BURKE, et al., Plaintiffs v. SCHMIDT, et al., Defendants
File No. 11001
Supreme Court of South Dakota
October 27, 1971
191 N.W.2d 281
Using the same time guidelines as to the summons, it being served on Celia P. Ferguson on July 24th, she had four days, excluding the day of service, to answer and was not in default until July 29th.
The judgment as to James S. Ferguson is affirmed and as to Celia P. Ferguson it is reversed with instructions to dismiss the action as to her.
HANSON, WINANS and WOLLMAN, JJ., concur.
William J. Srstka, Asst. Atty. Gen., Pierre, argued the cause and filed a brief on behalf of Gordon J. Mydland, Atty. Gen., as amicus curiae.
ORIGINAL ACTION
BIEGELMEIER, Presiding Judge.
This is an original action in the nature of quo warranto to determine the rights of two members of the Board of Regents.1 From the stipulated facts it appears plaintiffs were appointed members of the State Board of Regents by Governor Nils A. Boe after his inauguration January 5, 1965. Plaintiff Burke filed his oath of office on January 13, 1965, and plaintiff Witt on January 15, 1965. Their predecessors having ceased to act, plaintiffs attended Board meetings and acted as Regents at four meetings prior to February 9th when they were confirmed by the Senate on February 9, 1965. On previous occasions since 1950 Regents commenced their duties after filing their oaths and before Senate confirmation; however, in none of those instances was that conduct disputed.
By a letter to the Secretary of State dated December 30, 1970, Governor Farrar informed her he had appointed defendant Schmidt as a member of the Board to succeed plaintiff Burke and by similar letter dated January 2, 1971, that he had appointed defendant Varilek as such member to succeed plaintiff Witt. The letters, which the Secretary of State received January 2, 1971, authorized her to issue commissions accordingly. Their oaths of office were also filed with her on January 2, 1971. The letters, signed by the Governor, and the certificates, signed by the Governor and the Secretary of State on the date last mentioned, stated the appointments were to be effective January 1, 1971,
On November 3, 1970, Richard F. Kneip was elected Governor, and on Tuesday, January 5, 1971, at 12 o‘clock m. he took the constitutional oath of office as Governor.2
On January 11, 1971, Governor Kneip signed and filed with the Secretary of State two letters in which he stated he was withdrawing the “recommended” appointments of defendants Schmidt and Varilek as members of the Board of Regents.
Except for sessions called on extraordinary occasions (
“The Legislature shall meet аt the seat of government on the first Tuesday after the first Monday of January at 12 o‘clock m. in the year 1963 and in the year 1964 and each even-numbered year thereafter, and on the first Tuesday after the third Monday of January at 12 o‘clock m. in the year 1965 and each odd-numbered year thereafter, and at no other time except as provided by this Constitution.”
Pursuant thereto the Senate met on January 19, 1971, for its first session. After showing certificates by the Secretary of State of the filing of oaths of senators-elect and other constitutional оfficers, the Senate Journal shows another certificate dated January 19, 1971, which includes copies of the letters of Governor
The office of the Governor is a continuing one, irrespective of the person who occupies it, and a succeeding Governor has the same power over an appointment as the predecessor Governor would have had if he continued in office. State ex rel. Kriebs v. Halladay, 52 S.D. 497, 219 N.W. 125. This seems to be the general rule. Annot. 89 A.L.R. 132 at 136 et seq. Therefore, we may approach this question as if Governor Farrar had made the withdrawal.
Relevant provisions of our Constitution аnd statutes applicable to Regents are next set out.
“educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of five members appointed by the Governor and confirmed by the senate under such rules and restrictions as the Legislature shall provide. The Legislature may increase the number of members to nine.”
“The control of the public, post-secondary educational institutions of the state * * * shall be vested in a board of seven members, designated as the board of regents. The board members shall be appointed by the Governor, by and with the consent of the senate.”
