State ex rel. Standish v. Boucher
| Citation | 56 N.W. 142,3 N.D. 389 |
| Decision Date | 09 May 1893 |
| Docket Number | 6731 |
| Court | United States State Supreme Court of North Dakota |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Petition for rehearing denied.
Elaborate and exhaustive petitions for rehearing have been filed in this case by the attorney general and C. U. Greely, Esq., of special counsel. In these petitions the view of the law taken by the executive in submitting to the senate the names of Ward and Taylor as members of the board of directors of the state penitentiary, and in the subsequent appointment of such persons after their rejection by the senate, and after the adjournment of the legislative assembly, upon the theory that a vacancy existed by reason of the expiration of the terms of office of Donnelly and Van Horn, is abandoned, and it is admitted that, if there existed in the senate any power of confirmation, then no vacancies existed, and the attempted appointment of Ward and Taylor was a nullity. But it is urged that a ruling upon this question of appointing power to which we adverted, but upon which we expressly declined to rule in the original opinion, is necessary to the proper disposition of this case, and that the power of appointment to office is so necessarily and inherently an executive function that it passed to the governor by plenary grant of executive power, to be divested only by express words, and that § 78 of the constitution, quoted in the original opinion, is not necessarily a limitation upon that power, but is a grant of power to fill a vacancy occurring in an elected office, which the governor would not have in the absence of such section. An attempt to answer this position places this court at once in that delicate and embarrassing situation from which all courts may well be excused from shrinking. Individuals and individual interests become as ciphers when passing upon the conflicting claims to power put forth by two co-ordinate and independent departments of a sovereign state. The great difference due from us to the executive department, not more than the high esteem we entertain for the gentlemen who has honestly sought to exercise this power, makes it eminently proper that, in denying the petition for a rehearing, we should succinctly state our objections to those views that have been so learnedly pressed upon us.
Appellant takes the position that when the people of this state adopted their present constitution, § 71 of which declared that "the executive power shall be vested in a governor," thereupon there passed to and vested in the governor the exclusive, unrestricted, and uncontrollable power to fill all appointive offices, and that such power must remain in full force unless limited by express words in the constitution, the presence of which is broadly denied; and that, while it is a legislative function to direct the manner of induction into office created by the legislature, yet that such function extends only to the right to declare such office elective or appointive; and that, when so declared appointive, the volition of the governor in filling such office can no more be influenced, limited, or thwarted by the legislative assembly that could the volition of an elector in filling an elective office; and, further, that, as the legislative assembly has no appointing power in itself, neither can it confer such power in whole or in part upon any person, persons, or body, except the governor. This last claim, while not made in words, is the logical and necessary result of the claim of exclusive appointing power in the executive. The fundamental necessity, under the genius of our government, for the separation of the three great governmental functions and their distribution to the executive, legislative, and judicial departments, has been so often demonstrated, and so much more forcibly than the writer could do it, that it becomes us to accept the necessity without recapitulating the reasons for its existence. We accept without question the proposition that when our constitution vested executive power in the governor, and legislative power in the legislative assembly, and judicial power in the judiciary, these grants were in their nature exclusive, and that neither department, as such, could rightfully exercise any of the functions necessarily belonging to another department. With this statement of the exclusive nature of the powers of the different departments, if appellants' contention that the power to appoint to office passed to the governor by the grant of executive power, and that there is nothing in the constitution in any manner limiting or controlling such grant, be correct, then the conclusion is obvious that so much of Ch. 93, Laws Dak. T. 1889, cited in the original opinion, as required the appointment of the members of the board of directors of the penitentiary to be made "by and with the advice and consent of the council," was repugnant to the constitution, and was by § 2 of the schedule to that instrument nullified by the adoption of the constitution. If, however, the exclusive power to appoint to office was not vested in the governor by the grant of executive power, then this result would not follow.
Is the power to appoint to office necessarily an executive function? A solution of this one vital point must rule this case. It is first argued that it is not competent for the senate to share the appointing power with the governor, by reason of the absence of certain provisions in our constitution. It is provided in § 2, Art. 2 of the Federal Constitution, that the president of the United States shall have power, by and with the advice and consent of the senate, to appoint certain officers. Section 1857, Rev. St. U.S. which, as § 61 of the organic law of Dakota Territory, was in force when Ch. 93, Laws 1889, was enacted, gave the governor power to appoint certain officers by and with the advice and consent of the council. Our constitution contains no similar provision. It is urged that these provisions were adopted for the express purpose of conferring upon the senate a share in the appointing power which it does not possess in the absence of such provisions. No authority is cited to support the position, and we deem it radically wrong. The provision in the Federal Constitution was adopted for the purpose of conferring upon the president a power which he did not have. We think this is clear, for several reasons. The provision appears in the article granting and defining the powers of the executive, and not in the article defining legislative powers. It purports on its face to be a grant of power to the executive. The phrase "by and with the advice and consent of the senate" was not contained in the original draft of the section, but came in by way of amendment. See Journal of Convention, p. 225. The sole object of the original draft was to confer power upon the president. The object of the amendment was to put a limitation upon that power. See opinion of Mitchell, J. in Hovey v. State, 119 Ind. 395, 21 N.E. 21; also Mechem, Pub. Off. § 110. The section in the organic law to which we have referred is too long for insertion here, but the plain purpose of the language is a grant of qualified power to the executive. Any other construction is strained, and renders a large portion of the section worse than meaningless. Constitutional provisions empowering the governor to appoint officers by and with the advice and consent of the senate are found in many of the states, and always in the article defining the powers of the executive; yet such provision is wanting in the constitution of many of the western states, among which we may mention, in addition to our own state, Wisconsin, Michigan, Missouri, Kansas, and Iowa. While in each of these states the executive power is vested in the governor, yet their statute books are full of instances where offices have been created and made appointive by the governor "by and with the advice and consent of the senate." The constitutionality of these provisions has never been doubted in those states, so far as we know. We think it clear that the absence of that provision from our constitution has no effect whatever upon the power of the legislature to direct that appointments be confirmed by the senate.
Is the senate precluded from participating in the appointing power by reason of the exclusive executive nature of that function? Counsel for appellants, in discussing this point, lose sight of one very important distinction. The legislative department, as such, has not sought to exercise or to participate in exercising the appointing power. It has simply designated certain existing officers, to-wit, the senators who should thus participate. Much of the labor of counsel is lost in this case by their failure to make this distinction, as will appear when the cases are examined. Mr. Mechem, in his work on Public Officers, says, at § 104: "So it is said that appointments to office, whether made by judicial, legislative, or executive bodies, are in their nature intrinsically executive acts." He cites the following cases, all of which are relied upon by counsel in this case: Taylor v. Com., 26 Ky. 401, 3 J.J. Marsh. 401; State v. Barbour, 53 Conn. 76, 22 A. 686; Achley's case, 4 Abb. Pr. 35; Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60; Heinlen v. Sullivan, 64 Cal. 378, 1 P. 158. It would be an unwarranted use of space to review these cases at length. We are convinced none of them intended to assert the doctrine for which appellants contend. The case from Kentucky, which seems to be a leading case, and which asserts that the power to appoint to office is inherently executive, still upheld an appointment made by a court exercising judicial...
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