Harrington v. Pardee , 1 Cal. App. 278 ( 1905 )

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 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. From 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.

Plaintiff contends that "nominate" and "appoint" are synonymous terms and mean the same thing, and that therefore when the governor has nominated he has appointed. Doubtless there are some instances where these terms may be used to mean one and the same thing, but by no process of reasoning can it be true that in nominating to the senate the governor isappointing the person to the office, because he cannot appoint without the advice and consent of the senate. The appointment is not made until the commission is issued, and issuing the same is the last act, and in issuing the commission of the governor is performing an executive and not a ministerial act, and is, therefore, acting under his discretionary powers, and may or may not issue the commission, although the senate may have advised it and consented that he should make the appointment. Plaintiff has presented no authority which, in our opinion, tends even in the slightest degree to show that the governor has exhausted his discretionary power when he nominates a man for office and sends the name to the senate.

Over one hundred years ago it was held by the supreme court of the United States in Marbury v. Madison, 5 U.S. (1 Cranch) 137, that "The last act to be done by the president is the signature to the commission; he has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed and he has decided. His judgment on the advice and consent of the senate in concurring with his nomination had been made and the officer is appointed." Defendant has presented numerous authorities sustaining and approving this rule, and the plaintiff has brought to our notice no case holding a different rule, and we have been unable to find any. This doctrine has been cited approvingly in every case in this state which involves a like question. We think a principle established so long ago, so closely adhered to, and so unanimously sanctioned by all the courts, must be too well ingrafted into our system of government to be disturbed now.

The order and judgment are affirmed.

Chipman, P. J., and McLaughlin, J., concurred.