228 N.W. 830 | N.D. | 1930
Lead Opinion
On the 8th day of November 1927, Louis Rosoff brought a mandamus proceeding against the members of the state board of pharmacy to compel them to recognize him as a member of said board, and on the 29th day of November 1927, the state of North Dakota on relation of George Shafer, attorney general, brought an action against the defendant, Louis Rosoff, for the purpose of trying his title to the office of member of the state board of pharmacy of the state of North Dakota. The two actions were consolidated and tried on the same stipulated facts. There was a judgment in favor of Rosoff in both actions, and from these judgments separate appeals were taken and submitted to this court as one action.
The facts stipulated and necessary for consideration are as follows: The state board of pharmacy under § 477, Comp. Laws 1913, "consists of five registered pharmacists." On May 8th, 1922, one W.P. Porterfield *156 was duly appointed for a term of five years and qualified and acted as a member of said board during said term.
The North Dakota Pharmaceutical Association was duly incorporated in 1886, and there is nothing in the articles of incorporation or the by-laws providing the number of votes to elect, recommend or to carry any motion at a meeting of said board of pharmacy. On August 3rd, 1926, the North Dakota Pharmaceutical Association then assembled, and having before it, the question of the recommendation of someone to the governor for appointment for the full term of five years to succeed W.P. Porterfield, the following proceedings were had, viz.: "The committee appointed for the purpose of nominating candidates reported to the general meeting as candidates, W.P. Porterfield, P.H. Costello and O.B. Sjurseth to be submitted to the governor from which the governor should select one to succeed the said Porterfield on the state pharmacy board, upon the expiration of his term on May 8, 1927. Mr. Parker, a member of the association, inquired, `If we nominate three names to be submitted to the governor we are going to get into politics for we are a family and should settle our own dispute right here. I should like to see this association select one name to be submitted to the governor.' Mr. Mergen of Fairmont, then said, `I think Mr. Parker's idea is correct, and I move that we elect one of the three men named as our candidate to be presented to the governor for appointment.' The president then appointed tellers and advised the members to vote for one. Mr. Mergen then inquired, `Will it be necessary for the nominee to have the majority of all votes cast, or is it the one receiving the highest number?' The president responded, `The one receiving the highest number will be declared elected. There is nothing in the by-laws concerning this.' The result of the election was P.H. Costello 23 votes, W.P. Porterfield 19 votes, and O.B. Sjurseth 5 votes. The president declared Mr. Costello elected, and on March 26, 1927, Mr. Sudro, secretary of the North Dakota Pharmaceutical Association, by writing, notified the governor of the recommendation of Mr. P.H. Costello of Cooperstown, for appointment to the state board of pharmacy to succeed W.P. Porterfield whose term would expire May 8, 1927, and which notice was acknowledged by the governor on March 28, 1927," two days later. On May 7, 1927, the governor *157 ignoring the recommendation of the pharmacy board appointed Louis Rosoff for the full term of five years. Rosoff was a registered pharmacist and qualified to act as a member of said board, except, that he did not have the recommendation of the board. He took the oath of office, however, and filed his bond, and attended one meeting, and was thereafter refused recognition by the board. There is only one question involved, and that is, had the governor power to appoint Mr. Rosoff to the position? If he had not, the judgment in both actions must be reversed.
The law (§§ 477, 487 and 480, subdivisions a, b and c, Comp. Laws 1913) reads as follows:
"The state board of pharmacy shall consist of five registered pharmacists. The members of said board shall be appointed by the governor upon the recommendation of the North Dakota pharmaceutical association, and the persons so appointed shall be chosen from the members of said association. Except as provided in the next section the members of said board shall be appointed for a term of five years and until their successors are appointed and qualified."
"The three members of the present state board of pharmacy shall continue in office for the remainder of their respective terms, and the governor shall appoint two additional members, one for a term of four years and one for a term of five years. In case of a vacancy by death, resignation or removal the governor shall fill the vacancy by an appointment for the unexpired term."
"A majority of the board shall constitute a quorum for the transaction of any business. The board shall have power and it shall be its duty: (a) To cancel and revoke the certificate and registration of any registered pharmacist, or registered assistant pharmacist for incompetency, or who is addicted to any drug habit. (b) To examine and register as pharmacist and assistant pharmacist all applicants which it shall find to be entitled to such registration. (c) To prescribe rules and regulations for the guidance of its members, officers, and employees, and to ensure the proper and orderly dispatch of its business."
