State ex inf. Danforth v. Butler

524 S.W.2d 1, 1975 Mo. LEXIS 381

• Court: Supreme Court of Missouri
• Decided: June 9, 1975
• Docket: No. 58941
• Status: Published

Opinions

HENLEY, Judge.

This is an original proceeding in quo war-ranto by the State, on the information of the attorney general (relator), to oust James J. Butler (respondent) from the office of member of the labor and industrial relations commission.

It is agreed that pursuant to the authority of § 286.010¹ respondent was appointed a member and chairman of the industrial commission of Missouri by the then governor, Warren E. Hearnes, in June, 1971, for a term ending July 1, 1976, by and with the advice and consent of the senate, and that he qualified, assumed his duties, and thereafter acted as such chairman.

The question presented is whether respondent has authority to continue in that office for the balance of the term for which he was appointed. He claims that he does.

Relator contends that a 1972 amendment to Article IV of the constitution, V.A.M.S., and implementing legislation adopted in 1974 created a new department of labor and industrial relations and a new commission bearing that name; that since there is no authority in the constitutional amendment for members of the industrial commission to succeed to membership on the new commission the offices thereof were vacant upon creation; that the provision in the implementing legislation that members of the industrial commission succeed to membership on the labor and industrial relations commission is unconstitutional, because it conflicts with the appointive power of the governor granted in §§ 17 and 49 of amended Article IV. He also contends that it was the intent of the amendment and the implementing legislation to, and that they did clearly, abolish the industrial commission and with it the office held by respondent. Respondent, of course, contends otherwise.

In August, 1972, a proposed amendment to the state constitution providing for the organization of the executive branch was submitted to² and adopted by the people. By this amendment § 12 and seven other sections of Article IV were repealed and seventeen new sections were enacted in lieu thereof, among which were §§12 and 49.

The first extraordinary session of the 77th General Assembly implemented this amendment by the adoption of the Omnibus State Reorganization Act of 1974 (hereinafter reorganization act), effective May 2, 1974.

Section 12 of Article IV, as amended, provides that in addition to the governor and other elective state officers in the executive branch there shall be an office of administration and thirteen named departments.³ Several of these departments, including the department of labor and industrial relations,⁴ were in existence before the adoption of amended § 12, having been created by statute pursuant to the authority of § 12, Article IV, as it existed prior to the 1972 amendment. The last two sentences in amended § 12 read: “Unless discontinued all present or future boards, bureaus, commissions and other agencies of the state exercising administrative or executive authority shall be assigned by law or by the governor as provided by law to the office of administration or to one of the fourteen administrative departments to which their respective powers and duties are germane. The departments enumerated in this section shall be established on July 1, 1974, as successors to the departments in existence at the time of the adoption of this section; except that they may be established by law prior to that date.”

As indicated, the 77th General Assembly, pursuant to authority of the amendment, established by law prior to July 1, 1974, the department of labor and industrial relations as the successor to the department of the same name in existence at the time of the adoption of the amendment.

Section 286.010, under which respondent was appointed in 1971, provides that “ ‘The Department of Labor and Industrial Relations’ * * * shall be under the control, management and supervision of a commission to be known and designated as ‘The Industrial Commission of Missouri.’ ” That section, in addition to creating and establishing the named department and the “industrial commission,” also provides, inter alia, the number and qualifications of the members of the commission, and for their appointment by the governor with the advice and consent of the senate.

Section 49 of Article IV, also adopted in the 1972 amendment, provides that “[t]he department of labor and industrial relations shall be in charge of a Labor and Industrial Relations Commission.” In addition, § 49, as amended, using substantially the same language as § 286.010, provides, inter alia, the same number of commissioners and, with one exception,⁵ the same qualifications as § 286.010. The last sentence in § 49 reads: “The labor and industrial [relations] commission shall be the successor to the industrial commission and the terms of members shall be as provided by law for the industrial commission.”

By § 8 of the reorganization act (effective May 2, 1974) the legislature, in subsection 1, “created a department of labor and industrial relations to be headed by a labor and industrial relations commission as provided by section 49, article IV Constitution of Missouri.” This subsection provides, inter alia, that (1) “All the powers, duties and functions of the industrial commission are transferred * * * to the labor and industrial relations commission and the industrial commission is abolished * * * ”; and (2) “Members of the industrial commission on the effective date of this act shall become members of the labor and industrial relations commission and the terms of the labor and industrial relations commission members shall be the same as provided by law for the industrial commission. Individuals appointed as members of the industrial commission shall serve the remainder of the term to which they were appointed as members of the labor and industrial relations commission.”

In the process of reorganization of the executive branch, the department of labor and industrial relations was structured as follows: (1) the division of employment security and the division of workmen’s compensation were retained as such in the department; (2) the division of industrial inspection and the division of mine inspection were retained also, but were reduced from division status and transferred to a newly-created inspection section of the department; (3) the board of rehabilitation (previously created by § 287.141 as an auxiliary to the workmen’s compensation division) was abolished and its duties and functions assigned to the director of the division of workmen’s compensation; and (4) the state board of mediation (created by chapter 295) and the commission on the status of women (created by chapter 186), not previously assigned by law as part of any department, were transferred to this department.

The ultimate question for decision is whether the office of member and chairman of the industrial commission was abolished by the amendment of Article IV in 1972 or the reorganization act in 1974. We hold that it was not abolished.

