State Ex Rel. Saint v. Irion

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 483 This is a suit instituted under the provisions of Act No. 102 of 1928 for the possession and emoluments of the office of commissioner of conservation. The plaintiff is the state of Louisiana, on the relation of its Attorney General, suing at the suggestion and request of the Governor, and of Robert S. Maestri, who was appointed and qualified as commissioner of conservation in the early part of February, 1929. Respondent filed exceptions of insufficiency and no cause or right of action, which were overruled. Respondent then filed his answer, denying the claims asserted in plaintiff's petitions on behalf of the relator Robert S. Maestri, and setting up title in himself to the office in dispute. He alleged that he was commissioned commissioner of conservation on August 13, 1925 and took his oath and filed his bond as such on August 15, 1925. He further alleged that his appointment was approved by the state Senate on May 19, 1926. At the inception of the trial on the merits, respondent filed a second exception of no right of action, setting forth that, since the alleged appointment of the relator Maestri, the state Legislature had met twice in special session, and that, since at neither of these sessions had the relator's appointment been submitted for confirmation, he stood rejected. Respondent also renewed, by way of objection to evidence, his exceptions of insufficiency and no cause or right of action to the demand made on behalf of Maestri for the emoluments of the office. The objection was sustained, and evidence as to that portion of relators' demand was excluded. After hearing the case on the merits, the court below rendered a judgment in favor of the respondent, rejecting the relators' demands. From this judgment relators have appealed. It is not disputed that on February 1, 1929, the Governor appointed the relator Robert S. *Page 485 Maestri commissioner of conservation; that on February 6, 1929, relator took his oath of office, which was filed with the secretary of state on February 7, 1929. But the respondent contends that he cannot be ousted in behalf of Maestri from the office of commissioner of conservation which he now holds for the following reasons, viz.: (1) That the office of commissioner of conservation was made a constitutional office under the Constitution of 1921, and therefore respondent's term, running concurrently with other state officers, expired in May, 1928, during the session of the Senate. That the Governor, having failed to make an appointment while the Senate was in session, is precluded from subsequently making a recess appointment. (2) That, in the alternative, if respondent's term did not expire in May, 1928, since the first term began on the day the Constitution took effect, July 1, 1921, it did not expire until July 1, 1929; hence the appointment of relator Maestri was premature. (3) That, subsequent to the appointment of relator Maestri, the Legislature met twice in special session, but the Senate failed to confirm the appointment, which was not submitted to that body; hence the appointee has no standing in law to contest defendant's title to the office in dispute. (4) That, in any event, the appointment of relator Maestri is incomplete and ineffective, because it was made by the Governor only, without the concurrence of the Senate. The first and second grounds of defense to the relators' demand may properly be considered and disposed of together, since they involve the question of the termination of respondent's term of office. In order to reach a conclusion in that respect, we must necessarily examine the constitutional and statutory provisions pertinent thereto. We shall proceed to do so. *Page 486 Under Act No. 127 of 1912, a conservation commission was created as a department of the state government. The statute provided that the commission should be composed of three commissioners, and defined their duties and powers. The term of each of the commissioners was fixed at four years. By Act No. 66 of 1916, section 1 of Act No. 127 of 1912 was amended and re-enacted so as to reduce the number of commissioners from three to one. This act created a "department of conservation" under the direction and control of an officer to be known as "commissioner of conservation." It was provided in the statute that the commissioner should be appointed by the Governor by and with the advice and consent of the Senate for a term of four years. It was further provided in the statute that the commissioner should have and exercise all the authority, power, duties, and privileges of the conservation commission established by Act No. 127 of 1912. By the Constitution of 1921, the status of the commissioner of conservation was changed from that of a statutory officer to that of a constitutional officer. Const. 