78 Colo. 276 | Colo. | 1925
Lead Opinion
delivered the opinion of the court.
Lehman brought quo warranto against Murphy and obtained a judgment ousting him and he brings error. By agreement of all parties the case is heard on the briefs on motion for supersedeas.
In March, 1919, Murphy was appointed by the governor with the consent of the senate as civil engineer member of the state board of land commissioners for a term ending January 13, 1925. Colo. Const., Art. IX, sec. § 9. He served until the end of his term and until now. On the 7th of January, 1925, the senate convened and sat continuously till April 16th, when it adjourned. On said 16th day of April the governor sent the relator’s name to the senate as his appointee for such office. The nomination was referred to the State Affairs Committee, and on its recommendation was indefinately postponed for lack of time.
April 17th, by executive order, the governor appointed the relator to said office for a term to expire on the second Tuesday in January, 1931. He qualified and demanded the office but respondent refused; hence this action.
Had the governor, under these circumstances, the right to make the interim appointment? We think not.
Colorado Constitution, article IX, section 9, reads as follows: “The state board of land commissioners shall be composed of three persons to be appointed by the governor, with the consent of the senate. * * *.”
Article XII, section 1: “Every person holding any civil office under the state or any municipality therein, shall, unless removed according to law, exercise the duties of such office until his successor is duly qualified; * * * ,”
In Walsh v. People, 72 Colo. 406, 211 Pac. 646, we held that the expiration of the incumbent’s term created a vacancy within the meaning of article IV, section 6, notwithstanding article XII, section 1. The claim of plaintiffs in error, therefore, that the expiration of a term of office does not create such a vacancy as will permit the governor to make a recess appointment under said section 6, cannot stand, though it is supported by powerful authority.
The additional point is made, however, that in order to give the governor such power the vacancy must “occur” during a recess of the senate. Plaintiff in error says “occur” means “arise”, “take place.” Defendant in error says it means “exist,” “be.”
In Walsh v. People, supra, the expiration of the previous term took place during a recess of the senate, so there was no question there of the meaning of the word “occur”; it seems, therefore, that the only question before us is: What is the sense in which that word is used in said section 6 ? The word carries to the mind a sense of origin, beginning, not of mere existence nor of continuation. An explosion occurs; a river is. Derivatively, too, this is its meaning (See Webster) ; and although it is sometimes used to carry some idea of existence yet such is not its ordinary and usual sense. One might say a ,,session of congress occurred in 1912, but one would not say so if it began in 1911; likewise when we hear that a vacancy occurred in a recess of the senate our first thought is that it began then, not that the recess began during the vacancy. It is interesting to note that in the various opin
The New Jersey supreme court (Fritts v. Kuhl, 51 N. J. L., 191, 198, 17 Atl. 102) considers the fact that the constitutional convention of that state copied the United States Constitution, an indication that they intended to adopt the construction thereof previously given by the United States Attorneys General, which was that “happen” meant “exist.” If that be so, may we not say that the fact that our convention adopted different words indicates a different intention? It cannot be doubted that the able and distinguished lawyers who were members of our convention considered these matters with care and had the national Constitution always in mind.
The original draft of the article pertaining to the executive department which was reported to the Colorado constitutional convention by the committee on that subject contained an almost literal copy of the United States Constitution, article II, section II, paragraph 3, as to filling of vacancies, using the words “vacancies that may happen * * * during a recess of the senate” (Proc. of Const. Conv., p. 74). The committee of the whole changed the words to “in case of a vacancy * * * during a recess of the senate the governor shall make a temporary appointment until the next meeting of the senate when he shall nominate some person to fill such office.” p. 128. The convention adopted this report, pp. 216 — 219. The committee on revisions and adjustments, of which the late Justice of this Court, E. T. Wells, was chairman, reported a substitute (p. 401), which read as does our present Constitution, and in this form it was finally passed by the convention and people. The word, then, vital to the present question, was before the convention in three forms, “happen”, “In case of * * * ”, which is equivalent to “be” or “exist”, and, finally, “occur.” Can it be doubted that
The purpose of the section seems not to be more with Lehman than with Murphy. It was to provide for the continuous discharge of the duties of every office. During session, then, the governor must nominate and with consent appoint to fill the office; during recess he must appoint to discharge the duties ad interim. There are no other times than session and recess; all possible times are thus provided for; the incumbent, if there is one, continues to discharge the duties till the governor acts. So, assuming and expecting that the governor will do his duty and in due time seek the consent of the senate, all possible contingencies are met,
The governor may appoint a man to discharge the duties until the next session of the senate when he shall appoint some one to fill the office if a vacancy exists during the session of the senate.
