State At The Relation Of C. W. Brandon v. The Bd. Of Control

• Decision Date: 09 September 1919
• Citation: 84 W.Va. 417
• Parties: State at the relation of C. W. Brandon v. The Board ofControl
• Court: West Virginia Supreme Court

84 W.Va. 417

State at the relation of C. W. Brandon

v.The Board of Control

Supreme Court of Appeals of West Virginia.

Submitted September 3, 1919.

Decided September 9, 1919.

1. Fish Game Woods and Forests Appointment Constitutional Provisions.

The act creating the office of Forest, Game and Fish Warden being silent as to the manner of filling the same after the making of the initial appointment thereto, all future appointments to fill said office must be made in accordance with the provisions of section eight of Article 7 of the Constitution, that is, by the Governor, with the advice and consent of the senate, (p. 417).

2. Statutes Contemporaneous Construction by Executive Officers.

Where a statute is of doubtful meaning the contemporaneous construction placed thereon by the officers of government charged with its execution is entitled to great weight,-and will not be disregarded or overthrown unless it is clear that such construction is erroneous. (p. 419).

Original mandamus by the State on the relation of C W. Brandon, against the Board of Control, etc.

Writ Refused..

Wm. T. George, for relator.

E. T. England, Attorney General, for respondent. Ritz, Judge:

The relator seeks by this proceeding to comepl the respondent to approve his accounts as Forest, Game and Fish Warden in order that he may secure the payment of the same out of the public fund provided for the maintenance of that office.

It appears that the relator was appointed to the office of Forest, Game and Fish Warden by the Governor on the 20th of February, 1918; that he immediately entered upon the duties of said office, and performed the same until the month of May, 1919, when Clare W. Harding was appointed by the Governor to fill said office. Relator's term of office, as provided by the statute, was for four years, and he, contending that his term had not expired, and the JBoard of Control refusing to approve his accounts for expenses incurred by him and for his salary after the issuance of a commission to Harding, brought this writ seeking to compel the respondent to approve said accounts in order that the same might be paid. The respondent, by its return to the writ, challenges the right of the relator to hold the office for the reason that his appointment thereto was by the Governor submitted to the Senate at the regular 1919 session, and by that body rejected, and the Governor being of opinion that this left the office vacant thereupon appointed said Harding and commissioned him thereto. The relator's contention is that his appointment is not required to be confirmed by the senate, and that the action of the Governor in submitting the same to the senate for confirmation was without authority of law, and that the rejection of the same by the senate had no force or effect. On the other hand, the respondent contends that under the law it was incumbent upon the Governor to submit this appointment to the senate for its action, and of course if this contention is correct the refusal of the senate to confirm the same left the office vacant, and the appointment of Harding thereto was clearly authorized by law. The solution of this question depends upon the construction of the act of the Legislature creating the office of Forest, Game and Fish Warden, as well as upon the construction of §8 of Art 7 of the Constitution. Section 8 to Art. 7 of the Constitution provides as follows: '' The Governor shall nominate, and by and with the advice and consent of the Senate, (a majority of all the Senators elected concurring by yeas and nays) appoint all officers whose offices are established by this Constitution, or shall be created by law, and whose appointment or election is not otherwise provided for; and iio such officers shall be appointed or elected by the Legislature." The Act creating the office of Forest, Game and Msh Warden, §1, ch. 62 of the Code, so far as the same is pertinent to the matter of the appointment of that officer...