Ahia v. Cain

OPINION OP THE COURT BY PETERS, C. J. Quo warranto proceedings were instituted in the circuit court of the first circuit to test the legality of the incumbency of Louis S. Cain as city and county engineer of the City and County of Honolulu. The respondent demurred to the writ and certain questions of law raised by the demurrer were reserved to this court, all of which may be resolved into the one question of whether the respondent was at the time of the institution of the proceedings the do jure city and county engineer of the City and County of Honolulu. The petitioners contend that he was not for the reason that the office of city and county — 771 — engineer is a mere adjunct of the mayor and board of supervisors who appointed Mm and that his term of employment expired with the expiration of their respective terms of office, and if not he has never qualified as city and county engineer by taking an oath of office and giving a bond as required by law. From the allegations of the petition which are admitted by the demurrer it appears that on January 2, 1924, prior to twelve o’clock noon of that day, the then mayor with the approval of the then board of supervisors appointed the respondent city and county engineer of the City and County of Honolulu; that at twelve o’clock noon of the same day the mayor and board of supervisors who had been elected as such at the general municipal election in the month of November previous were inducted into office, since which time the said Cain has not been removed by the mayor with the approval of the board of supervisors nor has the mayor with the approval of the board of supervisors appointed a city and county engineer in place of or in succession to the said Cain. Whether or not the city and county engineer is an officer or employee of the City and County we deem it unnecessary to decide. Preference of nomenclature leads us to the selection of the term “employment” and it will be so referred to herein. The employment of city and county engineer is not of statutory creation. It is nowhere spoken of in the Municipal Act, in fact no reference is made to such position in the statutory law of the Territory except in relation to improvement districts, the provisions of which do not affect the question involved. The position was created by Ordinance No. 32 of the City and County of Honolulu approved January 24, 1912. The ordinance is silent as to tenure. The result is that it is at the Avill of the appointing power. Section 1 of the ordinance provides: “The mayor with the approval of the — 772 — board of supervisors of the City aud County of Honolulu shall appoint and may remove at pleasure a suitable person as engineer of the City and County of Honolulu.” . The power to so appoint and remove flows from the provisions of section 1704, R. L. 1915, as amended by section 8 of Act 62, S. L. 1919, and as a consequence can be no greater than the power therein conferred. Section 1704, R. L. 1915, as amended, provides as follows: “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.” It cannot be questioned — in fact both parties agree — that the city and county engineer is not an elected official of the City and County but on the contrary is the head of a department, and that his appointment is not otherwise provided for. Hence the mayor with the approval of the board of supervisors appoints and removes the city and county engineer. No question is raised and we see no room for the contention that the respondent Cain was not regularly appointed city and county engineer of the City and County of Honolulu on January 2, 1924, and we so hold. Hence his incumbency depends primarily on whether or not it expired with the expiration of the respective terms of office of the mayor and board of supervisors who appointed him and who went out of office at noon on January 2, 1924. Though a public employment be without term and at will it does not necessarily follow that it is conterminous with the expiration of the term of office of the appointing power. To do so the employment must create the relation of principal and agent between the appointing power and the appointee. This situation is best illustrated in the case of deputies to executive officers where the courts have held that a deputy is.a mere adjunct of the appoint — 773 — ing power and hence his employment or term of office ceases with the expiration of the term of office of the appointing power. A deputy is defined as one “who by appointment exercises an office in another’s right, having no interest therein but doing all things in his principal’s name and for whose misconduct the principal is answerable.” 9 A. & E. Ency. L. 369. “A deputy * * * is in law deemed an agent.” Story on Agency, Sec. 149, note, cited in Herring v. Lee, 22 W. Va. 661, 667. Hence the term of office of the deputy, upon principles of agency, is conterminous with the expiration of the office of his principal. (See Greenwood v. The State, 17 Ark. 332, 338; Wilson v. Russell, 31 N. W. (Dak.) 645, 650; Boardman v. Halliday, 10 Paige (N. Y.) 223, 230; Hord v. State, 79 N. E. (Ind.) 916, 922 and cases cited.) But in the instant case the city and county engineer is not the agent of the mayor and board of supervisors but the agent of the City and County. To the mayor with the approval of the board of supervisors is delegated the authority to appoint but to the city and county engineer has been delegated municipal powers and duties which he exercises, not as agent of the mayor and board of supervisors, but as agent of the City and County. By section 2 of Ordinance No. 32 it is provided: “The city and county engineer shall have charge of the construction, repair and maintenance of all public streets, highways, roads, alleys, trails, sidewalks, bridges and public places in the City and County of Honolulu.” For his negligence in the performance of those duties the City and County, and not the board of supervisors, is responsible. If not an agent of the mayor and board of supervisors he is not an adjunct of that officer and body. We see no difference and there can in reason be none between an employee of the City and County who is subject to appointment and removal by the mayor with the — 774 — approval of the board of supervisors and an employee of a private corporation who holds his position subject to the pleasure of its board of directors. Boards of directors of private corporations, under their by-laws are, similarly as the mayor and board of supervisors of the City and County of Honolulu, elected for definite terms and yet in the case of a private corporation it has been uniformly held that an employee of a corporation, the tenure of whose employment is subject to the pleasure of the board of directors of the corporation, is not conterminous with the term of the board of directors who appointed him but continues during the life of the corporation until regularly removed, upon the principle that the employee is the agent of the coi’poration and not the agent of the board of directors. (See Kidd v. N. H. Traction Co., 66 Atl. 127, 132; Germania Spar & Bau Verein v. Flynn, 66 N. W. (Wis.) 109; Union Bank of Maryland v. Ridgely, 1 Harr. & G. (Md.) 324, 432.) Hence it is the general rule that in public corporations, in which category the City and County of Honolulu is included, “Where * * * the term of office is not fixed by law the officer is regarded as holding at the will of the appointing power on the theory that the power of removal is incident to the power of appointment. Such appointments at pleasure, if made by a board, are unaffected by a change in the personnel of the board.” 29 Cyc., title “Officers,” p. 1396. (See also State v. Public Lands, etc., Board, 7 Neb. 42; State v. Goodrich, 84 Atl. (Conn.) 99.) By section 1704 as amended the power of removal is expressly granted to the mayor with the approval of the board of supervisors. Obviously, if this rule applies in the case of implied authority to remove, it applies with equal force where such power is expressly granted, and the appointment of respondent continued in force until revoked by his removal by the mayor with the — 775 — approval of the hoard of supervisors. See Ex parte Hennen, 13 Pet. (U. S.) 230, 254.) Brown, Gristy é-Davis for petitioners. Huber & Kemp for respondent. We do not deem, it necessary to decide whether it was incumbent upon the respondent to 'Subscribe to the oath required by section 1669, R. L. 1915, or give the bond required by section 1670, E. L. 1915, as amended by section 5 of Act 67, S. L. 1915, before entering upon the duties of his office. These requirements, if applicable to the respondent, do not affect the question of whether or not at the time of the institution of the quo warranto proceedings he was the cle jure city and county engineer. The appointment of the respondent was complete when made by the mayor and approved by the board of supervisors and the giving of a bond or the taking of an oath, if conditions, were conditions subsequent and not conditions precedent to his appointment. (United States v. Bradley, 10 Pet. 343, 364; United States v. Linn, 15 Pet. 290, 313; United States v. Eaton, 169 U. S. 331, 346; Glavey v. United States, 182 U. S. 595, 602.) The first question reserved, viz., “Should said demurrer be sustained,” is therefore answered in the affirmative.