Territory Ex Rel. Sylva v. Morita

*2 OPINION OF THE COURT BY STAINBACK, J. Separate quo warranto proceedings were instituted by the Territory of Hawaii through its attorney general on January 14, 1955, against James M. Morita, on January 17, 1955, against Arthur Y. Akinaka and Ur. Thomas M. Mossman to try title of Morita to the office of city and county attorney, title of Akinaka to the office of superintendent of buildings, and title of Dr. Mossman to the office of city and county physician. Inasmuch as the three cases involve the same point of law they were consolidated below for hearing and decision and are beforé this court in such form. The substance of the several petitions is that the several respondents were duly appointed and confirmed to their respective offices on January 2,1953, for the term of two years by the then Mayor, John H. Wilson, and the then board of supervisors consisting of M. D. Beamer, Mitsuyuki Kido, Matsuo Takabuki, Noble K. Kauhane, *3 Nicholas T. Teves, Samuel K. Apoliona, Jr., and John M. Asing; that the terms of John H. Wilson as mayor and the above named supervisors expired on January 3, 1955; that Neal S. Blaisdell was duly elected to the office of mayor and Samuel K. Apoliona, Jr., Mitsuo Fujishige, Noble K. Kauhane, Mitsuyuki Kido, Herman G. P. Lemke, Matsuo Takabuki and Richard Kageyama as supervisors of the City and County of Honolulu for a term commencing January 3, 1955, and duly qualified and took office on said date; that the offices of city attorney, superintendent of buildings, and city and county physician are not included within the civil service nor is there any specific provision in the laws of the Territory of Hawaii contrary to the provisions in the laws of the Territory of Hawaii prohibiting the extension of the term of office of the respective respondents beyond the term of his appointing and approving powers; that the terms of the several respondents expired at twelve o’clock meridian on January 3, 1955, and since said twelve o’clock meridian on January 3, 1955, the several respondents have usurped, intruded into and held, and do now unlawfully usurp and hold their respective offices as above set forth and have unlawfully exercised and do now unlawfully exercise the powers and functions of the said offices without authority of law. All of the allegations in the petition were admitted by respondents save and except as to the illegality of the respondents exercising the functions of the several offices, appellants claiming that their tenures of office had not terminated; that they had the legal right and duty to hold over until their various successors were appointed, confirmed and qualified; that they had a moral duty to remain in office until they were duly succeeded, and that they were required to remain in office by resolution number 916 of the former mayor and board of supervisors and were holding over to insure continuity of the municipal adminis *4 tration and in the public interest, convenience and welfare in the absence of duly appointed, confirmed and qualified successors'. In addition to the stipulations of fact filed herein admitting the allegations in the petition, respondents offered certain testimony showing that Mayor Blaisdell on the day he took office submitted to the board of supervisors for approval the appointments of one Takashi Kitaoka as city and county attorney, one Toshio Kunimoto as superintendent of buildings, and one Dr. David I. Katsuki as city and county physician; that on the same day the board by motion duly made and seconded “laid the appointments on the table”; that since such date the board has neither accepted nor rejected said appointments nor taken any further action thereon. There was testimony of the mayor that if the appointments were rejected by the board he was prepared to make new appointments and submit the names of such appointees to the board for approval, and to do so again if such new appointments were rejected. Six members of the board of supervisors each testified that he would not take any action on the appointments submitted by the mayor until these quo warranto proceedings had been finally determined and that he would resist any efforts which might be made by any person not approved by the board to take over the powers, duties and functions of the offices to which appointments might be made; and five of the six testified they considered the respondents to be properly in office. Evidence was also given as to the scope and magnitude of the duties and functions of the respective offices and the volume of the pending business in the departments. The tidal court held that the respondents had no legal title to office, that they have held office without lawful authority since the expiration of their respective terms *5 at noon on January 3,1955, and that the respondents had failed to justify their continuing in office; that “If judgments of ouster are entered against respondents in these actions, there will be an interruption of performance of duties and functions of the City and County Attorney, Superintendent of Buildings and City and County Physician until the performace of such duties and functions is undertaken by an appointee of the Mayor to said offices or such an appointee approved by the Board, and that such interruption need not necessarily continue