Alcorn ex rel. Hendrick v. Keating

• Decision Date: 05 November 1935
• Citation: 181 A. 340,120 Conn. 427
• Parties: ALCORN, State's Atty., ex rel. HENDRICK v. KEATING.
• Court: Connecticut Supreme Court

181 A. 340

120 Conn. 427

ALCORN, State's Atty., ex rel. HENDRICK v. KEATING.

Supreme Court of Errors of Connecticut.

November 5, 1935

Case Reserved from Superior Court, Hartford County; Carl Foster Judge.

Information in the nature of quo warranto by Hugh M. Alcorn, State's Attorney, on the relation of William A. Hendrick, against Vincent L. Keating, to determine the title of the respondent to the office of member of the Board of Finance and Control brought to the superior court and reserved by the court for the advice of this court.

Questions answered.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

Ernest L. Averill, and Raymond A. Johnson, both of Hartford, for relator.

Edward J. Daly, Atty. Gen. (Charles J. McLaughlin, Deputy Atty. Gen., on the brief), for respondent.

HINMAN, Judge.

On February 13, 1929, pursuant to the provisions of section 1 of chapter 297 of the Public Acts of 1927, Governor Trumbull submitted to the Senate the nomination and appointment of William A. Hendrick of New Haven to be a member of the board of finance and control for the term of six years from July 1, 1929. On the following day, upon a favorable report of the committee on executive nominations, a resolution was passed by the Senate confirming this nomination, and thereafter the Governor issued his commission to Hendrick, who duly qualified and commenced his duties from July 1, 1929. On April 23, 1935, Governor Cross submitted to the Senate a communication nominating and appointing Vincent L. Keating of Bridgeport to be a member of the board for the term of six years from July 1, 1935. The communication was referred to the committee on executive nominations, but that committee made no report thereon to the Senate, and on June 5th the General Assembly adjourned without further action having been taken with respect thereto. On July 2, 1935, Governor Cross issued to Keating a commission appointing him a member of the board, to fill a vacancy, for the unexpired portion of the term ending six years from and after July 1, 1935. Keating accepted the appointment and on July 11th took the oath of office and, claiming to be a member of the board, presented himself to act as such. Hendrick also appeared on the same day, claiming to be still a member; but the board voted that Keating be recognized as a member of the board, declined to recognize Hendrick, and Keating has since continued to act.

This action was brought on July 11th, the relator claiming that as no person had been appointed by the Governor with the advice and consent of the Senate for the term commencing July 1, 1935, no successor had been appointed and qualified as provided by statute, and that, therefore, his term has not expired and will not expire until a successor is appointed by the Governor with the advice and consent of the Senate. The case was reserved for the advice of this court, the facts above summarized were stipulated, and the following questions are propounded: (1) Was there a vacancy on July 2, 1935, in the office of an appointed member of the board of finance and control which could lawfully be filled by the Governor without the advice and consent of the Senate? (2) Was the relator on July 2, 1935, a de jure member of the board of finance and control? (3) If the answer to the second question be in the affirmative, has the Governor the power to appoint a successor to the relator without the advice and consent of the Senate? (4) Is the respondent legally entitled to succeed the relator as an appointed member of the board of finance and control?

The basic and determinative inquiry presented by this reservation is whether or not, on July 2, 1935, there was a vacancy in the office of member of the board of finance and control which could lawfully be filled by appointment by the Governor without the advice and consent of the Senate? In the primary and technical sense " vacancy," as applied to an office or position, signifies a state of being not filled or occupied by a present incumbent. It is not, however, in every case to be taken in this strict sense. It may appear that in order to constitute the vacancy referred to in a constitutional or statutory provision and authorized to be filled in a manner therein prescribed, the office need not be physically vacant but it is enough that it is not occupied by a de jure officer. The term " vacancy," when so used, " applies as well to an office occupied by a usurper or a holdover or de facto officer as to cases when by death or resignation the office is left without any incumbent." State ex rel. Eberle v. Clark, 87 Conn. 537, 547, 89 A. 172, 175, 52 L.R.A. (N. S.) 912."