Two classes of appointments are provided for. First, § 477, the governor shall appoint for the full term upon the recommendation of the association. Second, under § 478, if a vacancy occurs on the board by *158
death, resignation or removal the governor shall fill the vacancy by an appointment for the unexpired term. It is clear from these sections, that the governor has the absolute power to fill a vacancy caused by the death, resignation or removal of a member, but only for the unexpired term. Nowhere in the statute is the governor given power to appoint for a full term, except, upon the recommendation of the board. This is purely a statutory board, and the governor has only such power as the statute gives him. It does not give him the power to appoint for a full term, but only the power to appoint to fill vacancies caused by death, resignation or removal. There was no vacancy in this case, such as it contemplated by the statute, as Porterfield held over. In case of death, removal or resignation there is no holding over. This was made clear by Chief Justice Bruce in the case of State ex rel. Langer v. Crawford,
In a concurring opinion Judge Christianson said: "It is a well-settled principle of construction that when a statute or a constitutional provision directs that a thing be done by certain persons and in a certain manner, this affirmative contains a negative, that it shall not be *159
done by other persons or in another manner." Citing State ex rel. Frich v. Stark County,
Where the senate is in session and the term of an office will expire before the next session it is the duty of the governor to nominate a person to fill the vacancy and to send his name to the senate for approval, and if he fails to do so he cannot make a valid appointment to fill such vacancy during the recess of the senate. Brady v. Howe,
Where a city ordinance provided that the office of fire engineer should be filled by the mayor with the consent of the city council and the mayor ordered the incumbent of the office to withdraw and appointed the defendant but the city council did not approve of his action it was held that the defendant had no right to the office, but that incumbent had been and still was rightfully therein. State ex rel. Atty. Gen. v. Bryson,
"The mere expiration of the term of office does not create such a vacancy as to authorize an appointment during a recess of the confirming body." People ex rel. Laine v. Tyrrell,
"The Constitution may draw a distinction between successors and appointees to fill vacancies, and it may provide that successors must be appointed by the governor in all cases by and with the advice of the senate, but permit appointments to fill vacancies to be made by the governor alone when the general assembly is not in session." 22 R.C.L. 441.
Where there is no constitutional restriction, it follows that the legislature has the power to distinguish between successors and appointees and that is exactly what it did in the statute under consideration. This statute gives the governor no authority to appoint on his own motion, except, in case of vacancy by death, resignation or removal.
"The contingencies and events on the happening of which public office shall be considered vacant may be and often are enumerated in the constitution or the statutes of the state. Among usual statutory grounds for recognizing that a public office is vacant may be mentioned the death of the incumbent, his resignation, impeachment, removal from office, etc." 22 R.C.L. 438 and 439. *160
In the case of State ex rel. Carson v. Harrison,
A case very much in point is the Opinion of the Justices of Massachusetts Supreme Court,
"It is obvious from the course of legislation upon this subject, that it has been, for a series of years, the wise policy of the law of this commonwealth to provide for the employment of a body of men as pilots, of competent skill and experience, to take charge of vessels both inward and outward bound . . . the requisite skill and experience are insured by providing that they shall receive their authority by a public appointment upon the recommendation of persons of established experience and skill themselves."
It is argued that since each of the societies nominated two candidates for appointment, that, that left some discretion in the appointive power, but if the legislature can limit it to two it can limit it to one. Such statutes are passed and upheld for the purpose of securing the appointment of men to office who are trained and skilled in their profession, vocation, or line of work necessary to qualify for, and to faithfully discharge *163 the duties of the office to which they are recommended and appointed, and when there are no constitutional restrictions as in this case, the legislature has absolute power.
It is essential to the validity of an appointment that there shall have been a compliance with such valid conditions and limitations as may have been imposed upon the appointing power, such, for example, as a requirement that the appointee shall have received specific recommendation. 46 C.J. 953, § 66; Elledge v. Wharton,
In the case of Elledge v. Wharton,
In the case of State v. Finger,
The respondent relies upon the case of People ex rel. Balcom v. Mosher,
In the case of People ex rel. McClelland v. Roberts,
The question was before the supreme court of Washington in the case of Jenkins v. Gronen,
"But the reasoning of these cases, finding its basis as it does in constitutional and statutory grants of power, is not pertinent to, and has no bearing upon, the situation here presented. By the Constitution of this state the city of Tacoma, as a city of the first class, has the power to frame and adopt its own charter. The charter when adopted, and the ordinances lawfully enacted thereunder, thus become in themselves the fundamental law, and must be given consideration as written, however much they may restrict the powers of the immediate appointive *166 officers. . . . We think, that the charter requires appointments to be made from the list of eligibles according to their relative standings, and that it is the duty of the appointive officer to tender the position first to the person who stands highest on the list, and to the others in turn only after the first has failed to appear on notification, or has otherwise indicated that he does not desire the appointment. The only provision that militates against this conclusion is the requirement that thrice the number of candidates be certified that there are vacancies to be filled, but we think this requirement was intended rather to secure the appearance of a candidate than to give the appointive officer a right of choice."
