| Tenn. | Jun 27, 1900
This record presents a contest between claimants to tbe office of trustee for tbe "Western Hospital for tbe Insane. Tbe relator, A. J. Coates, wbo is seeking by mandamus to compel tbe trustees of said institution to induct bim into office, claims title by virtue • of an appointment from Gov. R. L, Taylor to fill out tbe unexpired term of J. W. Wilkes, wbo died in August, 1897. Defendants resist tbe right of tbe relator to be inducted into said office upon tbe ground, first, tbat tbe Senate did not act on relator’s appointment, and, second, tbat on March 3, 1899, Governor McMillin, by and with tbe advice and consent of tbe Senate, appointed John H. Bills to said office.
Tbe Code of Tennessee, after creating tbe office of trustee for tbe Hospital for tbe Insane and prescribing their duties, provided as follows (§ 2585, Shannon’s Code): “They shall be nominated and by and with tbe advice and consent of the Senate shall be appointed by tbe Governor as often as vacancies occur by expiration of tbe terms of tbe incumbents.”
Sec. 2586. “They shall bold their offices for the term of six years; and if a vacancy occurs in tbe office by death, resignation or otherwise, it
The facts are that on the 25 th of March, 1897, J. W. Wilkes was appointed by the Governor of the State, with the advice and consent of the Senate, a trustee for the Western Hospital for the Insane for the full term of six years. Willces was inducted into said office and continued to discharge the duties until — day of August, .1897, when he died. On the 19 th day of October, 1897, thereafter, the relator, A. J. Coates, was appointed by the Governor and commissioned a trustee for said hospital to fill the unexpired term of Wilkes. On the 3d of March, 1899, Governor McMillin, by and with the ..advice and consent of the Senate, appointed J ohn II. Bills as trustee for said hospital. It was recited in the commission of Bills that the appointment was made on account of a vacancy having occurred by reason of the expiration of the term of A. J. Coates. The appointment of Bills was .made for a full term of six years. It should have been stated that the relator, Coates, entered upon the discharge of his duties and continued .to fill the office until he was ousted by the appointment of Bills. The question presented for our determination, upon the record is, Whether an appointment made by the Governor to fill a vacancy occasioned by the death of an incumbent is only ad interim and until the Senate
The contention of the relator is that his nomination and commission by Governor Taylor on October 1, 1897, constituted an appointment for the unexpired term of Wilkes, . and that the Governor and Senate were without authority to make the appointment of Bills on March 3, 1899, since the relator’s term had not then expired.
The contention of the defendant is, “that the nomination and commission of said Coates, on October 1, 1897, being without the advice and consent of the Senate, entitled him to the position until such time as that body might act in conjunction with the Governor in making an appointment, and that Coates’ term expired upon the appointment of Bills, made by the Governor with the advice and consent of the Senate.”
The Chancellor held that, upon a proper construction of the statutes, the Governor is empowered to fill a vacancy occasioned by death or resignation by an appointment for the unexpired term, and that such an appointment does not require the confirmation of the Senate.
It cannot be denied that, under the strict literalism of the statute, the appointment of Coates for the balance of Wilkes’ term was expressly authorized, but it is insisted all cognate and constituent statutes on this subject are to be construed in pari materia, and that when viewed as
It is argued on behalf of the respondent that the Senate is given co-ordinate authority, and that the Governor’s power is merely the nominating power, until by approval of the- Senate it becomes a power of appointment. The appointing power, it is further said, the complete filling of the office, must be by concurrent action, save only when, from the circumstances of the case, the Senate cannot be consulted and the Governor must act alone. As illustrating the intent of the Legislature, and the consequences that would follow the literal construction of the statute, reference is made to the fact that Wilkes was appointed, by and with the consent of the Senate, in February, 189†, for the full term of six years, and at the date of his death had only served six months, and thiat Co'aJtes, appointed his successor during the recess of the Senate, Would fill the office for five years and six months, nearly a full term, without any concurrent action on the part of the Senate.
