Harwood v. Perrin

60 P. 891, 7 Ariz. 114, 1900 Ariz. LEXIS 68

Opinion

STREET, C. J.

The office of assessor, by the Revised Statutes of 1887, was filled by election, unless the board of supervisors of the various counties should by ordinance unite and consolidate that office with the office of sheriff. By the Revised Statutes of 1887 the counties were classified into first, second, and third class counties, based upon the number of registered voters. In section 1 of act No. 47 of tbe Session Laws of 1889 the legislature, by statute, made the sheriff of each county of the second and third classes ex officio assessor. The sheriff being then an elective officer, tbe office of assessor was ipsa facto elective in such counties. Act No. 51 of the Session Laws of 1895 classified counties into first, second, third, fourth, fifth, and sixth classes, based upon the equalized assessed valuation of property. Section 4 of said act made the office of assessor appointive by the boards of supervisors in first and second class counties, and fixed the term of office at one year; and in third, fourth, fifth, and sixth class counties, made the sheriff ex officio assessor. Act No. 51 of the. Session Laws of 1895 was amended by act No. 24 of the Session Laws of 1897 so that in counties of the first and second classes the office of assessor should be filled by election at the. same time and in the same manner as other county offices. But section 4 of said act No. 24 provides, ‘ ‘ This act shall take effect and be in force from and after January 1, 1899.” On the fifth day of January, 1898, W. A. Harwood, the. appellant, was appointed by the board of supervisors of Cochise County as assessor of that county for the term of one year. At the general election in November, 1898, Harwood was a candidate for the office of assessor for Cochise. County, and received the highest number of votes cast for said office, and received a certificate of election, and qualified as such assessor and entered upon the duties of the office on the first day of January, 1899. While Harwood was in office,—to wit, on the sixteenth day of March, 1899,—the legislative assembly made, a further amendment to said act No. 51, and provided: ‘ ‘ That in counties of the first and second class an assessor shall be appointed by the board of supervisors for the years 1899 and 1900, whose term of office shall be, in all first and second class counties, for the term of two years from the first day of January, 1899. That in the year 1900, and biennially thereafter, in counties of the first and second class, an assessor shall be elected at the same time and in the same manner as other county officers, whose term of office shall be, after the year 1900, two years, or until his successor shall have been elected and qualified.” After the passage of that law (act No. 63 of the Session Laws of 1899),—to wit, on April 3, 1899,—the board of supervisors of Cochise County appointed the appellee, S. C. Perrin, as assessor for said county, under the provisions and by virtue of said act No. 63. 'After such appointment appellee, Perrin, filed his bond, took the oath of office, and made demand upon Harwood for the office, and Harwood .refused to deliver the same. Appellee, Perrin, then brought action in the district court of Cochise County to obtain possession of the office and to oust appellant therefrom, and upon the trial of the case obtained a judgment in his favor, from which judgment appellant, Harwood, appeals.

Appellant contends that although act No. 24 of the legislative assembly of 1897 provides that the act should not take effect until January 1, 1899, yet, so far as the election was concerned, it took effect immediately after its passage, and that his election at the general election of 1898 was a good and valid election, and that having been duly elected to the office, and having entered upon the. discharge of its duties, he was the legally constituted assessor, and the legislature could not legislate him out of office by changing the manner of filling the office during his term; that act No. 63 of the legislative assembly of 1899 was local and special, and in violation of the inhibition contained in the act of Congress of July 30, 1886, commonly known as the “Harrison Act.”

