State ex rel. Langer v. Scow

• Decision Date: 27 September 1917
• Citation: 164 N.W. 939,38 N.D. 246
• Parties: STATE ex rel. LANGER, Atty. Gen., v. SCOW et al.
• Court: North Dakota Supreme Court

38 N.D. 246

164 N.W. 939

STATE ex rel.LANGER, Atty. Gen.,

v.SCOW et al.

Supreme Court of North Dakota.

Sept. 27, 1917.

Syllabus by the Court.

The provisions in section 2 of chapter 237 of the Laws of 1915, empowering the Governor to nominate and the Senate to confirm nominations for the offices of members of the state board of regents during the same session of the Legislature at which the act creating the offices was enacted, do not vest title to the offices in the appointees, which continues beyond July 1, 1917.

Where officers continue in office after their right to hold and occupy the office has ceased, the Governor may declare the offices vacant and appoint successors who will hold as vacancy appointees.

Original proceeding by the State, on the relation of William Langer, Attorney General, upon an information in the nature of quo warranto against Emil Scow and J. A. Power, to oust the defendants from the offices of members of the state board of regents. Judgment of ouster entered.

Bruce, C. J., and Christianson, J., dissenting.William Langer, Atty. Gen., and H. A. Bronson and D. V. Brennan, Asst. Attys. Gen., for petitioner. Lawrence & Murphy, of Fargo, for respondents.

BIRDZELL, J.

[1] There is involved in this case the right of the defendants, Scow and Power, to continue in office, as members of the board of regents of this state, after July 1, 1917. The facts, with reference to their original appointment and confirmation, are fully set forth in the writer's dissenting opinion in the case of State v. Crawford, 36 N. D. 385, 162 N. W. 710-725. The statement of facts found therein is adopted for all purposes of this opinion, and in addition it need only be stated that, prior to the institution of this proceeding, Totten and Muir were appointed by the Governor, at a time subsequent to the 1st of July, 1917, to succeed the defendants.

Reference to the case of State v. Crawford, supra, will disclose that the members of this court were, at that time, unable to agree upon any common legal ground sustaining the title of the defendants to their offices as members of the state board of regents. It will be found, however, that, in the opinion of the writer, concurred in by Mr. Justice Grace, the defendants in that action were never legally appointed for the full terms embraced in their respective commissions. The presentation of this case has only served to strengthen the views entertained and expressed in the former opinion.

The case of Dunbar v. Cronin, 18 Ariz. 583, 164 Pac. 447, is in no sense an authority against the propositions maintained in my dissenting opinion. In that case, as in the case of State v. Irwin, 5 Nev. 111, the officer whose appointment was upheld was named in the act of the Legislature. The following is the language of the Arizona statute:

“Sec. 3. Until otherwise provided by law, Con P. Cronin is appointed * * * reference librarian, and shall serve until his successor is appointed. Any vacancy shall be filled by the board of curators.”

In the majority opinion in that case, reliance was had upon the cases of People v. Ingliss, 161 Ill. 256, 43 N. E. 1103, and State v. Irwin, 5 Nev. 111. The application of these authorities to the facts involved in this case has already been fully discussed, and a well-grounded distinction, which has been recognized and applied by the courts deciding those cases, as well as by other courts, was elaborated upon in the former opinion heretofore referred to. State v. Crawford, 36 N. D. 385, 162 N. W. 710, 732, 733. No case has been called to our attention where either an election of an officer or an appointment of an officer has been held valid where the power to elect or to appoint depended solely upon the authority of an act of the Legislature which had not yet gone into effect. The reasoning upon which the contraryauthorities are based is, to my mind, too clear to admit of successful contradiction. See People v. Rose, 166 Ill. 422, 47 N. E. 64;State v. Kuhns, 4 Boyce (Del.) 416, 89 Atl. 1; the opinion of Mr. Justice Shaw in the Supplement to 3 Gray (69 Mass.) 601-607;Commonwealth v. Fowler, 10 Mass. 290;State v. Meares, 116 N. C. 582, 21 S. E. 973;Santa Cruz v. Kron, 74 Cal. 222, 15 Pac. 772;People ex rel. McDougal v. Johnston, 6 Cal. 673;State ex rel. Heim v. Williams, 114 Wis. 402, 90 N. W. 452. Laws are made and changed only in conformity with the mandates of the Constitution. The executive, the Legislature, and the judiciary are equally bound by its limitations. It should be no longer necessary in this state to cite authority for the proposition that the exercise of the appointive power by the Governor must be based upon either a constitutional provision or upon a law that is in force. See State v. Boucher, 3 N. D. 389-395, 56 N. W. 142-144, 21 L. R. A. 539. There never has been any serious doubt in this state that the Legislature (not the Senate alone) could make appointments to office; neither is there any doubt that the Legislature (not the Senate alone) can make a prospective appointment which may take effect at the same time as other provisions of the law when the law goes into effect. But I do not understand that it is yet the law of this jurisdiction that an officer who derives his appointive power from our Constitution and from laws passed by the Legislature can, either alone or in conjunction with the Senate, confer upon individuals title to offices extending over a period of years, before the law under which the authority is exercised can constitutionally become a law of the state.

