STATE OF WEST VIRGINIA ex rel. JOHN G. Fox, Attorney General, Etc. υ. RAYMOND BREWSTER
No. 10665
Supreme Court of Appeals of West Virginia
Submitted September 7, 1954. Decided October 12, 1954
140 W. Va. 235
John G. Fox, Attorney General, Arden J. Curry, Assistant Attorney General, for plaintiff in error.
Estep, Chambers & Smith, amicus curiae for the Senate of the State of West Virginia—Vincent V. Chaney, for defendant in error.
RILEY, JUDGE:
The Attorney General of West Virginia, Honorable John G. Fox, filed in the Circuit Court of Kanawha County a petition praying for leave to file an information in the nature of a writ of quo warranto against the respondent, Raymond Brewster, praying that due process of law be awarded in the name of the State of West Virginia against Raymond Brewster, returnable to the next term of the circuit court to cause him to answer the information and disclose to the circuit court by what warrant, right or lawful authority he has intruded upon and usurped the public office of member of the West Virginia Board of Education from the Fourth Congressional District of West Virginia, for the unexpired term ending on June 30, 1961, and that the respondent be ousted and expelled by the judgment of the circuit court from such office for the unexpired term thereof. To the petition the respondent filed an answer, to which answer the petitioner filed a replication, and the respondent filed a rejoiner to the replication. To the final order of the Circuit Court of Kanawha County, entered on March 1, 1954, finding that no vacancy existed in the office of member of the West Virginia Board of Education, on June 30, 1952, upon the expiration of the five-year term for which the respondent Brewster had been lawfully appointed and had served as a de jure officer, adjudicating that the respondent has shown that he has a lawful right and title to the office of member of the West Virginia Board of Education for the term expiring on June 30, 1961, and refusing the
The proceeding was tried in the Circuit Court of Kanawha County upon the written stipulation of facts agreed to and entered into by Arden J. Curry, Assistant Attorney General of West Virginia and counsel for petitioner, and F. Paul Chambers, of counsel for the respondent, Raymond Brewster.
The office in controversy of member of the West Virginia Board of Education was established by
“There shall be a state board of education, to be known as the West Virginia board of education, which shall be a corporation and as such may contract and be contracted with, plead and be impleaded, sue and be sued, and have and use a common seal. The state board shall consist of
ten members, of whom one shall be the state superintendent of schools, ex officio, who shall not be entitled to vote. The other nine members shall be citizens of the state, appointed by the governor, by and with the advice and consent of the Senate, for overlapping terms of nine years, except that the original appointments shall be for terms of one, two, three, four, five, six, seven, eight and nine years, respectively. At least one but not more than two members shall be appointed from each congressional district, and at least one member shall be of the Negro race. * * *
“The governor shall appoint all members of the state board as soon after the effective date hereof as is practicable for respective terms of office beginning on the first day of July, one thousand nine hundred forty-seven. Any vacancy on the board shall be filled by the governor by appointment for the unexpired term. The terms of office of present members of the state board shall expire on the thirtieth day of June, one thousand nine hundred forty-seven.
“No member of the state board may be removed from office by the governor except for official misconduct, incompetence, neglect of duty, or gross immorality and then only in the manner prescribed by law for the removal by the governor of state elective officers.”
The stipulation states that at all times pertinent to the decision of this case, the respondent, Raymond Brewster, was eligible for appointment as a member of the West Virginia Board of Education; and, as the case was presented to the circuit court and tried on the basis of the factual situation portrayed by the stipulation of counsel, it becomes necessary in the decision of this case to set forth the pertinent facts contained in counsel‘s stipulation.
On July 1, 1947, when the Legislature was in recess, the Governor of this State, Honorable Clarence W. Meadows, pursuant to
“As Governor of the State of West Virginia, I have today appointed Raymond Brewster of Huntington, Cabell County, (4th Congressional District), a member of the West Virginia Board of Education, for the term ending June 30, 1952.
“Please issue commission accordingly.”
