114 Kan. 244 | Kan. | 1923
Lead Opinion
The opinion of the court was delivered by
This is an original proceeding in quo warranto, brought in the name of the state on the relation of the attorney-general to determine the membership of the state board of health,
It appears that in 1918; Drs. Walker, Aldrich and Lerrigo, had been duly appointed and had received commissions during a recess of the senate to hold terms of office, expiring in March, 1921, and that oaths of office had been duly filed by them. On March 16, 1921, the governor reappointed them to succeed themselves for terms of three years and on the same day messaged the appointments to the senate for its action. The records of the senate do not show what action, if any, was taken on the message. In issuing commissions to these doctors the governor recited in them that he was appointing them by and with the advice and consent of the senate for a three-year term, ending on March 28, 1924. Dr. Lerrigo filed his oath of office at that time, but Walker and Aldrich did not. Prior to 1922, Drs. Axtell, Hawley and Entz had been duly appointed and had acted as members of "the board for terms expiring March 30, 1922. On that date, Governor Allen reappointed and commissioned them for terms of three years, expiring in March, 1925. Drs. Hawley and Entz made and filed their oaths of office, but Axtell did not. The senate not being in session in 1922, these appointments were not then confirmed and when the senate convened in 1923, the appointments of these members were not messaged by the governor to the senate, and no action was taken on them during the session of 1923. Those appointed in 1921 and 1922, all entered upon the duties of their offices and continued to discharge those duties until March 28, 1923. At that time, Governor Davis addressed a letter to each of the aforementioned appointees of Governor Allen, making inquiries as to age, school of medicine, time of active practice, political affiliations, and his attitude as to the appointment of a new secretary of the board, and also if he would be willing to resign on invitation. As no resignations were tendered, Governor Davis, on April 18, wrote a letter to Aldrich, Lerrigo and Walker, notifying them that he had revoked the appointments given them for terms beginning March 25, 1921, and ending March 28, 1924, and stating that the revocation was
At an annual meeting held in 1922, Dr. Hawley had been elected president of the board, and on June 1, Hawley instructed the secretary to notify the legal members of the board that a meeting would be held on June 5,1923. Pursuant thereto, the secretary sent notices to those designated as the Allen members and also to the appointees ■ of Governor Davis, whose right to the office was conceded by the plaintiff. The meeting was held on June 5, and was called to order by Dr. Hawley. At that-meeting Drs. Axtell, .Aldrich, Lerrigo, Hawley, Walker, Entz and Crumbine were present. Dr. Hawley was then nominated and unanimously elected president by those present for the coming fiscal year. At the same time Dr. Crumbine presented his resignation to the state board of health, which was accepted. On motion, which was duly seconded, Dr. Milton 0. Nyberg, of Wichita, Kan., was nominated as secretary and executive officer of the board to succeed Dr. Crumbine, and was unanimously elected for a term of four years from date. Dr. Nyberg, the new secretary, was instructed to ignore the actions and proceedings at the meeting of the challenged members, appointed by Governor Davis, and to refuse to turn over the records or property of the department or permit the holding of sessions in the offices of the state board of health by them. He was also instructed to ignore the proceedings of what was termed the illegal meeting, held on May 4, and not to include the transactions of that meeting in the records of the board. Immediately after his election by the board on June 5, 1923, Dr. Nyberg filed-his oath of office and presented to the governor for approval his bond, signed by a- surety company. The governor refused to approve the bond but did not raise any objection to the adequacy of the surety and it is admitted that the bond is adequate and regular both as to amount and responsibility of the surety. Immediately after filing his oath of office, Dr. Nyberg entered upon his duties, took possession and control of the office of the secretary and executive officer of the board, and of all the files and records belonging to the board. These proceedings were taken, however, without the knowledge or consent of any of the appointees of Governor Davis, except Dr. Aldrich and Dr. Axtell. Shortly after
The state insists that the group of members appointed by Governor Allen in 1921, which consisted of Walker, Lerrigo and Aldrich, were in fact confirmed by the senate and if not confirmed were at least not rejected and that having been appointed and in possession of their offices there wras no vacancies and the governor was without power to remove them and having no power to remove, he had no authority to appoint their successors. The defendants contend that the appointment of these officers had never been confirmed by the senate, that they were holding over under appointments and confirmations previously had and as the goA^ernor had the poAver to make recess appointments he was authorized to treat their terms as expired and to appoint their successors.
