Wentz v. Thomas

The petition of the plaintiff, Maude O. Thomas, alleges that plaintiff is the duly appointed, qualified, 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; that plaintiff is in possession of said office and exercising its duties and functions in the manner provided by law; that the defendant, Lew H. Wentz, has been and now is unlawfully claiming the right and title to the office now in possession of the plaintiff and has threatened to and will, unless enjoined by the court, interfere with and obstruct the plaintiff, etc.

The defendant denies these allegations, but admits that he has been and is now claiming the right and title to the office of a member of the State Highway Commission, and expressly denies that he is claiming the same unlawfully, and sets forth the grounds of his title to the office by virtue of his appointment, pursuant to the Act of the Legislature of the state of Oklahoma approved April 1, 1929, wherein, he was appointed by the Governor of the state of Oklahoma and by and with the advice and consent of the Senate, and that he qualified as such member of the Highway Commission, entered into possession of the office, exercising the functions and discharging the duties and receiving the emoluments thereof without being molested or hindered on the part of any one until the issuance and filing of the executive order of removal purporting to summarily remove said defendant from said office as a member of the State Highway Commission; that said executive order of removal is wholly void and without any force and effect. The defendant in his prayer states that the plaintiff is not entitled to any relief in the premises, but that said defendant is entitled to cross-relief against the plaintiff enjoining her, during the pendency of the action or any action to determine the title to the office or in any wise interfering with the defendant in the exercise of the functions of his office.

In his answer, seeking cross-relief by way of counterclaim, the defendant states that he is the duly appointed commissioner and qualified member of the State Highway Commission for the term expiring April 1; 1935, and is legally entitled to occupy such office, exercise the functions, discharge the duties and receive the emoluments therefrom, and that said plaintiff, on or about the 1st day of April, 1932, unlawfully usurped and intruded into the said office of member of the State Highway Commission for the term for which this defendant was appointed as commissioner and has ever since unlawfully attempted to exercise the same and exclude this defendant and cross-petitioner therefrom and enjoy the emoluments thereof to which he is entitled. In his prayer, defendant demands judgment that the said plaintiff be adjudged guilty of usurping, intruding into, and unlawfully holding said office and that she be excluded from the same and the privileges thereof and that said defendant and cross-petitioner be adjudged to be legally entitled to have, hold, and exercise the duties of said office by virtue of the appointment thereof, and for such other and further relief, general or special, to which he may be entitled.

There was filed in said cause an instrument entitled "Agreed Statement of Facts"; in part, this instrument states as follows:

"Plaintiff, Maude O. Thomas, by her counsel of record and, defendant and cross-plaintiff, Lew H. Wentz, by his counsel of record, waive trial by jury and agree to submit the application for temporary injunction and this case for trial on, the factsand on the pleadings on this agreed statement of facts, towit."

In spite of the various pleadings which have been filed, it is apparent that counsel agreed to submit the application for temporary injunction and the case for trial on the facts and on the pleadings on the agreed statement of facts for the purpose of considering the cause on its merits. If the court determined the sufficiency of the pleadings alone, there would be no occasion for considering the agreed statement of facts. Counsel did not limit themselves to this proposition, but agreed that the cause be submitted for trial on the facts and on the pleadings on the agreed statement of facts. The case of Bynum Y. Strain, 95 Okla. 45, 218 P. 883, controls the procedure and the determination of the issues presented herein. The agreed statement of facts constitute a part of the judgment roll and it is immaterial in this case what the pleadings were called. The facts were completely set forth in the judgment roll. It is difficult to consider this record as framed by the pleadings and the agreed statement of facts and discountenance the theory that the title to the office is not involved. There could be no possession of the office without color of title.

The plaintiff states that she is a duly appointed, qualified, and acting commissioner under and by virtue of the laws of the state of Oklahoma and in possession of said office and the defendant has been and now is unlawfully claiming the right and title to the office occupied by and now in the possession of plaintiff. Multiplicity of suits are not favored in law. Both parties, plaintiff and defendant, were claiming title to this office of Highway Commissioner, the plaintiff by her appointment through the executive order of the Governor, the defendant by his appointment and confirmation thereto by a former Governor pursuant to an Act of the Legislature of the state of Oklahoma, approved April 1, 1929. The trial court should have determined this question. The counterclaim and the agreed statement of facts were before the court for its consideration in determining the issues framed. The record is conclusive, in view of the agreed statement of facts, that the defendant elected to stand on his counterclaim. See 20 C. J. 1932; Okmulgee Producing Refining Co. v. Davis, 99 Okla. 4,225 P. 550. The counterclaim was germane to the plaintiff's cause of action. The demurrer should have been overruled. Both the petition and counterclaim involved the title and possession to the office. The right to possession of said office and the title thereto follow as an incident to each other. There could be no possession without the right to possession, and the right to possession must of necessity be based upon authority and title to the office, the person in possession of such office without title has no authority or right to such possession. The agreed statement of facts presents questions of law. With the pleadings and the facts before this court, it is the duty of the court to render such judgment as the trial court should have rendered.

