Rosoff v. Haussamen

• Decision Date: 06 January 1930
• Citation: 228 N.W. 830,59 N.D. 154
• Court: North Dakota Supreme Court

228 N.W. 830

59 N.D. 154

LOUIS ROSOFF, Respondent, v. H. L. HAUSSAMEN, Burt Finney, O. B. Sjurseth, and P. H. Costello, as Members of the State Board of Pharmacy of the State of North Dakota, Appellants and STATE OF NORTH DAKOTA EX REL. GEORGE SHAFER, Attorney General, Appellant, v. LOUIS ROSOFF, Respondent

Supreme Court of North Dakota

January 6, 1930

Rehearing Denied February 10, 1930.

Appeal from the District Court of Cass County, Cole, J.

Reversed.

George F. Shafer, Attorney General, and C. L. Young Special Assistant Attorney General, for appellants.

The governor can only fill vacancy in cases where neither the Constitution nor the law has made provision to fill the same. State v. Boucher, 3 N.D. 389, 56 N.W. 142.

The power to appoint to public office is not intrinsically or exclusively the function of the executive branch of the government. Baltimore v. State, 15 Md. 376; Fox v. McDonald (Ala.) 21 L.R.A. 529; People v Freeman, 80 Cal. 233; People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; People v. Morgan, 90 Ill. 562.

Where the office involved is statutory the legislature has power to prescribe the method of appointing and removal. State ex rel. Kositzky v. Prater, 48 N.D. 1240, 189 N.W. 334.

A person who is ineligible to hold a public office cannot be elected thereto; his election thereto is a nullity. Jenness v. Clark, 21 N.D. 150, 129 N.W. 357.

"The power of the general assembly to enact laws is subject to no restrictions save those imposed by the state and Federal Constitutions. Overshiner v. State (Ind.) 51 L.R.A. 748.

Bangs, Hamilton, & Bangs, for respondent.

The right of appointment, of necessity, involves the power of selection and the exercise of discretion and judgment. People ex rel. Balcom v. Mosher (N.Y.) 57 N.E. 88.

Burke, Ch. J. Christianson and Nuessle, JJ., concur. Birdzell, J. (dissenting). Burr, J., concurs in dissenting opinion.

OPINION

BURKE

On the 8th day of November 1927, Louis Rosoff brought a mandamus proceeding against the members of the state board of pharmacy to compel them to recognize him as a member of said board, and on the 29th day of November 1927 the state of North Dakota on relation of George Shafer, attorney general, brought an action against the defendant, Louis Rosoff, for the purpose of trying his title to the office of member of the state board of pharmacy of the state of North Dakota. The two actions were consolidated and tried on the same stipulated facts. There was a judgment in favor of Rosoff in both actions, and from these judgments separate appeals were taken and submitted to this court as one action.

The facts stipulated and necessary for consideration are as follows: The state board of pharmacy under § 477, Comp. Laws 1913, "consists of five registered pharmacists." On May 8th, 1922, one W. P. Porterfield was duly appointed for a term of five years and qualified and acted as a member of said board during said term.

The North Dakota Pharmaceutical Association was duly incorporated in 1886, and there is nothing in the articles of incorporation or the by-laws providing the number of votes to elect, recommend or to carry any motion at a meeting of said board of pharmacy. On August 3rd, 1926, the North Dakota Pharmaceutical Association then assembled, and having before it, the question of the recommendation of someone to the governor for appointment for the full term of five years to succeed W. P. Porterfield, the following proceedings were had, viz.: "The committee appointed for the purpose of nominating candidates reported to the general meeting as candidates, W. P. Porterfield, P. H. Costello and O. B. Sjurseth to be submitted to the governor from which the governor should select one to succeed the said Porterfield on the state pharmacy board, upon the expiration of his term on May 8, 1927. Mr. Parker, a member of the association, inquired, 'If we nominate three names to be submitted to the governor we are going to get into politics for we are a family and should settle our own dispute right here. I should like to see this association select one name to be submitted to the governor.' Mr. Mergen of Fairmont, then said, 'I think Mr. Parker's idea is correct, and I move that we elect one of the three men named as our candidate to be presented to the governor for appointment.' The president then appointed tellers and advised the members to vote for one. Mr. Mergen then inquired, 'Will it be necessary for the nominee to have the majority of all votes cast, or is it the one receiving the highest number?' The president responded, 'The one receiving the highest number will be declared elected. There is nothing in the by-laws concerning this.' The result of the election was P. H. Costello 23 votes, W. P. Porterfield 19 votes, and O. B. Sjurseth 5 votes. The president declared Mr. Costello elected, and on March 26, 1927, Mr. Sudro, secretary of the North Dakota Pharmaceutical Association, by writing, notified the governor of the recommendation of Mr. P. H. Costello of Cooperstown, for appointment to the state board of pharmacy to succeed W. P. Porterfield whose term would expire May 8, 1927, and which notice was acknowledged by the governor on March 28, 1927," two days later. On May 7, 1927, the governor ignoring the recommendation of the pharmacy board appointed Louis Rosoff for the full term of five years. Rosoff was a registered pharmacist and qualified to act as a member of said board, except, that he did not have the recommendation of the board. He took the oath of office, however, and filed his bond, and attended one meeting, and was thereafter refused recognition by the board. There is only one question involved, and that is, had the governor power to appoint Mr. Rosoff to the position? If he had not, the judgment in both actions must be reversed.