As to the first point, that it was beyond the power of the legislature to legislate him out of office, we regard it as the settled law that unless the method of filling the office, and the duration of the term, was one of constitutional provision, or unless regulated by act of Congress, the legislature, would have full control of the method of appointment and the duration of the term. Arizona as yet having no constitution, but operating under powers delegated to it by Congress, the Organic Act and the congressional enactments supply for- its legislature the limitation of power. Unless the act of the legislature was such as impaired the. obligation of contracts, there is no constitutional or congressional provision controlling the matter. In the case of Prince v. Skillin, 71 Me. 361, reported in 36 Am. Rep. 325, there is a clear enunciation of this principle:' “All offices, except when legislative authority is limited or restricted by constitutional provisions, are subject to the will of the legislature. There is, with the above exception, no vested right in an office or its salary. The office, may be abolished. The mode of appointment may be changed. The length of time of official existence may be shortened. The compensation for official services may be diminished,” and here cites Farwell v. Rockland, 62 Me. 298; Butler v. Penn sylvania, 10 How. 403,13 L. Ed. 472; Barker v. City of Pittsburg, 4 Pa. St. 51; Conner v. City of New York, 5 N. Y. 291; Taft v. Adams, 3 Gray, 126. The case of Butler v. Pennsylvania, 10 How. 403, 13 L. Ed. 472, is quite instructive in this connection. By authority of statute, the plaintiffs in error in that case were by the governor of the state appointed to the place of canal commissioners. The same statute directed that the appointment be made annually on the first day of each February, and the compensation of the commissioners was fixed at four dollars per diem each. Plaintiffs accepted the appointment and took office on the 1st of February, 1843. By a subsequent statute, on the 18th of April, 1843, the office of canal commissioner was made elective, and the appointing power taken from the governor; also, the per diem allowed each commissioner was reduced. The act took effect from and after its passage. The difference between that ease and the one at bar is, that in the. one instance the legislature changed the office from appointive to elective, and in the other from elective to .appointive. It was held in that case that there was no contract between the state and the officers, and that the act of the legislature changing the method of filling the office, repealing the. former act, and removing the officers appointed, and changing the rate of compensation, was not such an act as impaired the obligation of contracts. A learned judge has said that retroactive laws of every description neither accord with sound legislation nor the fundamental principles of the social compact. If it was the design of the legislative assembly of Arizona, by its act No. 63, to deliberately legislate men out of office, such action would be highly censurable, yet an exercise of power beyond the control of courts. Another learned judge has said that he “would be unwilling to consider any legislative act so intended, unless that intention was made manifest by express words, because it would be a violation of fundamental principles, which is not to be presumed.” "We have no idea that our own legislature intended to deliberately take away from an officer who had been elected by the people the emoluments of the office by legislating him out of office. When we. consider that act No. 24 of the Session Laws of 1897 provided that it should not take effect until January 1, 1899, and that there was a great deal of doubt in the minds of many, and great confusion among the various boards of supervisors, as to whether the assessor for the term commencing January 1, 1899, was elective or appointive, and boards of supervisors of the various counties made appointments irrespective of the election; when we consider this condition of the law, and the history surrounding the assessor’s offices during that period,—the action of the legislature is easily explainable, in a conscientious effort to bring about certainty in regard to that office, and to place the legality of assessments made by the assessors of 1899 beyond any question of doubt.

As to the contention that act No. 63 was local and special, and comes within the inhibitions of the act of Congress, the decision of this court in the ease of Bravin v. Mayor etc., 4 Ariz. 83, 33 Pac. 589, seems to us to cover the question. The city of Tombstone was created by act of the general assembly of 1881. The act provided for a city assessor who should be ex officio tax and license collector, health officer, and street commissioner. Bravin was duly elected to the office, and was in the discharge of the various duties incident to it, when the legislature, in 1891, provided that in all cities in which the total vote cast at the general election held therein on the fourth day of November, 1890, was less than six hundred the functions of the city assessor, city tax-collector, city license-tax-collector, and street commissioner should be incident, ex officio, to the office, of chief of police; thus legislating Bravin out of office. This court then held that if the act of 1891 was' held valid it would operate as an amendment to the charter of the city of Tombstone; that the act of the legislature did not reach a class, but it reached only an individual city,—• the only one in the territory to be reached by the act,—and was therefore local and special. The court further said that the classification of cities may be made, based upon population, upon the number of votes cast from time to time, upon the extent or character of particular business or industry done or pursued within its limits, etc., and this eyen though but one. city in the territory comes within the provision of the statute at the time of the enactment. But the statute must be elastic, so that other cities might attain the requisite conditions, and come within the classification and operation of the statute. Legislation affecting such class is not local and special legislation. Act No. 63 related to classes, and specified first and second class counties. In doing so, it reached counties other than Cochise, although the county of Cochise may have been the only county of the second class. The judgment of the district court is affirmed.

Sloan, J., and Doan, J., concur.