As to a confirmation of the appointments made in 1921, the senate journal recites that they were submitted to the senate for its consideration on March 16, 1921, but it contains no mention or record of the action taken thereon. In the commissions subsequently issued to them by the governor there is a recital of confirmation by the senate and under these commissions the appointees entered upon their offices, performed the duties of the same and were recognized as such officers by the other departments of the government. In this situation it is conceded that confirmations may be implied. The evidence of the action of the senate should be found in its journals and records’instead of in recitals in the commissions issued by the governor. Those recitals cannot be regarded as' proper proof of the action taken by the senate. It is argued that no baúdence outside of that contained in the journals is admissible to shoAv Avhat was or was not done by that body. Whether the rule, which governs as to proof of legislative action on a bill, obtains as to the action taken by the senate in giving advice and consent to appointments of the governor or whether, in the silence of the journals as
“Within thirty days after this act shall take effect, the governor, by and with the advice and consent of the senate, if it then be in session, shall appoint from the different parts of the state nine physicians, who shall be men of good moral character and temperate habits, distinguished for their devotion to the study of medicine and allied sciences, and not less than seven years’ continuous practice in their profession, and each of whom shall be a graduate of a reputable medical college. The governor shall also appoint one other person, not a member of the medical profession (preferably an attorney interested in sanitary sciences), and said persons, when so appointed and confirmed shall be known as ‘The Kansas State Board of Health.’ Three of the members of said board shall be appointed for one year, three for two years, and four for three years; and annually thereafter the governor shall in like manner appoint successors of like character and qualifications to fill the vacancies occurring in said board by reason of the expiration of the terms of service as herein provided, and the persons so appointed shall hold their respective offices for the like term of three years, and until their successors are appointed and qualified; but in no case shall the governor appoint a majority of the physicians that shall constitute said board of health from any one school of medical practice, nor shall said board at any time be composed of persons a majority of whom shall be of the same school of medical practice. Upon the appointment of the persons provided for in this act, the secretary of state shall issue to each of them a certificate of his appointment, and within twenty days after such appointment the said ten persons shall meet in the city of Topeka, and they shall each take and subscribe to the oath prescribed by law for state officers, which shall be filed with the secretary of state; and thereupon said board shall*251 immediately organize by electing one member of the board president. The member of said board who is not a physician shall have no vote in the election of officers, but shall have a vote on all other questions arising in the regular quarterly meetings of the board. The president of said board shall have no vote on any matter other than the election of officers unless there is a tie vote, when he shall have the deciding vote. The board shall also elect a secretary, and said secretary shall be the executive officer of said board, but not a member thereof. The secretary shall execute to the state of Kansas a bond in the sum of five thousand dollars, with sureties, to be approved by the governor, and when approved it shall be filed in the office of the secretary of state. Said bond shall be conditioned for the faithful performance of duties of his office as such secretary, and he shall take and file a like oath to that prescribed for the members of said board. The board may elect one of its own number secretary, but in such case such election shall create a vacancy in the board, which shall be filled by the governor. It shall be the duty of the governor to fill all vacancies which may occur in the board; and all appointments whether original or to fill vacancies, made during the recess of the legislature, shall be submitted by the governor to the senate at its first session after such appointment is made, for its action; but all lawful actions of the members of the board made before confirmation or rejection shall be valid. The executive council shall provide the state board of health with a suitable office at the city of Topeka for the transaction of its business.” (Gen. Stat. 1915, § 10119.)
The statute as will be observed provides that the board shall be composed of trained and experienced doctors of different schools of medicine, three to be appointed each year after the first appointments are made, so that after the organization is completed and the regular order obtains, there will be a majority of the members who will always be familiar with the functions and responsibilities of the board. The terms are definitely fixed and are not shortened or lengthened because of changes in the administration or of incumbents in the governor’s ofifiee. The governor is vested with power of appointment with a requirement that the appointments are to be made upon the advice and consent of the senate “if it then be in session.” When it is not. in session the governor has authority to make appointments at the end of terms or to fill vacancies that may occur between sessions. The regular appointments are for three year periods and if there is a death, resignation or removal, the successor appointed can only hold for the remaining portion of his predecessor’s term. However, there is no authority to appoint a successor to a member in recess unless there is a vacancy in the office. The three members whose terms we are considering and who, had been appointed for ternas expiring in 1924, had not resigned nor had they been removed from office by one having authority to re
“All appointments whether original or to fill vacancies made during the recess of the legislature, shall be submitted by the governor to the senate at the first session after such appointment is made for its action.”
