State Ex Rel. Maloney v. Wells

MANSON, Circuit Judge.

Nominally entitled in quo warranto, the subsequent pleadings and issues on both sides make it abundantly clear that this original proceeding is in the nature of mandamus. The legislature has conferred upon this court jurisdiction of such proceeding to determine right to an office. SDC 1960 Supp. 37.4501. The jurisdiction of this court in a proceeding in the nature of mandamus is not limited or restricted by the name given in the pleadings to the proceedings.

On June 15, 1960, the respondent, Goldie Wells, was duly and legally appointed to the office of Employment Security Commissioner for a term of four years, to commence July 1, 1960. This appointment was made under the provisions of SDC 1960 Supp. 17.0803-3 which reads as follows:

“Commissioner; office created; appointment; tenure; removal; salary; bond; premium paid from fund. There is hereby created the office, Employment Security Commission of South Dakota, who shall be appointed by the Governor, and who, during his term of office, shall not engage in any other business, vocation, or employment, or serve as an officer or committee member of any political party organization. The said Commissioner shall hold office for a term of four years, except that, if appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed, he shall be appointed for the remainder of such term. The Governor may, at any time, after notice and hearing, remove the Commissioner for gross neglect of duty, malfeasance, misfeasance or nonfeasance in office. The salary of said Commissioner shall be eight thousand dollars per year which salary shall take effect on July first and shall be paid from the employment security administration fund. The Commissioner shall, before assuming the duties of his office, take and subscribe and file with the Secretary of State the constitutional oath of office, and execute a bond with sufficient sureties in the penal sum of ten thousand dollars, conditioned that he will faithfully perform the duties of his office, which bond shall run to the state of South Dakota and shall be subject to the approval of the Governor of South Dakota, and when approved, shall be filed with the Secretary of State. The premium upon such bond shall be paid out of the employment security fund.”

Respondent thereupon qualified for the office and entered upon the duties thereof and maintains in this proceeding her right to continue therein.

Thereafter and during the legislative session of 1961, Chapter 103 of the Session Laws of 1961 was enacted:

“Chapter 103. Amending Law Relating to Qualifications and Salary of Employment Security Commissioner. AN ACT Entitled, An Act to amend section 17.0803-3 of the 1960 Supplement to the South Dakota Code of 1939, relating to the appointment, qualifications, salary and tenure of the Commissioner and Counsel under the Employment Security Law.

Be It Enacted by the Legislature of the State of South Dakota:

“Section 1. That 1960 SDC Supp. 17.0803-3 be, and the same is hereby, amended to- read as follows:

“17.0803-3 Commissioner and Counsel; office created; qualifications; appointment; tenure; removal; salary; bond; premium paid from fund. There is hereby created the office, Employment Security Commissioner a,nd Counsel of Souutlh Dakota, who shall be a member of the South Dakota State Bar with at least five years of active legal practice, and who, in addition to all other duties, shall perform legal services for the Employment Security Department, who shall be appointed by the Governor, and who, during his term of office,, shall not engage in any business, vocation or employment, or serve as an officer or committee member of any political party organization. The said Commissioner and Counsel shall hold office for a term of four years, except that, if appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed, he shall be appointed for the remainder of such term. The Governor may, at any time after thirty days notice and hearing, remove the Commissioner and Counsel for gross neglect of duty, mal-feasance, mis-feasance, or non-feasance in office. The salary of the Commissioner and Counsel shall be ten thousand dollars per year which salary shall take effect on the effective date of this Act and shall be paid from the employment security administration fund. The Commissioner and Counsel shall, before assuming the duties of his office, take and subscribe and file with the Secretary of State the constitutional oath of office and execute a bond with sufficient sureties in the penal sum of ten thousand dollars that he will faithfully perform the duties of his office, which bond shall run to the State of South Dakota and shall be subject to the approval of the Governor of South Dakota, and when approved shall be filed with the Secretary of State. The premium upon such bond shall be paid out of the employment security fund.”