It cannot be disputed that it is the governor’s constitutional duty to nominate to the senate when it is in session and upon their consent appoint to fill every vacant office.
The fact that the governor nominated and the senate
As to authorities: Defendants in error cite People v. Osborne, 7 Colo. 605, but it is not precisely in point. It was decided on the point that there was no vacancy because the statute there in question provided that the “term of office shall continue” * * * until the successor is appointed and qualified, whereas here the expression is exercise the duties of the office until, etc.; we pointed out this distinction in Walsh v. People, supra. It therefore did not control us in Walsh v. People. The question now under consideration was not in that case.
They also cite Fritts v. Kuhl, supra, and In re Farrow, 3 Fed. 112, and various opinions of the United States Attorneys General all of which are strong in their favor. Some of these authorities, however, may be distinguished in that they depended, at least in part, on public necessity, because there was no one, as here there is, to discharge the duties. Their main reliance is Walsh v. People, but we have already distinguished that case.
Most of the authorities cited by the plaintiff in error go more particularly to the question of the existence of a vacancy rather than the meaning of the word “occur.” Such are State, ex rel. v. Howe, 25 Oh. St. 588, 18 Am. Rep. 321; Dunbar v. Cronin, 18 Ariz. 583, 164 Pac. 447; People v. Tilton, 37 Cal. 614. In the latter case, however, Chief Justice Sawyer said, that it is the design of the Constitution to restrict the appointing power within the narrowest limits, and “If the point is doubtful, this recognized principle should turn the scale against the appointing power where there is a party authorized to perform the duties of the office till it can be filled by the regular appointing power.” That statement fits the present case though the case does not, and, upon the principle thus stated and followed, which is stated and followed in numerous cases, we ought to be slow to stretch the statute so as to increase the powers therein granted. If the case is en
The position of plaintiff in error is strongly supported by People v. Forquer, 1 Ill. 104. The doubts expressed by the court in that case and quoted by counsel for defendant in error, relate to a point other than that now before us. To the same effect is Brady v. Howe, 50 Miss. 607. It is there assumed that “occur” means “arise,” “begin,” and it is held that the governor cannot appoint to fill a vacancy that occurred, i. e., began during session. Mecham on Public Officers, section 136, is also strong in support of this position. These and other less precise authorities and the other considerations above, expressed constrain us, notwithstanding the opinions of the federal attorneys general and the other citations of the defendants in error, to say that “occur” means “arise,” “begin,” and not “exist.” It follows that the governor cannot make an ad interim appointment in the present case, but must await the session of the senate or call a special session.
The judgment of the district court is reversed with directions to dismiss the case.
Mr. Justice Campbell and Mr. Justice Adams dissent.
Unless, perhaps, that of a vacancy by death or other unpredictable hap at the very end of a session, leaving no one to exercise the duties, when a special session might be necessary.
Dissenting Opinion
dissenting.
Were it not for provisions in our Constitution which are different from those in the constitutions of other states, and if the case was one of first impression in this jurisdiction, this court, upon the ground that it is the better doctrine, might, though I think it should not, follow that line of authority which is supposed to sustain the view taken in the majority opinion. Acknowledging the ability and integrity of the writer of the majority opinion and his concurring associates, and mindful of the desire we all have for unanimous decisions especially in political or semi-political controversies, I cannot assent to what seems to me, though not to the majority, to be an unwarranted departure from the sound and salutary contrary view
Where property rights are involved our courts usually enforce stare decisis, and while they unquestionably have power to overrule their former decisions, they deem it better to adhere to the law when once settled after mature deliberation, so that property owners may know their rights and act accordingly, than thereafter to change the law because the same or different judges may prefer another rule. In cases of a political nature it is equally desirable for courts to stick to decisions once so made and to apply their doctrine in future cases and for a similar reason, and the additional one, that they may retain the confidence of worthy citizens who, regardless of political affiliation, rightly or not, are prone to resent change or shifting of position in such controversies as colored by political prejudice or influence.
