C. EARL ROGERS, Plaintiff
ANA FROHMILLER, as State Auditor of Arizona, Defendant
Original Proceeding in Mandamus. Alternative writ quashed.
Messrs. Laney & Laney, for Plaintiff.
Mr. Joe Conway, Attorney General, and Mr. Earl Anderson, Special Assistant Attorney General, for Defendant.
[59 Ariz. 515] LOCKWOOD, C.J.
C. Earl Rogers, plaintiff, filed an original petition in mandamus in this court against Ana Frohmiller, as state auditor, defendant, requiring her to approve certain claims for salary presented by him.
The facts of the case are not in dispute, and may be stated as follows: Up to December 12, 1941, E.T. Houston was a duly qualified and acting member of the industrial commission of Arizona, for the term which expired on January 8, 1942. On March 11, 1941, the Governor of Arizona submitted to the state senate the nomination of I. Perle McBride as a member of said commission for the term commencing on January 8, 1942. The senate adjourned on March 17, sine die, without having taken any action relative to said appointment. On December 10, 1941, Houston sent to the Governor a letter of resignation from his office, which he requested to be accepted forthwith. On December 12 the Governor, in writing, accepted such resignation, but did not appoint nor attempt to appoint any one to fill the vacancy for the unexpired term caused by the resignation of Houston. Nothing further was done in the premises until April 7, 1942, when, the legislature having convened in special session on the previous day, the [59 Ariz. 516] Governor withdrew from the consideration of the senate his appointment of McBride as aforesaid, and submitted the appointment of plaintiff herein for the term to which McBride had previously been appointed. On April 15 the senate attempted to confirm the appointment of McBride, made March 11, 1941 as above, but took no action upon the appointment of plaintiff. The Governor immediately refused to issue a commission to McBride or to approve his bond, on the ground he was not legally entitled to the office. The latter, notwithstanding, attempted to exercise the functions of industrial commissioner from April 15 to June 25, 1942, on which last date this court rendered its decision, holding that his claim to office was "wholly without any lawful basis." McBride v. Osborn, ante, p. 321, 127 P.2d 134, 138. On July 11, and while the senate was at recess, the Governor again appointed plaintiff to fill the term beginning on January 8, 1942 and expiring January 8, 1948. Plaintiff immediately took his oath of office, filed bond, and attempted to perform the duties and functions of the office. After he had so acted until the next regular semi-monthly payday as fixed by law, he presented to defendant his claim for salary from July 13 to July 16, 1942, which she refused to approve, whereupon plaintiff brought this proceeding.
The sole question for our consideration is whether plaintiff by virtue of the situation aforesaid is and has been since July 11, 1942, a legally chosen, acting and qualified member of the industrial commission. If he is, it is the duty, of defendant to approve the claim. If he is not, she acted properly in rejecting it.
There is no question that upon December 10, 1941, E.T. Houston was in all respects
the commissioner de jure for the term which expired January 8, 1942. On that date he submitted his resignation to the Governor, which the latter accepted in writing on December 12. [59 Ariz. 517] What, then, was the situation? Section 12-104, Arizona Code 1939, reads as follows:
"Term, where not fixed, must hold until successor qualifies. -- Every officer whose term is not fixed by law shall hold at the pleasure of the appointing power.Every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified. Vacancies occurring in any office, or in the membership of any board or commission, shall be filled only for the unexpired term of such officer or member." (Italics ours.)
We think there can be no question that on December 12, 1941, there was a vacancy existing in the term ending January 8, 1942, which the governor could have filled by appointment without the consent or confirmation of the senate. McCall v. Cull, 51 Ariz. 237, 75 P.2d 696; Graham v. Lockhart, 53 Ariz. 531, 91 P.2d 265. But under the statute until this vacancy was filled, it was the duty of Houston to continue to discharge the duties of the office. His resignation and the acceptance by the Governor of the resignation would not relieve him from this mandatory duty until his successor was qualified. Graham v. Lockhart, supra; Keen v. Featherston, 29 Tex. Civ. App. 563, 69 S.W. 983; Badger v. United States, 93 U.S. 599, 3 Otto 599, 23 L.Ed. 991; United States v. Green, 53 F. 769.
The Governor did not exercise his undoubted power before January 8, when the vacancy in Houston's old term ended and a new term began. But on that date, under the statute, Houston was still the locum tenens of the new term beginning on January 8, under the obligation of discharging the duties of the office, but subject to being relieved of that obligation any time that a successor had qualified. Graham v. Lockhart, supra. At that time the appointment of McBride by the Governor had not been revoked, but, as we stated in McBride v. Osborn, supra, such ...