State ex rel. Standish v. Boucher

Wallin, J. This is a civil action, brought by the attorney general of the state, under Ch. 26 of the Code of Civil Procedure, to try the title to the office of warden of the state penitentiary at Bismarck, as between said plaintiff Daniel Williams and Nelson F. Boucher, the defendant. After a trial the District Court 391 adjudged that the plaintiff Williams had no right or title to said office, and that the defendant, Boucher was the duly elected and qualified warden, and entitled to hold said office and exercise its powers. From such judgment, plaintiffs appeal to this court. The facts which are embodied in the complaint and answer, are not controverted. Both claimants of the office in dispute base their respective claims to the office upon an alleged appointment thereto made by certain distinct groups of individuals, each group claiming to be and to constitute the board of trustees of the penitentiary at Bismai'ck, and therefore it will be necessary in disposing of this case to inquire into and determine which of- the two groups of individuals that have assumed to act as the board of trustees of the penitentiary is entitled in law to exercise the power of such board, and to appoint the warden. The law creating the office of trustees of state institutions, including the Bismarck penitentiary, and regulating their appointment and terms of office, is fourid in § I, Ch. 93 Laws 1889. At a session of the state legislature which convened in the year 1891, the governor of the state, acting under said statute, duly nominated, and, with the advice and consent of the senate, appointed, five trustees for the penitentiary, — three for a term of four years, and two for a term of two years. The title of the three who were appointed for the term of four years is not questioned; but the title of the two trustees who were appointed for the term of two years, viz: one Frank Donnelly and one Arthur Van Horn, is now denied and disputed by the plaintiffs. All of said trustees, appointed in 1891 as aforesaid, soon after their appointment, qualified and entered upon the'discharge of their duties, and have ever since being acting in the discharge of their duties as such trustees. At the regular session of the legislative assembly, which convened at Bismarck in 1893, the governor of the state, at the proper time, nominated and sent to the senate for confirmation the names of W. O. Ward and Joseph B. Taylor as trustees of the penitentiary at Bismarck, and as the successors in office of said Donnelly and Van Horn, who had been appointed in 1891 for a 392 term of two years, as before stated. The nomination of said Ward and Taylor was not confirmed by the senate, but, on the contrary, their nomination was rejected, and the senate ■of 1893 adjourned without confirming any successors of the trustees appointed in 1891. Soon after the adjournment of the legislative assembly for the year 1893, the governor of the state, acting upon the assumption that a vacancy had occurred and was existing in the offices for which said Donnelly and Van Horn had been appointed in 1891 for a term of two years, appointed and commissioned said Ward and Taylor as trustees of the Bismarck penitentiary, and as the successors in office of said Donnelly and Van Horn. After such appointment by the governor, said Ward and Taylor undertook to qualify for their said offices, and took the oath of office, and executed an official bond, which official bond was approved, filed, and recorded with the secretary of state. Thereafter said Ward and Taylor, acting together with one Charles E. Stowers, (who was one of the duly appointed trustees of the penitentiary, and whose title to such office is not challenged,) met together, and assumed to be and constitute the penitentiary board, convened at the City of Bismarck, at the time and place appointed by law for the appointment of a warden for the penitentiary, and then and there did name and undertook to appoint the plaintiff Daniel Williams to be the warden of said penitentiary for a term of two years. All of the other trustees of said penitentiary refused to act and did not act or meet with said Stowers, Ward and Taylor at the time of their said meeting, or at any time. Said plaintiff Williams accepted such appointment, and his official bond was approved by Stowers, Ward, and Taylor, the other trustees refusing to act with them in the premises. After such appointment, the plaintiff Williams, in March, 1893, went to the penitentiary building, and made demand to be admitted thereto, and to have turned over to him the charge of said penitentiary as warden; but the defendant, Boucher, claiming to be the lawful warden of the penitentiary, refused to comply with such demand, and did not permit said Williams to enter the 393 building, and refused to turn over the penitentiary to Williams, and has never done so. The defendant Boucher, is in charge of the penitentiary as warden, and prior to such demand