55 Kan. 308 | Kan. | 1895
Lead Opinion
This is a proceeding in quo ivarranto, brought by the attorney general in the name of the state, against" John W. Breidentlial, to determine his title to the office of bank commissioner, and to oust him therefrom. The facts in the case, about which there is no controversy, are stated in the plaintiff’s petition, and the questions for determination arise upon a demurrer of the defendant to the petition. It appears that the legislature of 1891, shortly before its final adjournment, enacted a law providing for the organization of banks and the regulation of the banking business, and it contained the following provision :
‘ ‘ The governor shall appoint, by and with the advice and consent of the senate, a bank commissioner for the state of Kansas, whose term of office shall be four years and until his successor is appointed and qualified.” (Laws of 1891, ch. 43, § 21.)
This act, although approved March 10, 1891, did not take effect until March 21, 1891, and at that time the legislature liad adjourned, and there was no session of the senate to confirm an appointment made after the law became operative until the next regular biennial session, which convened in January, 1893. On March 21, 1891, the day on which the act took effect, Gov. L. U. Humphrey appointed as bank commissioner Charles F. Johnson, who it is admitted was duly qualified and eligible to take and hold the office under the provisions of law, and a commission as bank commissioner, under the seal of the state, was issued to him. The appointment was not confirmed by the senate, but immediately upon receiving his commission, Johnson duly qualified as bank commissioner, took possession of the office, and con-
“I have this day appointed John W. Breidenthal as bank commissioner of the state of Kansas, and respectfully request his confirmation by your honorable body. Very respectfully,
L. I). LbweluiNG, Governor.”
After the appointment and confirmation of Breiden-, thal, he qualified in the manner and form prescribed by law. Four years from the time that Charles F. Johnson was appointed, the senate of the state not being in session, Gov. E. N. Morrill appointed to the office of bank commissioner C. S. Jobes, a citizen and elector who was duly qualified and eligible to take and exercise the duties of the office of bank commissioner. There is no claim that Breidenthal has resigned or been removed, nor that he has forfeited or surren
There is no statute which fixes the time for the beginning or ending of the official term, and no provision with respect to the filling of vacancies in the office or term, nor is there a statute in regard to the appointment of a bank commissioner, the duration of the term, or the tenure of office, other than that which has been quoted. It provides, as'we have seen, that the term shall be four years, “ and until his successor is appointed and qualified.” It is well argued that the legislature cannot- by any method extend the fixed term of an office which is limited by the constitution. Under § 2 of article 15 of the constitution it is provided that —
‘‘The tenure of any office not herein provided for may be declared by law; when not so declared, such office shall be held during the pleasure of the authority making the appointment, but the legislature shall not create any office the tenure of which shall be longer than four years.”
It seems to be conceded by the parties that the legislature did not intend to enlarge the term or to extend it beyond the fixed period of four years. It is said
Then we have the remaining question of when the term begins. In the absence of a statutory provision upon that subject, it has been held that where a statute authorizes the appointment of an official and declares the tenure of the office, and is silent on the point as to the beginning of the first appointee’s term, the commencement of the official term begins to run from the date of the first' appointment. (Hale v. Bischoff, 53 Kas, 301.) The statute authorizes the governor to appoint a commissioner, but expressly provides that it shall be done by and with the advice and consent of the senate. No provision is made with respect to the first appointment in case there is no senate in session, nor for making an appointment to fill a vacancy which occurs when the concurrence of the senate cannot be obtained. The constitution provides for only biennial sessions of the legislature, and all know that an extra session of that body is rarely called or held. The law providing for the regulation of banks
There are numerous authorities, which it is unnecessary to cite, holding that officers must be chosen in the manner prescribed by the law, and the view of a majority of the court is that, the legislature having declared that the appointing power resides in the governor and the senate, there was no regular appointment for the term mentioned in the statute until the choice was made by those whom the statute invested with the power of appointment. As the commencement of the official term is to be fixed by the appointment, it is held to mean a full legal appointment, and not a mere special or temporary appointment made to fill an original vacancy; and it is said that if any other view is taken, it would be within, the power of the governor to make every appointment at a time when the legislature was not in session, and in that way the senate would be entirely deprived of any participation in the choice of'a bank commissioner, and thus defeat the manifest purpose of the legislature as to the method of choosing that officer. The con-
The writer is unable to concur in this conclusion, and his views, very briefly stated, are as follows : When the office of bank commissioner was created it was ipso facto vacant, and there being no senate to advise and consent, it was the duty and within the power of the governor to fill the office by appointment. Whether this is to be treated as an exceptional and temporary provision, and whether or not it is justified on the mere grounds of public convenience or necessity, it must be conceded that the appointment of Charles F. Johnson, on March 21, 1891, was legally made and invested him with all the powers which he could have exercised if there had been a confirmation. There were no limits on his power, and his duties and responsibilities were the same as if the choice of the officer had been shared by the senate. He was lawfully in office, his right and authority -were recognized by all the departments of the government, and he exercised the duties of the place with the general acquiescence of the people of the state. Having been legally appointed and lawfully invested with the office, and it having been decided that where the law is silent about the commencement of a term a legal appointment fixes the beginning of the first term, it is the opinion of the writer that the first term of the office commenced upon March 21, 1891. Under the ordinary practice, this appointment entitled Johnson to hold the office
As the majority of the court hold that his tex’m does not expire until 1897, judgment will be awarded in favor of the defendant.
Concurrence Opinion
I concur; but after deciding that the four years’ term is not vitiated by the provision for holding over until a successor is appointed and qualified, I would prefer to place my concurrence upon the ground that this statute does not recognize any vacant, unexpired or fractional term, and each incumbent appointed by the governor, with the advice and consent of the senate, is entitled to hold for the full term of four years. In respect to terms, the statute is like that under consideration in The State ex rel., v. Wentworth, decided at the present session.