State Ex Rel. Ryan v. Bailey.

• Decision Date: 07 June 1946
• Citation: 133 Conn. 40,48 A.2d 229
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. RYAN v. BAILEY.

133 Conn. 40

48 A.2d 229

STATE ex rel. RYAN

v.BAILEY.

Supreme Court of Errors of Connecticut.

June 7, 1946.

Information in the nature of a writ of quo warranto by the State, on the relation of Elmer W. Ryan, against John M. Bailey, to determine the rights of the parties to the office of statute revision commissioner, brought to the Superior Court in Hartford County and reserved by the court, Shea, J., for the advice of Supreme Court of Errors.

Questions answered.

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

Samuel Reich, Adrian W. Maher, and Benedict S. Moss, all of Bridgeport, for defendant.

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

BROWN, Judge.

The issue in this case is whether the relator, hereinafter called the plaintiff, has been duly appointed to the office of statute revision commissioner as successor to the defendant. The case was reserved for the advice of this court upon a stipulation of facts. Those essential to our decision may be summarized as follows. The defendant was appointed statute revision commissioner pursuant to § 2220 of the General Statutes ‘for the term of four years from July 1, 1941,’ and he duly qualified under this appointment. Neither the governor's nomination nor the resolution adopted by the senate approving and confirming it made reference to any extension of this term. On April 26, 1945, while the legislature was in session, the governor, pursuant to § 2220, communicated to the senate the nomination of the plaintiff as statute revision commissioner ‘for the term of four years from July 1, 1945.’ The committee on executive nominations of the senate, to which the nomination was referred, did not report thereon, and the senate took no action upon the nomination before the final adjournment of the General Assembly on June 6, 1945. On June 21, 1945, the governor appointed the plaintiff to be statute revision commissioner to fill the purported vacancy for the unexpired portion of the term ending June 30, 1949, succeeding the defendant, and issued to the plaintiff his commission for such unexpired term. On July 2, 1945, the plaintiff accepted the appointment, took the oath of office and commenced his duties as statute revision commissioner. From that time until this action was instituted on January 29, 1946, the plaintiff and the defendant have each occupied the office of, and each has attempted to act as, statute revision commissioner.

Upon the foregoing facts, these questions are propounded: 1. Was there a vacancy on July 1, 1945, in the office of the statute revision commissioner which could lawfully be filled by the governor without the advice and consent of the senate? 2. Was the defendant Bailey on July 2, 1945, a de jure statute revision commissioner? 3. Is the plaintiff Ryan legally entitled to succeed the defendant as statute revision commissioner?

Section 2220 provides in part: ‘The governor shall on or before the first day of May, 1933, and quadrennially thereafter, nominate and, with the advice and consent of the senate, appoint a statute revision commissioner, who shall hold office for four years from the first day in July in the year of his appointment. The governor shall fill any vacancy occurring in said term for the unexpired portion thereof.’ The language of the first sentence of this section is essentially the same as that of § 1549, which provides for the appointment of a commissioner of motor vehicles, except that the latter further specifies that such appointee, in addition to the four-year term stated, shall also ‘hold office * * * until his successor shall have been appointed and qualified.’ In construing the effect of this sentence in § 1549 in our recent decision in the case of State ex rel. McCarthy v. Watson, 132 Conn. 518, at page 533, 45 A.2d 716, at page 723, we said: ‘The provision that an incumbent shall continue in office until his successor shall be appointed and qualified clearly shows that the legislature definitely contemplated the fact that there might be a failure to appoint in accordance with the preceding part of the sentence and expresses an intent that in such an event the incumbent is to continue to hold the office.’ We accordingly held in that case, upon a factual situation substantially identical with that now before us, that had there been no such provision for continuance there would have been a vacancy in the office, but that by virtue of that provision the incumbent, upon the expiration of the four-year term to which he had been appointed, continued in office de jure and not de facto.

In support of the defendant's contention that he likewise continued in office here as commissioner de jure and that therefore there was no vacancy he relies upon § 95e of the 1939 Cumulative Supplement to the General Statutes. This provides: ‘Appointed Officers. Unless otherwise specifically provided by law, each person appointed or nominated for appointment by the governor, with or without the advice and consent of the general assembly, or either house thereof, and each person appointed or elected by the general assembly, or either house thereof, shall be sworn and shall hold office for the term prescribed by law and until his successor shall be appointed and shall have qualified. Such persons shall receive no compensation for services unless the same shall be prescribed by law, but shall receive their actual and necessary expenses incurred in the performance of their official duties.’ If this statute, originally enacted as it was in 1937, subsequent to the adoption of § 2220, is effective to amend § 2220 by extending the four-year term of appointment for which that provides until the appointee's ‘successor shall be appointed and shall have qualified,’ the defendant was a de jure commissioner on July 2, 1945, and there was no vacancy which could be lawfully filled by the governor without the advice and consent of the senate. State ex rel. McCarthy v. Watson, supra. Whether it has this effect is the question decisive of this reservation.

The question is one of statutory construction, which imposes upon us the duty of determining the intention of the legislature as expressed by it. Grace Hospital Society v. New Haven, 119 Conn. 146, 154, 174 A. 411. To ascertain this intent, ‘the statute is to be considered in the light not only of its language but of its history, the purpose it is designed to serve, and the circumstances attending its enactment. Savings Bank of Rockville v. Wilcox, 117 Conn. 188, 193, 167 A. 709; State ex rel. Pape v. Dunais, 120 Conn. 562, 567, 181 A. 721.’ Glanz v. New Haven Board of Zoning Appeals, 123 Conn. 311, 315, 195 A. 186, 188. One of the pertinent circumstances to be considered is that, prior to the original enactment of what is now § 95e, if, as here, upon the expiration of the four-year term of a commissioner duly appointed under § 2220 no successor had been appointed with the advice and consent of the senate, as § 2220 requires, there would be no de jure officer under it to discharge the duties of the office. The importance of avoiding this contingency by provision for keeping this position uninterruptedly filled by a de jure officer is manifest. Another significant fact is that at that time there were more than twenty-five state offices which the applicable statutes provided should be filled by concurring action of the governor and the General Assembly or one house thereof, or by the General Assembly, or by one house only. In nearly half of these statutes, as in § 2220, there was no provision for the extension of the term specified, while the rest, like § 1549, providing for the appointment of the motor vehicle commissioner, did make such provision. No sufficient reason appears for this lack of uniformity. This court by a decision rendered November 5, 1935, emphasized and made clear that ‘In the absence of a definite provision that an officer shall hold not only for the specified term but also until his successor is elected or appointed and qualified, while the incumbent is held to be entitled to hold over until a successor is chosen, he is generally regarded as holding de facto only, so that his occupancy of the...