State Ex Rel. Mccarthy v. Watson.

• Decision Date: 17 January 1946
• Citation: 45 A.2d 716,132 Conn. 518
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. McCARTHY v. WATSON.

132 Conn. 518

45 A.2d 716

STATE ex rel. McCARTHY

v.WATSON.

Supreme Court of Errors of Connecticut.

Jan. 17, 1946.

Appeal from Superior Court, Hartford County; Quinlan, Judge.

Information in the nature of a writ of quo warranto by the State, on the relation of John T. McCarthy, against Elmer S. Watson, to determine the rights of the parties to the office of commissioner of motor vehicles, brought to the Superior Court in Hartford County and tried to the court, Quinlan, J.; judgment in favor of the plaintiff and appeal by the defendant.

No error.

William L. Hadden, Atty. Gen., and Bernard A. Kosicki, Asst. Atty. Gen., for appellant.

Samuel Reich and Adrian W. Maher, both of Bridgeport, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

MALTBIE, Chief Judge.

The issue in this case is whether the defendant has been duly appointed to the office of commissioner of motor vehicles as successor to the relator, hereinafter called the plaintiff. The trial court gave judgment for the plaintiff and the defendant has appealed. Section 1549 of the General Statutes provides: ‘The governor shall nominate and, with the advice and consent of the senate, appoint, on or before May 1, 1933, and quadrennially thereafter, a commissioner of motor vehicles, who shall hold office for a term of four years from the first day of June in the year of this appointment and until his successor shall have been appointed and qualified. If any vacancy shall occur in the office when the general assembly shall not be in regular session, it shall be filled by appointment by the governor, and such appointee shall hold office until the convening of the next regular session of the general assembly, when said office shall be filled by appointment by the governor by and with the advice and consent of the senate.’ In full compliance with the provisions of this statute, the plaintiff was appointed commissioner for the term of four years from June 1, 1941, and until his successor was appointed and qualified. The commission which was issued to him by the governor stated that he was appointed for the term of four years, but contained no reference to his continuance in office until a successor was appointed and qualified. On April 25, 1945, during a regular session of the General Assembly, the governor sent a communication to the senate in which he stated: ‘I have the honor to nominate, and with your advice and consent appoint, Elmer S. Watson of Wethersfield, to be Commissioner of Motor Vehicles for the term of four years from June 1, 1945, and until his seccessor shall be appointed and shall have qualified.’ The communication was read in the senate, ordered printed in its journal and referred to its committee on executive nominations. At a meeting of the committee on the first or second of May following, it was unanimously voted not to make any report on the nomination. On May 25, 1945, the governor sent a communication to both houses of the General Assembly in which he stated that it was the duty of the governor to make certain appointments which required confirmation by both houses or by the senate, that the responsibility for the appointments rested on him, but that it was the duty of the General Assembly to act on them. No action other than the vote of the committee not to make a report on the nomination was taken by it or by the senate.

Section 4 of the General Statutes provides that the senate ‘shall act finally upon each nomination or appointment made by the governor and requiring the advice or consent of the senate, within ten session days from the date on which such nomination or appointment shall have been communicated to it by the governor.’ The tenth legislative day after the date when the governor sent to the senate the nomination of the defendant was May 11, 1945. On May 31, 1945, the governor wrote a letter to the plaintiff in which he called attention to the provisions of § 4 and to the facts that more than ten days had elapsed since he had sent the nomination of the defendant to the senate and that the senate had failed to act, and in which he notified the plaintiff that he, the governor, would consider the plaintiff's occupancy of the office of commissioner of motor vehicles after May 31, 1945, to be as a de facto officer and that, upon adjournment of the General Assembly, he would make an appointment to fill the vacancy in the office. Section 11c of the 1935 Cumulative Supplement to the General Statutes provides: ‘When the general assembly shall not be in session and when no other provision shall have been made for filling any vacancy in an office originally filled by the general assembly or either branch thereof, or by the governor with the advice and consent of the general assembly or either branch thereof, the governor may fill the same until the sixth Wednesday of the next session of the general assembly, and until a seccessor shall be elected or appointed and shall have qualified.’ On June 7, 1945, after the General Assembly had adjourned, the governor issued two commissions to the defendant as commissioner of motor vehicles, one appointing him for the term of four years from June 1, 1945, and the other appointing him to fill a vacancy in the office from June 7, 1945, until the sixth Wednesday of the next General Assembly and until a successor should be appointed and qualified. The oath of office was administered to him, he filed a bond in compliance with the requirements of § 1555 of the General Statutes, and thus, if properly appointed, he became qualified to hold the office. The defendant was, under direction of the governor, put in possession of the office and since then he has been performing the duties and exercising the powers of commissioner of motor vehicles.