The law (§§ 477, 487 and 480, subdivisions a, b and c, Comp. Laws 1913) reads as follows:

"The state board of pharmacy shall consist of five registered pharmacists. The members of said board shall be appointed by the governor upon the recommendation of the North Dakota pharmaceutical association, and the persons so appointed shall be chosen from the members of said association. Except as provided in the next section the members of said board shall be appointed for a term of five years and until their successors are appointed and qualified."

"The three members of the present state board of pharmacy shall continue in office for the remainder of their respective terms, and the governor shall appoint two additional members, one for a term of four years and one for a term of five years. In case of a vacancy by death, resignation or removal the governor shall fill the vacancy by an appointment for the unexpired term."

"A majority of the board shall constitute a quorum for the transaction of any business. The board shall have power and it shall be its duty: (a) To cancel and revoke the certificate and registration of any registered pharmacist, or registered assistant pharmacist for incompetency, or who is addicted to any drug habit. (b) To examine and register as pharmacist and assistant pharmacist all applicants which it shall find to be entitled to such registration. (c) To prescribe rules and regulations for the guidance of its members, officers, and employees, and to ensure the proper and orderly dispatch of its business."

Two classes of appointments are provided for. First, § 477, the governor shall appoint for the full term upon the recommendation of the association. Second, under § 478, if a vacancy occurs on the board by death, resignation or removal the governor shall fill the vacancy by an appointment for the unexpired term. It is clear from these sections, that the governor has the absolute power to fill a vacancy caused by the death, resignation or removal of a member, but only for the unexpired term. Nowhere in the statute is the governor given power to appoint for a full term, except, upon the recommendation of the board. This is purely a statutory board, and the governor has only such power as the statute gives him. It does not give him the power to appoint for a full term, but only the power to appoint to fill vacancies caused by death, resignation or removal. There was no vacancy in this case, such as it contemplated by the statute, as Porterfield held over. In case of death, removal or resignation there is no holding over. This was made clear by Chief Justice Bruce in the case of State ex rel. Langer v. Crawford, 36 N.D. 385, 162 N.W. 710, Ann. Cas. 1917E, 955, in which he said: "I am of the opinion that the expiration of a prescribed term, when coupled with the fact that the senate of the preceding legislature adjourned without confirming successors in office (to persons holding under a former appointment), and especially where no nominations were presented to the senate to fill such offices when the term should expire, will not operate to create a vacancy in the office which, under the statute, can be temporarily filled by the governor, and that the vacancies contemplated by the statute to be filled by him are actual vacancies and such as arise from death, resignation, and like causes. . . . His (the governor's) powers are not inherited or inherent, but are only such as have been given to him. Among these powers granted are not to be found the general power of appointing to public office. That power is reserved to the legislature." Citing, State ex rel. Standish v. Boucher, 3 N.D. 389, 21 L.R.A. 539, 56 N.W. 142; Fox v. McDonald, 101 Ala. 51, 21 L.R.A. 529, 46 Am. St. Rep. 98, 13 So. 416; State ex rel. Sherman v. George, 22 Or. 142, 16 L.R.A. 737, 29 Am. St. Rep. 586, 29 P. 356; State ex rel. Richardson v. Henderson, 4 Wyo. 535, 22 L.R.A. 751, 35 P. 517.

In a concurring opinion...