upon him by the said Williams, and after the attempted appointment of Williams, said Boucher had qualified as such warden, and claimed to be lawfully entitled to the office under and by virtue of an appointment thereto made by all of the trustees who had been appointed in 1891, as aforesaid, except said Stowers, who did not act, but refused to act, with the others who appointed the said Boucher as warden, as above stated. It appears from what has been said that the legality or illegality of the appointment of the said plaintiff Daniel Williams to the office of warden must turn upon the validity of the appointment of Ward and Taylor, who acted with Stowers in making his appointment. If Ward and Taylor were not trustees, and did not become such by virtue of the governor’s appointment, then the appointment of Williams to the office of warden is and must be held to be a mere nullity. The facts in the record call for a construction of the statute above cited. A portion of § 1 of the act is all that need be recited for the purposes of this decision. It reads: “And the governor shall nominate, and by and with the advice and consent of the council, shall appoint, at this session of the legislative assembly," five trustees for each of said institutions, two of whom shall hold their office for the period of two years, and three for the period of four years, and until their successors are appointed and qualified, except to fill vacancies, which appointments shall be 'made by the governor and shall extend only to the end of the next session of the legislative assembly.” This statute contemplates and in terms provides that the trustees of state institutions, including the penitentiary, shall be chosen by the concurrent action of the governor and state senate, the governor to nominate, and, with the advice and consent of the senate, appoint, the trustees; and the statute further provides that upon the occurrence of a vacancy in the office of a trustee, and only in that event, the governor of the state shall, without the concurrence of the senate, 394 appoint a trustee to fill such vacancy, such appointee to hold office until the end of the next ensuing session of the legislative assembly, and no longer. But, before we proceed to discuss the question of the existence of a vacancy in the offices of Donnelly and Van Horn, we will briefly consider a broad and sweeping proposition advanced by the learned attorney general, who argues —and it is his principal contention — that neither the senate nor the legislative assembly, under the state constitution, has or can acquire the power to confirm any appointments to office made by the governor unless the office is strictly legislative or judicial in its nature. The claim is made that the right to appoint to office and to fill vacancies; except to legislative and judicial offices, is an implied executive function, and that the governor, as the sole repositary of executive power under the state constitution, possesses the inherent right to name the officers, and to fill all vacancies therein, and that such right exists by implication of law, and independently of express constitutional or statutory authority. The further claim is made that, inasmuch as the state constitution has not expressly declared that the power to appoint to office shall be shared by the governor with the senate or legislature, the whole power inheres in the executive alone. From these premises the attorney general draws the conclusion that, inasmuch as the limited term of two years had run before Ward and Taylor were appointed, the power existed in the governor, and that it was his duty, to appoint successors, and to do so without consulting the senate or allowing the senate to act upon his appointments. These views of course, imply necessarily that all parts of the statute creating the office of trustees of our state institutions which purport to confer upon the senate the right to confirm appointments made by the governor to such offices are unconstitutional and void. We have stated the proposition of the attorney general thus fully because it has been strenuously contended for and urged upon our attention with great force and earnestness; but, after careful consideration, we are unanimously of the opinion that the exigency of this case does not demand a 395 decision by this court of the abstract question which is involved in the proposition for which the attorney general contends. We will therefore simply say that the impressions of this court are decidedly against the views of the attorney general. We do not think that all power to appoint to office resides with the governor of a state as an implied executive function in cases where the constitution is silent upon the question. This view is in harmony with the spirit of our institutions, and has the support of a decided preponderance of authority. We cite only a few of the cases which are accessible: Biggs v. McBride, (Or.) 21 Pac. Rep. 878; People v. Freeman, (Cal.) 