[2] It is unnecessary to assign reasons in addition to those expressed in the former opinion referred to, and reiterated here, for the entry of a judgment of ouster against the defendants in this action. Being satisfied that their appointments had no legal effect beyond the legislative session of 1917, there existed, at the time of the appointments of Messrs. Totten and Muir, vacancies which could properly be filled by the Governor.

I express no opinion upon the question of the right to hold over after the expiration of a definite term, for which an appointment has been made-this for the reason that, as I view the case, legal appointments have never been made for the terms for which the defendants claim to be appointed.

The judgment of this court is that a judgment of ouster be entered in favor of the plaintiff and against the defendants, and that the relators be admitted into the offices in question. It is so ordered.

ROBINSON, J. (concurring).

This is a kind of second addition of the board of regent's case decided some three months ago. A majority of the judges held that there had been a valid appointment of the five members of the board then in office. Two members were appointed to hold office for two years from the 1st day of July, 1915, and under the plain words of the statute their term of office expired on July 1, 1917. The Governor has appointed their successors, who have duly qualified, but the respondents claim the right to hold over because the appointment of their successors has not been confirmed by the Senate.

Under the statute the Governor may remove any member of the board for incompetency, neglect of duty, immorality, malfeasance in office, or for any other good cause, and in case of a vacancy in the membership of the board, whether occurring by reason of removal or otherwise, the Governor may declare the office vacant and fill the same by appointment until the convening of the next session of the Legislative Assembly. And that is just what the Governor has done; but the respondents insist that by reason of their holding over after their term of office had expired there was no vacancy for the Governor to fill by an appointment. The point is quite nice and technical, but it is manifestly contrary to the letter and spirit of the statute. Under such a construction of the statute all members once appointed might hold for life unless the Governor and the Senate should agree on their successors. The respondents cite and rely on an early decision of this court under a statute providing that an officer appointed should hold over after his term unless his successor was duly appointed. In construing this statute the court said:

It not only fixes a definite term of office for the term of two and four years, but also with equal clearness annexes to the definite term another period or term of indefinite duration, which period has been aptly described as a “defeasible term” of office. The statute expressly declares that after the limited term has expired the trustees shall continue in office for a further period and “until their successors are appointed and qualified.” State v. Boucher, 3 N. D. 397, 56 N. W. 142, 21 L. R. A. 539.

This decision was on an appointment by our Populist Governor Shortridge, and neither the Legislature nor the courts had any disposition to favor his appointments. However, it is certain that the statute in question does not provide for a definite and then an indefinite or defeasible term of office. The members are appointed and commissioned to hold office only for a definite term, and when that term ends there is a vacancy which the Governor may fill by appointment. There is nothing to be gained by a prolonged discussion of the statute.

The judgment of this court is that the respondents have no right to withhold or retain office as members of the board of regents, and they may no longer hold the office, and that their successors be let into office.

BRUCE, C. J. (dissenting).

I dissent from the opinions and conclusions of the majority. My views on the question are quite fully expressed in my specially concurring opinion in the case of State v. Crawford, 36 N. D. 385, 162 N. W. 710, 711, 714. I merely desire to add to what I have therein said the following suggestions: The question is after all merely one of legislative intention. What did the Legislature intend when it passed the act creating the board of regents and...