State ex rel. West v. Frame

• Decision Date: 08 July 1913
• Docket Number: Case Number: 5045
• Citation: 134 P. 403,1913 OK 458,38 Okla. 446
• Parties: STATE ex rel. WEST, Atty. Gen., v. FRAME.
• Court: Oklahoma Supreme Court

1913 OK 458

134 P. 403

38 Okla. 446

STATE ex rel. WEST, Atty. Gen., v. FRAME.

Case Number: 5045

Supreme Court of Oklahoma

Decided: July 8, 1913

Syllabus

¶0 STATES--Officers--Appointment to Fill Vacancy. Section 13, art. 6, of the Constitution, and section 4798, Comp. Laws 1909 (Rev. Laws 1910, sec. 4278), are the only acts in force in this state which provide for filling vacancies in office when any such office "shall become vacant." By virtue of said sections, when any state office shall become vacant, it is the duty of the Governor "to appoint a person to fill such vacancy who, (if the office is one which the law requires to be filled by appointment), shall continue in office until a successor shall have been duly * * * appointed and qualified according to law." Said sections do not authorize or require such an appointment to be "by and with the advice and consent of the Senate."

Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for petitioner.

Stuart, Cruce & Gilbert, for respondent.

KANE, J.

¶1 This is an original petition in quo warranto, wherein it is alleged that "the respondent, a citizen of the state of Oklahoma, unlawfully holds, intrudes into, and usurps the office of member of the State Board of Public Affairs of the State of Oklahoma, in this to wit, viz., that on the--day of March, 1911, there being a vacancy in the membership of said State Board of Public Affairs, and the Legislature not being then in session, the respondent herein was appointed by the Honorable Lee Cruce, Governor of said state, as a member of said State Board of Public Affairs; that thereafter, to wit, on the--day of December, 1912, the Governor aforesaid called the State Senate of the state of Oklahoma in extraordinary session for the purpose, among other things, of confirming or rejecting the appointment of this respondent as a member of such State Board of Public Affairs; that thereafter the Governor aforesaid presented the appointment of this respondent as a member of such board to said State Senate for confirmation, and on the 7th day of January, 1913, the matter of said confirmation came regularly before said State Senate for action, and said Senate then and there refused to consent to such appointment, and rejected such confirmation, and thereupon the secretary of said Senate was directed to notify the Governor aforesaid that the confirmation of this respondent as a member of such State Board of Public Affairs had been that day rejected, which was accordingly done." The cause is briefed upon the theory that upon said office becoming vacant, the appointment made by the Governor to fill such vacancy must be "by and with the advice and consent of the Senate," and it is contended on the one side that a certain action, which was taken by the Senate with that in view, was in effect a confirmation, whilst on the other it is contended that the action of the Senate was in effect a rejection of the appointment by the Governor, and that upon such rejection the office at once became vacant. In our opinion, there is no constitutional provision or legislative enactment which requires or authorizes an appointment, made by the Governor of a person to fill any office which has "become vacant," to be "by and with the advice and consent of the Senate." It is alleged, and it is a fact, that the office in question had become vacant by the resignation of the person who had been appointed to fill the same, pursuant to the terms of section 7384, Comp. Laws 1909 (Rev. Laws 1910, sec. 8079). which section provides that:

"The members of said board shall be appointed by the Governor, by and with the advice and consent of the Senate, for a term coterminous with that of the Governor making the appointment."

¶2 The foregoing section has direct reference to the original appointment, but when such an office "shall become vacant," section 13 of article 6 (162), Williams' Ann. Const. Okla., seems exactly to fit the situation thus presented. The latter section provides that:

"When any office shall become vacant the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until his successor shall have been duly elected or appointed and qualified according to law."

¶3 The petition alleges that this office has become vacant. The Constitution provides that when that contingency arises, "the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy." We know of no law, and none has been called to our attention, which otherwise provides. The same section of the Constitution further provides that the person thus appointed "shall continue in office until his successor shall have been duly elected or appointed." This contingency has not arisen. How then can it be said that the respondent is an usurper? The constitutional provision fits so completely the situation presented by the petition that we are unable to see the slightest basis for the contention that such an appointment must be confirmed by the Senate. A diligent search of the statutes continued in force by the Schedule, and those enacted since statehood, fails to disclose any act which in any way conflicts with section 13, article 6, of the Constitution, supra. Indeed it seems to be conceded that the Governor, "when any office shall become vacant," has power to fill such vacancy. If this is so, it follows that the balance of the section, which provides that such appointee "shall continue in office until his successor shall have been duly elected or appointed and qualified according to law," must be given effect. From the pleadings and briefs of counsel it is apparent that the proceeding is based upon the erroneous belief that we have a statute or constitutional provision which approximates that part of section 2 of article 2 of the federal Constitution which provides that "the President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the...