22 Pac. Rep. 173; People v. Hurlbut, 24 Mich. 44; State v. Irwin, 5 Nev. III; State v. Rosentock, 11 Nev. 128; Mayor, etc., of Baltimore v. State, 15 Md. 376; State v. Lusk, 18 Mo. 333-340; Cooley, Const. Lim. (5th Ed.) 136. Under the common law of England, the sovereign power belonged to the king, and the power to appoint to office was unquestionably a sovereign perogative. In this country, and under our form of government, the sovereignty has been transferred, and is in the hands of the people. It is conceded in this case, as it must be in all cases arising under our political institutions, that the sovereign authority, — the people, — in creating a state government, can lodge the authority to appoint its officers in any branch of that government, or bestow it at pleasure upon any official upon whom they may elect to bestow the same. In granting such power it may be conferred in full measure, and without limitation, or it may be conferred only to a limited extent. Field v. People, 2 Scam. III. The people of this state have exercised this authority, and, in terms easily understood, have indicated in their constitution when and to what extent the governor shall exercise the power to appoint to office. Section 78 of the state constitution reads: “When any office shall for any cause become vacant, and no mode is provided by the constitution or law for filling such vacancy, the governor shall have power to fill such vacancy by appointment.” This language is clear and explicit. It confers no right to fill any office which has not previously become vacant. The power to 396 fill a vacancy is granted, but that power is conferred subject to a double limitation upon its exercise. The governor can only fill a vacancy in cases where neither the constitution nor the law has made provision to fill the same. As the governor can fill a vacancy, and can do no more than that, it will not, as we have already said, become necessary in this case to determine whether § 78 is to be construed as a limitation upon an inherent power in the executive, or whether it must be regarded as a grant of authority not before existing. The power to fill an existing vacancy is conferred by the constitution upon the governor, and in the case at bar the statute, also in express terms, authorizes the governor to fill all vacancies which occur in the offices of trustees of public institutions. Just at this point it may naturally be asked, since the power of the governor to appoint to office extends only to cases of vacancies not otherwise provided for, and since there is no express grant of appointing power in the constitution to any other functionary or department of government, where does the power of appointment of officers and their successors in office rest? The power to appoint to office is an attribute of sovereignty. All attributes of sovereignty essential to the administration of government must be vested in the several departments of government by the people; otherwise, the government founded by the people would not constitute a full grant of governmental power. Such government would, to that extent, be defective, for the reason that the people themselves, in their collective capacity, exercise no governmental functions. Now, we have seen that the power to appoint to the offices in question is not vested by the constitution in the governor. Neither is any appointing power vested in judicial department, except to appoint certain court officials. Unless, therefore, this power resides in the legislature, it is lodged in no part of the government. As to this it will suffice to say that all governmental sovereign power is vested in the legislature, except such as is granted to the other departments of the government, or expressly withheld from the legislature by constitutional restrictions. 397 Was there a vacancy in the offices occupied by Donnelly and Van Horn when the governor appointed Ward and Taylor to fill a supposed vacancy in such offices? This is the decisive question in the case. In appointing said Ward and Taylor, the governor of the state undoubtedly assumed that there was a vacancy in the offices occupied by Donnelly and Van Horn, and that such vacancy resulted from the fact that their term of office of two years had expired, and the senate had adjourned without confirming their successors. Did such supposed vacancy exist? If there was no vacancy, it will be conceded that the governor was without authority to appoint Ward and Taylor. We are' quite clear that the supposed vacancy did not exist. When the appointments were made; Donnelly and Van Horn were incumbents holding over after the expiration of their definite term of two years, and until their successors should be lawfully appointed. It therefore appears that the offices which Ward and Taylor were appointed to fill were not empty when the appointment was made, but, on the contrary, such offices were occupied by incumbents whose title and right to hold such offices were