for such period of time as to cause any substantial damage or prejudice to the municipal government, the Mayor and Board having the power and duty to fill said offices.” In accordance with its decision the court entered a judgment of ouster against the three respondents but stayed execution pending appeals to this court provided the appeals were diligently taken and prosecuted. The principal, if not the only, question involved in these appeals is whether appellants have the right to hold over in the offices after the expiration of their statutory terms until their successors are appointed, confirmed and qualified. Appellants contend that the limitation of the terms of appointive officers of the City and County does not preclude holdovers; that it limits the “terms” of the offices as distinguished from the “tenure”; and that such officers have a right and duty to remain until their successors are duly appointed, confirmed and qualified. They further contend that should the question be decided against appellants, there is an additional question of whether the court should not refuse to oust appellants for reasons of public interest and welfare until such officials are lawfully succeeded. The cases have been well and carefully briefed and excellently argued by counsel on both sides. *6 Tlie section of the law pertinent to the appointment and term of office of the respondents is section 6575, Revised Laws of Hawaii 1945, which reads in part as follows: “It shall be the duty of the mayor, on or immediately following the day from which his term of office begins, to appoint, with the approval of the board of supervisors, all appointive department heads of the city and county, created or recognized by law or ordinance whose terms have expired, and all other officials whose appointments are not otherwise provided for and whose offices or positions are vacant. The term of office of those so appointed shall not, unless otherwise specifically so provided, or unless they are included in the civil service under any law then in effect, extend over the term of office of such appointive and approval power. * * *” (Emphasis added.) Counsel for appellants claims that the general doctrine of American decisions which in substance holds that “in the absence of express provision and unless the legislative intent to the contrary is manifest, municipal officers hold over until their successors are provided” applies. (3 McQuillin, Municipal Corporations, § 12.110, pp. 400, 401.) The question is: What is the proper interpretation of section 6575, Revised Laws of Hawaii 1945, regarding the term or tenure of office of officers attempting to hold over after the term of the appointing and approval power has expired? In the interpretation of statutes it has been said that the legislative intent is the guiding star in the interpretation thereof or, as often said, the intent of the legislature constitutes the law. Thus, the primary rule of construction is to ascertain the intent of the legislature and carry this intent into effect to the fullest degree. (50 Am. Jur., Statutes, § 223. pp. 201, 202.) Statutes are open to construction only where the *7 language used in the statute requires interpretation; that is, where it is ambiguous. Rules of interpretation are resorted to for the purpose of resolving an ambiguity and not for creating one. However, use may be made by the courts of aids to the construction of the meaning of the words in the statute even though on superficial examination the meaning of the words seems clear. Ambiguity may arise other than from fault of expression. Ambiguity is not simply that arising from the meaning of the particular words, but may arise in respect to the general meaning of a statute when all of its provisions are examined. Uncertainty as to the meaning of a statute may arise from the fact that giving a literal interpretation to the words would lead to an unreasonable, unjust, impractical or absurd consequence. While the most desirable construction of a statute is that which is consistent with both the spirit and the letter thereof, frequently the purpose of the act justifies a departure from the literal construction of the wording. Courts have often used the expression that “a thing which is within the intention of the statute is as much within the statute as if it were within the letter, and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers.” (Chang v. Meagher et als., 40 Haw. 96.) Though the meaning of the words in section 6575 seems reasonably clear, counsel for appellants have made a forceful argument that there is no express prohibition against municipal officers with a definite term of office holding over until their successors are provided, that there is a distinction between “tenure” and “term,” and that these officers come within the rule of holding over until their successors are appointed and qualified. We must, therefore, look to the intent of the legislature, giving particular emphasis to the evils which were sought *8 ■to.be cured when tbe amendment to tbe statute was made. “In construing a- statute, the court must look to the object to be accomplished, the evils and mischiefs to be remedied, and place on it a reasonable construction that will best effect its purpose.”