State ex rel. Brothers v. Zellar

Matthias, J. The basic question raised by this case is created by the statutes which require that an appointment to public office by the Governor must be made with the advice and consent of the Senate. The principal issue is whether title to such office vests in the appointee after his appointment and the taking of the oath of office and any other necessary acts on the part of the appointee to qualify or whether such title vests only after the appointment is consented to by the Senate. It is appellee’s contention that neither Gould nor Douglass qualified as a member of the Board of Tax Appeals, and thus he is, as the incumbent, entitled to continue in office under the provisions of Section 3.01, Revised Code, until his successor is appointed and qualified. Appellee urges that the advice and consent of the Senate is a part of the act of qualification. However, appointment to and qualification for a public office as required in Section 3.01, Revised Code, are separate and distinct acts performed by different people. Appointment relates to the acts of the authority in whom the appointing power reposes. Qualification relates to the acts which the appointee must perform before he is entitled to enter upon the duties of the office. The advice and consent of the Senate is not a part of the qualification for the office. The Court of Appeals found that the appointment is not complete until ratified by the Senate, and that under the pro [112] visions of Section 3.01, Revised Code, that one holding public office continues in such office until his successor is appointed and qualified, he, the appellee, is entitled to the office in question. It must be noted at the outset that unlike the practice in some states where the Governor nominates an individual for an office and such nomination is sent to the Senate for confirmation before the appointment is made, the procedure in Ohio is that the appointment is actually made by the Governor prior to its submission to the Senate. To determine the question in the instant case requires an examination of Section 21, Article III of the Ohio Constitution. The pertinent parts of this provision read as follows: uWhen required by law, appointments to state office shall be subject to the advice and consent of the Senate. * * * ( ( ^ % “If an appointment is submitted during a session of the General Assembly, it shall be acted upon by the Senate during such session of the General Assembly, except that if such session of the General Assembly adjourns sine die within ten days after such submission without acting upon such appointment, it may be acted upon at the next session of the General Assembly. “7/ an appointment is made after the Senate has adjourned sine die, it shall be submitted to the Senate during the next session of the General Assembly. “In acting upon an appointment a vote shall be taken by a yea and nay vote of the members of the Senate and shall be entered upon its journal. Failure of the Senate to act by a roll call vote on an appointment by the Governor within the time provided for herein shall constitute consent to such appointment.” (Emphasis added.) This section was enacted after and apparently as a result of the decision in State, ex rel. Burns, v. DiSalle, Governor, 172 Ohio St. 363, which held that the advice and consent of the Senate constituted a part of the appointing power, and that the appointment is incomplete until the Senate acts. Therefore, the court found that such provisions in the law were unconstitutional because under the provisions of Section 27, Article II, the General Assembly was prohibited from appointing persons to public office unless so authorized by the Constitution. [113] Did the enactment of Section 21, Article III, vest a part of the appointing power in the Senate? Ordinarily the word, “appoint,” means to name or designate some person to hold an office. It involves a matter of choice in the selection of the person to hold the office. In Ohio such selection or choice is imposed completely in the Governor. Section 21 imposes no right of selection in the Senate but rather the right, where provided by statute, to review the appointment made by the Governor and if dissatisfied therewith to reject such appointment. It is apparent from an examination of Section 21 that no power to appoint was vested in the Senate, that at the time the Senate acts the appointment is complete, and that the Senate has only the negative power to reject such appointment. The section itself recognizes that the appointment is complete prior to the submission to the Senate. The wording of Section 21 is that appointments are subject to the advice and consent of the Senate. Thus, the appointment by the Governor confers upon the appointee the right to take and hold the office until such time as the Senate acts to reject his appointment. In other words, the appointive power is in the Governor and the appointment vests the title to the office in the appointee as soon as the appointee performs the necessary acts on his part to qualify for such office, and such title is vested subject to being divested by the action of the Senate rejecting the appointment. That such is the meaning and effect of the provision that appointments may be subject to the advice and consent of the Senate is exemplified by the other provisions of Section 21 that, if the Senate fails to act on an appointment within the time provided, such failure constitutes consent to the appointment, and that if appointments are made after the Senate has adjourned such appointments may be submitted at the next General Assembly, and, if the Senate adjourns within ten days after the appointment is made, it may act upon it at the next session of the General Assembly. All these provisions indicate that the actual appointment is valid and effective when made by the Governor, and that the appointee holds title to the office from the time he qualifies therefor. [114] This section, enacted after the decision in the Burns case, expresses an intention not to invest the Senate with the appointive power but to establish that there was no snch appointive power in the Senate and to exemplify the fact that such power reposes strictly in the Governor with only the power in the Senate to reject such appointments by affirmatively acting thereon. This section requires affirmative action on the part of the Senate to reject the appointment; nonaction under the very terms of the section constitutes consent. To follow appellee’s theory that the appointment is not completed until consented to by the Senate would completely subvert the orderly processes of government. Appointments necessarily must be made at times when the Senate is not in session, in fact at times when the Senate may not be in session for many months. Even if an appointment is made while the Senate is in session, action may be delayed thereon for many months. If the appointment is not effective when made by the Governor, the effect would be to extend the term of the incumbent far beyond his designated term or require the Governor to dismiss the officer and work without assistance. It would result in the executive being compelled to work with persons not of his own choice whose theories and policies would be completely inimical to those of the administration. Thus, it is clear that after Gould had been appointed by the Governor and had performed the necessary acts of qualification he became vested with the title to the office. A successor had been appointed and qualified within the meaning of Section 3.01, Revised Code, and appellee’s tenure in the office terminated. Two subsidiary issues were raised in this case. One relates to the action of the Senate relating to the appointment of Gould. The vote on Gould’s appointment was 15 yeas to 16 nays. It is argued that this did not constitute action by the Senate, on the ground that to act on an appointment there would be required 17 votes, either yeas or nays, this being a majority of the Senators provided for in the Constitution. This argument is without merit. Section 21, Article III, requires that: “No appointment shall be consented to without concurrence [115] of a majority of the total number of Senators provided for by this Constitution, except as hereinafter provided for in the case of failure of the Senate to act. If the Senate has acted upon any appointment to which its consent is required and has refused to consent, an appointment of another person shall be made to fill the vacancy. ’ ’ It is only required that consent be by a majority of those elected. It does not require a majority vote of those elected to reject an appointment. Failure to obtain a constitutional majority for consent constitutes a rejection of the appointment. The second issue relates to the appointment of Douglass. As pointed out above, Douglass’ appointment was submitted to the Senate for its advice and consent. The appointment was referred to the Eules Committee, and the Senate adjourned sine die without considering the appointment. It is appellee’s contention that the referral of the appointment to the Eules Committee constituted action thereon by the Senate within the meaning of that part of Section 21, Article III, which reads as follows: “In acting upon an appointment a vote shall be taken by a yea and nay vote of the members of the Senate and shall be entered upon its journal. Failure of the Senate to act by a roll call vote on an appointment by the Governor within the time provided for herein shall constitute consent to such appointment.” (Emphasis added.) It is, of course, appellee’s theory that the Senate acted thereon so that the adjournment sine die did not operate as a consent to the appointment. The action of the Senate referred to in this section relates to the Senate’s either accepting or rejecting the appointment; it does not relate to the administrative action in the internal operation of the Senate. Appellee’s point is not well taken. The judgment of the Court of Appeals is reversed and final judgment rendered for appellants. Judgment reversed. Taut, C. J., Herbert and Schneider, JJ., concur. Zimmerman, O’Neill and Brown, JJ., dissent.