1921, art. 5, §§ 1, 18, and 20; article 6, §§ 1, and 2. Under article 5, § 18, the power was lodged in the Governor by and with the advice and consent of the Senate to appoint a commissioner of conservation for a term of four years. The record shows that the first commissioner of conservation under Act No. 66 of 1916 was M.L. Alexander, who was commissioned August 3, 1916, qualified August 9, 1916, and confirmed by the Senate on July 24, 1917. Alexander was recommissioned, vice himself, term expired, December 12, 1921. He qualified under the appointment December 20, 1921, and was confirmed by the Senate on July 3, 1922. Alexander died, and Dudley Berwick was appointed to succeed him. This was a temporary appointment. Berwick *Page 487 qualified July 2, 1923, but his name was withdrawn from the Senate, and W.J. Everett was commissioned on August 27, 1924, to fill the vacancy caused by the death of Alexander. Everett, however, failed to qualify within the time required by law, and was reappointed to succeed himself on September 26, 1924. He qualified under his second appointment on October 25, 1924. Everett resigned in August, 1925, and the respondent, Valentine K. Irion, was, on August 13, 1925, appointed to fill the vacancy caused by the resignation. Irion qualified under his appointment on August 15, 1925, and was confirmed by the Senate on May 19, 1926. On January 31, 1927, Frank T. Payne was appointed to the office on the claim that the term of Irion had expired. Payne qualified immediately, and shortly thereafter engaged in a litigation with Irion, who disputed the legality of his appointment. The litigation ceased when the then Governor issued to Payne a commission as chairman of the highway commission. See State ex rel. Payne v. Irion, 163 La. 1019, 113 So. 360. Since that time Irion has been in possession and control of the office. The relators' position is: That the term of M.L. Alexander, the first commissioner of conservation appointed under the provisions of Act No. 66 of 1916, began to run for four years from August 9, 1916, the date of his qualification, and expired on August 9, 1920. That therefore the expiration of each succeeding term must be governed necessarily by that date. That, as a result of this construction of the law, the term of W.J. Everett, the predecessor in office of the respondent, Irion, began to run on August 9, 1924, and expired on August 9, 1928. That, as a consequence of this legal situation, the appointment of Irion on August 13, 1925, was for the term of the office expiring on August 9, 1928. *Page 488 The respondent's position is: That the provisions of the Constitution of 1921 supersede the provisions of the statute of 1916, and that, under the provisions of the organic law, the term of the commissioner of conservation runs concurrently with the terms of the Governor, Lieutenant Governor, auditor, secretary of state, register of the land office, and commissioner of agriculture and immigration. That, inasmuch as the terms of the executive officers we have enumerated began to run under the Constitution on the first Monday in May, 1924, following the legislative announcement of their election, the term of the commissioner of conservation, who is also an executive officer, commenced on the same day. That accordingly the term of that office expired in May, 1928, while the Senate was in session, and, the Governor having failed to fill the vacancy occurring at that time, cannot do so subsequently during the recess of the Senate. Respondent's alternative position is that, under the Constitution, the first term of the commissioner of conservation began on July 1, 1921, the day on which the organic law became effective, and ended on July 1, 1925. That the succeeding term began on July 1, 1925, and ended on July 1, 1929, so that no vacancy existed in the office at the time the relator Maestri was commissioned and on the day this suit was filed. Our examination of the positions assumed by the respondent has led us to the conclusion that they are not sound. Undoubtedly all statutory provisions are superseded by the provisions of the Constitution with which they are necessarily and obviously in conflict. But we do not find that to be the case here. The only effect of transforming the statutory office of commissioner of conservation into the constitutional office of commissioner of conservation was to increase *Page 489 the salary of the commissioner and to prevent, when confirmed by the Senate, his removal by the Governor. No attempt was made by the framers of the Constitution to define his powers nor to prescribe his duties. They delegated these matters, together with the obligation of providing for the expenses of the office, to the Legislature itself. The term of the commissioner was fixed by the statute at four years, and it was also fixed by the Constitution at four years. No date, however, was fixed by the Constitution for the beginning of the term. There was no necessity, and perhaps no authority, on the part of the framers of the instrument, for fixing the commencement of the official term, because they were merely reaffirming in constitutional form that which was already existing and functioning in statutory form, and moreover were expressly inhibited by the legislative call for the constitutional convention (Act No. 180 of 1920) and the schedule of the instrument itself (article 22, § 1) from reducing or shortening the term of any presently existing state, district, parochial, or municipal office. The schedule of the Constitution further provided for the continuance in effect of all laws in force at the time of its