- (Re Sprinkle & Chow Liquor License, 40 Haw. 485, 490-491.) ; Section 6575, Revised Laws of Hawaii 1945, originally was section 1704, Revised Laws of Hawaii 1915, and provided as follows: “Power of appointment. The mayor, with the approval of the board of supervisors, shall appoint and may remove all heads of departments, now or hereafter created or recognized by law or ordinance, except elected officials, and all other officials whose appointment is not otherwise provided for. When a vacancy occurs in any elective office or in case of any department head or other official as aforesaid and provision is not otherwise made in this chapter, or by law, for filling the same, the Mayor, with such approval, shall appoint a suitable person to fill such vacancy, who shall hold office for the remainder of the unexpired term unless otherwise removed.” On January 2, 1924, a few hours before the expiration of their terms of office, the outgoing mayor and board of supervisors appointed and approved one Louis Cain as city and county engineer for the City and County of Honolulu. The ordinance under which he was appointed provided that the mayor, with the approval of the board of supervisors, shall appoint and may remove at pleasure a suitable ■person as engineer of the City and County of Honolulu. The newly elected incoming mayor after he took office neither removed Cain nor appointed a successor. Thereupon ■, a majority of the board of supervisors instituted a iquo warranto proceeding to test the -engineer’s right to office, contending that his term had expired with the expiration of the terms of the outgoing mayor and board who had appointed and approved him. The case came *9 before this court and it was held that Cain was a de jure officer, there being no statute to preclude him from holding over after the expiration of the appointing and approving powers terminated. (Ahia v. Cain, 27 Haw. 770.) In discussing the words “term” and “tenure,” (which were used synonymously), the court said: “The ordinance is silent as to tenure. The result is that it is at the will of the appointing power.” Again: “There is no express provision in the statutes or ordinances defining the length of the term of office of the city and county engineer. * * * the only reasonable inference is that it was the intention of the lawmakers that an engineer duly appointed should continue in office until removed or until the due appointment of a successor even though that should extend his tenure of office into the term of a succeeding mayor or board.” When the legislature first convened after this decision was rendered, section 1701 of the Revised Laws of' Hawaii 1915, which had become section 1788 of the Revised Laws of Hawaii 1925, was amended by inserting therein, among others, the words “* * * The term of office of officers so appointed shall not extend over the term of office of such appointive and approval power. * * *” (S. L. H. 1925, Act 57.) This amendment was obviously made to prevent city and county officials from holding over as did Louis Cain in 1921. The report of both the senate and house committees of the legislature are very clear upon this point. The senate committee on April 16, 1925, reported: “The purpose of the bill is to amend the law giving the Mayor the right by and with the approval of the board of supervisors so that the term of office of officers shall not extend over the term of office of such appointive and approval power. Your Committee, after due and careful consideration, recommends the passage of the bill.” The house *10 committed, among other things, stated: “This Bill seeks to make for more harmonious government in the City and County of Honolulu, in that it automatically legislates out of office all appointees made by the retiring administration, and leaves the incoming administration free to fill all appointive offices with persons who are in accord with its proposed policies. Your Committee believes this to be constructive legislation and therefore recommends that the Bill do pass.” (Emphasis added.) That committee reports may be considered where there is doubt as to the proper meaning of a statute is well settled. (50 Am. Jur., Statutes, § 334, pp. 325, 326.). Very obviously, if the statute is given the interpretation sought by the appellants the situation would be exactly the same in the present case as it was in the case of Louis Cain. In that case the mayor kept in office holdovers by refusing to make new appointments; in this case the supervisors are keeping in office holdovers by refusing to confirm, reject or in any way act upon the new appointees. Under the construction of the statute claimed by the respondents the amendatory act would be completely nugatory and the clearly expressed purpose of the legislature to cure the evils of the Gam decision would fail of accomplishment. While it may be of some significance as showing an intent to keep the then appointees in office, one of the last acts of; the outgoing board and mayor was to pass a resolution requesting that these officials continue in office, yet this resolution is without force and effect as it is inconsistent with and tends to defeat the intent and object of the territorial statute dealing with the subject matter. (R. L. H. 1945, § 6521, paragraph 48.) The intention of the legislature to legislate out of office all appointees made by the retiring administration is further