Ingard v. Barker

• Decision Date: 19 March 1915
• Citation: 147 P. 293,27 Idaho 124
• Parties: DANIEL L. INGARD, Plaintiff, v. GEORGE R. BARKER, Secretary of State, Defendant
• Court: Idaho Supreme Court

147 P. 293

27 Idaho 124

DANIEL L. INGARD, Plaintiff, v. GEORGE R. BARKER, Secretary of State, Defendant

Supreme Court of Idaho

March 19, 1915

CREATION OF OFFICES NOT PROVIDED BY CONSTITUTION-METHOD OF FILLING OFFICES-LEGISLATIVE POWER-STATUTORY CONSTRUCTION-APPOINTMENTS TO STATE BOARD OF HORTICULTURAL INSPECTORS-POWER OF GOVERNOR TO MAKE UNDER STATUTE-CONSIDERATION OF RECOMMENDATIONS-CONDITIONAL JUDGMENT.

1. The legislature may create an office or offices not otherwise provided for, nor prohibited, by the constitution, and may fix the method of filling such office or offices; and when so created, the appointment or selection of officers to fill such offices may be made either by the chief executive, or by any person, board, corporation or association of individuals as provided by law, and such appointment would not be in conflict with the constitution or an improper exercise of power properly belonging to the executive department of the state government.

2. The framers of the constitution could not foresee what offices might be created by laws subsequently enacted, but they provided that such offices should be filled by the Governor unless the appointment or election should be otherwise provided for.

3. In passing upon the constitutionality of statutes generally, no matter from what standpoint the assault thereon may be made nothing but a clear violation of the constitution will justify the courts in overruling the legislative will, and where there is reasonable doubt as to the constitutionality of an act, it must be resolved in favor of the act.

4. In the absence of a constitutional provision to the contrary any one of the three departments of the government may, under the authority of a statutory provision, appoint for any class of office in its department.

5. The legislative body existing by virtue of a constitutional provision has power to enact any laws that are not expressly or by necessary implication, prohibited either by the federal constitution or the constitution of this state.

6. The power to create offices and provide the method of filling same is, unless otherwise provided for in the constitution vested in the legislature.

7. The legislature may limit the power of the chief executive in the matter of making appointments.

8. Sec 1310, Rev. Codes, as amended by the Session Laws of 1911, page 152, providing for the appointment of a state board of horticultural inspectors, does not vest the power of appointment in the State Horticultural Association.

9. It is beyond the authority of this court to make judicial amendments to sec. 1310, Rev. Codes, as amended by chapter 58, Sess. Laws 1911, by adding words thereto, in order to place a legal obligation upon the Governor to appoint members of the state board of horticultural inspectors recommended by the horticultural association, although the court may be of the opinion that a moral obligation rested upon the Governor to act concurrently with the State Horticultural Association in the selection of said members.

10. Where the power of appointment is clearly provided for in the act to be in the executive, and the only limitation attempted to be placed upon the power of the Governor to appoint is that, in making said appointments, he shall consider any recommendations made by the State Horticultural Association as the proper persons to be so appointed, and where the statute fails to fix the number of persons that shall be recommended, the time or place when the recommendations shall be made, the qualifications of the persons so recommended, and to provide that the Governor shall appoint said board from those so recommended, there is no legal obligation resting upon the Governor to appoint said board from the persons so recommended.

11. Statutes should be so construed as to give effect to each and every part thereof, if possible. (People v. Hunt, 1 Idaho 433.)

12. Sec. 1310, Rev. Codes, as amended, supra, requires the Governor of the state to consider any recommendations for appointment as members of the state board of horticultural inspectors made by the State Horticultural Association, and it is incumbent upon the Governor to carefully consider the person or persons so recommended before appointing the members of the state board of horticultural inspectors, that by the joint act of the association and the Governor, the purpose and intention of the legislature might be carried out, viz., that the board be constituted of members who are learned in the science of horticulture, to the end that the horticultural interests of the state be properly protected and expanded.

13. Sec. 1310, Rev. Codes, as amended, supra, vests in the Governor discretionary power in appointing the members of the state board of horticultural inspectors, which he may do from the list of names recommended by the state horticultural association, but he is not confined, in making said appointments, to the names so recommended.

14. Held, that the state horticultural association has not had a reasonable time within which to submit recommendations to the Governor of proper persons to be appointed members of the state board of horticultural inspectors, and under the facts in this case, the State Horticultural Association is allowed sixty days from and after the handing down of this opinion in which to make such recommendations, at the expiration of which time the Secretary of State shall issue commission to any person or persons so appointed.

