Rampton v. Barlow

• Decision Date: 19 January 1970
• Docket Number: No. 11725,11725
• Citation: 464 P.2d 378,23 Utah 2d 383
• Parties: d 383 Calvin L. RAMPTON, Governor of Utah, and the State of Utah, Plaintiffs and Appellants, v. Haven J. BARLOW, President of the Senate of the State of Utah, and Lorin N. Pace, Speaker of the House of Representatives of the State of Utah, et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 378

464 P.2d 378

23 Utah 2d 383

Calvin L. RAMPTON, Governor of Utah, and the State of Utah Plaintiffs and Appellants, v. Haven J. BARLOW, President of the Senate of the State of Utah, and Lorin N. Pace, Speaker of the House of Representatives of the State of Utah, et al., Defendants and Respondents.

No. 11725.

Supreme Court of Utah.

Jan. 19, 1970.

Sidney G. Baucom, Salt Lake City, for appellants.

Rex J. Hanson and Merlin R. Lybbert, of Hanson & Baldwin, Salt Lake City, for respondents.

ELLETT, Justice:

This is a suit for a declaratory judgment brought by the Governor against the President of the State Senate and the Speaker of the House of Representatives to have a determination of the validity of Chapter 138, Laws of Utah 1969, insofar as that Act purports to confer on the two named defendants the power to appoint three members each to the newly created State Board of Higher Education.

The bill provides for a board of fifteen members, nine of whom shall be appointed by the governor, by and with the consent of the senate and three each by the presiding officer of each house of the legislature.

The parties disagree as to the interpretation to be placed upon the language of Article VII, Section 10, of our state Constitution, which reads:

The governor shall nominate, and by and with the consent of the senate, appoint all state and district officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for. * * *

The Governor contends that he may appoint to all offices 'which may be created by law, and whose appointment or election is not otherwise provided for' (by the Constitution). There is much argument as to whether the phrase 'provided for' is a 'prepositional phrase' relating to the noun (constitution) or to the words 'by law,' and as to whether the last clause of the section quoted above is a 'dependent adjective clause' and as to whether the framers of the Constitution were familiar with the importance of the word 'herein.'

It seems to us rather clear that the only meaning to be given to the clause is that the governor is to appoint to offices created by statute only when no method is provided by law for the election or appointment by someone other than the governor.

Section 7 of the Organic Act creating the Territory of Utah provided: 'The governor shall nominate, and, by and with the advice and consent of the legislative council, appoint all officers not herein otherwise provided for.' This was the law at the time of the constitutional convention, and by omitting the word 'herein' from the language of the Constitution the framers thereof must have intended that the appointment by the governor would apply to all offices created by statute unless a prohibition could be found in the Constitution itself or the statute creating the office otherwise provided.

Let us consider some cases from other states.

People ex rel. Walker v. Capp, 61 Colo. 396, 158 P. 143 (1916) involved a civil service act enacted by the legislature providing for appointments based on competitive examinations. Article IV, Section 6, of the Colorado Constitution is similar to that of Utah insofar as the part in question is concerned. The court in holding that the appointing power was not in the governor said at page 144:

The appointment of the warden of the state reformatory is otherwise provided for, and under the decision of the appellate courts of this state,--(Citations omitted)--the statute which provides for the manner of appointment of such officers is controlling. * * * The following statement from 29 Cyc. 1379 is applicable:

Where the power of appointment is not vested in an authority by the constitution there would seem to be no question with regard to the power of the legislature to impose limitations upon the discretion of the appointing officer, or to authorize some other body, such as a state or local civil service commission, to impose such limitations. It would also seem proper under such conditions for the legislature to provide that the appointment should be made as a result of the selection of the one standing highest on a list made up of the successful contestants at competitive examinations.

Regardless of the construction which we place on the language in dispute herein, we have the same problem before us. Even by holding that the legislature can 'otherwise provide' for an appointment, the question remains: Can the legislature reserve unto itself or confer upon its presiding officers, the power of appointment?