shown by the fact that in amending section *11 1788, Revised Laws of Hawaii, 1925, after the Ahia v. Cain decision, the initial language of the section was changed so as to put a duty upon the incoming mayor and board of supervisors to fill vacancies immediately upon taking office. Prior to this amendment the language of that section was: “The mayor, with the approval of the board of supervisors, shall appoint * * (Section 1788, Revised Laws of Hawaii 1925.) By the amendment this language was changed to read: “It shall be the duty of the Mayor, on or immediately following the day from which his term of office begins, to appoint, with the approval of the Board of Supervisors * * (Revised Laws of Hawaii 1925, section 1788, as amended by Act 57, Session Laws of Hawaii 1925.) Respondent-appellant Morita further claims that the prohibition against continuing in office beyond the terms of the appointing and approving powers does not apply to the office of city and county attorney because at the time such prohibition was enacted the office of city and county attorney was elective. It will be noted, however, that the statute containing the prohibition was in effect at the time the office of city and county attorney was changed from an elective to an appointive office. The statute read as follows: “It shall be the duty of the Mayor, on or immediately following the day from which his term of office begins, to appoint, with the approval of the Board of Supervisors, all appointive heads of the City and County of Honolulu, now or hereafter created or recognized by law or ordinance — except elected officials — and all other officials whose appointments are not otherwise provided for, the term of office of officers so appointed shall not extend over the term of office of such appointive and approval power. * * *” (Emphasis added.) (Session Laws of Hawaii 1925, Act 57.) Further, it appears that since the office of city and. county attorney was made *12 appointive'the sections relating to the appointment of the city and county attorney and to the limitation of the term of appointive officers have been twice reenacted (in the Revised Laws of 1935 and 1945) together with the term limitations provisions. The decisions from other jurisdictions relative to statutory construction may have little effect upon the interpretation of the statutes of Hawaii, which clearly govern the present proceedings, yet the case of State ex rel Crow, Atty Gen v. Lund, 107 Mo. 228, is very persuasive. In that case there was a section of a charter which provided that certain appointivé officers should hold their offices for the term of two years; there were other provisions as to elective officers,- as is the present situation, in Hawaii. The following language was used by the court in that case: “* * * if the terms of the appointive officers do not expire at the expiration of two years from the time of their appointments, why is it that the charter does not provide that they shall hold over until their successors are appointed and qualified, as it does with respect to elective officers? It is too plain for argument that the object indicated was the intention of the framers of the charter; otherwise they would have made the same pro-' vision-with respect to both classes of officers. It therefore seems obvious that the framers of the charter purposely omitted any provision that' the appointive officers should continue to hold over until their successors should be appointed and qualified, and that they intended that those offices should be immediately filled by the mayor upon the expiration of their terms.” In the case before us the same question can be asked. Why did not the legislature provide that the appointive officers shall hold over until their successors are appointed and qualified, as it did with respect to the elective officers? Respondent-appellants have in their opening brief *13 cited a number of Hawaiian cases, namely, Queen v. Costa, 8 Haw. 552, Canario v. Serrao, 11 Haw. 22, Territory v. Mattoon, 21 Haw. 672, Wilder v. Colburn, 21 Haw. 701, and Chinese Society v. Yap, 21 Haw. 377, to the effect that an officer “should hold over his term of office until his successor is properly selected and qualified even though in the absence of statutory authority to do so.” A reading of the cases cited discloses that not one of such cases involves a quo warranto proceeding by the government against one claiming office but are collateral attacks upon the acts of de facto officials. For example, in the case of Territory v. Mattoon, a portion of the syllabus states: “Officers —■ de facto officer — collateral attach on authority of officer de facto. A public officer who wrongfully but in good faith holds over and continues to exercise the functions of an office after the term for which he was elected or appointed has elapsed, there being no de jure incumbent, is a de facto officer, and his title or authority cannot be collaterally questioned in proceedings to which he is not a party or which were not instituted to determine their validity.” A more recent case dealng with collateral attack upon the acts of de facto official is In Re Application of Sherretz, 40 Haw. 366, which holds that the acts of a de facto official (who holds over after his term has expired) are valid as far as the rights of third persons