“The term of office of each regent shall be for six years from and after the first day of January immediately preceding his appointment and confirmation, and until his successor is duly qualified, unless sooner removed. The expiration of all terms shall occur on the first day of January of each odd-numbered year * * *”
There is some divergence of opinion respecting the right of an appointing executive to withdraw or recall аppointments made by him which are subject to subsequent approval by a legislative body. These two views were discussed by the court in McBride v. Osborn, 1942, 59 Ariz. 321, 127 P.2d 134, where it wrote:
“The governor cancelled the appointment of petitioner and withdrew his name from the senate upon the theory that he had the right to do so any time before action by that body, while the petitioner‘s position is that by appointing him and submitting his name to the senate for confirmation, the governor exhausted his power in that respect and could do nothing more concerning it unless and until it was rejeсted by that body. Several decisions are cited by petitioner in support of this proposition (citing cases). An examination of these authorities, however, and others of the same tenor, discloses that the appointment in each case had the effect of vesting the appointee with the office, and it is clear that to have held the governor, or other appointing power, could cancel an appointment and withdraw the name of appointee from the consideration of the senatе, would have given the governor, or other appointing power, the right to remove from office when that right did not exist under the law, except after a hearing and for cause. If appointment by the governor had had the effect of placing petitioner in the office of industrial commissioner and authorizing him to perform its functions, there could be no question but that the proposition that the governor
had exhausted his power in making the appointment and could not withdraw it would apply. But we are unable to see wherein this cоuld have any application at all where the appointment does not have the effect of vesting the appointee with the office.
* * * And this is true, whether sending the name to the senate for confirmation be treated merely as a nomination or as an appointment, because in neither instance would the act of the governor alone entitle his appointee to the office. The approval of the senate is just as necessary as the action of the executive to complete thе appointment and give the appointee any right whatever to take over the office and discharge its duties.”
It is sometimes claimed, as defendants here claim, that if the action of the Governor is deemed an “appointment” the Governor may not withdraw it, but if it is a “nomination” the Governor may withdraw it. We do not believe the nomenclature4 used ought to be that test, but rather whether the action of the executive is final and complete and places the appointee in office without further action.5 Our court in State ex rel. Kriebs v. Halladay, 52 S.D. 497, 219 N.W. 125, embraced that view when it wrote:
“In this case the appointment of Halladay remained in force6 until it was actеd upon by the Senate. On January 7th, while it was still in force, the Senate confirmed it. The appointment thereupon became complete, Halladay qualified * * *“. (Emphasis supplied)
Our conclusion is further supported by the wording of
“the only appointments over which the Senate has confirmation jurisdiction are those submitted by you and those made by your predecessor and not recalled by you. Upon your recalling any of the аppointments the confirmation jurisdiction of the Senate ceases“.
As indicated above, the courts are divided on this question, McChesney v. Sampson, 232 Ky. 395, 23 S.W.2d 584, holding the Governor could not withdraw the appointment for the reason it concluded the appointee was fully placed in office by the appointment. See also State ex rel. Todd v. Essling, 1964, 268 Minn. 151, 128 N.W.2d 307; State ex rel. Johnson v. Hagemeister, 161 Neb. 475, 73 N.W.2d 625, which quoted from McBride v. Osborn, supra, that “‘when the (Senate) has acted favorably * * * the appointment is final and complete’ “; State ex rel. Reynolds v. Smith, 22 Wis.2d 516, 126 N.W.2d 215, and Thorne v. Squier, 264 Mich. 98, 249 N.W. 497, 89 A.L.R. 126 with Annot. at 132.
Defendants claim that it is the duty of the Governor, nоt the Secretary of State, to communicate appointments to the Senate; that Governor Farrar officially transmitted defendants’ appointments to the “Legislature” and Governor Kneip did not formally notify the Senate of the withdrawal. The record is that Governor Farrar read a message and Governor Kneip took the oath of office as Governor in the Rotunda of the Capitol Building all on January 5, 1971, at 12 m. Whether former Governor Farrar was then Governor may be uncertain,7 but, passing that question, neither the messages8 nor defendants’ appointments were then
Before that, on January 11, 1971, Governor Kneip had officially withdrawn the defendants’ appointments by filing letters to that effect with the Secretary of State. That is the place appointments are required to be filed.
Claim is made plaintiffs are chargeable with laches and unreasonable delay in commencing their action; that they are estopped from asserting their cause of action and have
The questions of vacancies and of the right of plaintiffs to remain in office until their successors are duly qualified requires discussion of
“The Governor shall not have power to fill any vacancies caused by the refusal of the senate to confirm, nor vacancies caused by his own neglect to nominate to the senate in time for confirmation.”
The Senate did not refuse to confirm the appointments it considered; it voted to confirm them, though as we conclude defendants’ appointments had previously been withdrawn; therefore, that phrase does not apply to the situation here presented. Nor were the vacancies caused by Governor Kneip‘s neglect to nominate to the Senate within the “time for confirmation” as
HANSON and WOLLMAN, JJ., concur.
