299 P.2d 466 | Mont. | 1956
This is an appeal from a judgment wherein the court below, in a quo warranto proceeding, held that Mr. Swanberg was entitled to the office of chairman of the board of the Industrial Accident Board of Montana.
On April 29, 1955, the Governor appointed the appellant McChesney “Chairman of the Industrial Accident Board for a four year term expiring May 1, 1959” to replace Mr. Robert F. Swanberg who had been appointed on the 29th day of December 1952 to fill the unexpired term of Baxter Larson, such term expiring on May 1, 1955. At the time of the appointment of McChesney the legislature was not in session and had not been since its adjournment sine die on March 3, 1955. Hence Mr. McChesney’s appointment has not been referred to the Senate for confirmation; and that body has not yet given its consent thereto.
The only statute which gives the Governor power or authority to appoint to the Industrial Accident Board is section 92-104 of the Codes as amended by Chapter 161, Laws of 1953. This section is a special statute designed to define the governor’s authority to appoint to this board alone. As such it controls any other statute which relates to the general powers of the chief executive to appoint to public office, or to fill vacancies therein. In re Wilson’s Estate, 102 Mont. 178, 195, 56 Pac. (2d) 733, 105 A.L.R. 367. It follows that if Mr. McChesney’s appointment does not square with section 92-104, as amended, he has no title to the office here in controversy unless that statute conflicts with the Constitution or for any reason is not applicable.
That statute plainly stipulates that the governor’s authority to appoint is conditioned upon the consent of the Senate given thereto. No other meaning may be put upon the words found in Chapter 161, viz., “by and with the consent of the sen
Before the enactment of Chapter 161 an appointment by the governor to that board under section 92-104 was effective at once by the governor’s act alone and without more. In these circumstances it is clear that the change intended and actually effected by the amendment, which Chapter 161 makes, is to add the condition that an appointment to this board by the governor shall be neither complete nor effective until the consent of the Senate has been given. Otherwise this chapter adds nothing to section 92-104 as it was construed and applied before amendment.
The last three lines of the amendment to R.C.M. 1947, section 92-104, read: “provided, however, the provisions of this act shall not be applicable to the chairman of the board until the expiration of term of the present chairman of said board.” The present chairman referred to in the statute was Mr. Swan-berg. As applied to this case, this paragraph simply means that confirmation of Swanberg was unnecessary but plainly it requires confirmation of his successor.
Counsel for McChesney contend that there was a vacancy in the office occurring during a recess of the Senate authorizing an appointment under section 7 of Article VII of our Constitution without confirmation of the Senate. Section 7 of Article VII contains this paragraph: “If during a recess of the senate a vacancy occurs in any such office, the governor shall appoint some fit person to discharge the duties thereof until the next meeting of the senate, when he shall nominate some person to fill such office. ’ ’ That paragraph of the Constitution has reference only to such vacancies which leave the office without anyone to discharge the duties and does not apply to a case where the incumbent holds until his successor is elected or appointed and qualified and is discharging the duties of his office. This
In State ex rel, Sandquist v. Rogers, 93 Mont. 355, 18 Pac. (2d) 617, 618, the appointments by the mayor of the City of Havre to the office of city engineer failed of confirmation by the council. Under R.C.M. 1947, section 11-802, subd. 1, then in effect as R.C.M. 1921, section 5030, subd. 1, the mayor was empowered to nominate, and, “with the consent of the council, to appoint all non-elective officers.” This court held in the Rogers case: “The nominees of a mayor who fail to be confirmed by a city council do not become effective as officers and cannot assume that status until concurred in by a majority of the city or town
In State ex rel. Peterson v. Peck, 91 Mont. 5, 4 Pac. (2d) 1086, the right of a city clerk appointed by the mayor of the town of Sweet Grass to act without confirmation by the city council was drawn in issue. This case is a close parallel to State ex rel. Sandquist v. Rogers, supra. This court said that the power of the mayor “to nominate to fill a non-elective office also includes like authority when a vacancy arises therein; but in either event the appointment is not effective until concurred in by a majority of the city or town council.’’ See 91 Mont. at page 7, 4 Pac. (2d) at page 1087.
These decisions are controlling in the instant cause. We need not look for authority elsewhere. This court said in Holt v. Sather, 81 Mont. 442, 455, 456, 264 Pac. 108, 114, that eases “from another jurisdiction, in direct conflict with a decision of this court, are not persuasive.”