Another section of our Constitution must be considered in this connection, and that is Article V, Section 1, which reads:

The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.

We read in Black's Constitutional Law at page 78: 'The legislature cannot lawfully usurp any of the functions confided by the constitution to the executive department, such as the power to make appointments to office.'

In Re Opinion of the Justices, 300 Mass. 596, 14 N.E.2d 465, 118 A.L.R. 166, 169, (1938), the statute provided that the majority of the justices of the Supreme Judicial Court could, if their judgment so required, remove from office clerks of court; and since these officers were involved in the administration of justice--judicial business--that part of the statute was held constitutional. However, another part of the statute provided for removal of mayors of cities; and in holding that the legislature could not confer on the courts this power to remove, the court said:

The proposed addition to the existing section 4 provides that the Justices 'may, upon a petition brought by the attorney general, if in their judgment the public good so requires, remove a mayor of any city or a chief of police of any city or town.' These officers are largely municipal or local in their field of operation. In the main, they perform executive duties. They have no intimate connection with the course or the administration of justice. The removal of such officers cannot rightly be said to be incidental to the judicial function. The reasons which upheld the statute as to the removal of district attorneys and other county officers are entirely wanting in the proposed bill as to the removal of mayors. * * *

The power to remove officers is executive in its nature. (Citations omitted) Courts have no inherent power to remove elected or executive officers. * * * The members of the judiciary cannot be required to appoint such officers. (Citation omitted) Removal stands in general on the same footing. * * *

In the case of State ex rel. Collett v. Gorby, 122 Ind. 17, 23 N.E. 678 (1890), the office of director of the department of geology and natural resources was created, and the general assembly (legislature) of Indiana by election of its own members chose the defendant Gorby to fill the office. The plaintiff Collett was appointed by the governor. The question before the court was which party was entitled to hold the office. The court held:

* * * In the case of State ex rel. Jameson v. Denny, 118 Ind. 382, 21 N.E. 252, (4 L.R.A. 79,) it was held that the general assembly had no power to elect or appoint the members of a board of public works and affairs for the cities named in the act of March 9, 1889. That decision rests upon the grounds, as therein expressly stated--First, that so much of the act as attempted to confer on the general assembly the duty of electing or appointing the individual members of that board sought to confer on it executive or administrative functions which, under the constitution, it was forbidden to exercise; * * *. In the case of City of Evansville v. State, 118 Ind. 426, 21 N.E. 267, (4 L.R.A. 93,) and in the case of State ex rel. Holt v. Denny, 118 Ind. 449, 21 N.E. 274, (4 L.R.A. 65,) it was held that the general assembly does not possess the power to elect or appoint the individual members of a metropolitan board of police and fire department provided for by an act of the general assembly of the 7th of March, 1889. * * *

* * * By the express terms of the constitution the general assembly is prohibited from exercising executive or administrative function, except in cases expressly provided for by that instrument. * * *

A Nevada statute gave judges the power to grant certificates of authority to ordained minsiters to perform marriages. In Galloway v. Truesdale, 83 Nev. 13, 422 P.2d 237 (1967), the Nevada court held that the legislature could not confer the power upon the courts and that any attempt to do so would be a violation of the separation of the powers of the three divisions of government.

The case of Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845, (1928), involved the power of the legislature to vest the voting power of government-owned corporate stock in a committee consisting of the governor-general, the president of the senate, and the speaker of the house of representatives. The Supreme Court of the United States in holding the act to be in violation of the Organic Act said:

Thus the Organic Act, following the rule established by the American constitutions, both state and Federal, divides the government into three separate departments--the legislative, executive and judicial. Some of our state constitutions expressly provide in one form or another that the legislative, executive and judicial powers of the government shall be forever separate and distinct from each other. Other constitutions, including that of the United States, do not contain such an express provision. But it is implicit in all, as a conclusion logically following from the separation...