adoption, except laws inconsistent with its provisions. There is nothing in the legislative act with respect of the establishment of the department of conservation, the office of commissioner of conservation, the term of the office, and the Governor's power of appointment with the concurrence of the Senate that is inconsistent with the organic law. On the contrary, the utmost harmony is maintained between the statutory provisions and the constitutional provisions. We are not prepared to accept as correct relators' contention that the term of respondent in the line of succession to M.L. Alexander, the first incumbent, expired on August 9, *Page 490 1928. We might be prepared to do so if the question were res nova in our jurisprudence, but it is not. In the early case of Bry v. Woodrooff, reported in 13 La. 556, involving an appointive office, this court held that, where the statute creating the office was silent as to the beginning of the term, its duration was to be reckoned from the date of the statute, and a new appointment should be made accordingly. The question was again before the court in State v. Parker, 30 La. Ann. 1182, where the rule was laid down that, when there is nothing in an act, effective from its passage, creating an office and its term directing otherwise, the term of the office commences to run from the passage of the act. Both these decisions were referred to with approval but differentiated from the case under consideration in State v. Young, 137 La. 102, 68 So. 241. But for the purposes of this controversy it is immaterial whether the appointment of M.L. Alexander as commissioner of conservation took effect from August 9, 1916, the date of his qualification, or from the passage of Act No. 66 of 1916, June 30, 1916, or from the time of its promulgation. It is certain, in any event, that the official term expired on or before August 9, 1920, and that each succeeding term expired on the corresponding day in cycles of four years. This interpretation of the constitutional provisions is in accord with the contemporary construction thereof by the governmental agencies charged with their enforcement. Thus we find that the appointment of M.L. Alexander, the original commissioner of conservation, expired in July or August, 1920, and that, at the time of the adoption of the Constitution of 1921, he was by sufferance merely filling a constructive vacancy in the office caused by the expiration of his term. The second appointment of Alexander was made after the adoption of the *Page 491 Constitution. The commission was issued to him by the Governor vice himself, term expired, on December 12, 1921, and his appointment was confirmed by the Senate on July 3, 1922. Therefore, notwithstanding that the appointment of Alexander was made and confirmed after the adoption of the Constitution, it was not for a new office and term created by the Constitution itself, but for an existent office and term continued in force and effect by that instrument and recognized as such by the Governor and the members of the Senate. Hence it is perfectly plain that the unexpired term for which the respondent, Irion, was appointed on August 13, 1925, terminated on or before August 9, 1928. The third ground of respondent's defense is likewise untenable. The question raised therein is no longer open to controversy in the courts. It was propounded and answered in the case of State v. Dowling, 167 La. 907, 120 So. 593. There we held, in refusing the respondent's application for a rehearing, that it is the discretionary and not the mandatory duty of the Governor to have his recess appointments confirmed at a special session of the Legislature; hence his failure to send the name of a recess appointee to the Senate for confirmation at a special session did not operate as a rejection of the appointment. The pertinent constitutional provisions have been construed by this court, and we see no legal or valid reason for departing from that construction. Respondent's fourth ground of defense must also fail. The theory underlying this particular point of defense is that a different method is provided by the Constitution for the appointment of the commissioner of conservation than for other officers whom the Governor is authorized to commission during the recess of the Senate, subject to confirmation by that body at the following regular legislative session. *Page 492 Section 12 of article 5 of the Constitution reads, in part, as follows, viz.: "The Governor shall have the power to fill vacancies that may occur during the recess of the Senate, in cases not otherwise provided for in this Constitution, by granting commissions which shall expire at the end of the next session," etc. Section 18 of article 5 of the Constitution reads, in part, as follows, viz.: "* * * And the Governor shall, by and with the advice and consent of the Senate, appoint for the term of four years a Commissioner of Conservation, and in case of vacancy for any cause, he shall, by and with the advice and consent of the Senate fill the office by appointment for the unexpired term," etc. The argument advanced in behalf of the respondent is that, in the case at hand, the provision in section 12 of article 5 of the Constitution, authorizing the Governor