People ex rel. Wetherbee v. Cazneau, 20 Cal. 503

People ex rel. Wetherbee v. Cazneau

20 Cal. 503 | Cal. | 1862

Field, C. J., delivered the opinion of the Court—Cope, J. concurring.

In February, 1861, Harvey was appointed Superintendent of Immigration for the port of San Francisco, for the period of two years. In August, 1861, Harvey died, and the respondent, Cazneau, was appointed and commissioned by Governor Downey to fiE the vacancy in the. office thus occasioned. Caznean immediately qualified, and entered upon the duties of the office. On the eighth of January, 1862, Governor Downey sent a message to the Senate, informing that body of the appointment, and requesting its confirmation. The Senate postponed the consideration of this message until the twenty-first of the month. On that day, Governor Stanford, the successor of Governor Downey, sent a message to the Senate, withdrawing “ the appointment.” The Senate, however, proceeded and confirmed it. On the fourteenth of May the Legislature adjourned sine die, and on the twenty-ninth of the same month Governor Stanford appointed Wetherbee, the relator, Superintendent of Immigration, and issued a commission to him. On the second of June, Wetherbee qualified, by taking the prescribed oath, and executing the required bond, and demanded of the respondent possession of the office and its books and papers, which was refused. The present proceeding is to try the right of the parses to the office.

*507The appointment of a Superintendent of Immigration for the port of San Francisco for a full term is vested by the statute in the Governor and Senate; that is—it is to be made by the Governor, by and "with the advice and consent of the Senate. (Laws of I860,' chap. 57, sec. 1.) Vacancies in offices, where the original power of appointment is thus vested, are to be filled by the Governor during the recess of the Legislature, by granting commissions which shall expire whenever the Governor and Senate shall make appointments to fill the offices. (Act concerning Offices of April 28th, 1851, sec. 41.) The appointment of Cazneau, being for a vacancy, was complete, so far as the Governor was concerned, upon the delivery of the commission. The Governor could not after-wards revoke the appointment, or by any act affect the right of the appointee to the office for the period prescribed by the statute —that is, until the original appointing power—the Governor and Senate—should act and fill the office. The temporary appointment required no confirmation of the Senate. That body could neither add to nor take from its validity by any confirmation or rejection. That body had nothing to do with it. The request, therefore, made by Governor Downey of the Senate to confirm the appointment, and the attempt of Governor Stanford to withdraw the appointment, were both proceedings which could in no respect affect the rights of the appointee.

Ho attempt was made to fill the office during the session of the Senate. The Governor, who in such matter’s must take the initiar five, never made any nomination to the Senate for the office. The Governor having thus failed to act during the session of the Senate, could not.fill the office by appointment after its adjournment. Without the advice and consent of the Senate, he could not fill the office; without such advice and consent he could only fill a vacancy in the office, and the vacancy in the office in question was already filled by the appointment of the respondent. His commission did not expire upon the adjournment of the Legislature by force of the eighth section of article five of the Constitution. That section only declares that “ when any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laivs for filling such vacancy, the Governor shall have power to fill such *508vacancy, by granting a commission, which shall expire at the end of the next session of the Legislature, or at the next election by the people.” This section, by its very terms, only applies to those cases of vacancies for filling which no other mode is provided “ by the Constitution and laws.” By the act concerning offices of 1851, another mode is provided for filling the vacancy in an office like that of Superintendent of Immigration, and the duration of the appointment is prescribed. The commission for the vacancy shall expire, says the statute, whenever the Governor and Senate shall appoint a person to fill the office. (Sec. 41.) It was entirely competent for the Legislature to thus fix the duration of the commission. The office was created by law, and the mode in which the office and vacancies therein should be filled was matter purely of legislative discretion. The power of the Governor, under the clause of the Constitution, did nob therefore arise in the present case.

Our conclusion is that the respondent, by virtue of his appointment from Governor Downey, is entitled to the office until the Governor and Senate proceed to fill it. (See Story on the Constitution, Secs. 1558 and 1559; United States v. Kirkpatrick, 9 Wheat., 720; Opinions of the Attorney General, 2 vol., 336, 4 vol., 31 and 362.)

Judgment affirmed.

Norton, J. delivered the following concurrent opinion:

I do not think it necessary to decide whether the act of Governor Downey in informing the Senate of his appointment of Cazneau as Superintendent of Immigrants, and asking for his confirmation was nugatory; or whether it may not be considered as a nomination to the office ; nor whether, if it be considered as a nomination, his successor in office, Governor Stanford, had the right to withdraw such nomination before it had been acted upon by the Senate. If it was a sufficient nomination, and if that nomination could not be withdrawn by Governor Stanford, then Cazneau holds the office by appointment of the Governor and the Senate. But if it was not a valid nomination, or if it was properly withdrawn before being acted upon by the Senate (it being conceded that no other person has been appointed by the Governor and Senate to fill the office *509made vacant by the death of Harvey) then Cazneau still holds the office, by virtue of the commission given to him by Governor Downey during the recess of the Legislature, under the effect of section forty-one of the “Act concerning Offices,” passed April 28th, 1851. The particular phraseology of this section was not adverted to on the argument of this case, nor is it alluded to in the briefs filed by the counsel on either side. The argument has been confined to the provisions of section eight of article five of the Constitution, by which the duration of a commission issued in a case contemplated by that section is limited to the expiration of the next session of the Legislature, or to the next election by the people. This limitation is not contained in section forty-one of the Act concerning offices, but, by that section, the commission given by the Governor continues in force until the Governor and Senate shall appoint a person to fill the office. It may be that it was not the purpose of the Legislature, by section forty-one of the Act concerning Offices, to give to such a commission a longer duration than that specified in section eight of article five of the Constitution ; but such longer duration is plainly given by the language, and I do not see that this Act of the Legislature is in contravention of any direct provision of the Constitution, though it is not altogether in harmony with the spirit of the above-mentioned section of that instrument.

I therefore concur in the judgment of affirmance.