" Where an original power to appoint to an office is given to one person or appointing body and the power to fill vacancies in that office to another, and the law provides that the original appointment shall be for a definite term and until a successor is appointed, it is a vexed question whether, upon the termination of the fixed term, the original appointing body not having named a successor, the person or body having the power to fill vacancies may do so. The conflict of opinion centers around the question whether there is a vacancy at that time. The original appointing body having undoubted power (and the empowering statute contemplates that it will be exercised) to appoint a successor to fill the term before a vacancy occurs, if this is done the office will be kept full. But, when this is not done, the question is whether the old incumbent continues to hold the office as a portion of his original term or only continues in the office as a mere locum tenens or officer de facto. In some of these cases it is decided that the holdover provision creates a new and contingent term; in others that it merely authorizes the old officer to temporarily fill the office, under his former qualification, as a locum tenens; and in others it is held that it continues the original term until a successor is appointed. When held that the old term continues, it is generally held that there is no vacancy to be filled by the authority having the power to fill vacancies; and, where the incumbent holds over as a temporary holder of the office, it is generally held that a vacancy exists which may be filled by the authority empowered to fill vacancies. In all the cases it is a question of construing the provision authorizing the holding over, and this is affected by the nature of the office to be filled (i. e., whether elective or appointive), the language of the particular statute, and the circumstances of the particular case." State ex rel. Lyons v. Watkins, 87 Conn. 594, 597, 89 A. 178, 180. It is generally held that where the provision is that the incumbent shall hold until his successor is elected or appointed and qualified, without other provisions or considerations modifying or affecting it, there is not a vacancy to be filled in the manner provided for the filling of vacancies by other than the power and in the manner originally authorized to elect or appoint. State ex rel. Carson v. Harrison, 113 Ind. 434, 16 N.E. 384, 3 Am.St.Rep. 663; State v. Howe, 25 Ohio St. 588, 18 Am. Rep. 321; People ex rel. Baird v. Tilton, 37 Cal. 614; Shackelford v. West, 138 Ga. 159, 74 S.E. 1079; People v. Edwards, 93 Cal. 153, 28 P. 831; Smoot v. Somerville, 59 Md. 84; State ex rel. Wood v. Hadley, 64 N.H. 473, 13 A. 643; and see cases 50 L.R.A. (N. S.) p. 368 et seq., note; 22 R.C.L. p. 555.

Mechem on Public Officers, § 128, cites and quotes from People ex rel. Baird v. Tilton, supra, as stating what seems to be the settled principle: " The constitution of California provided: ‘ When any office shall, from any cause, become vacant, and no mode is provided by the constitution and laws for filling such vacancy, ’ the governor shall have power to fill such vacancy by granting a commission which shall expire at the end of the next session of the legislature. *** Under this section it was held that where an act creating an office and fixing the duration of the term provides that the officer shall be elected by the legislature and shall hold his office until his successor is elected and qualified, the failure of the legislature to elect at the expiration of the term does not create such a vacancy as the governor is authorized to fill by appointment but the incumbent holds until his successor is elected by the legislature. If there was a vacancy, in any proper sense, after the expiration of the term and before the election and qualification of a successor, the statute itself filled the vacancy for the time being by providing that the old incumbent shall hold till a successor shall be elected and qualified. ‘ It was manifestly the intent of the constitution,’ said the court, ‘ that the governor should appoint only where there is no party authorized by law to discharge the duties of the office. The object was to prevent a public inconvenience arising from the want of a party authorized for the time being to discharge the duties of a public office. When there is a party expressly authorized by law to discharge these duties temporarily, till the power upon whom the duty of election or appointment is devolved can regularly act, there is no occasion for calling into exercise this extraordinary power vested in the governor to make a merely temporary appointment....