People v. Blanding

| Cal. | Apr 21, 1883

Thornton, J.

It is urged that the appointment of the relator Knight is invalid, for the reason that the consent of the Senate to his appointment was given during the extra session of the legislature of 1881, when it was convened by proclamation of the governor, for the purpose of legislating upon certain subjects specified in the proclamation.

We concur in the view in regard to this point taken in the former opinion of the court, filed November 28,1882, and adopt its language, which is as follows: —

“In our view of the matter, it is not necessary to consider whether the governor could constitutionally convene the legislature in extra session for the sole purpose of having the Senate consent to his appointments. Nor is it necessary to inquire whether that was one of the subjects specified in the proclamation by which he convened the legislature at that time. The fact that the legislature was lawfully convened on that occasion, and that while so convened the Senate consented to the appointment of the relator, is not disputed. The legislature had no power to act on that subject whether it was specified in the proclamation or not, and the constitutional prohibition is limited to subjects upon which the legislature would have power to legislate in the absence of any prescribed limitation. The prohibition applies only to acts of legislation, and it was wholly unnecessary to prohibit legislation by the Senate, because the Senate alone could not legislate. It might pass any number of bills, but until concurred in by the other House, and approved by the governor, they would have no validity. Therefore, the constitutional limitation on the power of the- legislature to legislate, when convened in extra session, does not apply to this case, and the Senate had the same power to consent to the appointment of the relator that it would have had if the Constitution had authorized the governor to call an extra session of the legislature whenever he should deem it advisable to do so, without imposing any other limitations upon its power to legislate when so convened than are imposed on its power to legislate when convened in regular session.”

It is further argued that the appointment is invalid because it was made by the governor on the day on which the term of the respondent expired, and that the governor was not authorized to make such appointment until the respondent’s term had expired. To sustain this argument we are referred to section 2520 of the Political Code, which, so far as bears on this question, is in these words: —

“As soon as maybe after the passage of this act, the governor, by and with the consent of the Senate, shall appoint three harbor commissioners, who shall hold office, one for two years, one for three years, and one for four years, from the date of their respective commissions. The governor shall, in like manner, at the expiration of their respective terms, appoint and commission their successors for a full term of four years.”

Let it be conceded that respondent’s term included the whole of the 8th of March, 1882, and that relator was appointed on the same day. We do not think with this concession that the argument is sound. The preposition “at” is indefinite in its meaning ; such is the view of it taken by Dr. Webster. (See the word in Webster’s Dictionary.) He says: “It is less definite than ‘to’ or ‘on’; ‘at the house’ may be in or near the house.” With reference to time, it may mean the exact moment or near it. In common speech the word is so used. When the legislature used the words in the section above quoted “ at the expiration of,” it would b$ a very strained construction to hold that it was intended to designate the exact moment rather than a few moments before. It seems by the argument to be admitted that it may designate any time after the expiration, even a few moments after. If a few moments after, why not a few moments before? We see no reason why one construction is not as correct as the other.

It is consistent with the finding that the appointment Avas made on the last moment of the 8th of March. To hold under such circumstances that the governor could not lawfully exercise the power of appointment, would be adhering to the exact letter of the statute with a strictness not at all commendable. To lay doAvn such a ruling as Lav, would seem to men of good commonsense and fair judgment, as savoring of the absurd. To hold to the letter of the act as contended for by respondent, would tend strongly to establish the position that the power of appointment must be exercised at the very punetwm temporis when respondent’s term ended, or it would not be lawfully exercised. The interpretation urged by counsel for respondent may be an ingenious refinement, but it would not be a tenable construction of the section referred to.

The judgment is reversed and cause remanded, with directions to enter judgment for the plaintiff in accordance with the prayer of the complaint.

Myrick, J., Sharpstein, J., and McKee, J., concurred.

Ross, J., and MoKinstry, J., dissented;