The next session of the State Senate, after the appointment of the respondent, Raymond Brewster, by Governor Meadows was legally organized and convened on January 12, 1949, as provided by the
Though the term of office of Clarence W. Meadows, as Governor of the State of West Virginia, expired on January 18, 1949, Governor Meadows did not at any time during his term of office submit the name of the respondent, Raymond Brewster, to the State Senate “for nomination” to the office of member of the West Virginia Board of Education for the five-year term ending on June 30, 1952, “unless all or a part of the facts stipulated in numbered paragraph (4) [of the stipulation] had such legal effect;” and the stipulation specifically provides that the petitioner does not agree or admit that the facts stipulated in numbered paragraph (4) of the stipulation had such legal effect, and the respondent does not agree or admit
“That, as required by Section 1 of Article 2 of Chapter 5 of the Official Code of West Virginia, as amended, the Secretary of State of West Virginia, at all times relevant herein, kept and preserved a public record described by statute as ‘a journal of executive proceedings,’ and designated by the Secretary of State as the ‘Executive Journal,’ in which said Secretary of State recorded all pertinent data relating to appointments to office made by the Governor and commissions issued pursuant thereto and that said Secretary of State likewise filed, kept and preserved as public records all letters of appointment executed by the Governor of the State of West Virginia; that pursuant to his duties as aforesaid the Secretary of State properly filed, kept and preserved as a public record the aforesaid letter of Clarence W. Meadows appointing this respondent as a member of the West Virginia Board of Education and that he likewise recorded and properly indexed in the aforesaid journal a record of said appointment and issuance of a commission by the Governor pursuant thereto, which record included all pertinent data contained in the aforesaid letter of appointment and the aforesaid commission.”
At the expiration of the term of his office on January 18, 1949, the Legislature then being in session, Governor Meadows was succeeded as Governor of the State of West Virginia by the Honorable Okey L. Patteson, who, at the then pending regular session of the Legislature, submitted to the State Senate on March 9, 1949, a written list of names, which included the name of the respondent, Raymond Brewster, “naming” Brewster to the office of member of the West Virginia Board of Education for the term ending June 30, 1952, for the Fourth Congressional District, and requesting the favorable advice and consent of the Senate to make such named appointments; and the
The stipulation further states that Governor Patteson by letter dated June 26, 1952, and directed to the Honorable D. Pitt O‘Brien, Secretary of State of West Virginia, with a copy to Honorable J. Howard Myers, Clerk of the State Senate, during the recess thereof, “reappointed” the respondent Raymond Brewster to the office of member of the West Virginia Board of Education, effective July 1, 1952, for the term ending June 30, 1961, a copy of which letter was filed with the petitioner‘s information in this cause as an exhibit thereto and made a part of the stipulation.
Though the respondent accepted the “appointment” tendered to him by Governor Patteson, and duly qualified as a member of the West Virginia Board of Education by taking the prescribed oath of office, and contemporaneously with the issuance of the letter of appointment by Governor Patteson of June 26, 1952, and pursuant to
The stipulation further states that Governor Patteson forwarded a copy of the letter of appointment dated June 26, 1952, to the Honorable J. Howard Myers, Clerk of the State Senate, and editor of the West Virginia Blue Book, a book published pursuant to statute, stating various and comprehensive facts concerning the State, its government, and its officials, with the duties of each thereof, which Clerk of the State Senate in a letter dated June 27, 1952, addressed to Governor Patteson, acknowledged receipt of Governor Patteson‘s letter of June 26, 1952.
