Territory ex rel. Fisk v. Rodgers

Syjies, J. This was an action brought under title 7, chapter 5 of the Civil Code, for the usurpation of the office of territorial auditor, by the people of the Territory upon the relation of James L. Fisk, and James L. Fisk, who claimed that he was entitled to the possession and emoluments of said office, against W. H. Rodgers, the present incumbent. The complaint alleged in substance that plaintiff Fisk had been duly appointed and commissioned by the governor to the office of territorial auditor; that plaintiff had taken the oath and filed the proper official bond; that he had demanded possession of the said office from said defendant, but defendant refused to give up possession and wrongfully and unlawfully held and intruded himself into the said office. Further, that defendant claimed said office by virtue of an election by the legislative assembly of the Territory, which was illegal; and ask judgment for possession of the office. Defendant answered and admitted being in possession of the office ; denied that plaintiff was lawfully appointed or entitled to the possession of the said office; that he had been duly elected and appointed to the said office by the legislative assembly and the governor in December, 1867; and that he was duly elected by the qualified voters of the Territory to said office in August, 1869, in accordance with the — 257 — law of the Territory, and was entitled to hold and enjoy the emoluments of the same. The plaintiff moved for judgment on the pleadings, which motion was sustained by the court, and judgment rendered that defendant was not entitled to have and enjoy possession of the said office, and that the plaintiff had been duly appointed to and was entitled to the possession and emoluments of the said office, and ordering the defendant ousted from, and the plaintiff put into the possession of, said office. From this judgment the defendant appealed to this court. There was no error in the court below proceeding to consider the case and rendering judgment on the complaint and answer. The answer raises no issue of fact; it admits the allegations of the complaint, or denies legally and lawfully the rights set up in the complaint, such denials being pregnant with the admission of all the facts claimed, only denying the legal conclusions resulting therefronou The decision of this case involves the consideration of two distinct propositions, first, whether the defendant, the incumbent, is lawfully entitled to hold and enjoy the office, or is an intruder into the same; and second, whether the plaintiff Fisk has been legally appointed to said office, and is entitled to the possession and enjoyment of the same. The defendant, as appears by the pleadings, took possession of the said office on the 29th of November, 1867, by virtue of an election by the two houses of the legislative assembly of the Territory of Montana and the commission of the governor, which election and commission was in accordance with an act of the legislative assembly, approved November 16, 1867. That defendant was so elected and appointed to the said office to hold the same until the general election on the first Monday in August, 1869 ; and that at said general election he was elected and chosen by a majority of the qualified electors of the territory, and took the proper oath of office, and offered to file an official bond, but the secretary of the Territory refused to recognize the said election as legal and refused to file the bond, and the governor refused to issue a commission under said election. — 258 — The election and appointment by the legislative assembly and governor in November, 1867, and the election by the people on the first Monday of August, 1869, was in accordanee with the provisions of the said act of the legislative assembly, and the question presents itself, is the said act in contravention of the provisions of the act of congress, entitled “An act to provide a temporary government for the Territory of Montana,” known as the “organic act,” and therefore null and void. Section 7 of said organic act provides that all township, district and county officers not therein otherwise provided for shall be appointed or elected, as the case may be, in such manner as shall be provided by the governor and legislative assembly; and that the governor shall nominate and, by and with the advice and consent of the legislative council, appoint all officers not therein otherwise provided for. The office of territorial auditor is not a township, district, or county office, but is a territorial office, and is, consequently, not to be filled in such a manner as the governor and legislative assembly may provide ; but is an office not in the organic act otherwise provided for, and must be filled by the governor nominating and, by and with the advice and consent of the legislative council, appointing a person to hold said office. So much of the act of the legislative assembly, approved November 16, 1867, as provided for the election by the legisislative assembly, or by the election of the Territory, of territorial auditor is in contravention of the organic act and of no force ; and the defendant Bodgers claiming to hold and exercise the duties of said office only by virtue of the provisions of said act of the legislative assembly has no lawful right to the possession and emoluments of said office; and the district court below did not err in adjudging that said Bodgers was not entitled to the office and ordering that he be ousted therefrom. 2. The plaintiff and relator Fisk claims the possession and emoluments of said office by virtue of a commission from the governor of the Territory, dated August 28, — 259 — 1869, appointing him to be territorial auditor until the next session of the legislative council of the Territory. Has the governor the power of appointment to fill such office, orare his powers limited by the language of the organic act, before quoted, to simply the power of nominating and appointing only, after he shall have received the advice and consent of the legislative council. It is stated in the complaint that the plaintiff was nominated and appointed to the said office, which nomination would be subject to the advice and consent of the legislative council; and that he gave bond and took the oath prescribed by law, whereupon a commission was issued appointing him. The nomination only could give the plaintiff no right to the possession of the office until the legislative council had confirmed the nomination, and he was commissioned and appointed in accordance with the advice and consent of the legislative council or confirmation. The word “nominate” means to recommend for confirmation. Paschal’s Annotated Const. 