If the appointments had been submitted to the senate and it had considered and rejected them, a vacancy would have been created and the governor would have had power to appoint their successors to hold during the remainder of their terms. As the senate did not act upon or reject the appointments made these officers had as good a title to their offices as the governor or other elected officers have to theirs. They were not appointed and commissioned to hold until the next session of the legislature but for the full terms of three years and are entitled to hold out their terms unless the senate after consideration should vote to reject them'or they should be ousted from office for misconduct. The attempted revocation of these appoint
There is a contention, however, that all of these contested appointees cannot be regarded as lawful members of the board with the right to vote for a secretary because three of them failed to take and file their oaths of office when they were appointed in 1921 and 1922. Those who omitted to file their oaths of office at the time of appointment had been reappointed to succeed themselves and had since that time been serving as members of the board. Two of these who were appointed by Governor Davis did make and file their oaths shortly before the present action was brought. In the absence of a provision in the law that such failure shall ipso facto operate as a forfeiture of the office or create a vacancy, there is no vacancy or separation from office. The state has taken no steps to have a forfeiture declared or to oust these members from office for the omission to take and file their oaths and their omission did not create a vacancy warranting the appointment of their successors. (Jones v. Gridley, 20 Kan. 584, Carpenter v. Titus, 33 Kan. 7, 5 Pac. 412; Insurance Co. v. Gasche, 93 Kan. 147, 142 Pac. 882.) Neither did the fact that Axtell and Aldrich, to whom Governor Davis tendered appointments and who took and filed oaths of office attended a meeting held on May 4, and participated in the proceedings of that meeting, affect their title to.the offices they already occupied under previous legal appointments. The majority of those who assumed to hold that meeting were not legal members of the board and the attendance and acts of Axtell and Aldrich were in no sense a resignation of the offices they held under appointments previously made. Their action was not intended as a resignation or surrender of their offices and unless they resigned from the offices the governor as we have seen was without power to appoint their successors. The meeting held on June 5, was duly called and was composed of a quorum of legal members of the board. It was a legally constituted meeting with power to transact the business of the board, including the acceptance of resignations and the election of officers which the law empowers the board to elect. At that meeting Dr. Crumbine tendered his resignation which was formerly accepted by the board, • and it then proceeded to elect Dr. Nyberg as secretary and executive officer of the board. He accepted the office, made and filed his oath of office and tendered a bond, the sufficiency of which is not questioned. It was not approved by the governor, to whom it was presented. The governor it appears did not withhold approval be
. Nyberg was legally elected and had done all he could towards furnishing a sufficient bond, and the withholding of approval on the ground that he was not lawfully chosen, did not affect his title to the office. The members who elected him are held to be legal members of the state board of health and Dr. Nyberg is held to be entitled to the office of secretary and executive officer of the board. That will be the judgment of the court.
Concurrence Opinion
(concurring in the result): The statute relating to the appointment of members of the state board of health (Gen. Stat. 1915, § 10119), specifically provides that “all appointments, whether original or to fill vacancies, made during the recess of the legislature, shall be submitted by the governor to the senate at its first session after such appointment is made for its action.” This the governor did not do. He cannot take advantage of his own dereliction in that regard and after the legislature adjourns treat the offices as vacant or attempt to remove the incumbents and appoint others in their places. I, therefore, concur in the result. I cannot agree that the appointees by the governor hold until they are rejected by the senate. The statute requires the advice and consent of the senate to the appointment and this means affirmative action under article 7 of our constitution, which provides that the yeas and nays shall be entered in the journal. The silence of the senate journal is no more proof of confirmation of appointees whose nominations have been sent to the senate by the governor than would silence of the senate journal be evidence of the passage of a bill.
Concurrence Opinion
(concurring specially): I concur in the result, chiefly because the governor neither followed the statute requiring the names of recess appointees to be sent to the senate for confirmation," nor did he take the only effective method of terminating the recess appointments made by his predecessor, which would have been by sending to the senate for approval the names of other persons in their stead.