based upon the express language of the statute, which declares that all trustees of state institutions shall continue in office until successors are elected and qualified. The statute in question not only fixes definite terms of office for the terms of two and four years, but also, with equal clearness, annexes to the definite terms another period or term of indefinite duration, which period has been aptly described as. a “defeasible term” of office. The statute explicitly declares that trustees shall, after their limited term has expired, continue in office for a further period, and “until their successors are appointed and qualified.” The definite terms of Donnelly and Van Horn had expired, and the legislature of 1893 had adjourned without confirming their successors, before the governor made his appointments; but, as has been seen, the terms of all trustees of state institutions in this state are extended by the statute beyond their limited duration, and until successors are appointed and qualified, Donnelly and Van Horn were appointed by the governor, 398 by and with the advice and consent of the senate, and hence, under the statute, will continue to hold their office until their successors are appointed and qualified in manner and form as the statute directs. There is no doubt in our minds that the statute in question must be so construed as to mean that successors of trustees shall be appointed by the same power and authority which appointed their predecessors, i, e. by the governor of the state, by and with the advice and consent of the senate. The legislature having adjourned without day, and the senate failing to confirm successors to Donnelly and Van Horn, it follows as of course that their successors cannot be legally appointed until the legislature shall reassemble, unless a vacancy has occurred or shall occur in their offices. It is the policy of the statute, as well as its clearly expressed purpose, to require the action of both the governor and senate in filling the important offices of trustees of state institutions, and not to allow them to be selected by the independent action of the executive, except in those cases of vacancies, not frequently occurring, where an executive appointment can be made temporarily to fill an actual vacancy. It has been said that the law abhors a vacancy in an office, but, in our judgment, a vacancy in the office of a trustee of one of the public institutions of this state does not come about from the mere .expiration of the limited term, even when that event is coupled with the fact that the senate had adjourned without confirming successors of those whose terms had expired by limitation of time. It seems quite clear to us that the vacancy referred to in the statute, and which alone gives the executive the right to make a temporary appointment, relates only to such actual vacancies as may arise from death, resignation, and the like. The expiration of a definite term, and failure of the senate to confirm successors to those whose terms have expired, are certainly not among the causes enumerated in the Code which will create a vacancy in office. Pol. Code, § 2 Ch. 22; Comp. Laws, § 1385. A “vacancy in office,” within the meaning of the law, can never exist when an incumbent of the office is lawfully there, and is in 399 the actual discharge of official duty. Similar statutes of other states, which are indentical in their meaning, and generally in their language, with that we are considering, have quite frequently been construed by the courts of last resort in other states, and the construction we have placed upon our statute is sustained by the unanimous current of authority. State v. Howe, 25 Ohio St. 588; People v. Tilton, 37 Cal. 614; People v. Whitman, 10 Cal. 39; People v. Bissell, 49 Cal. 407; People v. Edwards, (Cal.) 28 Pac. Rep. 831; People v. Otdton, 28 Cal. 44; State v. McMullen, 46 Ind. 307; State v. Hadley, 64 N. H. 473, 13 Atl. Rep. 643; Gosman v. State, 106 Ind. 203, 6 N. E. Rep. 349; State v. Harrison, 113 Ind. 434, 16 N. E. Rep. 384. See, also, authorities cited in 19 Am. & Eng. Enc. Law, pp. 432, 433; People v. Tyrrell, (Cal.) 25 Pac. Rep. 684; Mechem Pub. Off. § 128; Com. v. Hauley, 9 P. St. 513; State v. Rareshide, 32 La. Ann. 934. “A vacancy exists only where no one has any legal title to the office.” State v. Ralls County Court, 45 Mo. 58. “So long as the defeasible right to hold over continues, and the incumbent exercises it, the same conditions which would create a vacancy during the prescribed term will be required to create one during the term which he is lawfully holding over.” Gosman v. State, 106 Ind. 203, 6 N. E. Rep. 349. Our conclusion is that the plaintiff Daniel Williams was not appointed to the office of warden by the board of trustees of the state penitentiary, or by any lawful authority, and that said plaintiff has no right or title to said office. The judgment of the court below will be affirmed. (August 14th, 1893.) All concur.