The next session of the State Senate following the appointment of the respondent, Raymond Brewster, by Governor Patteson was legally organized and convened on January 14, 1953, as provided by
Though Governor Patteson‘s term of office as Governor of West Virginia expired on January 18, 1953, he did not, as Governor of the State of West Virginia and during his term of office, at any time take any action, other than that heretofore recited, with reference to the appointment of the respondent, or any other person, to the office of member of the West Virginia Board of Education for the term ending June 30, 1961; and the stipulation states that the respondent does not agree or admit that it was necessary for Governor Patteson to take further action in order
On January 18, 1953, while the Legislature, which had convened on January 14, 1953, was still in session, Honorable William C. Marland duly qualified as Governor of West Virginia, and during the session of the State Senate did not nominate the respondent, Raymond Brewster, for the office in question for the remainder of the term thereof ending June 30, 1961; but Governor Marland did on March 12, 1953, submit to the State Senate a written list of names, which included the name of one Homer Gebhardt, purporting to nominate Gebhardt to the office of member of the West Virginia Board of Education for the Fourth Congressional District for the term ending June 30, 1961, and the State Senate during its next regular session, convened after the action of Governor Patteson in reference to the office of member of the West Virginia Board of Education for the Fourth Congressional District, took such action as is shown by a copy of the minutes of the State Senate‘s meeting in executive session on March 14, 1953, a copy of which is made an exhibit to petitioner‘s information and made a part of the stipulation.
The Executive Journal of the State Senate of March 14, 1953, discloses that Governor Marland‘s letter of March 12, 1953, was laid before the President of the Senate and read by the Clerk of the Senate, which letter listing the names and addresses of ninety-six “nominees” of Governor Marland, together with the office to which each had been “nominated“, included: “For Member of the West Virginia Board of Education—Homer Gebhardt Huntington, Cabell County, (R) 4th Congressional District.” The minutes of the executive session of the State Senate held on March 14, 1953, disclose that the members of the Senate present voted unanimously in the affirmative on the question: “Shall the foregoing nominations of the Governor, with the exception of the nominations for West Virginia State Board of Education and West Virginia University Board of Governors, for the positions and terms shown in
The stipulation further states that following the convening of the regular session of the State Senate on January 14, 1953, and that at all times thereafter, the respondent, Raymond Brewster, has continued to attend all meetings held by the West Virginia Board of Education, and at such meetings and otherwise respondent has continued to assume, use, exercise, enjoy and perform the franchise and office, together with the functions, duties and powers thereof, of member of the West Virginia Board of Education for the term of office ending on June 30, 1961, and that in particular the board on February 5 and 6, 1953, duly held a meeting at its offices in the State Department of Education at the State Capitol in Charleston, West Virginia, at which respondent was present and did assume, use, exercise, enjoy and perform the franchise and office, together with the functions, duties and powers thereof as a member of the board from the Fourth Congressional District for the term beginning July 1, 1952, and ending June 30, 1961; and more particularly the respondent in the same way participated in like meetings held at the State Capitol in Charleston on March 25 and 26, 1953, but the stipulation states that the petitioner does not agree or admit that respondent was legally exercising the power of the office in question, or was acting in the capacity of a de jure officer.
Further the stipulation states that respondent still does hold the public office in question for the term thereof ending on June 30, 1961, but petitioner does not agree or admit that respondent holds the office in question in the capacity of a de jure officer.
The stipulation states that a certified copy of the letter dated March 12, 1953, from Governor Marland to the State Senate, appointing Homer Gebhardt to the office of member of the West Virginia Board of Education for the Fourth Congressional District, filed with the information in this proceeding as an exhibit thereto, is made a part of the stipulation, but that the respondent does not agree or admit that the letter constitutes a nomination or had any legal effect.
Further, the stipulation states in Section (24) thereof that neither Governor Patteson nor Governor Marland took any action to revoke the appointment of the respondent, Raymond Brewster, as a member of the Board of Education for the term beginning July 1, 1952, and ending June 30, 1961, unless the action of Governor Marland in submitting to the State Senate “the aforesaid nomination” of Homer Gebhardt to the office in question had such legal effect; and further it is stated in the stipulation that the petitioner does not agree or admit that it was necessary for Governor Patteson or Governor Marland to take any action to revoke the appointment of the respondent. The stipulation further states that the petitioner denies the relevancy of the paragraph numbered (24) in the stipulation.
