State ex rel. Kriebs v. Halladay

BROW'N, J. By t'he provisions of chapter 275, Laws of 1925, which went into effect on July 1st of that year, section 5371 of the Code of 1919, relating to the board of charities and corrections, was amended, so as to create a new board, composed of three members, to be appointed by the Governor, by and with the consent of the Senate. Of those first appointed, the term of one member was to expire on July 1, 1927, of another on July x, 1929, and the term of the third member on July 1, 1931. The regular term of the office is for six years. All members hold until their successors are appointed and qualify. On the day that the act took effect, Governor Gunderson appointed defendant, Halladay, for the term expiring July 31, 1931; official written notification of the appointment was filed in the office of the secretary of state on that day, and Halladay at once qualified and entered upon the duties of the office. Const, art. 14, § 2, provides that members of the board of charities and corrections shall “be appointed by the Governor and confirmed by the .Senate.” The Legislature was not in session when the act went into effect, and its first session thereafter was convened on January 4, 1927. On that day Governor Gunderson’s term expired and he was succeeded by Governor Bulow. On January 7th, the Senate, without notice of Halladay’s appointment formally communicated to it, procured from the office of the secretary of state a certified copy of the notification on file there, and' formally confirmed the appointment. On D'ecember 28, 1927, Governor Bulow, apparently on the theory that a vacancy existed in the office, appointed the relator, F. D. Kriebs, and Kriebs, having — 500 — qualified, demanded' possession of the office, which wa's refused, and he brings' this proceeding, in the nkture of quo- warranto, to determine the title to the office. . It is the .contention of relator that the act of 1925 created a new board- of charities and corrections, consisting of three members, and that, until the first appointments to- these three' offices were made, the offices were necessarily vacant; that therefore the appointment of the first three members was an appointment to fill vacancies, and that by the provisions of Code, § 5372, vacancies in the membeship of such board shall be filled by the Governor', “and the appointees to fill vacancies shall hold until the next session of the Legislature succeeding their appointment, at which time their term of office as vacancy appointees shall cease and appointments be made tó fill the vacancies for the unexpired portion of the term, if any.” Relator’s contention is that, Halladay’s appointment, being to fill a vacancy, his term expired with the next session of the Legislature succeeding his. appointment, and, there being no appointment to the office thereafter until relator’s appointment, he is legally entitled to the office: He further contends that it is essential to the validity of Halladay’s appointment that it be confirmed or concurred in by the Senate, and that, since Governor Gunderson’s term of office 'had expired before any action was taken on the appointment by the Senate, there was ño joint or mutual consent by the Governor and Senate to Halladay’s appointment; that, the term of the Governor who appointed Halladay having expired, the Senate on January. 7th assumed to confirm the action of one who was then only a private individual, and its confirmation could have no effect. While it is true that a newly created office is necessary ily vacant until an incumbent is provided for and installed in ¡fit (Driscoll v. Jones, 1 S. D. 8, 44 N. W. 726), we do not think that the vacancy so existing is such a vacancy as is contemplated by section 5372 of the Code. The vacancy referred to in this section is. evidently, such a-vacancy as is defined in section 7007, resulting from death or resignation of the incumbent, or other causes menl tioned in that section. That the vacancy referred to in section! 5372 does not include a vacancy arising from the fact that thé newly'created office has never been filled is plain from the'prey ceding section creating the office, which .provides that the board' — 501 — shall be appointed by the Governor by 'and with the consent of the Senate, and specifically designates the day upon which the term of each member shall expire. The law must be so construed as to give effect to all of its provisions, if that is possible, and to hold that the vacancy existing in the newly created office before an incumbent has ’been provided is such a vacancy as may be filled pursuant to the provisions of section 5372 would necessarily abrogate the express legislative enactment -in section 5371 that the terms of the three members should expire on the dates -named in that section. We therefore hold that section 5372 has no application to the vacancy existing in a newly created office before any one has been provided to fill it. State v. Rogge, 80 Mont. 1, 257 P. 1029. We cannot agree with relator’s reasoning that, since the Governor’s appointment and the Senate’s confirmation must be concurrent as to the subject of the appointment, and Governor Gunderson’s term of office had expired before the Senate took any action, there could therefore have been no concurrence by the Governor with the Senate in its action on January 7th with reference to the appointment. This ignores the obvious fact that the office of Governor is a continuing one, irrespective of the person who occupies it. In this case the appointment of Halladay remained in force until it was acted upon by the Senate. On January 7th, while it was still in 'force, the Senate confirmed it. The appointment thereupon became complete, Halladay qualified, and has ever •since been discharging the duties of the office, and therefore no vacancy existed on December 28, 1927, at the -time the áttempted appointment of relator was made. It is contended by relator that, because the appointment, of Halladay was never officially communicated to the Senate, that body had no jurisdiction or authority to act upon it. We find nothing in the Constitution or statutes of this state that prescribes the manner in which the -Senate shall obtain knowledge of the appointment of a person to an office requiring its confirmation, and in the absence of constitutional or statutory provisions on the subject we see no reason why the Senate may not take official notice of the fact of such an appointment. It was so held in Barrett v. Duff, 114 Kan. 220, 217 P. 918; People v. Shawyer, 30 Wyo. 366, 222 P. 11; Commonwealth v. Stewart, 286 Pa. 511, 134 A. 392. We have been cited to no authority to the contrary, and a diligent search on our part has revealed none. — 502 — Defendant is entitled to the office for the term ending on July i, 1931, and the order to show cause must 'be and is dismissed.