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Sims v. Moeur

Supreme Court of Arizona

March 6, 1933

ROBERT B. SIMS, CHARLES W. HARTMAN and WILLIAM E. HUNTER, Members of the Industrial Commission of Arizona, Petitioners,
v.
BENJAMIN B. MOEUR, as Governor of the State of Arizona, Respondent

Original proceeding in Certiorari by petitioners for a review of respondent's action in removing them from office. Order of removal affirmed.

Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Petitioners.

Mr. Arthur T. La Prade, Attorney General, and Mr. Charles L. Strouss, Assistant Attorney General, for Respondent.

OPINION

Page 680

[41 Ariz. 488] ROSS, C. J.

This is an original proceeding commenced by petitioners, Robert B. Sims, Charles W. Hartman, and William E Hunter, to obtain a review of an order by the Honorable Benjamin B. Moeur, Governor of the state of Arizona, removing them from their offices as members of the industrial commission of Arizona.

Petitioners were appointed by Governor Moeur's predecessor by and with the advice and consent of the state senate, for terms of six years, and their terms had not expired when the order of removal was made.

Governor Moeur was inducted into office on the first Monday in January, 1933, and on the 11th of that month he served written charges on the petitioners in which he accused them: (1) Of having wilfully and wrongfully and without authority of law expended money from the state compensation fund, in instituting and prosecuting an action in the superior court of Maricopa county, entitled R. B. Sims v. Scott White, as Secretary of State of Arizona, for the purpose of prohibiting said secretary from placing on the official ballot for the general election held in November, 1932, a certain initiated measure proposing to repeal the Workmen's Compensation Law; (2) of having wilfully and wrongfully and without [41 Ariz. 489] authority of law expended money from said compensation fund in newspaper advertising, radio broadcasting, printing and distributing circulars and letters, and in the employment of persons for the purpose of influencing the vote of the electors on said initiated measure; and (3) of having failed and neglected to make annual reports, for the years 1931 and 1932, to the Governor of the state as provided by law.

Thereafter, and on January 23d, the day fixed by the Governor for a hearing on said charges, the petitioners appeared before him in person and were represented by counsel, the Governor being represented by the Attorney General, whereupon evidence was introduced by both sides in support of and against said charges.

Thereafter and on the thirty-first day of January, 1933, the Governor made his findings and order and therein held that all of the above charges were sustained and ordered their removal. He also found the petitioners guilty of other official derelictions and misconduct, but inasmuch as they were not in the formal charges we shall not consider them. The petitioners have brought the proceedings and the order of removal here for review.

In response to the order to show cause the respondent has made his return, and it appears therefrom that the people of Arizona, in the summer of 1932, within the time allowed by law, filed with the Secretary of State an initiated measure proposing to repeal article 5, chapter 24, sections 1391-1457, Revised Code of 1928 (the Workmen's Compensation Law), and to provide for the liquidation of its affairs. That thereafter R. B. Sims, one of the petitioners, in his private capacity, commenced an action in the superior court of Maricopa county, entitled as above, to enjoin and prohibit the Secretary of State from [41 Ariz. 490] placing on the official ballot at the November election said proposed initiated measure. That the petitioners employed attorneys to bring and prosecute said proceeding; employed, in preparation for a trial of said cause, numerous persons to find evidence of fraud alleged to have been practiced in securing names to said initiated measure by the circulators thereof, to show that many signers of such petition were not qualified voters, that signatures thereto were forgeries, etc.; caused to be printed and distributed to the voters throughout the state extensive propaganda against the measure; employed numerous persons to make speeches against it over the radio and elsewhere; paid personal workers to go among the voters and oppose the repeal measure; inserted in many newspapers of

Page 681

the state articles praising the compensation law and criticizing the effort to repeal it; and paid all the expenses thereof, amounting to the sum of $16,326.60, out of the state compensation fund, segregated as follows: $4,358.50 for attorneys' fees, costs, clerical hire, etc., in the matter of the prosecution of the lawsuit, and the balance for stamps in mailing propaganda to voters, for newspaper advertising, radio broadcasting, printing and distributing circulars and letters, and in the employment of a great number of persons to electioneer against said initiated measure.

These ultimate facts are not in controversy and their statement is sufficient in our opinion to present the questions of law involved, and for that reason we do not set forth the details of the evidence or the full return to the writ. We will, however, have occasion to refer to the evidence as we proceed.

The petitioners' claims of error sufficiently indicate their defense. They are: (1) That since they were appointed by and with the advice and consent of the senate for fixed terms, they cannot be removed during [41 Ariz. 491] their terms without the advice and consent of that body; (2) that the power of removal conferred on the Governor is unconstitutional, because it is not embraced or expressed in the title of the compensation act by which such power is attempted to be conferred; (3) that they were lawfully within their rights and powers in making such expenditures from the state compensation fund; (4) that the Governor acted arbitrarily and capriciously and without legal evidence to support his charges; and (5) that the evidence shows that the petitioners made the annual reports to the Governor as provided in section 1450 of the Revised Code. We will consider these questions in the order given above.

The section of the compensation act (1391) which provides that the members of the industrial commission shall be appointed by the Governor by and with the advice and consent of the senate also contains this provision: "The governor may remove any member of the commission for inefficiency, neglect of duty, malfeasance, misfeasance, or nonfeasance in office." This provision does not in any way conflict with the state Constitution. That instrument is silent as to the power of removal from office, and in such case it is left with the legislature to regulate it by statute. The manner of appointment of the commissioners, as well as the manner of their removal, is peculiarly a legislative matter. If the legislature see fit to require the advice and consent of the senate to an appointment it may do so, and it could likewise require the advice and consent of that body to the removal, but it has not. That the legislature exercised a rightful power in making this distinction cannot be questioned. The power to remove for any of the causes mentioned is vested solely in the Governor of the state.

[41 Ariz. 492] The title to the compensation act as originally passed (chapter 83, Laws 1925) is very comprehensive. However, it does not specifically mention the appointment or the removal of the commissioners. It does express as one of its subjects the creation of a commission, its powers and duties. In the body of the act there is a provision for the appointment of the commissioners, their terms of office, their compensation and various duties, also for their removal for cause. Clearly the matters of appointment and removal of such officers are germane to the subject of the act as expressed in the title. The appointment and removal of the commissioners were properly connected with the subject of the act. Skaggs v. State,24 Ariz. ...


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