189 P. 430 | Ariz. | 1920
This is an action in the nature of quo warranto instituted by the state on the relation of the Attorney General, npon information from and at the instance of one Charles W. Harris, and involves the title to the office of adjutant-general of the state of Arizona.
Briefly, the complaint alleges the appointment, on August 17, 1912, of Harris to such office by Governor George W. P. Hunt, “acting in that capacity”; his acceptance and qualification by taking the official oath and filing the official bond as required by law, and immediate entrance upon and continuous discharge of the duties of the office until about June 13, 1919, when the defendant, Walter S. Ingalls, claiming the office by appointment from the Governor of the state (the personnel of that office having changed), usurped, intruded into and unlawfully exercised, and still usurps, intrudes into and unlawfully exercises the franchise of said office.
From a stack of allegations in the defendant’s an- ' swer, we have been able to winnow out this grain of wheat: That on June 13, 1919, the office of adjutant-general was or became vacant, and that on that day
The court found that on May 6, 1919, the Governor of the state served written notice upon Harris that his services as adjutant-general were no further desired, and that thereafter, on June 13, 1919, the Governor duly appointed and commissioned thereto, the defendant, Ingalls, and entered judgment dismissing the complaint.
The Attorney General took the position in the trial court, and takes it here, that the Governor of the state is not, by the law as it now stands, given the power to remove the incumbent, Harris, from, or to appoint Ingalls to, the office of adjutant-general. He bases his claim upon the terms of chapter 74, Laws of 1917, which we will hereafter consider. If he is correct, then the method and manner of selecting and appointing an adjutant-general of the1 state has been completely and radically changed, as also the tenure of the office.
According to the state Constitution, section 1, article 4, the present Military Code (chapter 85, Laws 1912, also found in Civil Code of 3913, tit. 33) went into effect ninety days after the adjournment of the legislature that passed it, or on August 16, 1912. Harris’ appointment, being made on August 17, 1912, it was made under and by virtue of the latter act or the general law on the subject of appointment to office. While this Code recognizes the existence of the office of adjutant-general of the state, by placing upon him many duties, both civil and military, it nowhere provides how or by whom he shall be appointed, nor does it fix his tenure of office. The Military Code is silent in these regards. The Military Code of the territory of Arizona (chapter 1, tit. 46, Eev. Stats. 1901) empowered the cómmander-in-chief
“When any office shall, from any cause, become vacant, and no mode shall be provided by the Constitution or by law, for filling such vacancy, the Governor shall have the power to fill such vacancy by appointment.”
In the absence of any statutory provision, the Governor might well refer to this section'of the Constitution for authority to fill the vacancy in the office of adjutant-general. However, this provision of the Constitution is supplemented by legislation. Paragraph 50, title 1, Civil Code, provides that—
“All officers not made elective by the Constitution or laws of this state shall, until otherwise provided by law, be appointed by the Governor.”
The office of adjutant-general falls within the terms of the last-quoted statute. The law being silent as to how and by whom he shall be appointed, power must be found to exist in the Governor under these general provisions of the Constitution and the statute, to make the appointment.
The law does not state nor fix the term or length of time the adjutant-general may exercise and enjoy the honors and emoluments of the office. If the statute named the days, months, or years that he might serve, a different question would arise than the one we have before us; The law creating and recognizing the office doubtless took into consideration the
It is provided in another portion of the statute law that—
“Every officer whose .term is not fixed hy law shall hold at the pleasure of the appointing power.” Paragraph 159, Civ. Code.
See Cole v. Territory, 5 Ariz. 137, 48 Pac. 217; State v. McKay, 249 Mo. 249, Ann. Cas. 1914D, 97, 155 S. W. 396.
Thus we see there is ample constitutional and statutory authority for the Governor to not only remove the adjutant-general, but also to appoint a successor to fill the vacancy.
It is claimed, however, by the Attorney General that chapter 74, Laws of 1917, in terms provides that Harris, the adjutant-general at the. time of its passage, was given an indefinite tenure of office, and that the Governor, thereby, was deprived of the power to remove him. Section 4 thereof reads as follows:
“Commissioned officers of the National Guard and 'the adjutant-general now serving und^r commissions regularly issued shall continue in office without the issuance of new commissions after taking the following oath, and all officers hereafter commissioned shall take and subscribe to the following oath. ...”
We do not agree with the Attorney General’s contention. Chapter 74 is not, and was not, intended as a tenure of office statute. A comparison of its terms with the National Defense Act of J une 3, 1916, United States Compiled Statutes, shows that it was inspired by the latter act. Its section 2 corresponds with section 3044h, section 3 with section 3044i, section 4 with section 30441, section 5 with sections 3044m and 3044n, and section 6 with section 3044o, of the National Defense Act (6 Fed. Stats. Ann., 2d ed., pp. 437-441).
These provisions have no application whatever to the adjutant-general of the state. The National Defense Act nowhere recognizes the adjutant-general as a commissioned officer of the National Guard. Under the Military Code of Arizona, paragraph 3899, it is provided that the adjutant-general shall be a commissioned officer of the National Guard of the active or retired list; but, of course, his commission as such is very different from his commission as adjutant-general. His appointment, it is provided in paragraph 3900, “shall not vacate such officer’s commission in the National Guard unless said officer requests that his former commission be declared vacant. ’ ’ By virtue of his office, he is made “senior in rank to all officers of the National Guard,” and in times of peace he is, under the direction of the Governor, ex-officio
From the nature and duty of the office, and the intimate association of the officer with the commander-in-chief of the National Guard of the state, every reason and consideration would seem to emphasize the necessity of the Governor having the power at any time to choose for such office a person in whose ability and fidelity he could have implicit confidence; and, before he should be deprived of that power and right, a clear and explicit intention to do so should be made to appear. If the view contended for by the Attor
The judgment of the lower court is affirmed.
CUNNINGHAM, C. J., and BAKER, J., concur.