People ex rel. Laine v. Tyrrell

California Supreme Court Jan 17, 1891 No. No. 14076Published

Before: Haven

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Holding. The court held that the governor's appointment of the relator was invalid because the incumbent's term had not expired in a manner creating a vacancy, and the purported appointment of the incumbent as his own successor was incomplete without a new commission.

Issues

Whether the governor had the authority to appoint a successor to an office where the incumbent's term had expired but no successor had qualified.
Whether the governor's message to the senate and the senate's confirmation constituted a completed appointment of the incumbent as his own successor without a new commission.

Disposition. reversed

Quotations verified verbatim against the opinion

“the mere expiration of the term of the incumbent of an office does not create a vacancy therein such as the governor alone is authorized to fill by the appointment of a successor.”

“In the matter of an executive appointment with the consent of the senate, the issuance of a commission is not a mere ministerial act, but is a part of the act of appointment.”

Synopsis

Office—Vacancy—• Appointment by Governor.— An appointment by the governor, during a recess of the legislature, for a term of four years, to fill a vacancy in the membership of the state board of health, is in legal effect merely an appointment during the recess of the legislature, and until the adjournment of its next session.

Id. — Confirmation of Senate. — Upon the issuance of a commission to fill a vacancy, the appointment is complete, and needs no action of the senate to confirm it.

Id.—Holding over — Qualification of Successor — Construction of Political Code. — Section 879 of the Political Code, declaring that every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified, applies to officers appointed temporarily by the governor to fill a vacancy.

Id.— Expiration of Term — Power of Governor. — The mere expiration of the term of the incumbent of an office does not create a vacancy such as the governor alone is authorized to fill by the appointment of a successor.

Id. — Appointment with Consent of Senate— Commission. —In the matter of an executive appointment with the consent of the senate, the issuance of a commission is a part of the act of appointment.

Id. — Qualification — Creation of Vacancy. — An appointee is not required to qualify until he has received his commission, and his failure to qualify cannot create a vacancy, if he has received no commission.

De Haven, J. On November 17,1884, during a recess of the legislature, a vacancy existed in the membership of the state board of health, and on that day the appellant, Tyrrell, was appointed a member of said board, and in the commission issued to him by the governor it was recited that he was thereby appointed “a member of the state board of health, vice F. W. Hatch, deceased, for the term expiring January 11,1888. Appellant duly qualified as such officer November 19, 1884, and since that date has continued to discharge the duties of said office.

Upon January 10, 1885, the legislature being in session, the governor transmitted to the senate a message informing that body of appellant’s said appointment on November 17, 1884, “ for the term of four years, vice F. W. Hatch, deceased,” and the senate was requested to consent thereto. The senate took action upon said message, and the question, “Will the senate advise and consent to the appointment of G. G. Tyrrell, of Sacramento, as a member of the state board of health for the term of four years, vice F. W. Hatch, deceased ?” was decided in the affirmative. The governor did not thereafter issue to appellant any commission for said office, nor has [478]he since such action of the senate taken any oath of office as a member of said board.

On March 18, 1889, during a recess of the legislature, the governor appointed the relator, Laine, to the said office of member of state board of health, and upon that day he duly qualified as such.

The judgment of the court below was in favor of the relator, and ousting the appellant from said office. From this judgment, and an order denying his motion for a new trial, the defendant, Tyrrell, appeals.

We think the commission issued by the governor to appellant on November 17, 1884, must be held to have legal effect simply as an appointment to fill the vacancy then existing, until the adjournment of the next session of the legislature, as the governor was not authorized to make an appointment for any longer time than during the recess of the legislature. (Pol. Code, sec. 1000.)

Upon the issuance of this commission, the appointment to fill such vacancy temporarily was complete, and needed no action of the senate to confirm it. (People v. Cazneau, 20 Cal. 504.) And under this commission the appellant was vested with the right to hold said office until the appointment and qualification of a successor in the mode provided by law. Section 879 of the Political Code declares : “ Every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified”; and section 1000 of the Political Code does not create an exception to this rule, in the case of officei’s temporarily appointed by the governor. The language of that section, “ but the person so appointed can only hold the office until the adjournment of the next session of the legislature,” simply means, when construed with section 879, as it must be, that the term of such appointed officer shall expire upon the adjournment, of the next session of the legislature, and his successor may take his place; but if no successor has been appointed, then the

People ex rel. Laine v. Tyrrell

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