The legislative history of this law indicates that at one point in consideration of the bill, a motion to amend to include a clause abolishing the office of Commissioner, .as it existed under SDC 1960 Supp. 17.0803-3 was defeated. The bill eventually passed both houses, with less than a two-thirds majority in the Senate and became law.

Pursuant to this enactment, the relator, P. J. Maloney, a duly licensed and practicing attorney of more than five years active practice, was duly and legally appointed to the office of Employment Security Commissioner and Counsel for a period of four years, from July 1, 1961. Relator similarly qualified for this office and entered upon the duties thereof, insofar as he was. able, and maintains his right to continue therein. The uncontroverted pleadings allege that relator has teen barred from the offices of the Employment Security Department in Aberdeen, South Dakota, by respondent who thereby and otherwise asserts her right to hold and exercise the office to which she was appointed. It further appears that the affairs of the Employment Security Department are deteriorating as a consequence of the controversy and that the functions of the department are thus impaired.

Respondent’s position in respect to. the proceeding herein, that she is entitled to the office under and by virtue of SDC I960 Supp. 17.0803-3, the law under which she was appointed as Commissioner. She bases this position upon four firm contentions, as follows:

a) That the office which she holds was not abolished by Chapter 103 of the Session Laws of 1961 and that her said office continues to exist under SDC 1960 Supp. 17.-0803-3;

b) That Chapter 103 is unconstitutional and void because the title h> said act is faulty and in violation of Article III,. Section 21 of the Constitution of South Dakota;

c) That said Chapter 103 is unconstitutional and void in that it undertakes to direct the Commissioner and Counsel named therein to perform legal services for the Department and thereby invades the constitutional duties and powers of ¡the Attorney General of South Dakota, and,

d) That said Chapter 103 is unconstitutional and void for the reason that it is an appropriation measure and that it failed to receive a two-thirds vote of the members of the body elect in accordance with Article XII, Section 2 of the Constitution of the State of South Dakota.

Respondent’s first claim of right does not, as must be noted, traverse the right of relator to hold office, but simply asserts her right thereto. Relator denites her claim, asserting that Chapter 103 abolishes the office she claims, cheating a new office to which he asserts his claim. In this wise we note that, while Chapter 103 does not contain any specific abolition of the office as it previously existed, it does amount to a verbatim restatément of the earlier law, altered only in respect of the title, qualifications, salary and removal procedures pertaining to the head of the Employment Security Department.

This would appear to bring into play the rule announced in Halverson v. Glass, 36 S.D. 225, 154 N.W. 444, 445, where the Court has held that an enactment was repealed by “necessary implication” where the intendment of a later law was to cover the whole subject matter of the previous law. State v. Devericks, 77 S.D. 509, 94 N.W.2d 348, 350, further refines the rule to apply where only portions of a law are changed by revision or amendment, saying:

“In accordance with the general rule of statutory construction Where a section or part of a statute is amended, it is not to be considered as repealed and re-enacted in the amended form; but the portions which are not altered are to be considered as having been the law from the time when they were enacted and the new provisions are to be considered as having been enacted at the time of the amendment.’ ”

The right of the legislature to rename, provide new qualifications for, or increase salary to, an office where not restricted by constitutional considerations, seems perfectly Clear. It is, in our opinion, equally clear that the prime intention of the legislature in enacting Chapter 103, was to require stricter professional qualifications of the aspirant for the office mentioned.

The only reasonable effect to be given to the 'action of the legislature is that the office which was held by respondent literally had no legal existence after the date when Chapter 103 became law, being superseded by an office whose qualifications precluded her continuance therein. We hold that the act of the 1961 legislature resulted in a virtual abolition of the office which was held by respondent and that the only office which is now by law entitled to exercise supervision of the Employment Security Department is that named, qualified and compensated pursuant to Chapter 103, Laws of 1961. We have given thought to the possible inferences to be drawn from the failure of the so-called “abolition amendment” tO' Chapter 103, but have concluded that it is more reasonable to infer that the legislature, pursuing the clear intendments of their action, deemed specific abolition unnecessary, than that they intended to create two* officers to perform substantially the same function, with the predictable results we have here noted.

