State ex rel. Kriebs v. Halladay

• Decision Date: 10 April 1928
• Docket Number: No. 6668.,6668.
• Citation: 52 S.D. 497,219 N.W. 125
• Parties: STATE ex rel. KRIEBS v. HALLADAY.
• Court: South Dakota Supreme Court

52 S.D. 497

219 N.W. 125

STATE ex rel. KRIEBS

v.HALLADAY.

No. 6668.

Supreme Court of South Dakota.

April 10, 1928.

Original proceeding, in the nature of quo warranto, by the state, on the relation of F. D. Kriebs, against J. F. Halladay. On order to show cause. Order dismissed.

Campbell, J., dissenting.

Clark & Wyman, of Yankton, for relator.

Gardner & Churchill, of Huron, for defendant.

BROWN, J.

By the provisions of chapter 275, Laws of 1925, which went into effect on July 1st of that year, section 5371 of the Code of 1919, relating to the board of charities and corrections, was amended, so as to create a new board, composed of three members, to be appointed by the Governor, by and with the consent of the Senate. Of those first apponted, the term of one member was to expire on July 1, 1927, of another on July 1, 1929, and the term of the third member on July 1, 1931. The regular term of the office is for six years. All members hold until their successors are appointed and qualify. On the day that the act took effect, Governor Gunderson appointed defendant, Halladay, for the term expiring July 1, 1931; official written notification of the appointment was filed in the office of the secretary of state on that day, and Halladay at once qualified and entered upon the duties of the office.

Const. art. 14, § 2, provides that members of the board of charities and corrections shall “be appointed by the Governor and confirmed by the Senate.” The Legislature was not in session when the act went into effect, and its first session thereafter was convened on January 4, 1927. On that day Governor Gunderson's term expired and he was succeeded by Governor Bulow. On January 7th the Senate, without having notice of Halladay's appointment formally communicated to it, procured from the office of the secretary of state a certified copy of the notification on file there, and formally confirmed the appointment. On December 28, 1927, Governor Bulow, apparently on the theory that a vacancy existed in the office, appointed the relator, F. D. Kriebs, and Kriebs, having qualified, demanded possession of the office, which was refused, and he brings this proceeding, in the nature of quo warranto, to determine the title to the office.

It is the contention of relator that the act of 1925 created a new board of charities and corrections, consisting of three members, and that, until the first appointments to these three offices were made, the offices were necessarily vacant; that therefore the appointment of the first three members was an appointment to fill vacancies, and that by the provisions of Code, § 5372, vacancies in the membership of such board shall be filled by the Governor, “and the appointees to fill vacancies shall hold until the next session of the Legislature succeeding their appointment, at which time their term of office as vacancy appointees shall cease and appointments be made to fill the vacancies for the unexpired portion of the term, if any.” Relator's contention is that, Halladay's appointment being to fill a vacancy, his term expired with the next session of the Legislature succeeding his appointment, and, there being no appointment to the office thereafter until relator's appointment, he is legally entitled to the office.

He further contends that it is essential to the validity of Halladay's appointment that it be confirmed or concurred in by the Senate, and that, since Governor Gunderson's term of office had expired before any action was taken on the appointment by the Senate, there was no joint or mutual consent by the Governor and Senate to Halladay's appointment; that, the term of the Governor who appointed Halladay having expired, the Senate on January 7th assumed to confirm the action of one who was then only a privateindividual, and its confirmation could have no effect.

[1][2][3] While it is true that a newly created office is necessarily vacant until an incumbent is provided for and installed in it (Driscoll v. Jones, 1 S. D. 8, 44 N. W. 726), we do not think that the vacancy so existing is such a vacancy as is contemplated by section 5372 of the Code. The vacancy referred to in this section is evidently such a vacancy as is defined in section 7007, resulting from death or resignation of the incumbent, or other causes mentioned in that section. That the vacancy referred to in section 5372 does not include a vacancy arising from the fact that the newly created office has never been filled is plain from the preceding section creating the office, which provides that the board shall be appointed by the Governor by and with the consent of the Senate, and specifically designates the day upon which the term of each member shall expire. The law must be so construed as to give effect to all of its provisions, if that is possible, and to hold that the vacancy existing in the newly created office before an incumbent has been provided is such a vacancy as may be filled pursuant to the provisions of section 5372 would necessarily abrogate the express legislative enactment in section 5371 that the terms of the three members should expire on the dates named in that section. We therefore hold that section 5372 has no application to the vacancy existing in a newly created office before any one has been provided to fill it. State v. Rogge (Mont.) 257 P. 1029.

