MORTIE A. GRAHAM, Plaintiff,
LYNN LOCKHART, Defendant
Original proceeding in Quo Warranto by Mortie A. Graham against Lynn Lockhart to determine title to the office of member of The Industrial Commission. Judgment for defendant.
Mr. Lynn M. Laney and Mr. Grant Laney, for Plaintiff.
Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Defendant.
[53 Ariz. 532] ROSS, C.J.
This is an action in the nature of a quo warranto commenced by Mortie A. Graham against Lynn Lockhart to try the right to the office of [53 Ariz. 533] member of the Industrial Commission. The facts are fully set forth in the pleadings and are as follows: One J. Ney Miles, prior to January 8, 1938, was a duly appointed and acting member of the Industrial Commission. On that day his term of office expired and the Governor of the state "attempted," as alleged in the complaint,
"to appoint the plaintiff... to succeed said J. Ney Miles, but the Senate... was not then in session to act upon or confirm said appointment... so that there was no vacancy therein for the Governor alone to fill, and because of that situation said attempted appointment... was ineffective."
Because his appointment "was ineffective," plaintiff took no steps to get possession of the office and J. Ney Miles continued to occupy it and discharge its duties until August 16, 1938, on which day he ceased to occupy the office or to perform the duties thereof. In contemplation of such action, Miles formally tendered to the Governor, on August 1st, his resignation to take effect August 16th, which was duly accepted by the Governor, who thereupon again appointed the plaintiff a member of the commission, fixing the commencement of his term as August 17, 1938, and its end as January 8, 1944, or for the rest of the term which began January 9, 1938. This appointment was sent by the Governor to the senate in September, 1938, such body being then in session, but the senate declined to confirm it. Graham duly qualified under such appointment by taking the oath and filing a bond, and entered upon the duties of the office.
A change in the appointing power having taken place at the beginning of 1939, the then Governor of the state, by and with the advice of the senate, on March 9th appointed defendant, Lynn Lockhart, as such member of the Industrial Commission for the [53 Ariz. 534] term ending January 8, 1944, who also qualified as the law provides.
These facts, in conjunction with the law, must settle the controversy. The facts being agreed upon, our duty is to find and apply the correct rule of law. The issue of law is raised by demurrer to the complaint.
The Industrial Commission is the agency selected by the state to administer the Workmen's Compensation Law. Section 1391 et seq., Rev. Code 1928. The power to appoint its members and their terms of office are provided for by the statute creating the commission. It reads:
"§ 1391. Commission created, membership, terms. There is created the industrial commission of Arizona, to be composed of three members to be appointed by the governor, by and with the advice of the senate, for the term of six years, each to be so appointed that the term of one member expires every two years. Not more than two members of the commission shall belong to the same political party. The governor may remove any member of the commission for inefficiency, neglect of duty, malfeasance, misfeasance, or nonfeasance in office. No commissioner shall hold any office of trust or profit, nor engage in any occupation or business other than his duties as such commissioner; and no commissioner or any regular employee of the commission shall serve on any committee of any political party."
It is the contention of the plaintiff that the resignation of Miles on August 16th created a vacancy in the office and that, since ...