Counsel for Mr. McChesney have suggested a distinction between the tenure of officers holding over under our Constitution until their successors be elected or appointed and qualified, and those officers who hold under a statute alone. Whatever distinction there may be here in fact we see none in principle. There is no material difference between the facts and the constitutional provision construed and applied by this court in the Acton case, on the one hand, and the facts and the statute now before this court for construction and application, on the other hand, in disposing of Mr. Swanberg’s title presently in issue. It was frankly conceded upon the oral argument by counsel for Mr. McChesney that we should overrule State ex rel. Chenoweth v. Acton, supra, as well as State ex rel. Nagle v. Stafford, supra, and must do so, in order to reach the conclusion that on and after May 1, 1955, there was a vacancy on the Industrial
The authorities which we find elsewhere carry the conviction that the Stafford and Acton eases were rightly decided, and that the rule there laid down should be adhered to. See McCall v. Cull, 51 Ariz. 237, 75 Pac. (2d) 696; State ex rel. Rogers v. Johnson, 135 Wash. 109, at page 115, 237 Pac. 12; People ex rel. Warren v. Christian, 58 Wyo. 39, at pages 51-60, 123 Pac. (2d) 368; Alcorn ex rel. Hendrick v. Keating, 120 Conn. 427, 432, 181 A. 340; State ex rel. Ryan v. Bailey, 133 Conn. 40, 48 A. (2d) 229; People ex rel. Baird v. Tilton, 37 Cal. 614, 621; State ex rel. Barnes v. Holbrook, 136 Conn. 312, 316, 70 A. (2d) 556; State ex rel. Smith v. Tazwell, 166 Or. 349, 111 Pac. (2d) 1021; State ex rel. Rives v. Herring, 57 N.M. 600, 261 Pac. (2d) 442; State ex rel. Fares v. Karger, 226 Ind. 48, 77 N.E. (2d) 746; State ex rel. Landis v. Bird, 120 Fla. 780, 163 So. 248; State ex rel. McCarthy v. Watson, 132 Conn. 518, 45 A. (2d) 716, 164 A.L.R. 1238, and Annotation commencing at page 1248; 67 C.J.S., Officers, section 51b (2), pages, 213, 214; 42 Am. Jur., Public Officers, section 131, page 976, section 139, pages 980, 981, section 142, page 982; 43 Am. Jur., Public Officers, sections 161, 163, 164, pages 19 to 22.
It follows that Mr. Swanberg holds office as a member and chairman of the Industrial Accident Board for the specific term of four years and thereafter until his successor has been appointed and qualified. Because his successor, Mr. Mc-Chesney, has not yet been confirmed by the Senate, Mr. Swan-berg’s successor has not yet been appointed as Chapter 161, Laws of 1953, requires. Therefore Mr. Swanberg’s term endures, he is de jure entitled to his office as against Mr. McChesney’s claims and upon this record and as such is entitled to the salary and emoluments of his office as the court below adjudged.
The citations to the contrary pressed upon us by Mr. McChesney’s counsel such as State ex rel. Patterson v. Lentz, 50 Mont. 322, 146 Pac. 932; LaBorde v. McGrath, 116 Mont. 283, 149 Pac.
Nor does the conclusion which we have reached here extend Mr. Swanberg’s term of office contrary to the prohibition of Article V, section 31, Constitution of Montana, in substance, that “no law shall extend the term of any public officer * * * after his election or appointment.’’ Chapter 161, Laws of 1953, by its express language has no effect at all upon Mr. Swanberg’s tenure or term of office. He holds under section 92-104 of our Codes as that section read before Chapter 161 became law. Consistent with that section Mr. Swanberg’s term is for the definite period of four years and for an indefinite period thereafter until his successor in office shall have been appointed and qualified as Chapter 161 requires. Because that chapter attaches the condition now to the governor’s appointment that before that appointment becomes effective the consent of the Senate shall be had, Mr. Swanberg’s term is neither lengthened nor shortened. He holds after the enactment of Chapter 161 as before until he has a successor legally ap
Nor did Chapter 161, Laws of 1953, create a new office upon a new industrial accident board, which from and after the effective date of that Act on March 3, 1953, is to be distinguished in its entirety from the old Industrial Accident Board which prior thereto and since 1915 had functioned as such. If the argument for Mr. McChesney to this point were sound, it might then be conceded that the rule of State ex rel. Patterson v. Lentz, supra, would properly be invoked, namely, that the new office created by a statute enacted is vacant for want of an incumbent upon the effective date of the statute, and may therefore be filled as a vacancy in public office. If Chapter 161 did create a new board and a new office for the chairman of that board, it may then be conceded that as soon as Mr. Swan-berg ’s four year term expired on May 1, 1955, there was a vacancy under the new law in the new board which the governor might properly have filled by a recess appointment.