WINANS, J., dissents.
WINANS, Judge (dissenting).
I am in dissent. The reason for my dissent will be as tersely stated as I know how to write. The Governor of this state upon the expiration of the terms of appointment of the plaintiffs to the Board of Regents, except for their holdover rights, appointed each of the defendants to the Board of Regents for a term of six years, such term to be effective January 1, 1971 and to continue until January 1, 1977 or until their successors were appointed and qualified, subject to the confirmation of the state Senate. All of the appointive procedures provided for by the laws of this state and the Constitution were explicitly followed without any deviation. Each of the defendants took the oath of office required by statute which oaths were properly filed as required by law. The appointments were confirmed by the Senate, also an act provided for by law. After the appointments and the filing of the oaths and before the confirmation the Governor attempted by a letter addressed to the Secretary of State to withdraw the appointments which act is nowhere authorized by any law, statute or constitution of this state. When the Governor exercised his power of appointment and the defendants by filing their oaths accepted the appointments, the appointive act was complete, and as provided by law they took their offices. The only authority that could terminate their right to these offices was the Senate. They saw fit to confirm the appointments.
State ex rel. Kriebs v. Halladay, 52 S.D. 497, 219 N.W. 125, cited in the majority opinion, is not authority for the position taken
I quote introductory comments to the annotations found in 89 A.L.R. 135, as follows:
“At first sight, it would seem entirely reasonable and in accord with publiс policy to allow the appointive power the privilege of reconsideration. From the point of view of the one appointed to the office, however, to permit such reconsideration, after the power of appointment has been completely and finally exercised in the manner prescribed by law and the title to the office has become fixed, is to take from him a vested right. Also, from the point of view of stability and certainty in the administration of public affairs, it is desirable that there should be some point of time at which an appointment to office becomes finally and irrevocably fixed. As said in the famous case of Marbury v. Madison (1803) 1 Cranch (U.S.) 137, 2 L.Ed. 60: ‘Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised.’
Although there are circumstances under which an appointment to office may be reconsidered and revoked, it may be stated as a general rule that аn appointment once made is irrevocable and not subject to reconsideration. This view represents the great weight of authority.”
1 and 2 from the Syllabus of Barrett v. Duff fully supported by the text, 1923, 114 Kan. 220, 217 P. 918, states:
“1. * * * The executive power of the Governor is a continuing power, never ending, and not broken by succession.
2. * * * Where the appointment to an office is vested in the Governor, with the advice and consent of the Senate, and the term of the incumbent expires during a recess of the Legislature, and the Governor appoints a successor to the оffice, held, that the appointment vests in the appointee a right to hold for his full term, subject only to be defeated by nonconcurrence or rejection of the Senate.”
In State ex rel. Todd v. Essling, 1964, 268 Minn. 151, 128 N.W.2d 307, at page 311, it is stated,
“It appears well settled since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60, that with respect to an office having a fixed term where the appointee is not removable at will, when the executive power of appointment has been completely exercised, the authority of the executive to remove or rescind the appointment ceases. This rule is founded upon the princiрle that where the appointing authority has done everything he is required to do to make a valid and complete appointment, he has fully exercised and exhausted his power over the appointee and a recall of the appointment would operate as a removal from office in violation of the appointee‘s right to continue in office subject only to a rejection by the senate or removal for cause.”
Other authority can be given for the position I take but inasmuch as this is only a dissent and the law will become fixed and determined as stated by the majority, I refrain from further comment.
There is another statement in the majority opinion on which I must comment briefly. The majority opinion, after quoting
“That in the event Burke and Witt were called to testify before a referee, they would testify that on or about January 11, 1971, at the request of Governor Kneip, they conferred with the Governor in his office at the State Capitol, that they were advised by the Governor that he was withdrawing the appointments of Schmidt and Varilek, and he wanted Burke and Witt to continue to serve as Regents, that he could not assure them how long he wishеd them to serve but he wished them to serve for at least one year until the Master Plan, then under consideration by the Board, had been determined, and that in accord with his practice with department heads that they leave letters of resignation, annexed hereto as Exhibits S and T, with the Governor, they so did.”
I would hold that the defendants, Schmidt and Varilek, are the duly appointed, qualified, confirmed and legally acting members of the Board of Regents from January 2, 1971, the date they qualified.