The pleadings and agreed stipulation of facts present the question as to whether the Governor by executive order can remove defendant as a member of the State Highway Commission whose tenure of office is for a definite period. In other words, is this part of the legislative enactment in question constitutional? If it is constitutional, the removal by executive order must fail. The Legislature in its wisdom saw fit to enact as a law that the office in question should be created whereby the incumbent thereof should be appointed by the Governor by and with the advice and consent of the Senate for a definite and fixed term. This act made no provision that the removal of the member of the Highway Commission so appointed should be by the Governor of the state. Did the Legislature have power to enact such a law? If it did, it is a valid and binding law. Sovereignty exists with the Legislature. Laws and offices are enacted and are created for the benefit and convenience of the people.

Judge Cooley, in his admirable work on Constitutional Limitations, states:

"There is a broad difference between the Constitution of the United States and the Constitutions of the states as regards the powers which may be exercised under them. The government of the United States is one of enumerated powers; the governments of the states are possessed of all the general powers of legislation. * * * We look in the National Constitution to see if the grant of specified powers is broad enough to embrace it; but when a state law is attacked on the same ground, it is presumably valid in any case, and this presumption is a conclusive one, unless in the Constitution of the United States or of the state, we are able to discover that it is prohibited. * * * We look in the Constitution of the United States for grants of legislative power, but in the Constitution of the state to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the state was vested in its creation. Congress can pass no laws but such as the Constitution authorizes either expressly or by clear implication; while the state Legislature has jurisdiction of all subjects on which its legislation is not prohibited."

The Supreme Court of Indiana in the case of Overshiner v. State, 156 Ind. 187, 83 Am. St. Rep. 187, said:

"The power of the General Assembly to enact laws is subject to no restrictions save those imposed by the state and federal Constitutions."

In fact, there is no limitation upon the legisltive enactments so long as they are not in conflict with the federal Constitution and inhibited by the state Constitution. Even the executive or judicial branch of government can exercise no power but such as are granted, while the legislative branch of government can exercise all power except those which are not forbidden. See 1 Peter's Cond. R. 213; Field v. People, 3 Ill. 111; People v. Morgan, 90 Ill. 558. In other words, if there are no inhibition and no restrictions upon the legislative enactment, it must be held valid and enforceable when enacted. Hovey v. State, 119 Ind. 395, 21 N.E. 21.

In reference to the power of removal as being an incident to the power of appointment, a different rule prevails where the office is for a fixed term. This is set forth in the case of Bynum v. Strain, which quoted from 12 C. J. 899, as follows:

"The power to remove from office is not under our system of government to be implied as a part of the inherent power of the Governor or other executive officer. Such power of removal may or may not be vested by the Constitution in the executive. And in the case of officers created by the Legislature the power of removal may be vested by statute in the Governor, or in some other officers or department of the government. But in the absence of such provision the power of removal is not to be exercised by the Governor."

29 Cyc. 1371, is as follows:

"Furthermore it is the universal rule that where the duration of an office is not prescribed by law, the power to remove is an incident of the power to appoint."

22 R. C. L. 562, is as follows:

"When the term or tenure of a public officer is not fixed by law, the general rule is that the power of removal is incident to the power to appoint. Tenure not having been declared by law, the office is held during the pleasure of the authority making the appointment; hence, in the absence of all constitutional or statutory provisions as to the removal of public officers, the power of removal is considered as an incident to the power of appointment. * * * But the power of removal is not incident to the power of appointment where the extent of the term of office is fixed by statute."

If the Legislature had the power to fix by law the tenure of the office in question, it is apparent that the Governor has not the inherent power of removal as an incident to the power to appoint.

