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Perkins v. Hughes

Supreme Court of Arizona

June 12, 1939

FRED PERKINS, Plaintiff,
v.
COIT I. HUGHES, Defendant

Original proceeding in Quo Warranto by plaintiff against defendant to determine title to the office of Superintendent of Public Health. Judgment for defendant.

Mr. Thomas W. Nealon and Mr. George M. Hill, for Plaintiff.

Mr. A. Y. Moore, for Defendant.

OPINION

Page 262

[53 Ariz. 524] LOCKWOOD, J.

Fred Perkins, hereinafter called plaintiff, filed his complaint in the nature of quo warranto against Coit I. Hughes, hereinafter called defendant, exercising the functions, franchise and powers of the office of Superintendent of Public Health of the state of Arizona. The complaint alleged, in substance, that defendant was on the 10th day of May, 1937, appointed Superintendent of Public Health of the state of Arizona for the period beginning May 10, 1937, and expiring the first Tuesday in April, 1939, by the Honorable R. C. Stanford, who was at that time the duly elected, qualified and acting Governor of Arizona, and that he was confirmed by the senate of the state of Arizona on May 25, 1937; that he entered upon the performance of the duties of said office and has ever since continued in possession of the office and the emoluments thereof. It is further alleged that on the 7th day of March, 1939, plaintiff was appointed Superintendent of Public Health of the state of Arizona by the Honorable R. T. Jones, who was then the duly elected, qualified and acting Governor of the state of Arizona, for a two-year term, beginning the first Tuesday in April, 1939, and ending the first Tuesday in April, 1941, and that on the 9th day of March, 1939, the appointment was approved and confirmed by the senate of the state of Arizona, and that plaintiff on the 11th day of March took and subscribed his oath of office, and on April 4, 1939, demanded possession of the office of Superintendent of Public Health from the defendant, but that the latter refused to deliver possession and continued to usurp and wrongfully hold and [53 Ariz. 525] exercise the office to the exclusion of plaintiff. The prayer was that a citation be issued to the defendant to appear and show by what warrant or right he claimed to exercise the office of Superintendent of Public Health; that it be adjudged that he was not entitled to said office, and that he be ousted therefrom, and that plaintiff be declared entitled to said office and be admitted to the same.

Citation was duly issued, and defendant answered, admitting that he was appointed by Governor Stanford as Superintendent of Public Health on May 10, 1937, and confirmed by the senate of Arizona, but alleging that his term of office does not expire until the first Tuesday of April, 1940. He prayed that it be adjudged that plaintiff was not entitled to the office in question, and that defendant was entitled thereto.

It was stipulated between counsel that the allegations of the complaint in regard to the appointment and confirmation of both plaintiff and defendant were true, and the case was submitted to us upon such stipulation.

Page 263

The question before us is one of law, and depends upon the interpretation of section 2678, Revised Code of 1928, which reads as follows:

"Board created; superintendent; records. The governor, the attorney general and the superintendent of public health shall constitute a state board of health. The governor shall be president and the attorney general vice-president of such board. The governor shall appoint, by and with the advice and consent of the senate, the superintendent of public health, who shall be a practicing physician of the state and shall hold his office for two years from the first Tuesday in April succeeding his appointment; he shall be secretary of said board and keep a record of its proceedings and of his own acts as superintendent. The board shall meet not less than once every six months at such place in the state as it may appoint."

[53 Ariz. 526] The real issue involved is when the term of office of defendant expires. If, as contended by plaintiff, it terminated on the first Tuesday in April, 1939, admittedly judgment must be for plaintiff. If, on the other hand, as contended by defendant, it does not end until the first Tuesday in April, 1940, necessarily the latter must prevail in the action. This question will be determined by the interpretation we give to the phrase in the section "and shall hold his office for two years from the first Tuesday in April succeeding his appointment." It is stipulated that defendant was appointed on the 10th day of May, 1937. The first Tuesday in April following that would be April 5, 1938, and two years from that date would be the first Tuesday in April, 1940. If, therefore, we give a literal interpretation to the language of the section under which admittedly both plaintiff and defendant are claiming their appointment, it would seem there is no question but that defendant's term of office has not yet expired. It is urged, however, by plaintiff that the appointment of defendant by Governor Stanford expressly stated that the term of defendant expires "the first Tuesday in April, 1939," and that the confirmation by the senate also stated the appointment expired on that date. This is shown by the stipulation to be true, but it does not follow that it is determinative of the issue in this case. It is the universally accepted rule that if a term of office to be filled by appointment is fixed by law, that any attempt by the appointing power to change the term so fixed is void. McCall v. Cull, 51 Ariz. 237, 75 P.2d 696; State v. Willott, 103 Neb. 798, 174 N.W. 429; People v. Mizner. 7 Cal. 519; State ex rel. Hodges v. Amos, 101 Fla. 114, 133 So. 623. We, therefore, must consider the second contention of plaintiff, which is that the history of the statute shows plainly that it was the intent of the legislature that defendant's term of office [53 Ariz. 527] should expire on the first Tuesday in April, 1939. This section first appeared in our law as Act No. 65 of the Session Laws of 1903, in the following language:

"Section 1. There is hereby established a Territorial Board of Health, composed of a president, a vice-president and a superintendent of public health. The Governor shall be ex-officio president and the Attorney-General shall be ex-officio vice-president of such Board. The Governor shall nominate and by and with the advice and consent of the Legislative Council appoint a Superintendent of Public Health, who shall be a practical physician of the Territory. The superintendent thus appointed shall hold his office for two years. The several persons thus appointed shall hold their offices for two years from the first Tuesday in April succeeding their appointment, and until their successors are appointed and qualified."

It was carried forward verbatim into the Civil Code of 1913 as paragraph 4367 thereof, and was then revised and reenacted in the 1928 ...


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