The provision in § 1549 that a duly appointed commissioner of motor vehicles shall continue to hold office after the expiration of the regular term of four years until his successor ‘shall have been appointed and qualified’ means, of course, that a successor shall be properly appointed in accordance with the statutes. As the senate did not consent to the appointment of the defendant, the only way in which, in compliance with the terms of the statutes, an appointment could be made would be by the governor in order to fill a vacancy in the office. The primary question, then, is: Was there a vacancy in the office on June 7, 1945, which the governor was authorized to fill? That in turn requires a determination whether, when the governor duly communicated to the senate his nomination of the defendant, asking its advice and consent, and the only action taken on the communication was the reference to the committee on executive nominations and the vote of that committee not to make a report on it, a vacancy in the office arose on the expiration of the regular four-year term for the office.

Section 11c of the 1935 Cumulative Supplement does not govern the situation before us, because it applies only ‘when no other provision shall have been made’ for filling a vacancy and § 1549 contains specific provisions for filling a vacancy in the office of commissioner of motor vehicles. The latter statute governs. In determining whether there was a ‘vacancy,’ as that word is there used, which the governor was authorized to fill, it is necessary to examine certain previous decisions we have made where similar questions have been presented. In State ex rel. Morris v. Bulkeley, 61 Conn. 287, 23 A. 186, 14 L.R.A. 657, the issue was whether the relator or the defendant was lawfully entitled to the office of governor of the state. Article XXVII of the amendments to the constitution provides for biennial elections of state officers in November, who are to hold office for two years from the Wednesday after the first Monday of January following the election ‘and until their successors are duly qualified.’ The defendant had been holding the office of governor lawfully for the two years preceding the Wednesday following the first Monday of January, 1891. The opinion was largely devoted to a discussion of the question whether, as a result of the election in November, 1890, the relator had been legally chosen governor, but, as a basis for considering that issue, we said of the defendant's status (61 Conn. at page 358, 23 A. at page 186, 14 L.R.A. 657): ‘The term for which he was elected was till the Wednesday following the first Monday of January, 1891, and until his successor was duly qualified. If, then, no successor to him has been chosen, or, being chosen, has not become duly qualified, the respondent still holds the office of governor. He holds that office since the said Wednesday in January, 1891, by the same warrant that he held it prior to that date, and continues to be the de jure governor of the state.’

In State ex rel. Eberle v. Clark, 87 Conn. 537, 89 A. 172, 173, 52 L.R.A., N.S., 912, the question was whether the relator had legally been appointed a judge of the police court of the city of Hartford to succeed the defendant. Article XX of the amendments to the constitution provides that judges of police courts shall be appointed by the General Assembly ‘for terms of two years.’ The defendant had been appointed judge of the police court by the General Assembly of 1911, and in the resolution making the appointment his term was specified to be for two years from July 1, 1911, ‘and until his successor is duly appointed and qualified.’ The charter of the city provided that the judge of the police court should hold office for two years ‘and until his successor shall be duly appointed and qualified.’ 15 Spec.Laws 1907, p. 134. The General Assembly of 1913 adjourned without appointing a successor to the defendant, and the governor, acting under a statute authorizing him to fill vacancies, appointed the relator. We held that appointment to be valid and effectual. We said (87 Conn. at page 542, 89 A. at page 174, 52 L.R.A., N.S., 912) that the...