Original proceeding on application for writ of mandate against the Secretary of State. Writ denied, and conditional judgment ordered.

Hawley & Hawley and Henry Z. Johnson, for Plaintiff.

The Wyoming statute with reference to the duty of the Secretary of State in regard to commissions is to all intents and purposes the same as ours. (Sec. 8, chap. 95, Laws of Wyoming, 1890-91; State ex rel. Miller v. Barber, Secy. of State, 4 Wyo. 409, 34 P. 1028, 27 L. R. A. 45.)

The supreme court of Wyoming declared that the Wyoming statute was mandatory and that the Secretary of State had no right to refuse to affix the seal of the state, or countersign the commission issued by the Governor, because in the judgment of the secretary the Governor was exceeding his authority in making the appointment. (See, also, Hill v. State, 1 Ala. 559, 561; State v. Harrison, 113 Ind. 434, 3 Am. St. 663, 16 N.E. 384; State v. Wrotnowski, 17 La. Ann. 156, 161.)

Sec. 1310, Rev. Codes, as amended, does not give the power to the State Horticultural Association to name through the Governor the members of the state board of horticultural inspection. Nor does such section merely make it the duty of the Governor to consider the recommendations of said association in making appointments to membership in said board. (In re Whitcomb's Estate, 86 Cal. 265, 24 P. 1028; In re Inman, 8 Idaho 398, 69 P. 120.)

The Governor cannot be required to act simply as the mouthpiece of any board or person. (People ex rel. Balcom v. Mosher, 163 N.Y. 32, 79 Am. St. 552; 57 N.E. 88; In re Kane v. Gaynor, 144 A.D. 196, 129 N.Y.S. 280, 96 N.E. 1117.)

J. H. Peterson, Atty. Genl., T. C. Coffin and E. G. Davis, Assts., for Defendant.

Sec. 6 of art 4 is the only section of the constitution which confers anything like a general appointive power upon the Governor of this state. This section has been passed upon by this court in the case of In re Inman, 8 Idaho 398, 69 P. 120, in which the court decided, in effect, that the legislature could provide by law for the appointment of officers by the Governor without the consent of the Senate. The construction of this section was also before the court in the case of Elliott v. McCrea, 23 Idaho 524, 130 P. 785.

The position taken by the court in these cases clearly established the rule, in so far as this jurisdiction is concerned, that the legislature has ample authority to prescribe just how appointments shall be made.

"The power of appointment to office is not essentially an executive function. It may therefore be regulated by law." (29 Cyc. 370; People v. Freeman, 80 Cal. 233, 13 Am. St. 122, 22 P. 173; Fox v. McDonald, 101 Ala. 51, 46 Am. St. 98, 13 So. 416, 21 L. R. A. 529; State v. Hyde, 129 Ind. 296, 28 N.E. 186, 13 L. R. A. 79; Sturgis v. Spofford, 45 N.Y. 446; In re Bulger, 45 Cal. 553.)

The legislature may impose restrictions upon the Governor in the making of appointments. If this were not true, laws providing for civil service classifications and appointments would be unconstitutional, as would also laws attempting to create preferences in favor of honorably discharged soldiers and sailors of the Civil War in matters of appointment. Laws of both classes have been upheld as constitutional. (People v. Bardin, 7 N.Y.S. 123; In re Sullivan, 55 Hun, 285, 8 N.Y.S. 401; In re Gaffney, 20 N.Y. St. 165, 3 N.Y.S. 664; Kip v. Buffalo, 123 N.Y. 152, 25 N.E. 165; People v. Saratoga Springs, 54 Hun, 16, 7 N.Y.S. 125.)

In Russell v. Lyon, 90 S.C. 5, 72 S.E. 496, the court was construing a statute which provided that it should be the duty of the Governor to make certain appointments "upon the recommendation of the legislative delegation of G. county." The court first passed upon this statute in the case of Elledge v. Wharton, reported in 89 S.C. 113, 71 S.E. 657, and they decided that while officers appointed by the Governor without the recommendation provided for in the statute might be de facto officers, they would not be de jure officers.

A Secretary of State may not be required by mandamus to affix the great seal to and countersign an unlawful instrument issued by the Governor, or to attest his doing an unlawful act. (People v. State Board of Canvassers, 129 N.Y 360, 29 N.E. 345, 14 L. R. A. 646; People v. Forquer, 1 Breese (Ill.), 104; ...