It has been recognized and said⁶ many times over the years that “[i]t is not always easy to determine whether a public office has been abolished. It is not sufficient merely to declare that a particular office is abolished, if in fact it is not abolished, and the duties thereof are continued.” Of course, “[a]n office is abolished when the act creating it is repealed. But the repeal of the [law] creating an office, accompanied by the re-enactment of the substance of it, does not abolish the office.”

There is nothing in either § 12 or § 49 of the amendment which clearly abolishes the office of member and chairman of the commission. In support of his position that it is abolished, relator contends and emphasizes that together these sections establish new departments as successors to the departments in existence and in this connection provide that the “Labor and Industrial [relations] Commission shall be the successor to the Industrial Commission * * *.” All this means, in the context “successor” is used, is that the commission, as a corporate body or entity ⁷ in charge of the department of labor and industrial relations, shall become or be known and designated as “the labor and industrial relations commission.” There is no indication that the word refers to or means the office of a member, as distinguished from the commission, the corporate entity. So far as we can determine from the words used, the effect, legal and practical, of § 49 is to give the commission in charge of the department constitutional instead of statutory standing and authority, and to change its name to that of the department it supervises. Nor, for that matter, is it clear that the industrial commission itself is in any true sense “abolished” by the amendment.

Subsection 1 of § 8 of the reorganization act does, as we have seen, say that the industrial commission is abolished. But that effect, if accomplished, is only in connection with a simultaneous transfer of not only all its powers, duties and functions to the successor but also its members. The functions, duties and powers of the commission and those of the office of commissioner and chairman were continued as they existed before (and exist today) under chapter 286. In these circumstances, the effect of a declaration that a commission is abolished and shall be succeeded by another is, if anything, nothing more than a mere colora-ble abolition; it is not an abolition in fact. This subsection does not even purport to abolish the offices of members of the commission. On the contrary, it continues the offices and provides that persons in office on the effective date of the act shall be members of the labor and industrial relations commission. In addition, it specifically provides that members previously appointed shall serve the remainder of their statutory terms of office.

Chapter 286 was not repealed by the 1972 amendment or the 1974 reorganization act. The chapter is still alive and functioning as the code by which the commission is guided in its functions. The length of the term of office of a member of the commission is, by § 49 of the amendment, locked into that provided by one of the sections of that chapter (§ 286.020) and may not be changed, except by another amendment of the constitution. The wording of § 49 of the amendment, especially that fixing the number of members, their prior interest qualifications, political party affiliation and designation of the chairman, is almost identical to that used in one of the sections (§ 286.010) of that chapter. The only changes in the functions of the office of member of the commission from that previously performed is that they were relieved from direct responsibility as members of the board of rehabilitation when those duties were assigned to the director of the division of workmen’s compensation within the department, and duties and functions were added in connection with the board of mediation and the commission on the status of women when that board and commission were transferred to the department. In other words, the duties, powers and functions of the office of member and chairman of the commission, by whatever name the commission may be designated, are, in substance, the same today they were before the 1972 amendment. The sum and substance of what we have said is that the office is the same. Its duties were continued. Hence, it was not in fact abolished by either the constitutional amendment or the reorganization act.

It is true, as relator says, that there is no authority in the amendment for members of the industrial commission to succeed to membership on the new commission. But that is not to say that the amendment prohibits legislative provision for such succession. It does not. Relator concludes from his premise of no explicit constitutional authority for succession, that the offices of members were therefore vacant upon their “creation,” thus calling into play the exclusive power of the governor to fill those “vacancies.” This department which relator describes as “new” was, like the then existing department, “created” by legislative action; it was not created by the constitutional amendment under the terms of which its existence would have commenced July 1, 1974. It was created by statute (the reorganization act) effective May 2, 1974, under the provisions of which such succession is not only authorized, it is effected. No vacancy in office existed calling for the exercise of the governor’s appointive powers. Hence, there was no conflict with those powers.

Moreover, there could be no conflict in this case with the powers of appointment granted the governor by §§ 17 and 49 of Article IV, because respondent was, as required by § 286.010 from which § 49 of the amendment was copied, appointed in 1971 by the then governor by and with the advice and consent of the senate. For the reasons stated, ouster should be denied.

Accordingly, ouster is denied and the proceeding dismissed.

MORGAN and BARDGETT, JJ., concur. DONNELLY, C. J., and HOLMAN, J., concur in result. SEILER, J., dissents in separate dissenting opinion filed. FINCH, J., dissents and concurs in separate dissenting opinion of SEILER, J.

1 . References to sections of the statutes are indicated. to RSMo 1969, V.A.M.S., unless otherwise

2 . Submitted by the 76th General Assembly, second regular session, through House Joint Resolution No. 65. See Laws of Missouri, 1971-72, pages 1049 to 1052.

3 . It also authorized the creation by law of one more (unnamed) department, making fourteen.

4 .This department was first established in 1945 by Chapter 286, under authority of § 12 of Article IV of the 1945 constitution. See Laws of Missouri, 1945, p. 1101.

5 . Whereas § 286.010 required that members shall have resided in this state for at least five years immediately prior to appointment, § 49 of the amendment does not specify a residence qualification.

6 . The quotations in this paragraph are taken from 63 Am.Jur.2d, Public Officers and Employees, § 37, p. 648. See: State’s Prison v. Day, 124 N.C. 362, 32 S.E. 748 (1899); People ex rel. Burby v. Howland, 155 N.Y. 270, 49 N.E. 775 (1898); State ex rel. Taylor v. Cowen, 96 Ohio St. 277, 117 N.E. 238 (1917).

7 . See § 286.060 providing that it may sue general powers, duties and jurisdiction. and be sued as such and prescribing its