State ex rel. Larger v. Scow

Birdzele, J. There is involved in tbis case tbe right of tbe defendants, Scow and Power, to continue in office, as members of tbe board ■of regents of tbis state, after July 1, 1917. Tbe facts with reference to their original appointment and confirmation are fully set forth in tbe writer’s dissenting opinion in tbe case of State ex rel. Langer v. Crawford, 36 N. D. 385, 162 N. W. 725. Tbe statement of facts found therein is adopted for all purposes of tbis opinion, and in addition it need only be stated that, prior to tbe institution of tbis proceeding, Totten and Muir were appointed by tbe governor, at a time subsequent to tbe 1st of July, 1917, .to succeed tbe defendants. Reference to tbe case of State ex rel. Langer v. Crawford, supra, will •disclose that tbe members of tbis court were, at that time, unable to agree upon any common legal ground sustaining tbe title of tbe defendants to their offices as members of the state board of regents. It will be found, •however, that, in tbe opinion of tbe writer, concurred in by Mr. Justice Grace, tbe defendants in that action were never legally appointed for tbe full terms embraced in their respective commissions. Tbe. presentation of tbis case has only served to strengthen tbe views entertained and expressed in tbe former opinion. The case of Dunbar v. Cronin, 18 Ariz. 583, 164 Pac. 447, is in no •sense an authority against tbe propositions maintained in my dissenting opinion. In that case, as in tbe case of State ex rel. Clarke v. Irwin, 5 Nev. 111, tbe officer whose appointment was upheld, was named in tbe act of tbe legislature. Tbe following is tbe language of tbe statute: “Section 3. Until otherwise provided by law, Con P. Cronin is appointed reference librarian, and shall serve until bis successor is appointed. Any vacancy shall be filled by tbe board of curators.” In [248] the majority opinion in that case, reliance was had upon the cases of People ex rel. Graham v. Inglis, 161 Ill. 256, 43 N. E. 1103, and State ex rel. Clarke v. Irwin, supra. The application of these authorities to the facts involved in this case has already been fully discussed and a well-grounded distinction, which has been recognized and applied by the courts deciding those cases as well as by other courts, was elaborated upon in the former opinion heretofore referred to. State ex rel. Langer v. Crawford, supra. No case has been called to our attention where either an election of an officer or an appointment of an officer has been held valid where the power to elect or to appoint depended solely upon the authority of an act of the legislature which had not yet gone into effect. The reasoning upon which the contrary authorities are based is, to my mind, too clear to admit of successful contradiction. See People ex rel. Herdman v. Rose, 166 Ill. 422, 47 N. E. 64; State ex rel. Wolcott v. Kuhns, 4 Boyce (Del.) 416, 89 Atl. 1; the opinion of Mr. Justice Shaw in the Supplement to 3 Gray, 601-607; Com. v. Fowler, 10 Mass. 290; State ex rel. Cook v. Meares, 116 N. C. 582, 21 S. E. 973; Santa Cruz Water Co. v. Kron, 74 Cal. 222, 15 Pac. 772; People ex rel. McDougal v. Johnston, 6 Cal. 673; State ex rel. Heim v. Williams, 114 Wis. 402, 90 N. W. 452. Laws are made and changed only in conformity with the mandates of the Constitution. The executive, the legislature, and the judiciary are equally bound by its limitations. It should be no longer necessary in this state to cite authority for the proposition that the exercise of the appointive power by the governor must be based upon either a constitutional provision or upon a law that .is in force. See State ex rel. Standish v. Boucher, 3 N. D. 389-395, 21 L.R.A. 539, 56 N. W. 144. There never has been any serious doubt in this state that the legislature (not the senate alone) could make appointments to office, neither is there any doubt that the legislature (not the senate alone) can make a prospective appointment which may take effect at the same time as other provisions of the law when the law goes into effect. But I do not understand that it is yet the law of this jurisdiction that an officer who derives his appointive power from our Constitution and from laws passed by the legislature can, either alone or in conjunction with the senate, confer upon individuals title to offices extending over a period of years, before the law under which the authority is exercised can constitutionally become a law of the state. [249] It is unnecessary to assign reasons in addition to those expressed in the former opinion referred to, and reiterated here, for the entry of a. judgment of ouster against the defendants in this action. Being satisfied that their appointments had no legal effect beyond the legislative session of 1917, there existed, at the time of the appointments of Messrs. Totten and Muir, vacancies which could properly be filled by the governor. I express no opinion upon the question of the right to hold over after the expiration of a definite term, for which an appointment has been made, — this for the reason that, as I view the case, legal appointments have never been made for the terms for which the defendants claim to-be appointed. The judgment of this court is that a judgment of ouster be entered in favor of the plaintiff and against the defendants, and that the relators be admitted into the offices in question. It is so ordered. Robinson, J. This is a kind of second edition of the Board of Regents’ Case decided some three months ago. A majority of the judges held that there had been a valid appointment of the five members of the board then in office. Two members were appointed to hold office for two years from the 1st day of July, 1915; and under the plain words of the statute their term of office expired on July 1, 1917. The governor has appointed their successors, who have duly qualified, but the respondents claim the right to hold over because the appointment of their successors has not been confirmed by the senate. Under the statute the governor may remove any member of the board for incompetency, neglect of duty, immorality, malfeasance in office, or for any other good cause-; and in case of a vacancy in the membership of the board, whether occurring by reason of removal or otherwise, the governor may declare the office vacant and fill the same-by appointment until the convening of the next session of the legislative assembly. And that is just what the governor has done; but the respondents insist that, by reason of their holding over after their term of office had expired, there was no vacancy for the governor to fill by an appointment. The point is quite nice and technical, but it is manifestly contrary to the letter and spirit of the statute. Under such a construction of the statute all members once appointed might [250] hold for life unless the governor and the senate should agree on their •successors. The respondents cite and rely on an early decision of this court under a .statute providing that an officer appointed should hold over after his term, unless his successor was duly appointed. In construing this statute the court said: It not only fixes a definite term of office for the term of two and four years, but also with equal clearness annexes to the definite term another period or term of indefinite duration which period has been aptly described as a defeasible term of office. The statute expressly declares that, after the limited term has expired, the trustees shall continue in office for a further period and until their successors are appointed and qualified. State ex rel. Standish v. Boucher, 3 N. D. 397, 21 L.R.A. 539, 56 N. W. 142. This decision was on an appointment by our Populist Governor Shortridge, and neither the legislature nor the courts had any disposition to favor his appointments. However, it is certain that the statute in question does not provide for a definite and then an indefinite or defeasible term •of office. The members are appointed and commissioned to hold office •only for a definite term, and when that term ends there is a vacancy which the governor may fill by appointment. There is nothing to be gained by a prolonged discussion of the statute. The judgment of this court is that the respondents have no right to withhold or retain office as members of the board of regents, and they may no longer hold the office, and that their successors be let into office.