175, note 179; Marbury v. Madison, 1 Cr. 137. If the plaintiff has any right, it is by virtue of his appointment and commission. The language of the organic act, conferring the power of appointment on the governor, is the same as that portion of section 2, article 2 of the constitution of the United States, giving the president the power of nominating and appointing officers. But there is another clause in section 2, article 2, which expressly empowers the president to fill all vacancies which may happen during the recess of the senate, by granting commissions which shall expire at the end of the next session. There is no such express power given to the governor to fill vacancies in our organic act. The court is of opinion that there was a vacancy existing when the governor issued the commission to the plaintiff, Fisk; but it has been held that the power of appointment carries with it the power of removal. Stanbery’s Opinions, 18, 19, and authorities cited. The legislative assembly passed an act in 1865, giving the governor the power to fill vacancies which should happen — 260 — during the recess of the legislature, and in the act approved November 16,1867, making the office of auditor and others an elective one by the people, the governor is empowered to fill vacancies by appointment until the next general election. But, in an act approved December 31, 1868, it is provided, that vacancies happening shall be filled until the next general election by the governor, by and with the advice and consent of the legislative council, and repeals the former acts giving the governor, alone, the power to fill vacancies. If there is no express law or authority conferring on the governor of the Territory the power to fill vacancies by appointment, or any appointing power, as distinguished from the power to recommend, select or nominate, and appoint only after having obtained the advice and consent of the legislative council, has the governor the inherent executive or incidental power ? There are no decisions direct upon this question reported in the supreme court of the United States, because the third clause of the second section, second article of the constitution, expressly confers the power of appointment to fill vacancies on the president. And we have at hand no State constitution similar to our organic act, and, therefore, no decisions to enlighten us. We might be led to the conclusion, that the framers of the constitution thought that provision of the constitution, section 2, article 2, which is the same as our organic act, did not confer on the president the power to appoint to vacancies, without the consent of the senate, or they would not have inserted the third clause, expressly conferring the power, still, we may gather from the dictum of judges and the opinion of attorneys-general, that it would be held that the president, under some circumstances, would have the inherent executive power to appoint officers, under that provision of the constitution, making it his duty to see the laws faithfully executed. It is contended by counsel for relator and plaintiff Fisk, that the governor had the power and authority to appoint under that clause in the organic act, making it his duty to see- the laws faithfully executed. We may be of the — 261 — opinion, that the president would have the power outside of the third clause, section 2, article 2, of the constitution, to appoint, during the recess of the senate, to fill a vacancy occurring in any of the executive offices necessary to carry on the machinery of the executive department of the government. A vacancy might occur in the office of secretary of state, or war, whereby the government would be seriously embarrassed and injured, if the president did not appoint persons to carry on that part of the executive department, and his power to do so might be maintained under the doctrine of ex necessitate. We might reason from analogy, that, if a vacancy should occur in the office of secretary of the Territory during the recess of the legislature, and the law as to filling the office was the same as that providing for filling the office in question herein, the governor would have the inherent or incidental executive power to appoint to the vacancy, because the duties pertaining to the secretary’s office must be performed,- in order to carry on the machinery of the executive department of the government of the Territory. But the office of auditor bears no such relation to the executive department of the Territory. The office of auditor is not created or referred to in the organic act creating the territorial government, in any of its provisions relating to any of its departments or the officers thereof. It is an office created by the legislature of the Territory. The legislative assembly can abolish the office when it chooses, and the executive and other departments of the government of the Territory can go on the same. The auditor has nothing to do with the financial part of the territorial government as regulated by congress. He does not settle or audit the accounts or salaries of the officers of the executive, legislative or judicial department of the Territory, so far as they are paid by the general government. Being an office created by the legislature of the Territory, the appointment to which comes under that clause of section 7 of the organic act, of officers not therein otherwise provided for, and which the governor is empowered to nominate and, by and with the advice and consent of the legis — 262 — lative council, appoint, we are of opinion that the commission given by the governor to the plaintiff, Fisk, purporting to appoint him to the office of territorial auditor, without the advice and consent of the legislative council, does not confer the right to the possession and emoluments of the said office on said Fisk. In reply to the queries of counsel, that if the governor has not the power of appointment to fill vacancies during the recess of the legislature, who has, we would say that when the legislative assembly create an office, the appointment to which under the organic act they have the power to control by their advice and consent, the governor having only the right or authority of selecting or nominating, and they enact that a vacancy in the office shall only be filled by the goverhor and legislative council, it is not the province of the court to legislate for a contingency, or direct how the proper authorities should proceed. So much of the judgment of the court below as adjudges that the defendant Rodgers is not entitled to hold said office, and that he be ousted from the same, is affirmed, and that part adjudging the respondent Fisk entitled to the possession and enjoyment of the said office, is reversed. Judgment affirmed in part,and reversed in part.