The stipulation states in the paragraph numbered (25) that after the action of the State Senate on March 14, 1953, in confirming the appointment of the respondent, Raymond Brewster, to the office in question, and in refusing to act upon the nomination of Homer Gebhardt to such office, Governor Marland has not attempted to make any other or further nomination or appointment for membership on the West Virginia Board of Education to take the place of the respondent, Raymond Brewster, as a member of the board; but the stipulation states that the petitioner does not agree or admit that it was necessary for Governor Marland to make any further nomination or appointment of any person to take the place of the respondent, Raymond Brewster, as a member of the board of education,
It is further stipulated that it has been the common practice of the Governors of this State to submit to the Senate next in session, a written list of the names of the appointees of the Governors during recesses of the Senate, with a request for the favorable advice and consent of the Senate on such appointments.
Section 1, Article 2, Chapter 72, Acts of the Legislature, Regular Session, 1947, amending and reenacting
In Eskew v. Buckhannon Bank, 115 W. Va. 579, 587, 177 S. E. 433, 437 (1934), this Court applied the rule applicable in the interpretation of every State Constitution, as distinguished from the Constitution of the United States, that the Constitution of a state “is not a grant of powers to the legislature and the legislature is supreme unless restricted by the Constitution.” To the effect that the State Legislature is the supreme law-making body within the State, and, as such, may enact any law not prohibited by the State or Federal Constitutions, see Harbert v. Harrison County Court, 129 W. Va. 54, 39 S. E. 2d 177 (1946), State v. Huber, 129 W. Va. 198, 40 S. E. 2d 11 (1946); and generally 4 M. J., Constitutional Law, Section 61, and the many cases cited
In the year following the adoption of the present Constitution of West Virginia in 1872, which contained Article IV, Section 8, this Court held in point 3 of the syllabus of Bridges v. Shallcross, 6 W. Va. 562 (1873), that: “Prescribing the ‘manner’ in which public officers shall be elected and removed, as expressed in the 8th section of art. 4 of the constitution of the State of West Virginia, when read and considered in connection with article 7, secs. 1 and 8, and sec. 40 of article 6 and other sections of the same constitution, includes the agent or person who may appoint, as well as the formality with which it should be done.”
For the reason that Section 1, Article 2, Chapter 72, Acts of the Legislature, Regular Session, 1947, amending and reenacting
By virtue of the italicized words contained in
It should also be observed that the issuance of a commission to the respondent, Raymond Brewster, as a member of the West Virginia Board of Education for the Fourth Congressional District for the term ending June 30, 1952, pursuant to the letter addressed to the Secretary of State by Clarence W. Meadows, then Governor of this State, dated July 1, 1947, is of no moment in the decision of this case. Marbury v. Madison, 1 Cranch 137, 2 L. ed. 60 (1803). At the time of respondent‘s appointment to the board of education, pursuant to Governor Meadows’ letter, the Legislature was not in session. When the Legislature convened at its next regular session on January 12, 1949, as provided by
Governor Meadows’ term as Governor of this State having expired on January 18, 1949, without the Senate having taken any action on the letter of July 1, 1947, Honorable Okey L. Patteson, who succeeded Governor Meadows as Governor of the State, on March 9, 1949, submitted to the State Senate a list of names, which included the name of the respondent for member of the West Vir-
This brings us directly to the question whether the expiration of the term of Raymond Brewster as a de jure member of the West Virginia Board of Education on June 30, 1952, created a vacancy during the recess of the State Senate. If the expiration of Brewster‘s term as a de jure member of the board of education on June 30, 1952, created a vacancy, we would have the question before us whether the provision of Section 1, Article 2, Chapter 72, Acts of the Legislature, 1947, amending and reenacting
At this point it is to be noted that
We, however, are of opinion that the expiration of respondent‘s term of office on June 30, 1952, as a de jure member of the West Virginia Board of Education, did not create a vacancy within the meaning of either
The question as to what constitutes a vacancy in a public office has been considered by this Court. In point 3, erroneously designated in the Official Reports as point 2, of the syllabus of Kline v. McKelvey, 57 W. Va. 29, 49 S. E. 896, this Court held that incumbency of an office by holding over does not preclude the existence of a vacancy as the basis for the exercise of the appointive power under
As heretofore stated,
Section 1 of the statute inferentially expresses the legislative fiat that a vacancy does not occur in the office of member of the board by virtue of the expiration of the term of a de jure member. By the express language of Section 1 of the statute the Legislature expressed the intent that the word “vacancy“, as used in the statute, means the result of a fortuitous event occurring during the unexpired term of an office. It follows that upon the expiration of Raymond Brewster‘s term as a de jure member of the West Virginia Board of Education on June 30, 1952, no vacancy occurred. It also follows that Governor Patteson was at liberty under the provisions of the statute itself to make an appointment for the term beginning July 1, 1952, and ending on June 30, 1961. This he did by his letter of June 26, 1952, addressed to Honorable D. Pitt O‘Brien, Secretary of State, with a copy thereof directed to the Clerk of the State Senate, stating that he “had reappointed” the respondent, Raymond Brewster, to the office of member of the West Virginia Board of Education for the term beginning July 1, 1952, and ending June 30, 1961.