This statement must not be taken even as an indirect suggestion that in this departure any improper motive has entered any more than that this dissent is the result of a similar motive. We all recognize that such differences of opinion not infrequently arise. Whatever their political preference may be as individuals, judges should be, and I am sure that in this case they are, indifferent as to the. parties thereto and as to party or factional affiliation, and be governed solely by the law.
That I am not mistaken in the statement that there has been a departure from, if not an overruling of, our previous cases the language of the opinion itself is invoked. In referring to a cited California case the writer says that if it is entirely right, “We went too far in Walsh v. People, but now we are asked to go a step farther.” Not only does the opinion decline to take that step but it retraces the step therein taken and advances several steps in the opposite direction. And this leads me further to comment upon that and other cases of this court because, in my judgment, they sustain the judgment of the district court in the instant case. The Walsh case was decided in áep
Furthermore, the court in the Walsh opinion cites with approval People v. Scott, 52 Colo. 59, 120 Pac. 126, where in an elaborate opinion by Mr. Justice Musser, the same result was reached and he refers with approval to People v. De Guelle, 47 Colo. 13, 21, 105 Pac. 1110, opinion by Mr. Justice White. In this Scott case this court sustained the validity of the Court of Appeals Act. Judge Musser’s opinion, among other things, held that a vacancy in the office arose when the creating statute was enacted and before the first appointment of the judges. This is a familiar doctrine. The appointment by Governor Shafroth of
Governor Morley in making this appointment of the relator Lehman fully conformed with and followed the
The respondent’s argument that the governor wholly disregarded his duty by failing to send to the senate during its session a nomination for its consent is not borne out by the facts. Not only did the governor in sending the name of Chatfield comply with all requirements but compliance was again had when the nomination of Lehman was sent to the senate on the last day of its session and, in my judgment, if we adhere to our previous decisions the governor was strictly and without question also within his rights when he made the ad interim appointment of Lehman after the session of the General Assembly adjourned. The entire discussion as to the propriety or impropriety of the acts of either constitutent of the appointment power is irrelevant at this time. The governor was acting within his rights; the senate was acting within its right in declining to take action. It is not for this court to pass upon the motives of either, but to assume that each one in good faith was properly discharging official duty.
As preliminary to further discussion of the ground on which the majority put their reversal, the following summary is made of what I say are our previous holdings, though it involves a repetition: (1) The expiration of a fixed term of a public officer gives rise to an absolute vacancy therein. (2) This vacancy, whenever it occurs, may not be completely filled except by the concurring acts of the two constituent factors of the appointing power, the governor and the senate. These acts need not necessarily
My conclusion that the foregoing has been decided by this court, though the majority disagree with what is said as to “failure”, as distinguished from “inability”, to act is fortified by contrasting our decisions with those of other states, especially with the decisions of the Supreme Court of Wyoming which are typical of those in other jurisdictions supposed to be opposed to our conclusion in the Walsh case and which are relied upon by the respondent. A difference of opinion between our decisions and the other ones referred to may be accounted for by a difference in the phraseology of the respective constitutions and that in some, if not all, of these other jurisdictions ad interim appointments are not recognized. In the Walsh case the opinion refers with disapproval to State, ex rel. v. Henderson, 4 Wyo. 535, 35 Pac. 517, 22 L. R. A. 751, and Ballantyne v. Bower, 17 Wyo. 356, 99 Pac. 869, 17 Ann. Cas. 82, because they are to the effect that an incumbent holds over or continues in office after the expiration of his term and not as with us as a mere locum tenens. The opinion also states that the Wyoming cases are based on a constitutional provision indentical with ours, and contrary to our conclusion, but with great respect for that court we think it misconstrues the section. In a late decision by the Supreme court of Wyoming, after the Walsh case was decided, the Supreme Court of Wyoming, in People v. Shawver, 30 Wyo. 366, 222 Pac. 11, Chief Justice Potter in an elaborate opinion refers to our Walsh decision and makes the point, which I think is a good one, that it seems to have been based upon a provision of our Constitution different from theirs in that, in our organic act, the governor is authorized, in case of a vacancy, to appoint ad interim a person “to discharge the duties of the office until the next meeting of the senate, when he
But if the Walsh case is not, as the majority opinion says, decisive of this one, because the word “occur” was not there involved, nevertheless, the decision below is right according to the great weight of authority and reason. And to a demonstration of that contention I now proceed, first observing that if “occur” was not involved in the Walsh case, it was, in my judgment, because the court there thought, and as I continue to think, it is immaterial when the vacancy occurred. The court evidently then thought it was immaterial because it held, following the Scott case, that though the expiration of a fixed term creates a vacancy which can be completely filled when the senate is in session only by the concurrent acts of the governor and the senate, yet if not so filled, then in recess the governor may appoint some one to fill it temporarily. If this court in the Walsh case had supposed, as the majority seem to here, that the governor could not, without the consent of the senate, make an ad interim appointment when the vacancy occurred during the session of the senate, it would have said so in so many words and that would have ended the opinion in that case; but instead of saying so we then put the decision upon another ground, as just in