The Supreme Court of South Carolina in the case of State ex rel. Lyons v. Rhame, 75. S.E. 881, Ann. Cas. 1914B, p. 519, held that this power exists only when conferred by the Constitution or statutes, or is implied from the conferring of the power of appointment; that the power of removal from office is not incident to the power of appointment where the term of office is fixed by statute and no power of removal is conferred upon the appointing power. In the note on page 524, the annotator states, as follows:

"The right of the appointing power, as an incident of the power of appointment, to remove an officer whose term of office is fixed and for whose displacement no provision is made by statute, has been specifically denied in the following cases; Bruce v. Matlock, 86 Ark. 555, 111 S.W. 990; People v. Jewett,6 Cal. 291; Page v. Hardin, 8 B. Mon. (Ky.) 648, 672; Hager v. Lucas, 120 Ky. 307, 86 S.W. 552; Speed v. Detroit, 97 Mich. 198, 56 N.W. 570; Territory v. Ashenfelter, 4 N.M. 85, 12 P. 879; Mosher v. Stowell, 9 Abb. N. Cas. (N.Y.) 456; Hardy v. Reamer, 84 S.C. 487, 66 S.E. 678; Collins v. Tracy, 36 Tex. 546. See, also, People v. Adams, 31 Colo. 476, 73 P. 866; Speed v. Detroit, 98 Mich. 360, 57 N.W. 406, 39 Am. St. Rep. 555, 22 L. R. A. 842: Atty-Gen. v. Corliss, 98 Mich. 372, 57 N.W. 410; Com. v. Sutherland, 3 Serg. R. (Pa.) 145; Sanders v. Belue,78 S.C. 171, 58 S.E. 762."

In the case of Collins v. Tracy, supra, the Supreme Court of Texas held that the county treasurer, once appointed in the mode prescribed by law, had a vested right to his office, and could not be removed except for cause amounting to forfeiture of his office. The court in that case said:

"The principle that the power of removal is incident to the power of appointment, is Applicable only in those cases where the office is held at the pleasure of the appointing power, and the tenure not fixed by law as in this case. * * * There being no law of this state specially authorized the Governor to remove a county treasurer from office, it follows that he can only be removed on conviction by a jury, after indictment for malfeasance, nonfensance or misfeasance in office."

The Arkansas cases, supra (Bruce v. Matlock), decided by that court in the year 1908, wherein it was provided that the Governor should appoint biennially a Board of Trustees of Charitable Institutions for a period of two years, that the power to remove such state officers appointed for a fixed term of office does not inhere in the Governor by reason of his having the power to appoint him. The court says:

"The members of the board having been appointed for a fixed term, and as the statute does not confer upon the Governor the power of removal, the power does not exist. The right to remove public officers does not inhere in the Chief Executive of the state. Throop on Pub. Off. sec. 362; State v. Pritchard, 36 N.J.L. 101. Under our system of government the executive enjoys no prerogative in the sense in which that word is usually employed, but he exercises only such powers as are conferred upon him by the Constitution and statutes of the state. These do not authorize him to remove members of the board of public charities. The Governor has nothing to do with the management and control of the charitable institutions of the state further than to appoint the members of the board biennially."

In this case the Legislature had the right to create by law the office in question. It had the right to designate how this office should be filled. It had the power to designate the term of the office and the manner and mode of removal as provided by the act. They did not see fit nor deem it expedient that this removal should be placed in the executive branch of government, nor be exercised by the Governor. The power of the State Legislature is presumed in all matters, except in so far as it may be restricted by Constitution. Commonwealth ex rel. v. Benn (Pa.) 131 A. 253.

It is my opinion that there is nothing in the legislative enactment in question which is invalid. The provisions made by the act in question may be indicative of usurpative and aggressive legislation. It may be unwise legislation, but we are not concerned with the wisdom of the legislative enactment. That is a question for the determination of the sovereignty. It is the duty of this court to resolve every doubt in favor of the validity of legislation, and so long as there is no conflict with the state or federal Constitution, it is the duty of the court to interpret legislative acts to be valid enactments of the sovereignty.

In the case at bar, the title of the office of the plaintiff is based wholly upon executivel appointment and the exercise of the power of the Governor in issuing the same. The act in question is not unconstitutional. The term or tenure of the office is fixed by law and the defendant, after he had been duly appointed and qualified, had a vested rlght in the office and could not be removed therefrom except as provided by law. See Lease v. Freeborn (Kan.) 35 P. 817; Jacques v. Little (Kan.) 33 P. 106. There could be no removal in the instant case except in a legal manner. The executive order was void. No vacancy existing in the office, the Governor had no authority to appoint the plaintiff. See People ex rel. Parish v. Adams,31 Colo. 476, 73 P. 866.

After a careful review of the authorities cited in the briefs of counsel, and an independent study of the legal questions involved, it is my opinion that the legislative enactment in question is not void, and that it was the duty of the trial court to determine the questions and issues raised by the judgment roll now before us.

The judgment of the trial court should be reversed and the defendant be decreed the title to the office in question and the right to the possession thereof.