10 S.D. 495 | S.D. | 1898
The legislature, at its session in 1897, passed an act entitled ‘ ‘An act to provide for the creation of the office of commissioner of insurance, and defining the duties thereof,” which was approved March 5, 1897, and constitutes Chapter 69, Laws 1897. This act creates the office of commissioner of insurance, defines his duties, fixes his salary, and, by the fifth section; provides as follows: “The governor shall appoint by and with the consent of the senate a commissioner of insurance, who shall hold his office for a term of two years, unless sooner removed by him.” Under the provisions of this act, John H. Kipp, the defendant was appointed, to that office by the governor, by and with the consent of the senate; and on July 1, 1897, he entered upon the discharge of its duties, and has ever since continued to perform the same. On February 9, 1898, the governor caused to be served upon said defendant a notice of his removal from said office. The governor thereafter, on February 10th, appointed the relator, Thomas H. Ayers, to said office, and he thereupon qualified by taking the prescribed oath, and executing and filing the required bond. On the same day, the relator demanded of the defendant possession of said office, the books, papers, and seal of the same, which demand the defendant refused to comply with. On the application of the relator, this court, in the exercise of its original jurisdiction, made an order requiring the defendant to show cause why a peremptory writ of mandamus should not issue commanding him to deliver to said relator the said office, books, papers, and seal thereof. On the return day of the order to show cause the defendant, for cause why the writ should not issue, filed an answer in which he admitted the material facts stated in the
But the only question to be tried in such a proceeding is the prima facie right to the possession of the office, and the jurisdiction of the court to determine that question cannot be affected by an attempt to raise issues by the answer, not material to the determination of such prima facie right. The court therefore disregarded all allegations in the answer tending to raise such immaterial issues. The only questions properly before the court are questions of law, except as to the sufficiency of relator’s appointment. The only objection made to the appointment of relator that we deem it necessary to consider is as to the approval of the bond of relatpr. This bond
The defendant contends that, assuming the legislature possessed the power to abridge his term of office, it has failed to confer authority upon the governor to remove the defendant, by the provisions of Section 5 of the act; that the clause ‘ ‘shall hold his office for a term of two years, unless sooner removed by him,” fixes the term for a period of two years, but is insufficient as an authority to remove the defendant or abridge his I term. We are of the opinion that the contention,of the defendant is untenable. In our view, it is quite immaterial whether the clause, in fact, authorized the governor to remove the defendant, or is to be regarded as a limitation upon the term. The term is not definitely fixed at two years, but at two years unless the incumbent is sooner removed, and, when that event occured, his right to the office ceased. In other words, the effect of the clause is that the commissioner holds the office at the pleasure of the governor, not exceeding two years. In People v. Whitlock, 92 N. Y. 191, the court of appeals of New WYork says “that the office was created by the .legislature, and L .they might abridge the term by express words, or specify an event upon the happening of which it should end. * * * In this case the event specified by the legislature is remoyal by
It is further contended that the clause of the section authorizing the removal of the defendant is in conflict with the provisions of Sections 3 and 4, Art. 16, of the State Constitution, and the governor’s order, removing the defendant, was made without authority and was therefore void. The two sections of the constitution referred to read as follows.
‘‘Sec. 3. The governor and other state and judicial officers except county judges, and justices of the peace, and police magistrates, shall be liable to impeachment for drunkenness, crimes, corrupt conduct, or malfeasance or misdemeanor in of fice; but judgment in such cases shall not extend further than to removal from office and disqualification to hold any office of trust or profit under the state. The person accused whether convicted or acquitted, shall nevertheless be liable to indictment, trial, judgment and punishment according to law.
“Sec. 4. All officers not liable to impeachment shall be subject to removal for misconduct, malfeasance or crime or misdemeanor in office or for drunkenness or gross incompetency, in such manner as may be provided by law. ” fl
It is urged by the defendant that the office of the commis*j sioner of insurance is a state office, and that the defendant be-*l ing a state officer, can only be removed from the office by impeachment. Defendant further insists that if his office is not a
Has the power of the legislature to create state officers, ¿tnd prescribe the time and manner of their removal, been expressly limited by either Section 3 or 4, above quoted? If not, has the power to create such officers, and prescribe the time
In conclusion, we may state that we are clearly of the opinion that the provisions contained in the fifth section of the act