The majority opinion, however, without discussing the-Walsh case but merely indicating that if the Tilton ease was entirely right, we went too far therein, now takes a position which I think is essentially different from the one we adopted in the Walsh and other cases already considered. After thus stating that the meaning of the word “occur” was not involved in the Walsh case, and therefore not controlling here, it is said the only question now before us is as to the sense in which “occur” is used in section 6 of article IV of our Constitution; that the word “occur” carries to the mind “a sense of origin, beginning, not a mere existence or continuation”. The opinion further states that in the various opinions of the courts on this subject the “writers, apparently unconsciously, often used the word in the sense of begin but never, we believe in the sense of exist”. It is with great deference submitted that this statement is not correct. In the research of counsel in this case, followed by a diligent search by me, no case has been cited or found where any such definition as is suggested in the majority opinion, has even been squinted at. Even in the opinion of Judge Cadwalader, hereinafter referred to, there is no suggestion that the definition in the majority opinion was in his mind. Many other decisions, some of which will be later referred to, are directly contrary to the observation just referred to. It is also said that in the proceedings of our constitutional convention, and I assume the opinion correctly discloses all that occurred on that subject, the proposed article of the constitution before the convention appeared in three forms. At one time the word “happen” is used, at another time “in case of a vacancy”, and again “occur” at another. The "opinion states that Judge Wells, chairman of the committee on revision and adjustment, knew what words meant and how to use them, and that if the intention had been to give the governor power to fill vacancies
Let us see what the courts say. One of the leading cases is Fritts v. Kuhl, 51 N. J. L. 191, 17 Atl. 102, and the facts of that case are almost identical with those in this case. It is most exhaustive and in the course of the opinion it is stated that the executive journals show that from the time of the adoption of the Constitution of the United States, in advising the president of his right and power to fill during a recess of the senate a vacancy which had begun during its preceding session, not less than ten of the prominent men who occupied at different times the office of attorney general, informed the president that he had such power and in construing the word “happen” treated the same as synonymous with “occur”, and each with “exist”. During the administration of President Monroe, in 1823, Mr. Wirt, who was then attorney general, in advising the president that he had such power, in concluding a lucid argument, used the following remarkably clear and explicit language which so well states
In 1825 President John Quincy Adams adopted this construction in his appointment of Amos Binney as a navy agent for the port of Boston. In 1832, during the administration of President Jackson, Attorney General Taney, who afterwards was appointed by Jackson Chief Justice of the Supreme Court of the United States, gave an opinion in which he accepted the interpretation of his predecessor and held that the meaning of the clause of the constitution is: “If there happen to be any vacancies during the recess” the president may make a temporary appointment as stated by Mr. Wirt. As further enforcing his views, Attorney General Taney gives instances in which it cannot be imagined that the power to act in recess was intended to be withheld from the president, and thus says: “An officer may die abroad or be in a distant part of the country, and his death not be known until after adjournment, or a nomination may be confirmed by the senate, and the appointee may refuse to accept after adjournment.” If then the president has not the power after the senate has
In 1841, Mr. Legare, Attorney General, expressed a like opinion and this was concurred in by Attorney General Mason in 1846, Vol. 4 of Opinions, p. 523. In 1855, Attorney General Cushing, (one of the ablest lawyers this country has ever known), referring to the opinions of his predecessors in office said: “They have thoroughly demonstrated and conclusively established, as a doctrine of administrative law, that the expression of the Constitution, ‘all vacancies that may happen,’ signifies ‘all vacancies that may happen to exist in the recess,’ or ‘when there happens to be any vacancies in the recess.’ And they concur in the general statement, that howsoever a vacancy happens to exist, if it exist it may be filled by temporary appointment of the president.” To the same effect are the opinions of Attorney General Bates in 1862, and Attorney General Speed in 1865, and Attorney General Stanbery in 1866. In this opinion of Attorney General Stanbery the conclusion was reached that the president has full and independent power to fill vacancies in recesses of the senate, without any limitation as to the time when they first occur. Again in 1868, Mr. Evarts, in a very carefully prepared opinion said that when the vacancy occurs while the senate is in session and is continuing, through the failure of the senate to confirm a successor, the president during a recess of the senate could make a temporary appointment.