It may be said, in answer to this suggestion, that, if the law has lodged in the Executive the appointing power to fill vacancies occasioned by
Says the same author: “The rules of construction with which the books abound apply only when the words are of doubtful import. They are only so many lights to assist the Courts in arriving with more accuracy at the true interpretation of the intention.
“The literal interpretation of a statute, according to Lieber’s definition, is finding out the true sense by making the statute its own expositor. If the true sense can thus be discovered, there is no resort to construction. ... It is beyond question the duty of Courts, in construing statutes,
It has already been seen that, by tbe plain and unambiguous language of § 2585, Shannon’s Code, that if a vacancy occurs in tbe office by death, resignation, or otherwise, it shall be filled, by the Governor for the unexpired term of said trustee. But it is insisted that this language is-limited by the preceding section. It is manifest, however, that section is dealing with original appointments and filling vacancies occasioned by the1 expiration of the terms of incumbents. There is-no -antagonism or inconsistency between the two sections, but they relate to wholly distinct subjects. In this connection it is well said by learned counsel for relator, viz.: “Neither in terms-nor by implication can. anything be found in. said Acts conferring upon the Senate the power to act where the vacancy occurs by death. It is-equally clear from said sections that the legislar-tive grant of power jointly to the Executive and.
“By the express terms of § 1521 of the Oode of Tennessee, the advice and consent of the Senate to the appointment by the Governor of the trustee is limited to a vacancy occurring by the expiration of the term of pffice of the trustee. By the express terms of § 1522 of said Oode, the sole power to fill a vacancy occurring by the death of a trustee is vested in the Governor; such appointment to be for the unexpired term of the deceased incumbent. The two sections of said Code not only fail to confer any power upon the State to act in the last case, but exclude the power of the Senate to take any action.”
The Constitution of 1834, Art. 7, Sec. 4, contained substantially the same provision. In that instrument the word “vacancies” was followed by the phrase, “that may happen by death, resignation, or removal.” This, however, is immaterial. The Legislature admittedly had the power to provide for the appointment of these trustees and the filling of all vacancies that might happen in their offices in such manner as it deemed most judicious. The original Act was passed February 5, 1848, and by the sixth section provided as follows, namely: “The Governor shall nominate, and by and with the advice and consent of the Senate appoint, nine trustees of said institution, two from East Tennessee, two from West Tennessee, and five from Middle Tennessee, of which five three shall be residents in or near Nashville, the other two out of Davidson County. Three of the trustees first appointed shall serve two years, three four years, and three for six years, at the expiration of which period the vacancies shall be filled by appointment for six years, and should a vacancy occur by death, resignation, or otherwise, it shall b.e filled by executive appointment for the unexpired term of
It would seem very clear from this Act, which is the prototype of the section found in the Code, that the power of filling vacancies in. said offices was committed to the executive department, and they were not to be made ad interim, until the meeting of the Senate, but for the unexpired term. It is very obvious, too, that when the Governor and the Senate are empowered to act concurrently, it is to make an appointment for a full term, and not to fill an unexpired term. The appointment of Bills for a full term of six years was unauthorized, if for no other reason than that the term of his predecessor, Wilkes (leaving Coates out of view), had only partially expired, and herein lies the real test. If tire concurrent action of the Governor and Senate is expressly limited to appointments for a full term of six years, what voice can the Senate have in filling an unexpired term ? Not by implicatiorr, for that matter is expressly committed by the Act to the executive department. There is no room here for the application of artificial rules of construction, since the Acts are perfectly plain and consistent. It is, moreover, perfectly obvious, from a consideration of all the Acts of the Legislature on this subject, that uniformity in the tenure of appointment was intended. An appointment of a trustee
We are therefore of opinion that the appointment of Bills was unauthorized and void, and that Coates is entitled to fill out the unexpired term of Wilkes. The Chancellor so held, and we affirm his decree.