are concerned and are not subject to collateral attack. The language of section 6575, Revised Laws of Hawaii 1945, and the history of the amendments thereto show beyond question that the legal term of office of the respondents expired with the terms of the mayor and board who appointed and approved them. Even assuming that the statute does not absolutely preclude tenure beyond the expiration of the term, such tenure does not constitute *14 a legal right to office and the officials are at most de facto officers. While the authority or title of a de facto officer cannot be collaterally attacked, such de facto status is not a defense against a quo warranto proceeding instituted by the soverign authority. To prevail in quo warranto proceedings the respondents must show that they have a legal right to the office and are de jure officers. (Commonwealth v. Allen, 128 Mass. 308; 53 Am. St. Rep. 583, and cases cited therein.) “A proceeding in the nature of quo warranto to determine respondent’s title to an office requires him to show that he is a de jure officer, and it is not sufficient for him to show that he is holding over under circumstances which would be sufficient to render his acts good as to the public and third persons, when his title was not directly called in question.” (State ex rel. Eberle v. Clark, 89 Atl. 172.) See also: State ex rel Crow v. Lund, supra; State of Florida v. Gleason, supra; Hale v. State ex rel Algee, 237 Ala. 191; Lymer v. Kumalae, 29 Haw. 392, 395; People ex rel Lafferty v. Owen, 286 Ill. 638; Alcorn, State’s Atty. ex rel Hoerle v. Thomas, 127 Conn. 426. The further argument is made by respondents that the trial court has a discretion as to entering judgment of ouster against persons having no legal title to the office and that there was an abuse of discretion by the trial ■judge. A history of the writ of quo warranto shows that the ancient writ of quo warranto has been obsolete even in England, there being substituted therefor information in the nature of quo warranto. The ancient doctrine was that the usurpation of public office was a public wrong and that the remedy was a public one to be sought only in the name of a sovereign. It was criminal in nature and the usurper was fined as well as ousted. However, this rule *15 has been relaxed by statute and the proceeding is civil in nature. Our statute impliedly permits private parties to be parties to such a proceeding when an interest is shown. (In re Sherwood, 22 Haw. 385.) While there are certain authorities that hold the courts have discretion to refuse judgment of ouster in a quo warranto proceeding, these authorities are mostly cases where the suit is brought at the instance of a private relator to try title to public office or is brought to challenge the existence or exercise of a corporation franchise; but the courts unless there is a statutory provision to the contrary hold that where the proceeding is instituted by the attorney general in behalf of the state the only discretion conferred upon the courts is to determine whether the petition meets the requirements of the law. Such was the common-law rule and we do not believe that our territorial statute has modified it. “The pursuit of the remedy by information in quo warranto is not ordinarily a matter of right but one resting in the sound discretion of the court, and in England since the statute of Anne and in many of the United States it can only be filed, on the relation of a private individual, by leave of the court first had and obtained. In some of the States, however, such leave is not required. It may be filed, by the State, in its sovereign capacity, by its attorney-general, without leave.” (Emphasis added.) (Mechem, Public Officers, § 484, pp. 312, 313.) Again, as stated in Florida v. Gleason, 12 Fla. 190, 213: “ * * * The power of determining whether the action shall be commenced, must exist somewhere. As we have seen, it has sometimes been vested in the court and sometimes in the public prosecutor. Our legislature has not seen fit to make any change in the common law rule. The office of the Attorney-General is a public trust. It is a legal presumption that he will do his duty, that he will act *16 witb. strict impartiality. In this confidence he has been endowed with a large discretion, not only in cases like this, but in other matters of public concern. The exercise of such discretion is in its nature a judicial act, from which there is no appeal, and over which the courts have no control.” There are many authorities to the same effect. if. Watanabe and Y. Fukushima (also on the brief) for respondents-appellants. G. B. Ashford, Deputy Attorney General (E. N. Bylva, Attorney General, with him on the brief), for petitionerappellee. Finally, if there is a discretion in the trial judge, respondents’ evidence fails to disclose that there was an abuse of such discretion. The mayor and the board of supervisors can fill such vacancies forthwith. In fact, under the statute it is their duty to do so and the presumption is that they will perform this duty. The respondents are at most de facto officials and the authorities uniformly, hold that a de facto status is no defense against quo warranto proceedings instituted by the soverign itself — in this case the Territory of Hawaii by its attorney general. Judgment sustained.