State ex rel. Saint, Atty. Gen. v. Dowling
| Decision Date | 28 January 1929 |
| Docket Number | 29606 |
| Citation | 167 La. 907,120 So. 593 |
| Court | Louisiana Supreme Court |
| Parties | STATE ex rel. SAINT, Atty. Gen., et al. v. DOWLING |
Original Opinion of November 26, 1928, Reported at 167 La 907.
ST. PAUL, J., concurs. O'NIELL, C. J. and THOMPSON J dissents.
On Application for Rehearing.
By virtue of the provisions of Act 126 of 1928, the Governor of the state appointed the relator, Dr. Joseph A. O'Hara as president of the Louisiana state board of health on August 20, 1928, during a recess of the Senate. Relator was duly commissioned by the Governor, has taken his oath of office and has complied with all requirements of the law.
During the pendency of the application for rehearing in this case, the respondent, Dr. Oscar Dowling, filed an exception to relator's petition on the following grounds:
First. That relator's appointment is null and void and inoperative, and has never taken legal effect, and respondent is entitled to hold over until the appointment of his successor has been perfected by the required concurrence of the Senate.
Second. That if relator's appointment was legal and valid, and of full force and effect, it lapsed and fell thereafter by the failure of the Governor of the state to send the name of the appointee to the Senate for confirmation during the special session, which convened December 10-16, 1928.
Third. That, for these reasons, the Attorney General has no further right or capacity to stand in judgment in this case, since no other grounds for respondent's removal are involved than the right of relator to the office.
1. We have held that Act 126 of 1928, under which relator was appointed by the Governor, is constitutional and valid. The effect of this act was to remove respondent from office and to put an end to his term of office as president of the state board of health.
Since Act 126 of 1928 went into effect during the recess of the Senate, and relator has duly qualified under the commission issued under the act, respondent occupies the same position as if the term of his office had expired by limitation while the Senate was not in session.
In State et al. v. Young, 137 La. 102, 68 So. 241, cited by respondent, this court, after an exhaustive review of the authorities on the subject, held that expiration of office creates a vacancy, which may be filled by appointment during the recess of the Senate, and that the appointee may take the oath and enter upon the discharge of the duties of the office before his appointment is confirmed by the Senate.
It was also held in the Young Case that the right of an officer, whose term has expired during the recess of the Senate, to continue to discharge the duties of his office, until his successor is inducted into office, cannot interfere with the authority of the Governor to appoint his successor, nor with the right of the successor to be inducted into office as soon as he has taken the oath and qualified in the manner prescribed by law. Const. 1913, art. 172: Const. 1921, art. 19, § 6.
The Young Case was a suit for the possession of the office of examiner of state banks, and was brought under the intrusion into office act. The plaintiff, R. N. Sims, was appointed and commissioned by the Governor on January 6, 1915, during a recess of the Senate, to succeed the defendant, Young, whose term of office was supposed to have expired. The latter refused to surrender the office, asserting that his term had not expired, and that in any event he had the right to hold over until the appointment of his successor is confirmed by the Senate.
Sims, the plaintiff, contended that Young's term of office expired either on August 30, 1914, or on December 28, 1914, and that the expiration created a vacancy which the Governor had authority to fill by appointment during a recess of the Senate.
Young, the defendant, contended that his term did not expire until July 24, 1916, and, in the alternative, in the event it be held that his term did expire in 1914, he insisted that the expiration of his term did not create a vacancy in the office such as the Governor could fill by appointment during a recess of the Senate, "because he (defendant) is fulfilling the duties of the office, and has a right to hold over until his successor shall be appointed, and the appointment confirmed by the Senate."
The office of state bank examiner was created by article 194 of the Constitution of 1898, and the office of state health officer was created by article 6, § 11, of the present Constitution. Each of these offices is a constitutional office, and each is filled by appointment by the Governor, with the advice of the Senate.
If you substitute Dr. O'Hara for Sims, and Dr. Dowling for Young, you have in State v. Young, 137 La. 102, 68 So. 241, a case identical with the present case.
Defendant, Young, contended that the expiration of a term of office during the recess of the Senate does not cause a vacancy in the office because the Constitution provides: "All officers, except in case of impeachment or suspension, shall continue to discharge the duties of their offices until their successors shall have been inducted into office." Article 172, Const. of 1898.
In the present case Dr. Dowling makes the same contention, based on article 19, § 6, of the present Constitution which declares: "All officers, state, municipal and parochial, except in case of impeachment or suspension, shall continue to discharge the duties of their offices until their successors shall have been inducted into office."
Mr. Justice O'Niell, as the organ of the court in the Young Case, said: "Until now it has never been doubted -- perhaps because no one has [ever] thought of denying -- that, when the term of an appointive office expires during a recess of the Senate, the person appointed to succeed to the office may immediately qualify and enter upon his official duties, without waiting for his appointment to be confirmed by the Senate.
"It was not said, however, in the above syllabus, nor in the opinion with regard to the facts of that case, that such appointments are inoperative if made during a recess of the Senate." State v. Young, 137 La. 102 at 113, 114, 68 So. 241 at 245.
Page 116 of 137 La. (68 So. 246).
"It is true the court quoted a California case (People ex rel. Parkinson v. Bissell, 49 Cal. 407) and cited decisions rendered in other jurisdictions, declaring that the expiration of the term of an appointive office does not cause a vacancy that the Governor may fill without the advice and consent of the Senate, if the expiration occurs during a recess of the Senate, and the incumbent has the legal right and is willing to discharge the duties of the office until his successor is appointed and qualified.
"But these expressions went further than was necessary, and, in so far as they went beyond the facts and issue presented, they are mere obiter dicta, and form no part of the decision." Pages 115, 116 of 137 La. (68 So. 246).
"Defendant's counsel have referred us to a sentence in 29 Cyc. 1399, announcing the doctrine, supported by numerous decisions cited in the footnotes, viz.:
"'Where provision is made by statute for holding over, the hold-over is regarded as in all respects a de jure officer, and the expiration of the term does not produce a vacancy which may be filled by the authority having the power to appoint to fill vacancies.'" Page 116 of 137 La. (68 So. 246).
But, says Mr. Justice O'Niell in the Young Case: "The plaintiff's counsel have submitted another list of decisions holding that, when a term of office expires during a recess of the Senate, and the incumbent is holding over, under express authority of the law, until his successor is inducted into office, there is a vacancy in the office, which the Governor may fill by appointment." Pages 116, 117, of 137 La. (68 So. 246).
And this line of decisions is followed in the Young Case.
In the original opinion in this case, written by the Chief Justice, it is held that Act 126 of 1928 is constitutional and valid, and had the effect of removing respondent, Dr. Dowling, from office. If removed, his term of office has expired, and, if expired, there must be a "vacancy" under the holding in the Young Case, which may be filled by the Governor, without the right of hold-over by the respondent.
It is clear, therefore, that if relator was not rejected by the failure of the Governor to have the recess appointment confirmed at the special session of the Senate, held December 10-16, 1928, his commission is still in full force and effect, and, as the rightful claimant to the office, relator is entitled to all of the emoluments from the date of his qualification under his commission until the office is surrendered to him by respondent. Act 102 of 1928, § 3.
2. The question, therefore, for decision is whether the failure of the Governor to send relator's name to the Senate for...
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