to fill vacancies occurring during the recess of the Senate, has no application, because such authority, under the terms of the constitutional article itself, cannot be exercised in cases otherwise provided for, and that the provision in section 18 of article 5 of the Constitution specifically provides that a vacancy in the office of the commissioner of conservation can be filled by the Governor only by and with the advice and consent of the Senate. For our own part, we are unable to perceive any inconsistency or conflict between the constitutional provisions. Obviously the purpose of section 12 of article 5 of the Constitution in providing for ad interim appointments is to avoid inconvenience or delay in the public business until the office can be filled in the ordinary way. The law abhors a vacancy as vigorously as nature abhors a vacuum, and its policy is always to have some one in place to discharge the duties of a public office. So true is this that, even in a doubtful case, a statute providing for the filling of a vacancy *Page 493 must be construed so as to avoid it. See Throop, Pub. Off. § 308, p. 312. The language of section 18 of article 5 of the Constitution, declaring that a vacancy in the office of commissioner of conservation shall be filled by the Governor with the advice and consent of the Senate, means nothing more than that the full unexpired term of the office shall be filled by an appointment made in the prescribed way. It has no reference whatever to the filling temporarily of a vacancy pending the assemblying of the Senate at the next regular session of the Legislature. As a matter of fact, there is no provision made in the Constitution for the convening of the Senate in extraordinary session by the Governor for the purpose of passing upon his nomination to fill a vacancy occurring during a legislative recess. On the contrary, the only authority conferred upon the Governor by that instrument to convene the Senate in special or extraordinary session is as a branch of the Legislature, when he, at the same time, convenes the House of Representatives as the other branch of the Legislature. Const. art. 5 § 14. A question similar in principle to the one presented here was before this court in the case of State v. Young, referred to supra, involving the office of the examiner of state banks, a constitutional officer under article 194 of the Constitution of 1898, and whose appointment it was provided should be made by the Governor by and with the advice and consent of the Senate. Mr. Justice O'Niell, now Chief Justice, as the organ of the court, answering a series of questions which he propounded relative to the occurrence of a vacancy at the expiration of the term of the office held by the respondent and the right of the respondent to continue as a hold-over in the face of the Governor's appointment of his successor, said: *Page 494 "In this form the question is to be answered by determining whether an appointee whom the Governor had authority to appoint by and with the advice and consent of the Senate may qualify and demand possession of the office before his recess appointment is confirmed by the Senate. "Until now it has never been doubted — perhaps because no one has thought of denying — that, when the term of an appointive office expires during a recess of the Senate, the person appointed to succeed to the office may immediately qualify and enter upon his official duties, without waiting for his appointment to be confirmed by the Senate." See page 113 of the opinion in 137 La., 68 So. 245. And the conclusion reached by the court, as announced by the author of the opinion, is couched in the following words, viz.: "We conclude that the expiration of the defendant's term of office on the 28th of December, 1914, created a vacancy which the Governor had authority to fill by the appointment made during the recess of the Senate, and that the plaintiff Sims is entitled to the possession of the office." See page 119 of the opinion in 137 La., 68 So. 247. And it is pertinent to observe that under article 71 of the Constitution of 1898, under the provisions of which the Young Case was litigated, the authority is given the Governor to appoint numerous constitutional officers, but only after he has obtained the advice and consent of the Senate in such appointments, and that article 72 of the same Constitution, relative to the power of the Governor to fill recess vacancies, is couched in the identical language used in section 12, art. 5, of the Constitution of 1921. The vacancies otherwise provided for in the Constitution, and which the Governor under the restriction contained in section 12 of article 5 of the Constitution is not authorized to *Page 495 fill, are such vacancies only as the Constitution provides shall be filled instantly and permanently. For example, in the case of a vacancy in the office of Governor, the vacancy is filled in the order of succession by the lieutenant governor, president pro tem. of the Senate, etc. (Const. art. 5, § 6); in the case of a vacancy in the office of lieutenant governor, the vacancy is filled by the president pro tem. of the Senate (Const. art. 5, § 9); in the case of a vacancy in the office of a justice of the Supreme Court, the vacancy