Clark v. State

• Citation: 59 So. 259,177 Ala. 188
• Parties: CLARK v. STATE EX REL. GRAVES.
• Decision Date: 04 June 1912
• Court: Supreme Court of Alabama

59 So. 259

177 Ala. 188

CLARK
v.
STATE EX REL. GRAVES.

Supreme Court of Alabama

June 4, 1912

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Petition by the State, on the relation of Bibb Graves, against Louis V. Clark. From a judgment for petitioner, defendant appeals. Reversed and rendered. [59 So. 260]

Tyson, Wilson & Martin, of Montgomery, for appellant.

Ray Rushton, William H. & J. R. Thomas, and Phillip H. Stern, all of Montgomery, for appellee.

SOMERVILLE, J.

Section 6 of article 12 of the Constitution of 1875 provided that "the Governor shall, except as otherwise provided herein, be commander in chief of the militia and volunteer forces of the state, except when in the service of the United States, and shall, with the advice and consent of the Senate, appoint all general officers, whose terms of office shall be for four years. The Governor, the generals, and regimental and battalion commanders shall appoint their own staffs, as may be provided by law." Section 271 of the Constitution of 1901 provides: "The Legislature shall have power to declare who shall constitute the militia of the state, and to provide for organizing, arming, and disciplining the same; and the Legislature may provide for the organization of a state and naval militia." And section 276 of that instrument provides: "The Governor shall, with the advice and consent of the Senate, appoint all general officers, whose terms of office shall be four years. The Governor, the generals and regimental and battalion commanders shall appoint their own staffs, as may be provided by law." It thus appears that the organization of the state militia, including, of course, provision for such officers as might be deemed necessary or expedient, was and is committed to the control of the Legislature, subject to the restraining constitutional provision that such general officers as the Legislature may prescribe shall be appointed by the Governor, with the advice and consent of the Senate, and for terms of four years.

The act of February 18, 1895, was as follows:

"Section 1. The Governor, in his discretion, may form the Alabama state troops in a brigade, and appoint a brigadier general who, under the direction and control of the governor, shall have command of such brigade, and perform such duties in connection therewith as may from time to time be assigned to him by the Governor

"Sec. 2. The brigadier general shall be appointed by the Governor and confirmed by the Senate, and hold his office for the term of four years, and until his successor is duly appointed and qualified, and he may be removed from office at the will of the Governor." Sess. Acts 1894-95, p. 879. This seems to have been the first legislative act that dealt with this particular subject. This act was revised and changed by the act of February 18, 1897, section 4 of which was as follows: "The organized military forces of this state shall be formed into a brigade, and be under the direct command of the brigadier general, who shall hereafter be elected by the field officers by ballot, or in such other manner as may be determined upon by the Governor in his discretion, and his office shall be for a term of four years and until his successor is duly qualified." Sess. Acts 1896-97, p. 1308. Further revision was effected by the act of February 23, 1899, section 27 of which was as follows: "That the organized military forces of this state may be formed into a brigade and be under the command of the brigadier general, who shall be appointed by the Governor: Provided, that nothing in this act shall be construed as creating any vacancy in the office of brigadier general or any of his staff." Sess. Acts 1898-99, p. 151. This section of that act became section 993 of the Code of 1907, and is as follows: "The organized military forces of this state may be formed into a brigade and be under the command of a brigadier general, who shall be appointed by the Governor; but nothing in this chapter shall be construed as creating any vacancy in the office of brigadier general or any of his staff."

The theory upon which the learned trial judge proceeded was that the constitutional and statutory provisions above quoted created an office which was apportioned into successive terms of four years each, regardless of the number of appointees; and that, the beginning of the first term having been fixed by the appointment and confirmation of Gen. Clark on December 9, 1896, all subsequent terms were necessarily computed from that fixed date, the first term ending on December 9, 1900, the second on December [59 So. 261] 9, 1904, the third on December 9, 1908, and the fourth or current term on December 9, 1912. His conclusion quite logically was that the appointment of Gen. Clark on February 28, 1907, was made in the midst of an uncompleted term, and was properly, and, indeed, necessarily, limited to the remainder of the third (unexpired) term, ending on December 9, 1908, and that the appointment of Gen. Graves was legally made on January 10, 1911, for the remainder of the fourth (unexpired) term, ending December 9, 1912.

The office here involved is unquestionably a general office, and, although it originated in legislative action, it is governed by section 276 of the present Constitution as to the particulars therein stated, as it was also originally governed by the quoted provision of the prior Constitution. There can be no lawful incumbent of such an office unless he has been appointed thereto by the Governor, and his appointment has been duly confirmed by the concurring action of the Senate. A completed appointment is therefore the joint act of the Governor and the Senate, and the single action of either, without the concurring action of the other, is a mere nullity as far as the de jure character of the appointee is concerned. State ex rel. Little v. Foster, 130 Ala. 154, 30 So. 477. "Where the appointing officer or body is authorized to make the appointment only with the consent of some other body, there can be no appointment until such consent has been given. The appointment does not take effect prior to such consent, subject to be defeated by the nonconcurrence of such body." 23 Am. & Eng. Ency. Law, 346 (4), and cases cited.

If a vacancy occurs in the term of any state or county office, it is filled by appointment of the Governor, except as otherwise provided, but the appointee holds his office only for the unexpired term, and until his successor is elected and qualified. Code of 1907, § 1474. This provision, however, does not apply to vacancies in the office ensuing upon the expiration of a complete term. State ex rel. Little v. Foster, 130 Ala. 154, 30 So. 477. And, of course, it cannot apply at all to offices as to which no unexpired terms are contemplated. It results from these principles that, after the expiration of Gen. Clark's first term (December 9, 1896, to December 9, 1900), there was no de jure incumbent of this office until February 28, 1907, when his nomination by Gov. Comer "for the term beginning April 17, 1905," was confirmed by the Senate, because no authority was vested in the Governor to make a recess appointment, and without constitutional warrant he was wholly impotent to do so.

In this connection it may be noted that with respect to all of the civil officers whose terms are prescribed by the Constitution provision is made for filling vacancies therein by executive appointment either "until their successors are elected and qualified," or "until the next general election and until their successors are elected and qualified." Const. 1901, §§ 136, 158. In the case of judicial officers who are elected for six years, elections to fill vacancies are only for the unexpired term. Id. § 158. But with respect to general officers of the militia no provision whatever is made for filling vacancies, nor for holding over by incumbents until their successors are appointed and qualified; nor is there anywhere a legislative provision suggestive of unexpired terms with respect to the office of brigadier general. Specifically, the chief question here presented for determination is whether the constitutional and statutory provisions providing for and regulating the office of brigadier general contemplate a succession of fixed terms of office of four years each, each new term beginning with the end of its predecessor, into which all appointees shall be compressed regardless of their number or the times of their appointment, or whether, ignoring unexpired terms, each new appointee shall be entitled to hold for a new term of four years. Or, to state the question somewhat...