That the Legislature intended by the enactment of
The Legislature in the enactment of
Surely the Legislature did not intend by the enactment of the statute creating the West Virginia Board of Education to create an hiatus in the membership of that board.
It is important to note that Section 1 of the statute pro-
As the Legislature is presumed to know the provisions of
Unlike the
Therefore, when, as the respondent Raymond Brewster‘s term as a de jure member of the board, which was to expire on June 30, 1952, was nearing its close, Governor Patteson by his letter of June 26, 1952, addressed to the Secretary of State, a copy of which was delivered to the Clerk of the Senate, “reappointed” the respondent to the board for the ensuing term, beginning July 1, 1952, and ending June 30, 1961, he thereby exhausted all his powers under the statute, and created Brewster a de jure member of the West Virginia Board of Education for the ensuing term, with all the powers and emoluments of a member of the board of education, which were and would be invested in him until the State Senate acted thereon, as provided by
Governor Patteson having effectively appointed respondent a member of the board of education for the term in question, subject to confirmation by the Senate, the fact that Governor Patteson‘s term of office expired on January 18, 1953, and his successor as governor, Honorable William C. Marland, in submitting to the State Senate the
Imbedded in our organic law is the postulate that the executive power is a continuing power, not broken by succession, and serves to preserve the stability and integrity of constitutional government. Barrett v. Duff, 114 Kan. 220, 217 P. 918.
In Barrett v. Duff, supra, involving original proceedings in quo warranto to determine the titles to the offices of state inspector of oils, judge of the court of industrial relations, and member of the public utilities commission, the Supreme Court of Kansas, inter alia, had under consideration
“1. The executive power of the Governor is a continuing power, never ending, and not broken by succession.
* * *
“3. Where the power of the Governor has been exercised by the appointment to an office, and the appointee has qualified and been vested with the powers and prerogatives of the office, neither the Governor nor his successor has any further control over the appointment unless and until the appointee has been rejected by the Senate.
“4. Where the term of an office is fixed by statute, the power of removal does not exist in the executive except so far as provided by statute.
* * *
“6. When the appointee to an office, the tenure of which is declared by law, is commissioned by the Governor and vested with the power and prerogatives of the office, neither that Governor nor his successor can revoke the appointment.”
Consonant with the holding of the Supreme Court of Kansas, the Court of Appeals of Kentucky held in the case of McChesney v. Sampson, Governor, 232 Ky. 395, 23 S. W. 2d 584, 586, that one appointed by the governor as a member of the state text book commission for a definite term of years, who has accepted the appointment, qualified and entered into the exercise of the functions of the office, cannot summarily and without cause be removed from office, where the statute,
In the case of The People ex rel. Ryder v. Mizner, supra, in which the Supreme Court of California held inter alia that a governor, who has made an interim appointment at the expiration of an incumbent‘s term of office during a recess of the Legislature, has exhausted the full power of appointment vested in him by the Constitution of California, subject to the action of the Senate thereon.