The premise from which counsel draw this conclusion, however, will not stand analysis. It seems entirely clear to us that Chapter 161 neither created a new board nor a new office, viz., that of chairman. Conversely, it seems equally clear to us that this statute preserved intact the old board which had functioned as such since 1915, but provided for a change only in the personnel of the board, and of the conditions laid down under which
There is nothing in the statute, nothing in our Constitution or Codes, and nothing in this record, other than the argument made by counsel, which intimates that the Industrial Accident Board after March 3, 1953, was other than a lawful and logical continuation of that board as it functioned prior to that date. In the brief of counsel there is no citation of authority either to sustain their point or to point to any conclusion in conflict with that at which we have arrived. And such authority as we have been able to find points conclusively to the contrary of the argument made for Mr. McChesney that under Chapter 161 there was created either a new board or a new office of the chairman of that board, which within the doctrine of the Lentz and other like cases could then be said to be vacant and therefore open for a recess appointment by the governor. See State Board of Education v. Commission of Finance, Utah, 247 Pac. (2d) 435, 442; Wendell v. Lavin, 246 N. Y. 115, 118-123, 158 N.E. 42; In re Household Realty Corp., 158 Misc. 667, 286 N.Y.S. 413. Since Chapter 161, Laws of 1953, did not then create a new industrial accident board nor a new office to be filled by the governor’s appointee by and with the consent of the Senate, there was no vacancy on this board or in this office when that chapter became effective on March 3, 1953. There was then no vacancy within the rule of the authorities which we have already noted to which the governor could appoint under his constitutional power to fill vacancies while the state Senate was in recess.
Further in denial of Mr. Swanberg’s title it is urged that
Of course, if the office of chairman of this board under R.C.M. 1947, section 92-104, before amendment, was not in existence on December 29, 1952, because the effect of amended section 1, Article XVIII, of the Constitution was to abolish that board, and if Chapter 177, Laws of 1951, is, as counsel contend, ineffective, because it fails to square with the Constitution, we may perhaps concede for the purposes of this case that Mr. Swanberg has no title at all, that his appointment is utterly void, his tenure a nullity. We may likewise perhaps concede then also that Chapter 161, Laws of 1953, does not aid his claim, because that statute did not become effective until March 3, 1953, substantially two months after his appointment was made.
Yet the point pressed here by counsel is not open to us for decision upon this appeal. Chapter 177, Laws of 1951, in terms provides for the separate offices of commissioner of agriculture and commissioner of labor and industry, both of which were created by amended section 1 of Article XVIII of the Constitution. Any inquiry then into the constitutionality of Chapter 177 directly involves the rights of these officers to sit as members of the industrial accident board under its provisions and as well under section 92-104 of the 1947 Codes before the enactment of Chapter 161, Laws of 1953. Their titles as such officers and members are directly challenged by any argument that Chapter 177, Laws of 1951, is void upon the assumption that it is constitutionally vulnerable.
Hence to bring any such question here for review both the commissioners of agriculture and of labor and industry must
Among the other points made in attack upon Mr. Swanberg’s title is the suggestion that inasmuch as after May 1, 1955, Mr. Swanberg did not file a new bond he has forfeited his office; this, because it is said that his original bond specified therein his appointment as chairman for “the term commencing Dec. 29, 1952, and ending May 1, 1955.” Here it is argued, our opinions in State ex rel. Nagle v. Stafford, 97 Mont. 275, 290, 34 Pac. (2d) 372, and State ex rel. Nagle v. Stafford, 99 Mont. 88, 43 Pac. (2d) 636, are neither in point nor controlling. We do not agree.
When Mr. Swanberg’s bond was executed on December 29, 1952, R.C.M. 1947, section 6-311, was in effect, and became as much an integral part of that bond as any language therein expressly written. City of Philipsburg v. Porter, 121 Mont. 188, 192, 193, 190 Pac. (2d) 676; Valier Co. v. State, 123 Mont. 329, 341, 342, 215 Pac. (2d) 966; State ex rel. Malott v. Board of County Commissioners, 89 Mont. 37, 59, 296 Pac. 1; State ex rel. Judd v. Cooney, 97 Mont. 75, 81, 32 Pac. (2d) 851. In other words, R.C.M. 1947, section 6-311, in force when Mr. Swanberg’s bond was given is to be read as a part of that bond precisely like any other of its conditions.
The stipulation of that statute is: “Every official bond executed by any officer pursuant to law is in force and obligatory upon the principal and sureties therein for any and all breaches of the conditions thereof committed during the time
As applied to the bond which Mr. Swanberg gave on December 29, 1952, this statute means that that bond covered not only the designated term which ran from December 29, 1952, to May 1, 1955, but also any other time beyond that specified during which Mr. Swanberg continued “to discharge any of the duties of or hold the office” in question. It follows that no new bond was required of Mr. Swanberg after May 1, 1955, and that our opinions in the two Stafford Cases directly support the conclusion we reach here.
Other points suggested or argued in the brief of Mr. McChesney’s counsel have either been disposed of by what we have already written, or because of the view which we have taken of the whole case are now without substantial bearing upon the merits.
Mr. Swanberg is still entitled to the office of chairman of the Industrial Accident Board and entitled to the compensation therefor.
The judgment of the district court is affirmed.