There is as already stated only one decision referred to in the text books or found in the reported cases, so far as I have been able to discover, that takes a contrary view. That was by Judge Cadwalader of the United States District Court of Pennsylvania. District Attorney Cases, 7 Amer. Law Reg. 786. Ten years later Justice Woods, of the United States Supreme Court sitting in the Georgia
One of the leading ones is Richardson v. Young, 122 Tenn. 471, 125 S. W. 664. The opinion is an elaborate one by Mr. Justice Shields, a jurist of national repute, and the court itself, learned counsel for respondent here would acknowledge, is an able one. The facts of that case are not
At the late session of Congress, after the senate in session had refused its consent to the appointment of Mr. Warren as Attorney General, President Coolidge’s expressed intention, if Mr. Warren would accept it, to give him a temporary recess appointment shows that President Coolidge, doubtless so informed by his able Solicitor General, entertains the same view, and puts upon clause 3 of section 2 of article II of the United States Constitution which in meaning is the same as section 6 of article IV of our state Constitution, the same construction entertained and announced by all' of his predecessors in the presidential office under the advice of their legal advisors.
It has been up to this point assumed that section 6 of article IV of our Constitution applies to the office of a member of the state land board and regulates the mode and method of his appointment. Relator’s counsel say that it does not because section 9 of article IX, a special and limited section, provides for the appointment of members of that board and fixes their tenures of office and contains no provision whatever for a holding over or continuing in office at the expiration of a term; hence, there is no
Dissenting Opinion
dissenting.
The scholarly and exhaustive analysis of the issues by Mr. Justice Campbell in his dissenting opinion seems to me to be unanswerable, leaving little if anything further to be said, but I venture to add a brief statement of my own views in the matter.
Under the rule of stare decisis I think that the Walsh precedent should have been followed; the rule ought never to be suspended without good reason; it should never be discarded when it involves even a temporary though unintentional forgetfulness of principles so firmly grounded in the public conscience as the excellent ones announced in the Walsh case quoted above.
As pointed out by Mr. Justice Campbell in his dissenting opinion, the Presidents of the United States, acting upon the advice of successive heads of the Department of Justice, the Attorneys General, in construing a provision of the United States Constitution similar to ours, have for generations adopted the meaning contended for by the defendant in error in this case, but which has been denied him. The main opinion points out that article II, section 2, paragraph 3 of the United States Constitution refers to vacancies that may “happen”, while in the Colorado Constitution the word “occur” is used. But what of this? These words are often used interchangeably, or as synonomous terms. See dictionary definitions of both words. A writer or speaker might use a half dozen different
At the oral argument it was admitted by counsel for plaintiff in error that the governor had sent another nomination to the senate while it was in session, but that the senate had failed to act upon it, although it appeared that there was ample time so to do, and that the governor withdrew the nomination and later sent in Lehman’s name. I refer to this only because the statement in the main opinion in this case to the effect that the Lehman nomination was sent in when the senate was about to adjourn, might otherwise be misconstrued. In the Federal courts, at least, cases are often decided by busy judges upon opening statements of counsel, without minute reference or without necessarily any reference to the pleadings. It saves time and I think that it should have been done in this case and the writ dismissed.
There is no question in the present case involving the qualifications or fitness of either of the respective contestants to hold the office. Neither is the good faith of either the senate or the governor open to question or debate in this action. It is only for the purpose of determining who
For the above reasons, I respectfully dissent.