The rationale of the rule governing the removability of officers appointed by the executive applied in the cases of Barrett v. Duff, supra; McChesney v. Sampson, Governor, supra, and The People ex rel. Ryder v. Mizner, supra, is stated by Chief Justice Marshall in the case of Marbury v. Madison, supra, as follows: “Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law, the officer is not removable by
That the State Senate at the regular session of the Legislature, which was organized and convened on January 14, 1953, acted on Governor Patteson‘s appointment of the respondent for the term as member of the West Virginia Board of Education ending on June 30, 1961, appears clearly from the Executive Journal of the Senate of March 14, 1953. It would be redundant and is unnecessary for this Court to recite in detail the happenings at that executive session of the State Senate. It suffices to say that the Executive Journal of the State Senate for that day discloses that the message of Governor Marland, dated March 12, 1953, listing the names and addresses of ninety-six “nominees“, together with the office to which each had been “nominated“, including “For Member of the West Virginia Board of Education-Homer Gebhardt, Huntington, Cabell County, (R) 4th Congressional District“; that the members of the Senate present voted unanimously in the affirmative on the question whether the appointments made by Governor Marland, with the exception of the “nominations” for West Virginia Board of Education and West Virginia University Board of Governors for the positions and terms contained in Governor Marland‘s message, be confirmed; and that Governor Patteson‘s letter, dated June 26, 1952, addressed to the Secretary of State, purporting to “reappoint” the respond-
As respondent, Raymond Brewster, by virtue of his initial appointment to the board of education for the term ending June 30, 1961, together with the commission issued to him for that office, became a de jure and legally constituted member of the board for the term in question, it follows that Governor Marland‘s attempt to appoint Homer Gebhardt as a member of the West Virginia Board of Education in lieu of the appointment made by Governor Patteson was ineffective, and did not serve to remove the respondent from the de jure office to which he had been legally appointed by Governor Patteson, by and with the advice and consent of the Senate, for the full term ending June 30, 1961, because in no uncertain terms
The manner prescribed by law for the removal by the governor of such elective officers is fully embraced in
The requirement of
The provision of
The clause providing for the removal of members of the West Virginia Board of Education by the governor, contained in the statute, is an enactment dealing generally with the removal of the members of the West Virginia Board of Education, and is not a special act, interdicted by the provisions of
For the foregoing reasons we are of opinion that the Circuit Court of Kanawha County did not err in denying the prayer of the petition that a writ issue ousting and expelling the respondent, Raymond Brewster, from the office which he now holds as a de jure officer for the term beginning July 1, 1952, and ending June 30, 1961. Therefore, the order of the circuit court entered on March 1, 1954, adjudicating that the respondent has shown that
Affirmed.
LOVINS, JUDGE, concurring:
I concur in the result reached in this case, but I do not agree that the citation of the cases of State Ex Rel. A. Garnett Thompson, Member West Virginia Turnpike Commission v. D. Holmes Morton, and State Ex Rel. James M. Donohoe, Member West Virginia Turnpike Commission v. Hugh F. Hutchinson are applicable to the issues presented in the instant case. Nor do I agree with any of the reasoning in this opinion based on such citation.
The questions presented in the cases above mentioned are different from those presented in the case at bar.
The mandamus proceeding of State Ex Rel. A. Garnett Thompson, Member West Virginia Turnpike Commission v. D. Holmes Morton and State Ex Rel. James M. Donohoe, Member West Virginia Turnpike Commission v. Hugh F. Hutchinson raises the controlling issue whether the Governor has the authority and power to remove members of the Turnpike Commission heretofore legally appointed by the Governor of this State and thereafter confirmed by the Senate.
In the instant case, the question is: Is an appointment made by an outgoing Governor binding on his successor in the absence of formal nomination communicated to the Senate by the Governor.
I think the issue and the subsidiary issues here presented are resolved correctly in this proceeding in the nature of a writ of quo warranto.
The references made in the Court‘s opinion herein to the mandamus proceedings above mentioned concerning
This concurring note is filed in the interest of consistency and with deference to the views of the Court, as set forth in the opinion in the case at bar.