In the case of People ex rel. Walker v. Capp,
The civil service laws requiring more than one name on the civil service list, for promotion or appointment to office, are only necessary when there are constitutional restrictions, and even then, by the weight of authority, the constitutional discretion in the appointing officer is satisfied with a list of three names from which he can make his selection. In the case at bar, there being no constitutional restrictions, the appointment must be made in accordance with the statute upon the recommendation of the pharmaceutical association.
There is no merit in the contention, that the candidate, Costello, did not receive a majority of the votes at the meeting of the pharmaceutical association. When the matter was before the association one of the members made inquiry as follows, to wit: "Will it be necessary for the nominee to have a majority of all the votes cast, or is it the one receiving the highest number?" The president responded, "The one receiving the highest number will be declared elected. There is nothing in the by-laws concerning this." When the vote was taken P.H. Costello having received the highest number of votes cast was declared elected *167 by the president. There was no appeal from his decision in either case, and his decision became the decision of the assembly. Under the statute the organization has authority to prescribe rules and regulations for the guidance of its members, officers and employees, and to insure the proper and orderly dispatch of its business. "It is the duty of the president of every assembly to inform the assembly when necessary, or when referred to for that purpose, in a point of order or practice." Cushing's Manual, p. 35. "The judgment or will of any number of persons, considered as an aggregate body, is that which is evidenced by the consent or agreement of the greater number of them; and the only mode by which this can be ascertained, in reference to any particular subject, is for some one of them to begin by submitting to the others a proposition, expressed in such a form of words, that, if assented to by the requisite number, it will purport to express the judgment or will of the assembly." Cushing's Manual, p. 9.
In the case of Allen v. Morton,
CHRISTIANSON and NUESSLE, JJ., concur.
Dissenting Opinion
This is a controversy involving the right of Louis Rosoff to membership in the state board of pharmacy. His right being questioned by the remaining members of the board, he was excluded from participating with them in the transaction of business; whereupon he brought a mandamus proceeding seeking thereby to compel the defendants to recognize him as a member. Immediately thereafter an action was begun on relation of the attorney general, in which Rosoff was made the defendant, for the purpose of trying his title to the office. The two matters were consolidated for the purpose of trial and tried on stipulated facts. At the conclusion of the trial a judgment was entered in the mandamus proceeding awarding the writ and in the action supporting the defendant's title to the office. From these judgments separate appeals have been taken to this court which are submitted on one brief. The essential facts are: The term for which W.P. Porterfield, member of the state board of pharmacy, had been appointed expired on the 8th day of May, 1927. On the 4th of August preceding the expiration of this term, the North Dakota Pharmaceutical Association took action looking toward the recommendation of a successor. It appears in the proceedings of the association that a committee had made nominations of three persons to be recommended but upon motion that the association proceed to elect one of the three as the candidate to be presented to the governor for appointment the three names were submitted to an election resulting as follows: Costello 23 votes, Porterfield 19 votes and Sjurseth 5 votes. The president declared the one receiving a plurality elected. The governor was notified of such selection on March 26, 1927. Costello possessed the legal *169 qualifications for membership. On May 7, 1927, the governor appointed the respondent Rosoff for a term of five years beginning May 8th. Rosoff later qualified by filing an oath of office and a bond. The latter was also a member of the North Dakota Pharmaceutical Association but had not been recommended for appointment by it. Porterfield declined to recognize Rosoff as his legal successor.