Respondent’s next contention — that Chapter 103 is unconstitutional because the title does not comply with Article III, Section 21 of the Constitution of South Dakota— appears .to be narrowed to the view that the act is unconstitutional because the title nowhere indicates that the “Commissioner and Counsel” named in the title is to be required to perform legal services as he is, in fact, enjoined by the body of the act.

The purpose of this constitutional provision, which states that no law shall embrace more than one subject, which shall be expressed in its title, has been defined on numerous occasions by this Court. We have said that it is intended to protect the legislature and communities affected by law from “surprise and imposition”, (Lemmon Independent Sch. Dist. No. 1 v. Rowbotham, 48 S.D. 641, 205 N.W. 706, 707) to give such information to the legislature as will enable them to determine the nature and character of the act under consideration, (Pierson v. Minnehaha County, 28 S.D. 534, 134 N.W. 212, 217, 38 L.R.A.,N.S., 261) and to “fairly indicate * * * subject by the title”, (State v. Becker, 3 S.D. 29, 51 N.W. 1018, 1021). Application of this provision must, of course, be consonant with the well-recognized rule which requires that the changed law must be construed liberally and with the end in view that an act should be held unconstitutional only when its conflict with the Constitution is plain and manifest. Wheelon v. South Dakota Land Settlement Board, 43 S.D. 551, 181 N.W. 359, 14 A.L.R. 1145. In the instant case, we are of the opinion that the inclusion of the word “Counsel”, in the title to Chapter 103, merits more than passing notice. This word, in the context of the title, applied as it is to a person or official, can only be taken to mean “One who gives advice; esp. in legal matters” as defined in Webster’s New International Dictionary, and we believe this to be the usual and ordinary, if not the only, sense of the word. This established, it is clear that the specification of legal service clearly imports the devolution of some form of legal duties upon the officer so named, and comparison of the revisory act with the earlier enactment, can lead to no other conclusion. We, therefore, find for relator on this issue.

We next approach the third contention put forward by respondent, namely, that Chapter 103 is unconstitutional because it is an attempt to change and diminish the constitutional powers of the Attorney General. This position, in extenso, appears to be that the Attorney General is, by common law and the Constitution, the “head of the legal department of this state”, (Dillon, J. dissent, Johnson v. Jones, 49 S.D. 549, 207 N.W. 550) that his authority and powers are plenary in the legal field, although unexpressed by statute, and that the assignment of any legal functions to officers who are not members of the Attorney General’s staff are ipso facto unconstitutional as an invasion of the powers of the Attorney General.

We here observe that the only “prescribed” powers of the Attorney General in respect of the Employment Security Department are to sue civilly for employer defaults (SDC 1960 Supp. 17.0825) and, upon request, to appear for the Commissioner (now Commissioner and Counsel) in appeals to circuit court (SDC 1960 Supp. 17.0838) in matters involving benefit claims, as an alternative to representation of the Commissioner by an attorney in the employ of the Department under SDC 1960 Supp. 17.0805.

The general rule of construction in instances such as this is most currently and perhaps most comprehensively stated in Matthews v. Linn, 78 S.D. 203, 99 N.W.2d 885, 887, as follows:

“It is axiomatic that every presumption favors the validity of legislative action and that no statute should be held unconstitutional by a court unless its infringement of organic restrictions is so plain and palpable as to admit of no reasonable doubt. * * * it is also a cardinal rule that whenever, within the bounds of reasonable and legitimate construction, an act of the legislature can be so construed and applied as to avoid conflict with the constitution, such construction should be adopted.”

