Walker v. Baker

• Decision Date: 17 July 1946
• Docket Number: No. A-876.,A-876.
• Citation: 196 S.W.2d 324
• Parties: WALKER v. BAKER, Chairman of Board of Control et al.
• Court: Texas Supreme Court

Page 324

196 S.W.2d 324

WALKER v. BAKER, Chairman of Board of Control et al.

No. A-876.

Supreme Court of Texas.

July 17, 1946.

Rehearing Denied August 30, 1946.

Original mandamus proceeding by N. J. Walker, relator, against Weaver Baker, Chairman of the Board of Control of the State of Texas, and others, respondents, to compel payment of a claim for printing the Senate Journal.

Writ refused.

Henry Kyle, of San Marcos, and Walter E. Boyd, Weaver Moore, and Morrow, Brelsford, Boyd & Murrin, all of Houston, for petitioner.

Grover Sellers, Atty. Gen., Carlos C. Ashley, First Asst. Atty. Gen., and Ocie Speer, W. V. Geppert, Jackson Littleton, and Richard H. Cocke, Asst. Attys. Gen., for respondent.

BREWSTER, Justice.

This is a mandamus proceeding brought by N. J. Walker, relator, against Weaver Baker, Tom DeBerry and Hall Logan, members of the Board of Control of the State of Texas, and George H. Sheppard, Comptroller of Public Accounts, respondents, to compel payment of a claim of $87.57 for printing the Senate Journal for sessions of the 49th Senate of Texas held on January 8, 9 and 21, 1946.

The regular session of the 49th Legislature of Texas adjourned sine die on June 5, 1945, pursuant to House Concurrent Resolution No. 90, Acts 1945, p. 1029, which was:

"Be It Resolved by the House of Representatives, the Senate concurring, That the Regular Session of the Forty-ninth Legislature shall stand adjourned sine die at 12:00 o'clock noon on Tuesday June 5, 1945."

The Senate adjournment motion was that "the regular session of the Senate adjourn sine die for legislative purposes, subject to the provisions of S.R. 88."

Senate Resolution No. 88, referred to in the adjournment motion, was adopted by the Senate on June 2, 1945, and was as follows:

"Be It Resolved by the 49th. Senate of Texas that:

"The 49th. Senate of Texas shall meet and convene in session in the Senate Chamber at Austin, Texas, on the 8th day of January, 1946, at 12 o'clock noon for the purpose of acting on and confirming or rejecting such appointments and nominations of the Governor as the Constitution and laws of the State require the Senate to act upon and confirm or reject."

In obedience to that resolution the Senate convened in the Senate Chamber at Austin on January 8, 1946, when, for want of a quorum, it stood at ease until January 9, 1946, at 11 A.M. A quorum being then present, the Senate notified the Governor that it was in session and ready to receive his nominations for public office. Then it adopted the following motion:

"That the Senate stand at ease until 12 o'clock noon Monday, January 21st, 1946, subject to being called to order sooner by the President upon 24 hours notice, and that the Secretary of the Senate be directed to receive and accept any communications from the Governor."

The Senate was called to order at 12 M. on January 21, 1946, but there was no communication from the Governor. Thereupon a member presented a list of all appointments made by the Governor after June 4, 1945, and before January 21, 1946, the list being officially certified by Hon. Claude Isbell, Secretary of State. The Senate then went into executive session and either confirmed or rejected all nominees on the list which were subject to Senate confirmation.

The Senate Journal for these meetings was printed by an Austin concern under its contract with the Board of Control to print the Journal for the fiscal year 1945-1946. The printers assigned their claim for this printing to relator for a valuable consideration.

Respondents refused to pay the account "for the sole and only reason" that they "have been advised by the Attorney General of Texas that the sessions of the Senate of Texas on the 8th, 9th and 21st of January, 1946, were illegal and void and were not in law sessions of the 49th Senate of Texas." Respondent Sheppard certified "that the money is available in the contingent expense fund of the 49th Legislature to pay such account if the Senate sessions of January 8th, 9th and 21st, 1946 were valid sessions of the Senate of Texas."

Thus is raised the precise question for our decision, namely, whether the Senate of Texas can lawfully convene, of its own motion, to consider recess appointments made by the Governor.

While not decisive of the question, this apparently is the first time in the history of Texas that the Senate has attempted to exercise the power here asserted.

