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McCall v. Cull

Supreme Court of Arizona

January 31, 1938

S. W. McCALL, Plaintiff,
v.
JOHN P. CULL, 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

Page 697

[51 Ariz. 239] ROSS, J.

This is an original proceeding in quo warranto by S.W. McCall against John P. Cull and brings into question the latter's right and title to the office of member of the live stock sanitary board, which office he is occupying. The plaintiff and defendant both claim the right to the office through appointment by the Governor of the state. The facts are not in dispute and are as follows:

On January 5, 1933, the Governor of the state, with the advice and consent of the Senate, appointed three members to constitute the live stock sanitary board, for terms of three years. One of such members was one J. W. Hunt, who resigned soon after his appointment. To fill the vacancy caused by such resignation, defendant, Cull, was on March 17, 1933, appointed. This appointment was an ad interim appointment and was never confirmed by the Senate. It was, according to the commission issued to him by the Governor, for a term of two years.

On March 5, 1935, with the advice and consent of the Senate, the Governor appointed defendant for a term of three years, beginning January 5, 1935. The defendant qualified under both appointments, and during all the time from March 17, 1933, until now has been discharging the duties of the office.

On August 14, 1937, the Governor appointed the plaintiff to the office, who has duly qualified and has demanded its surrender to him but defendant has refused to vacate. Hence this action. The sufficiency of these facts to constitute a cause of action is challenged by defendant's demurrer.

The question presented for decision is which of these two parties is entitled to the office. Put in another way, Can an appointee of the Governor's to the live stock sanitary board, whose appointment has not been confirmed by the Senate, lawfully demand the surrender [51 Ariz. 240] of the office of the occupant or holdover? The pertinent part of the statute creating the live stock sanitary board and providing for the appointment of the board members reads as follows:

"Three qualified electors identified with and experienced in the live stock interests in the state shall be appointed by the governor, with the advice and consent of the senate, who shall constitute the live stock sanitary board. Each member shall execute bond to the state, in the sum of two thousand dollars, conditioned for the faithful performance of his duties and the term of office shall be three years." Section 2076, Revised Code of 1928.

Ad interim appointments by the appointive power are lawful and the appointee upon his qualification is entitled to the possession of the office if it is vacant. There was a vacancy in the office after Hunt resigned. Section 94, Id., provides, among other things, that a vacancy is created by resignation and lawful acceptance. These concomitants occurred in this case, because it is alleged in the complaint that a vacancy existed as the result of Hunt's resignation. There is no provision in the act creating the live stock sanitary board nor in any other legislative act for the filling of a vacancy on the board. However, section 8, article 5, of the state Constitution, takes care of the situation. It reads:

"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."

It was under the authority of this constitutional provision that the Governor appointed defendant. The power conferred upon the Governor by this section is limited. He may exercise it to fill a vacancy only when there ...


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