154 P. 624 | Idaho | 1916
Lead Opinion
In this action the plaintiff below and appellant here filed his affidavit for a writ of mandate against defendants below and respondents here. An alternative writ of mandate was issued on July 10, 1915, and was made returnable on the fifteenth day of that month. This writ of mandate was sought by appellant for the purpose of restoring him to the position of chairman of the board of county commissioners of Bonner county, of which he and the respondents were members.
To the alternative writ of mandate, respondents answered. The cause was tried before the court without a jury upon the admissions made by the pleadings and a stipulation of facts entered into between counsel for the respective parties. Upon the facts admitted by the pleadings and the stipulated facts the court made findings of fact and conclusions of law, which findings recite substantially all of the facts relied upon by the parties to this proceeding, and upon which the judgment of the trial court is based.
The trial court found, among other things, as follows:
That immediately after the qualification of defendant McBride as commissioner, and at a regular meeting of the board, it was moved by Commissioner Hagman and seconded by Commissioner McBride that the action of the board in theretofore electing Commissioner Prichard, chairman be reconsidered. Prichard refused to put the motion, whereupon it was put by Commissioner Hagman and carried by the vote of Hagman and McBride. It was thereafter moved by Commissioner McBride and seconded by Commissioner Hag-man that the office of chairman be declared vacant. Prichard refused to put the motion, whereupon it was put by Commissioner McBride and the motion was carried by the affirmative vote of Hagman and McBride. It was then moved by Commissioner Hagman and seconded by McBride that McBride be elected chairman. Motion was put by Hagman and
This action was brought by appellant Prichard against McBride and Hagman to determine whether Prichard or McBride is entitled to legally hold the chairmanship of the board of county commissioners of Bonner county, and to perform the duties and functions thereof. The trial court entered judgment in favor of respondent McBride. This is an appeal from the judgment.
Appellant relies upon three assignments of error:
First. The Court erred in holding that the office of chairman of the board of county commissioners was not a civil office and could be declared vacant at any time at the will of the majority.
Second. The court erred in holding that the defendant McBride did not unlawfully usurp and intrude into the office of chairman of said board, and that the defendants had not prevented and precluded the use and enjoyment by plaintiff of his office as county commissioner.
Third. The court erred in its conclusion of law that the qualifications and eligibility of McBride to be appointed as a county commissioner could not be inquired into or determined in this action.
"The first and second assignments of error may be consolidated. They both involve but the one question, viz., the right of appellant to the position of chairman of the board of county commissioners of Bonner county.
- We think that a solution of the question before us involves the construction of secs. 1906, 1908 and 1909, Rev. Codes.
Sec. 1906, supra, provides: “The term of office of a commissioner is two years.”
' Section 1908 provides: “The members of the board of commissioners must, at their first regular meeting on the second Monday of January next after their election, elect a chairman from their number.”
It seems to us that it was clearly the intention of the legislature, from the foregoing sections of the statute, to provide for the selection of a permanent chairman at the first meeting of the board, whose right to preside at all meetings should extend during his term of office as county commissioner, unless he voluntarily resigned as the chairman of said board, or was removed from, or ceased to be a member of, the board.
That a regularly ■ elected chairman would have the right to resign as chairman or as a member of the board of county commissioners could not be seriously questioned. Such resignation, however, would not involve the existence of the board, and since, under the statute, two members of the board constitute a majority, upon the resignation of one of their members, either as a member of the board of county commissioners or as the chairman of said board, they undoubtedly would have the power to reorganize the board; and upon the election of one of their number as chairman his right to perform the duties and functions of said position would extend to the end of his term. Or, in the event of the permanent absence or inability of the regularly elected chairman to act, a majority of the board would be authorized to select his successor.
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.
We do not think that the eligibility of Commissioner Mc.Bride could be inquired into in this proceeding, and the trial court did not err in so holding. But we are of the opinion that the trial court did err in holding that the appellant
Our conclusions are, and the judgment of this court is, that the respondent McBride does not hold, and is not entitled to hold, the position of chairman of the board of county commissioners of Bonner county, and that the appellant Prichard now holds that position and is entitled to hold it until the expiration of his term of office as county commissioner, unless he resigns or becomes legally disqualified.
