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Marley v. Cavness

Supreme Court of Arizona

January 31, 1938

KEMPER MARLEY, Plaintiff,
v.
TOM J. CAVNESS, Defendant

Original proceeding in quo warranto by plaintiff against defendant to determine title to the office of member of Live Stock Sanitary Board. The judgment is that the complaint be dismissed.

Mr. Elmer Graham and Mr. W. L. Barnum, for Plaintiff.

Messrs. Sutter & Gentry, for Defendant.

OPINION

ROSS, J.

This case is ruled by the decision, McCall v. Cull, ante, p. 237, 75 P.2d 696.

Defendant, Cavness, was appointed a member of the livestock sanitary board on January 5, 1933, and before the expiration of his three-year term on, to wit, March 5, 1935, the Governor reappointed him with the advice and consent of the Senate, but this last appointment was void for the reason that there was no vacancy when it was made.

Defendant served his term under the original appointment and, because no successor was appointed [51 Ariz. 248] and qualified, continued his tenure in the office under section 56, Revised Code of 1928, and was the lawful incumbent thereof on August 14, 1937, when plaintiff was appointed to the office by the Governor.

Because there was no vacancy in the office, the Governor could not appoint plaintiff. The power to do so being conferred upon him and the Senate jointly, their concurrence was necessary to the appointment.

The demurrer is sustained and the judgment is that the ...


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