[4][5] We cannot agree with relator's reasoning that, since the Governor's appointment and the Senate's confirmation must be concurrent as to the subject of the appointment, and Governor Gunderson's term of office had expired before the Senate took any action, there could therefore have been no concurrence by the Governor with the Senate in its action on January 7th with reference to the appointment. This ignores the obvious fact that the office of Governor is a continuing one, irrespective of the person who occupies it. In this case the appointment of Halladay remained in force until it was acted upon by the Senate. On January 7th, while it was still in force, the Senate confirmed it. The appointment thereupon became complete, Halladay qualified, and has ever since been discharging the duties of the office, and therefore no vacancy existed on December 28, 1927, at the time the attempted appointment of relator was made.

[6] It is contended by relator that, because the appointment of Halladay was never officially communicated to the Senate, that body had no jurisdiction or authority to act upon it. We find nothing in the Constitution or statutes of this state that prescibes the manner in which the Senate shall obtain knowledge of the appointment of a person to an office requiring its confirmation, and in the absence of constitutional or statutory provisions on the subject we see no reason why the Senate may not take official notice of the fact of such an appointment. It was so held in Barrett v. Duff, 114 Kan. 220, 217 P. 918;People v. Shawver, 30 Wyo. 366, 222 P. 11;Commonwealth v. Stewart, 286 Pa. 511, 134 A. 392. We have been cited to no authority to the contrary, and a diligent search on our own part has revealed none.

Defendant is entitled to the office for the term ending on July 1, 1931, and the order to show cause must be and is dismissed.

CAMPBELL, J. (dissenting).

I concur for the most part in the legal propositions promulgated in the foregoing opinion, but I have grave doubts as to the jurisdiction of this court over this original proceeding. In view of the fact that a majority of this court, by concurring in an opinion adjudicating this cause upon the merits, have of necessity held by direct implication that this court has jurisdiction, it is with a considerable degree of hesitation and reluctance that I now advance my own view to the effect that this court is entirely lacking in jurisdiction of original proceedings in the nature of quo warranto. This reluctance is augmented by three circumstances: First, that the question of the existence of jurisdiction is not directly raised by the parties to this proceeding; second, that this court has heretofore assumed to exercise such jurisdiction upon divers occasions; and, third, that within the past year I myself concurred in an opinion in a case where this court assumed to exercise such jurisdiction. Gibbs v. Bergh, 214 N. W. 838. However, so able and eminent a jurist as Judge Cardozo said a few years ago:

“A brief experience on the bench was enough to reveal to me all sorts of cracks and crevices and loopholes in my own opinions, when picked up a few months after delivery and re-read with due contrition.”

Approaching the Gibbs-Bergh Case “with due contrition,” I still adhere to the views therein expressed upon all the matters of law dealt with in that opinion, and I still adhere to the view there expressed that, assuming this court had jurisdiction over original proceedings in the nature of quo warranto, the facts in that case were such that this court should in its discretion have exercised such jurisdiction; but as to the fundamental fact assumed, though not specifically stated, in the Gibbs-Bergh Case, namely, that such jurisdiction existed and could be exercised in the discretion of this court, it is my present opinion that the court erred in so assuming and that such jurisdiction does not exist.

Somewhat by way of extenuation, although admittedly not as justification, it may be pointed out that upon the original hearing in the Gibbs-Bergh Case the defendant, although suggesting, as I recall it, upon the oral argument, some possible question as to existence of jurisdiction, really tacitly assumed such jurisdiction, and chiefly urged the proposition that the facts involved in that case were not such as would justify this court in that particular case, as a matter of discretion, in assuming to exercise such jurisdiction. Defendant opened his brief in that case in the following language:

“As we view the proposition the first thing to be considered is whether or not this court desires to...