The trial court is therefore directed to vacate and set aside the judgment heretofore entered quashing the alternative writ of mandate, and to issue a peremptory writ of mandate directed to the respondents, commanding them to admit appellant to the use and enjoyment of the position of chairman of the board of county commissioners of Bonner county. Costs are awarded to appellant.
Dissenting Opinion
Dissenting.
I dissent from all the foregoing opinion except wherein it decides that the eligibility of a county commissioner may not be inquired into in a ■mandamus proceeding, and in that portion I concur.
This case was tried in the district court, and was appealed to this court, upon the theory that the position of chairman of the board of county commissioners. is a'civil office. This theory is erroneous.
Sec. 18 of art. 5 of our constitution, as amended, provides for the election of a prosecuting attorney for each organized county of the state, and sec. 6, art. 18, as amended, provides: ■“The legislature by general and uniform laws shall provide for the election biennially in each of the several counties of the state, of county commissioners, a sheriff, a county treasurer, who is ex-officio public administrator and also ex-officio tax collector, a probate judge, a county superintendent of
It will be at once observed that there is no such office as that for which appellant is contending and that the legislature is prohibited, by the constitution, from creating it. Therefore, sec. 1908, Rev. Codes (quoted in the majority opinion), cannot be construed to be more than a direction to the board fixing the time and manner of designating one of its members to preside at its meetings.
I have reached the conclusion that the legislature has not fixed the tenure of office of the chairman of the board of county commissioners for two reasons: (1) Because it cannot be inferred from sec. 1909, Rev. Codes (quoted in the majority opinion), or from any other statute, that it was the legislative intent so to do; and (2) Because there is no such office. The chairman is merely a member of the board of county commissioners who has been designated by the board to discharge certain duties incidental to its chairmanship, and, no term during which he shall preside having been fixed, he cannot be heard to complain if the board sees fit to depose him and to designate another of its members to discharge those duties.
Even though it be assumed that the office of chairman of the board of county commissioners can be, and has been', created by the legislature, in order to reach the conclusion that it was the legislative intent to fix the tenure of that office, as found in the foregoing opinion, I must amend see. 1908, Rev. Codes, and cause it to read: “The members of the board of commissioners must, at their first regular meeting on the second Monday of January next after their election, elect a chairman from their number, who shall continue to act as such until his term of office as commissioner expires,” or I must read into sec. 1909, a provision, which is not there,
When the legislative intent has been fully and clearly expressed in a statute courts should not, by way of interpretation, add new provisions to it.
The case of State ex rel. Childs v. Kiichli, decided by the supreme court of Minnesota and reported in 53 Minn. 147, 54 N. W. 1069, 19 L. R. A. 779, is somewhat analogous to this. It arose out of a dispute as to who should be president of the city council of Minneapolis, and involved the interpretation of the portion of the city charter providing that “at the first meeting of the city council in January of each year, after a general state election, they shall proceed to elect by ballot from their number a president and vice-president. The president shall preside over the meetings of the city council, and during the absence of the mayor from the city, or his inability from any reason to discharge the duties of his office, the said president shall exercise all the powers and discharge all the duties of the mayor.” Construing this provision the court said: “The sole purpose of the statute was merely to regulate a time when, and the manner in which, the city council should organize and elect their presiding officer, and to provide that, upon the happening of a certain contingency, such presiding officer, for the time being, whoever he might be, should perform the duties of mayor. There is nothing indicating an intention to create a city office distinct from that of alderman.” After an able discussion the court further said: “Our conclusion is that the president of the city council of Minneapolis is not an ‘officer’ of the city, within the meaning of the city charter or the constitution, but that he is merely the officer or servant of the legislative body which elected him, and that as such, he is removable at the will or pleasure of that body.”
I have been entirely unable to perceive the force of the reasoning which impelled the majority of the court to reach the conclusion stated in the opinion to the effect that a con
Under the construction placed upon the law by the majority of the court, I am unable to conceive of any lawful method of getting rid of a chairman, who has once been chosen, during his term of office as commissioner, however unsatisfactory his services as a presiding officer may prove to be, and regardless of the lack of orderly proceedings on the part of the board, in dispatching public business, his retention ■as chairman may occasion, unless he be guilty of such gross misconduct in office as to warrant his removal from the board in a judicial proceeding.