreidler v. State, 24 Ohio St. 22. )

The foregoing is consonant with the doctrine applicable toextended tenures such as here presented, in that, while a de facto status is ordinarily vulnerable to attack by quo warranto inquiry, ouster, on the other hand will be denied where its operative effect would create a vacancy in public office. (State v. Hoff, 88 Tex. 297, 31 S.W. 290.)

The sole and manifest purpose of the "de facto" doctrine is to preserve and protect the public interest. "* * * The purpose of the doctrine of de facto officers is the continuity of governmental service and the protection of the public in dealing with such officers, not to protect them from displacement by de jure successors. 43 Am. Jur. 224, 225, Public Officers, sec. 470." (Bradford v. Byrnes, 221 S.C. 255, 70 S.E. [2d] 228.) Where as here, an irreconcilable impasse exists, and no de jure successors are prepared to replace or displace de facto officers such as the appellants herein, I deem the orderly continuity of municipal functions and services to be paramount, and warranting preservation by application of the de facto officer doctrine. "There would seem to be no distinction in this respect between aholding over under express authority and a holding overwithout it; the holding over is in each instance of the samenature, and the effect and consequences would seem to be the same * * *." (Benson v. Mellor, 152 Md. 481, 137 A. 294; underscoring added.)

The controlling public policy which in my opinion attaches to circumstances such as here presented, has heretofore been stated by this Court in Jones v. Pa, 34 Haw. 12, 17, 18, which not only recognizes the distinction between a term and tenure ofoffice but also declares that policy to be:

"Vacancies in public office are contrary to the proper and efficient administration of business. They should not be permitted to exist longer than the discharge of a governmental authority of appointment reasonably requires. Moreover the law abhors vacancies. (State v. Lutz, 147 So. [Ala.] 429, 432; Board of Trustees v. Kercheval, 45 S.W. [2d] 846, 847.) And it is the policy of the law to fill vacancies as soon as possible after the vacancy occurs. (State v. Board ofCommissioners, 145 N.W. [S.D.] 548, 549.)" (Underscoring added.) (See also 67 C.J.S., Officers, § 50, 207; State ex rel Rogers v. Johnson, 135 Wash. 109, 113, 237 P. 12, 13.)

The lower court's findings of fact conclude that if judgments of ouster were forthwith executed against the appellants there would be an interruption in the performance of the duties and functions of the offices of the respective appellants until those offices are assumed by appointees appointed, confirmed and qualified according to law, but "that such interruption need not necessarily continue for such period of time as to cause any substantial damage or prejudice to the municipal government, the mayor and board having the power and duty to fill said offices." Apparently premised upon this finding, the execution of the judgments of ouster were ordered stayed (their execution being governed by other applicable statutory provisions).

I conceive those findings and the stay of execution of the judgments of ouster to be premised upon the hypothesis and presumption that the appointing authority, possessing the undisputed power and duty to appoint and confirm appointees to the offices in question would immediately do so, and that the hiatus created by an ouster would not be of such duration or magnitude as to inflict substantial damage or prejudice to the municipality. On the contrary, the record discloses otherwise. The testimony of the witnesses as well as the stipulations of the parties conclusively disclose in my opinion, that the uninterrupted functioning of each of the departments concerned is essential and necessary to the good administration of the municipal government. All parties concurred and the lower court judicially noted that each of the public offices now held by the appellants is essential to the proper administration of the city government. That a hiatus in the functioning of each of said departments would ensue if execution of the judgments of ouster were not stayed is, in my opinion, a conclusion not warranted by the evidence. No hiatus need develop nor continue, if the appointing authorities act seasonably to resolve the existing impasse. The lower court's finding is conjectural. Manifestly, then, public necessity and good jointly dictate that these appellants remain in their respective offices and continue to discharge their lawful duties and functions until such time as they are succeeded by the affirmative doings of the appointive authorities in appointing and confirming their successors according to law.

"The law abhors vacancies in public offices, and courts generally indulge in a strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant and unoccupied by one lawfully authorized to exercise its functions." (67 C.J.S., Officers, § 50, 207; see also State ex rel Rogers v. Johnson, 135 Wash. 109, 113,237 P. 12, 13.)

The basis of the common law "extended tenure" rule heretofore quoted is that government cannot properly function without its necessary officers, and is recognized and applied in this jurisdiction. "Public business, the interest of the entire community, require that the routine of government be carried on * * *. The wheels of government should not stop or anarchy would result * * *." (Queen v. Costa, 8 Haw. 552, 556.)