The construction urged upon us by respondent would admit of no area whatsoever within which a duly qualified state official or employee could render any form of legal services within his own department, without impinging upon the powers of the Attorney General and the conclusion which we are asked to draw thereupon is that any legislation which purports to grant authority to any such official or employee to do so is necessarily an invasion and denigration of the powers of the Attorney General. The Attorney General does not concur in this view, nor do we. We believe, as a practical matter, that an area of permissive routine legal activity exists in a case such as this and that, in extension of the rule in Matthews,, we are bound to presume, in accordance with law, that the appointed officer would so conduct himself as not to venture beyond this area. We are supported in this conclusion by the words of Judge Campbell who, in Johnson v. Jones, 48 S.D. 397, 204 N.W. 897, a much stronger case for respondent’s view than the present, says:

“Viewing all said sections together, we believe the most liberal construction that could be placed upon the authority granted by section 5 of the original act ‘to employ attorneys’ would be to hold the board authorized to employ attorneys for mere routine matters requiring the services of an attorney, but not requiring the rendering of legal advice or opinions upon points of law, or matters of legal right or policy of the board, and we think that any such attorneys so employed would be under the supervision, control, and direction of the Attorney General as general legal adviser of the board * *

It cannot, then, be said to follow that the passage of this act creates an unconstitutional prescription of powers by necessary implication and we construe the act as valid, observing that we need apprehend no more than that the legal officer here constituted will exercise the character of function in the manner delineated by Judge Campbell,. i. e., “under the supervision, control, and direction of the Attorney General” and that such exercise could not be considered inimical to the constitutional powers of the Attorney General. For similar holdings in other states see Annotation 137 A.L.R. 820.

As for respondent’s fourth and final contention, it is at once clear that Ch. 103 was passed with less than the 2/3 majority for which respondent contends. It is less clear how this chapter can be held to be an appropriations measure. The act prescribes payment to be made, not from the general fund, but from the Employment Security Administration Fund. Respondent does not suggest that there is not sufficient money in this fund to pay the salary of relator, nor is it anywhere shown that the payment of the salary would impose a liability to pay which would, in any way, draw upon the general revenue of the State of South Dakota.

For aught that appears in the record, such payments would be made entirely from funds received from an agency of the federal government and derived solely from federal appropriations. In such case, the provisions of Article XII, Section 2 of our Constitution would be inapplicable, since such funds are not state revenue, derived from state taxation. McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428, 431; State ex rel. State Employees’ Retirement Board v. Yelle, 31 Wash.2d 87, 195 P.2d 646, 201 P.2d 172, 181; Tatum v. Wheeless, 180 Miss. 800, 178 So. 95, 102; Gillum v. Johnson, 7 Cal.2d 744, 62 P.2d 1037, 1043, 63 P.2d 810, 108 A.L.R. 595.

This notwithstanding, if it be respondent’s contention that the prospect of the inclusion of state moneys would imbue the receiving fund with a “public” character, in the sense that the Administration Fund would involve a charge upon the general revenues of the state, respondent must again fail. We quote from SDC 1960 Supp. 17.0817.

“There is hereby created in the State Treasury a special fund to be known as the employment security administration fund. Moneys which are deposited or paid into this fund shall be continuously available to the Unemployment Compensation Commission for expenditure in accordance with the provisions of this chapter, and shall not lapse at any time or be transferred to any other fund. All moneys in this fund which are received from the federal government or any agency thereof or which are appropriated by this state for the purposes described in section 17.0813 of this chapter shall be expended solely for the purposes and in the amounts found necessary by the Social Security Board for the proper and efficient administration of this chapter.”

We are of the opinion that SDC 1960 Snpp. 17.0817 establishes a continuing appropriation for a definite purpose and that the challenged provisions of Chapter 103 constitute nothing more than a direction for the administrative payment of the salary of a departmental official from the funds of that department in the hands of the state treasurer, and so is not governed by the constitutional provisions cited. Cf. Gillum v. Johnson, supra, and Unemployment Compensation Commission v. Renner, 59 Wyo. 437, 143 P.2d 181, 189.

Judgment for plaintiff.

ROBERTS, RENTTO and HANSON,. JJ., concur. BIEGELMEIER, J, dissents. MANSON, Circuit Judge, sitting for SMITH, P.J., disqualified.