The four members of the board, exclusive of Porterfield and Rosoff, up to the time Rosoff qualified, had failed to qualify by filing their oaths of office. The governor declared their several offices vacant and appointed P.H. Costello, Burt Finney, O.B. Sjurseth and C.R. Meredith to membership on the board. The last failing to qualify, the governor later appointed H.L. Haussamen to membership. Haussamen had previously been a member and was one of those whose office was declared vacant because of failure to qualify. After the board was thus constituted a meeting was held in which Rosoff participated as a member. Thereafter, in August, 1927, the pharmaceutical association, acting on the assumption that Rosoff's appointment was illegal, recommended to the governor the name of Nels Brakke for appointment as successor to Porterfield. Brakke was not appointed and at a later meeting of the board Porterfield was recognized by the four members in lieu of Rosoff. These proceedings were then instituted.
The statute governing the appointment in question reads (Comp. Laws 1913, § 477):
"The state board of pharmacy shall consist of five registered pharmacists. The members of said board shall be appointed by the governor upon the recommendation of the North Dakota pharmaceutical association, and the persons so appointed shall be chosen from the members of said association. Except as provided in the next section the members of said board shall be appointed for a term of five years and until their successors are appointed and qualified."
The following section provides that in case of a vacancy by death, resignation or removal the governor shall fill the vacancy by appointment for the unexpired term. The question involved in these proceedings is whether or not the governor in making an appointment to the board must accept as the recommendation of the pharmaceutical association *170 the name of one person selected by it by a plurality but not by a majority of those voting.
The brief of the appellants is principally concerned with a question that is much broader in its scope than that stated above. It is said, "In their immediate aspects these cases involve the validity of a portion of § 477 of the Compiled Laws of 1913 providing for the appointment of a state board of pharmacy." It is also asserted that the appointment of the respondent having been made in violation of the provisions of the statute, it becomes apparent that the validity of the statute itself is in issue. Counsel cite various statutes of somewhat similar import which provide for the appointment of various boards from eligible lists furnished by or upon the recommendation of associations more immediately concerned with the personnel of such boards. Argument is advanced to demonstrate that the appointive power vested in the governor under §§ 71 and 78 of the Constitution does not embrace all appointive power and that such authority as is vested in the act in question is not so essentially executive that it may not with propriety be exercised by others under legislative direction. State ex rel. Standish v. Boucher,
The statute says that the members of the board shall be appointed by the governor upon the recommendation of the association. The key words in this sentence are "appointed" and "recommendation." Obviously, both words do not mean the same. "Appoint" is defined, *171 according to Funk Wagnalls New Standard Dictionary, as "To designate, fix upon, or select as being the person or subject for some position, object, or the like;" and, according to Webster's New International Dictionary, it means "To constitute; to ordain;" or "to exercise" or "designate." According to Bouvier's Law Dictionary, "appointment" is the designation of a person by the person or persons having authority therefor to discharge the duties of some office or trust; whereas, "recommend," according to Webster's New International Dictionary, means "to commend to the favorable notice of another; to commit to another's care, confidence, or acceptance, with favoring representations; to put in a favorable light before any one; to make acceptable; to attract favor to; to advise; counsel."
In light of these definitions, a holding that the governor is limited in making an appointment to the naming of one individual who may have been recommended by the association would be to deny that a power of appointment was conferred upon the governor. It would be equivalent to transferring the appointive power from the one in whom it was expressly placed and vesting it in the organization that was authorized merely to recommend. It would convert the power to recommend into the power to appoint and render the stronger power submissive to the weaker. It would take from a more natural repository of the power to appoint to an office and vest a governmental power in private hands. This is not to say that this may not be done, at least within limitations, but an intention to that effect should not be ascribed to the legislature unless clearly expressed.
One of the most elementary rules of statutory construction is that a statute should be so construed, where possible, as to give effect to every word. 2 Lewis's Sutherland, Stat. Constr. 2d ed. § 380. Effect can only be given to the words "appointed" and "recommendation," as used in the statute, by giving to it a construction that will permit a selection to be made by the governor from among a number who are recommended to him by the association. There is room, of course, for the contention that the power of appointment is conditioned upon a recommendation and can only be exercised when a recommendation is made. This gives to the word "upon" the effect of a condition rather than a sense descriptive of a natural sequence. To hold that the expression "upon the *172 recommendation of the North Dakota pharmaceutical association" prescribes the condition upon which alone the governor may make an appointment, would enable the association by nonaction to perpetuate the members of a board in office and render the important duty of making a selection from eligible candidates inoperative. It does violence to the expressed intention of the legislature to so construe the act in question as to enable the association to itself select from its own members the state board of pharmacy. Had the legislature desired to so provide, it would have been a simple matter to have expressed such an intention in unmistakable language. The power given here is not a power to appoint through recommendation but is a power to recommend so that another may appoint.