Under the Constitution of 1845, Art. V, Sec. 20, it was provided: "Nominations to fill all vacancies that may have occurred during the recess shall be made to the Senate during the first ten days of its session. And should any nomination so made be rejected, the same individual shall not again be nominated during the session to fill the same office. And should the governor fail to make nominations to fill any vacancy during the session of the Senate, such vacancy shall not be filled by the governor until the next meeting of the senate."

The same language appeared as Art. V, Sec. 20, of both the Constitutions of 1861 and 1866, except that in the former the word all before "vacancies" in the first sentence was omitted.

Art. IV, Sec. 12, of the Constitution of 1869, provided: "Nominations to fill vacancies occurring in the recess of the legislature shall be made by the governor during the first ten days of its session; and should any such nomination be rejected, the same person shall not again be nominated, during the session, to fill the same office."

The language of our present Constitution (1875) is: "All vacancies in State or district offices, except members of the Legislature, shall be filled unless otherwise provided by law, by appointment of the Governor, which appointment, if made during its session, shall be with the advice and consent of two-thirds of the Senate present. If made during the recess of the Senate, the said appointee, or some other person to fill such vacancy, shall be nominated to the Senate during the first ten days of its session. If rejected, said office shall immediately become vacant, and the Governor shall, without delay, make further nominations, until a confirmation takes place. But should there be no confirmation during the session of the Senate, the Governor shall not thereafter appoint any person to fill such vacancy who has been rejected by the Senate; but may appoint some other person to fill the vacancy until the next session of the Senate or until the regular election to said office, should it sooner occur. Appointments to vacancies in offices elective by the people shall only continue until the first general election thereafter." Art. IV, Sec. 12, Vernon's Ann.St.

There is no substantial difference in these several provisions, in relation to the question before us, except that the Constitution of 1869 refers to sessions and recesses of the Legislature while the others refer to sessions and recesses of the Senate.

With the Senate's power and duty of confirmation thus prescribed in the Constitution for a hundred years, it is significant that forty-eight legislatures passed before it occurred to the Senate that the power to confirm or reject the Governor's appointments implies a duty to convene at will for that purpose—before anyone decided, to quote relator's brief, that the Senate "being under the duty of confirmation and there being no prohibition, it necessarily follows that the power to convene must follow the duty, and that the power rests where the duty is placed." Sharp differences have arisen between the Governor and the Senate at intervals during a century of statehood; therefore, had it not been at least doubtful as to the power of the Senate to convene itself to pass on the Governor's recess appointments, it is reasonable to assume that some earlier Senate would have attempted to exercise it. That no such attempt was made before 1945 becomes more significant in view of the fact that relator does not contend that the authority is expressly conferred upon the Senate by the Constitution. In that situation we have the principle that although nonuser will not defeat the power to exercise rights expressly delegated in a written Constitution, an established practical construction "should not be disregarded unless the terms of the provision furnish clear and definite support for a contrary construction." 11 Am. Jur., p. 701, Sec. 80. According to another authority, "Where there has been a practical construction, which has been acquiesced in for a considerable period, considerations in favor of adhering to this construction sometimes present themselves to the courts with a plausibility and force which it is not easy to resist." Cooley, Constitutional Limitations, 8th Ed., Vol. 1, p. 144. As declared by this court, "The rule is that contemporaneous construction of a constitutional provision by the Legislature, continued and followed, is a safe guide as to its proper interpretation." Jones v. Williams, Collector, 121 Tex. 94, 45 S.W.2d 130, 133, 79 A.L.R. 983. Again, it has been said that "while not conclusive, the construction given by the Legislature to those provisions of the Constitution dealing with legislative procedure is entitled to great weight." Johnson v. City of Great Falls, 38 Mont. 369, 99 P. 1059, 1060, 16 Ann.Cas. 974. Other authorities are Mumme et al. v. Marrs, Supt., 120 Tex. 383, 40 S.W.2d 31; Gulf, C. & S. F. R. Co. v. City of Dallas, Tex.Com.App., 16 S.W.2d 292; Myers, Adm'r, v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160.

But more positive principles determine this case against relator. Against him is that stated by this court in Parks et al. v. West et al., 102 Tex. 11, 111 S.W. 726, 727: "It is a rule for the construction of Constitutions, constantly applied, that where a power is expressly given and the means by which, or the manner in which, it is to be exercised is prescribed, such means or manner is exclusive of all others." "When the Constitution defines the circumstances under...