"In this appeal it does not become the duty of this court to suggest remedies which must be invoked by the institution of other proceedings; nor can the court now undertake to adjudicate and determine matters in controversy between the executive and legislative departments of the municipality * * *." (Robb v.Carter, 65 Md. 321, 4 A. 282.)

In situations presenting irreconcilable impasses similar to those here presented, the rule is adopted that courts traditionally maintain a position of aloofness and indifference to political impasses, stalemates and disputes arising in other branches of government and are hesitant to enforce their judgments in a manner which would either directly or indirectly contravene or invade the prerogatives of other branches of government by creating vacancies in derogation of the public interest in impasses such as here presented. "* * * The troublelies in the fact that the other commissioners refuse to confirmappellant's appointees, and the charter fails to provide anyremedy for the deadlock thus caused. * * * There is, of course, a probability that the remainder of the commissioners will be more apt to confirm appointments if no one is discharging the duties of the office than if some one is discharging the same; * * * if any wrongful motives actuate the other commissioners in refusing to confirm his appointees, the same cannot be charged up to the men serving in the department." (Uhr v. Brown [Tex. Civ. App.] 191 S.W. 379, 383-384; underscoring added.)

This Court in Ahia v. Cain, 27 Haw. 770, expressed similar sentiment in the circumstances then before it, although those facts did not parallel the factual situation now presented. "The presumption and the theory of the law are, of course, that in selecting and appointing and in removing a city and county engineer the appointing officers are moved merely by the bestinterests of the City and County and are not moved by what are ordinarily called political considerations. If it so happens that in any given instance a mayor or a board or both are moved by political considerations and by reason thereof are unable to agree upon anappointment or a removal, that, however regrettable, cannotaffect the construction of the law. Whether the law in this respect ought to be amended is a matter that concerns the legislative authorities and not the courts." (Ahia v. Cain,27 Haw. 770, 779; underscoring added.)

In order to preserve inviolate the duty and discretion vested in the appointive authorities here concerned, the determination of the issue presented should, in my judgment, be premised exclusively upon the governing principle of the Ahia case quoted supra, and be controlled solely by consideration of the fact that:

"* * * the writ in this case is invoked, not in the interest of any private person, but in the interests of the public, and forpublic purposes. We should therefore exercise or refuse to exercise our power over the writ and proceedings in such manneras shall best promote the public interests * * * They areofficers de facto, and the public interests require that theyshould not be disturbed." (People v. Gartland, 75 Mich. 143, 42 N.W. 687, 688; underscoring added.)

It is contended that indefinite or even permanent "extended tenure" in office by the appellants would result from denial of the writs of ouster sought by the appellee. Such an eventuality is furthest from the practical evaluation of the circumstances presented when viewed in the political realities presented by the record. The impasse may be resolved and terminated momentarily by a reconsideration of the adamant positions now assumed by the appointive authorities in the exercise of the duty and discretion vested in and incumbent upon them; or, should the impasse continue over such protracted period of time as to actually disrupt or prejudice the orderly continuance and functions of municipal affairs other appropriate steps to compel the exercise of those vested powers and duties of appointment and confirmation of successors to the appellants herein could be undertaken. Failure of the foregoing could presumably give rise to other appropriate remedial measure directed against the appointive officials responsible grounded upon nonfeasance in their respective offices. The expedient remedy of the writs sought herein may be proper and swift in situations warranting their issuance and execution; and while alternative measures may not be so speedily determinable, they nevertheless must be sought in circumstances where the office of the writ is not sustainable.

I conceive the foregoing to constitute a preferable evaluation in every respect to the intervention of the attorney general of the Territory in these or future situations of a similar nature in every such impasse as has here developed or which may develop in similar circumstances in the future. This conclusion is readily forthcoming in the conceivable view of the position in which the office of the attorney general of the Territory would be relegated if forced to intervene and assume and direct the public duties, functions and responsibilities of the office and department of the city and county physician or the office and department of the building superintendent of the City and County of Honolulu, which roles he concededly is not equipped to perform with the same degree of proficiency as was so ably displayed in the recent intervention wherein that office took over and assumed the ad interim duties and functions of the office of public prosecutor of the City and County of Honolulu.

The enactment of section 6575, Revised Laws of Hawaii 1945, was dictated by the decision of this Court, in the Ahia case, supra, and was intended to prevent a repetition of the circumstances which developed in necessitating that the situation in that case be resolved by enacting the section. I do not concur in now interpreting the section as a remedy to resolve the present irreconcilable impasse. This Court cannot legislate the relief sought. Such relief as is necessary may be sought in the Twenty-eighth Session of the Legislature.