Harrington v. Pardee

BUCKLES, J.

On March 16, 1901, Henry T. Gage, who was then the governor of the state of California, nominated the plaintiff to the office of trustee of the California Home for the Care and Training of Feeble-Minded Children, and transmitted such nomination to the senate, which was then in session, and the senate duly advised in and consented to the nomination and appointment of said plaintiff. Governor Gage failed to issue to plaintiff a commission as trustee of

[279]

said home. George C. Pardee, being the successor of Henry T. Gage as governor of California, was applied to to issue to plaintiff said commission, and the governor not complying with plaintiff’s request, plaintiff filed his petition in the superior court of Sacramento County praying for a writ of mandate commanding the governor to issue to him said commission. The defendant demurred to the petition on the ground that it did not state facts sufficient to entitle plaintiff to the relief sought. The demurrer was sustained. Prom the order sustaining the demurrer and the judgment rendered thereon this appeal is prosecuted.

The plaintiff in his brief assures us that “The question presented to the court below and argued by counsel for the respective parties was this: Has the governor a right to refuse to issue a commission after he has transmitted a nomination to the senate and the appointment has been confirmed by the latter? Or, may he thereupon ignore his own action and the action of the senate, and make a new nomination or' appointment?” The trustees of said home are “appointed by the governor with the advice and consent of the senate.” (Act March 9, 1887, Stats. 1887, p. 69.)

As to the trustees of this home, the governor cannot appoint when the senate is in session without the “advice and consent” of that body. In all such appointments the first step to be taken is the suggestion by the governor to the senate of the name of a person for the office and to ask the advice of the senate, and for its consent for him to appoint such person; the second step is the advice and consent of the senate which is manifested by a resolution certified to the governor and to the secretary of state, and the third and last step is the issuing of the commission signed by the governor, and this is the evidence of such appointment.