Our construction of the statute in question is borne out by expressions of the court of appeals of New York relating to a somewhat analogous situation in People ex rel. Balcom v. Mosher,
"The decisions of this and other courts, state and Federal, as to the meaning of the word `appointment' and what constitutes an appointment under the law, are to the effect that the choice of a person to fill an office constitutes the essence of the appointment; that the selection must be the discretionary act of the officer or board clothed with the power of appointment; that while he or it may listen to the recommendation or advice of others, yet the selection must finally be his or its act, which has never been regarded or held to be ministerial. 19 Am. Eng. Enc. Law, 423; Johnston v. Wilson,
Again the court said (page 42 of the state reports, 57 N.E. 91): "As we have already seen, the right of appointment, of necessity, involves the power of selection and the exercise of discretion and judgment. Without that power in no just sense can it be said that the right exists."
Here the respondent possesses all of the qualifications prescribed by law for the office in question. We cannot hold that his title is bad without giving to the statute such a construction as would enable the North Dakota Pharmaceutical Association practically to exercise the power of appointment that is expressly conferred upon the governor. It has the undoubted power to recommend, but this, to be effective, must be exercised in such a manner as to leave to the governor his equally undoubted power to appoint.
It will be noted that at the time of Rosoff's appointment the only name before the governor as that of a person recommended by the association was that of Costello who had received a plurality but not a majority of those voting in the meeting at which the selection was made. (Costello has since accepted an appointment to fill a vacancy.) The vote in question was taken in an assembly and in an assembly a majority is ordinarily required to carry any proposition submitted or to elect unless otherwise provided by the by-laws. §§ 46 and 48, Roberts' Rules of Order. Motions affecting procedure which may require a two-thirds vote are an exception. As said in Waples's Handbook on Parliamentary Practice, 2d ed. page 155, without special rules it takes a majority to *174
pass anything or defeat anything "and the reason is that, as deliberative bodies exist to think and conclude, the deliberation and decision is not that of such a body, but of less, if a majority do not agree." Where one receives a plurality of votes but not a majority in an assembly, it is customary to have the majority approve. Waples, supra, page 156. Where there is an election by an unlimited number of electors, a plurality ordinarily elects but "in deliberative bodies the rule is the reverse; a majority is necessary to election unless a special rule requires only a plurality." Waples, supra, page 279. See also Cushing, Law Practice of Legislative Assemblies, § 1826; 9 R.C.L. page 1115; Lawrence v. Ingersoll,
"Thus it appears, by concurrence of textbook, judicial, senatorial, congressional, and legislative authority, that the rule is settled that a majority of a definite body present and acting must vote for a candidate in order to elect him, and that it is not sufficient that he receive a plurality of votes cast or a majority if blank ballots are excluded. His claim must not depend upon the negative character of the opposition, *175
but upon the affirmative strength of his own vote. It is not sufficient that a majority were not cast against him; to be elected, the majority must be cast for him." Lawrence v. Ingersoll,
The fact that the chairman of the meeting declared Costello elected did not alter the matter. State ex rel. Duane v. Fagan,
It should be obvious from what is said in this dissenting opinion that the writer does not question that part of the opinion of the majority which discusses the power of the governor to fill a vacancy or the duty of the executive to submit appointments to a legislative branch where confirmation is required to complete the act of appointment or the constitutional power of the legislature to vest a limited appointive power in voluntary associations. As the writer views the case in hand, none of these questions is here involved. In his opinion the case turns alone upon the interpretation of the statute vesting a power of appointing to full terms in the governor and a power to recommend in a voluntary association. It seems to him that this statute should be so construed as to give effect to both of these powers. A construction of the statute which so subordinates the power of appointment vested in the chief executive as to make it reflect only the selection of those who merely have a power to recommend, sacrifices a primary legislative intention to a subordinate one. The legislature gave the power of appointment to the governor, not to the association. The title of the governor's appointee to the office should not be defeated by an attempt on the part of the pharmaceutical association to itself make an appointment. It must be remembered here that that organization avowedly declared its purpose to make the selection, and such proceedings as it took in the matter were taken for the purpose of making its selection binding.
I am authorized to say that Mr. Justice Burr concurs in this dissent.
BURR, J., concurs in dissenting opinion. *176