is filled by selection by the court of a judge of one of the Courts of Appeal from a Supreme Court district other than that in which the vacancy occurs, unless the vacancy is for two years or more, when it must be filled by election; and, in the case of a vacancy in the office of the Chief Justice, the vacancy is filled by the justice oldest in point of service (Const. art. 7, § 7); In the case of the Attorney General, the vacancy is filled until the election of his successor by the First Assistant Attorney General (Const. art. 7, § 56); in the case of a vacancy in the office of any parish coroner, the vacancy for the unexpired term may be immediately filled by appointment by the Governor (Const. art. 7, § 72); in the case of vacancies occurring in any of a number of offices in the parish of Orleans, the vacancies are to be filled immediately as set forth in the organic law (Const. art. 7, § 93). Moreover, we find on a further examination of the Constitution that it provides, in case of a vacancy for any cause in the office of any of the judges of the Courts of Appeal, such vacancy shall be filled by appointment by the Governor by and with the advice and consent of the Senate until the next congressional election, at which time the vacancy is to be filled by election for the remainder of the term. Const. art. 7, § 21. And that in the case of a vacancy in any of the numerous *Page 496 offices of the various judicial districts throughout the state, where the unexpired term of the office is less than a year, the vacancy shall be filled by appointment by the Governor by and with the advice and consent of the Senate. If the theory advanced by the respondent be correct, it would necessarily mean that, in every case of a vacancy in any of the numerous offices referred to, the Governor being inhibited from making an ad interim appointment and being also without authority to convene the Senate in extraordinary session to confer with him in regard to making the appointment for the full unexpired term, the public business would be delayed and inconvenienced for the entire period elapsing from the date of the vacancy to the ensuing legislative session. We do not think that the framers of the Constitution intended that so harmful a result should follow from the practical application of the Constitution; and, for our own part, we cannot sanction such a strained construction of its provisions. Relators earnestly urge that the court below erred in sustaining respondent's exceptions and objection of insufficiency of the demand made on behalf of relator Maestri for the emoluments of the disputed office. Under the statute, Act No. 102 of 1928, such emoluments are not recoverable unless the bad faith of the respondent is shown. Neither of relators' petitions, original or supplemental, contain allegations of fact constituting bad faith; the allegations in that respect being merely conclusions of law. In these circumstances we do not find any error in the ruling of the court sustaining respondent's exceptions to the petitions, and his objection to evidence. Our conclusion is that the relator Robert S. Maestri is entitled to the possession and control of the office of the commissioner of conservation which the respondent Valentine K. *Page 497 Irion is now holding merely by sufferance and without an intrinsic right thereto. For the reasons assigned, the judgment herein appealed from is annulled, and it is now ordered that there be judgment against the respondent, Valentine K. Irion, and in favor of the state of Louisiana and of the relators, decreeing that the relator Robert S. Maestri is commissioner of conservation and that respondent Valentine K. Irion is an intruder into and unlawfully holding and exercising the functions thereof; decreeing further that the respondent, Valentine K. Irion, shall recognize the title of the relator Robert S. Maestri to the office of commissioner of conservation and shall forthwith deliver to said Maestri the possession and physical properties of said office. All costs of this suit to be paid by the respondent, Valentine K. Irion. THOMPSON, J., concurs in opinion holding defendant to have been in good faith, but otherwise dissents. O'NIELL, C.J., dissents on the ground, first, that section 18 of article 5 of the Constitution, in plain language, forbids the filling of a vacancy in the office of commissioner of conservation without the advice and consent of the Senate; and, second, that, if the Governor were not forbidden to fill the vacancy without the advice and consent of the Senate, the commission which he issued would have expired, and did expire, at the end of the next session of the Senate, according to the plain language of section 12 of article 5 of the Constitution, because of the Governor's failure to have the appointment confirmed by the Senate. The decision in State v. Young, 137 La. 102, 68 So. 241, cited in the prevailing opinion in this case, is not at all appropriate, because in that case, where the office of bank examiner was in contest, the Constitution and the statute on the subject authorized *Page 498 the Governor to fill a vacancy during a recess of the Senate, by issuing a commission which would expire at the end of the next session of the Senate.