Rosoff v. Haussamen , 59 N.D. 154 ( 1930 )

This is a controversy involving the right of Louis Rosoff to membership in the state board of pharmacy. His right being questioned by the remaining members of the board, he was excluded from participating with them in the transaction of business; whereupon he brought a mandamus proceeding seeking thereby to compel the defendants to recognize him as a member. Immediately thereafter an action was begun on relation of the attorney general, in which Rosoff was made the defendant, for the purpose of trying his title to the office. The two matters were consolidated for the purpose of trial and tried on stipulated facts. At the conclusion of the trial a judgment was entered in the mandamus proceeding awarding the writ and in the action supporting the defendant's title to the office. From these judgments separate appeals have been taken to this court which are submitted on one brief. The essential facts are: The term for which W.P. Porterfield, member of the state board of pharmacy, had been appointed expired on the 8th day of May, 1927. On the 4th of August preceding the expiration of this term, the North Dakota Pharmaceutical Association took action looking toward the recommendation of a successor. It appears in the proceedings of the association that a committee had made nominations of three persons to be recommended but upon motion that the association proceed to elect one of the three as the candidate to be presented to the governor for appointment the three names were submitted to an election resulting as follows: Costello 23 votes, Porterfield 19 votes and Sjurseth 5 votes. The president declared the one receiving a plurality elected. The governor was notified of such selection on March 26, 1927. Costello possessed the legal qualifications for membership. On May 7, 1927, the governor appointed the respondent Rosoff for a term of five years beginning May 8th. Rosoff later qualified by filing an oath of office and a bond. The latter was also a member of the North Dakota Pharmaceutical Association but had not been recommended for appointment by it. Porterfield declined to recognize Rosoff as his legal successor.

The four members of the board, exclusive of Porterfield and Rosoff, up to the time Rosoff qualified, had failed to qualify by filing their oaths of office. The governor declared their several offices vacant and appointed P.H. Costello, Burt Finney, O.B. Sjurseth and C.R. Meredith to membership on the board. The last failing to qualify, the governor later appointed H.L. Haussamen to membership. Haussamen had previously been a member and was one of those whose office was declared vacant because of failure to qualify. After the board was thus constituted a meeting was held in which Rosoff participated as a member. Thereafter, in August, 1927, the pharmaceutical association, acting on the assumption that Rosoff's appointment was illegal, recommended to the governor the name of Nels Brakke for appointment as successor to Porterfield. Brakke was not appointed and at a later meeting of the board Porterfield was recognized by the four members in lieu of Rosoff. These proceedings were then instituted.

The statute governing the appointment in question reads (Comp. Laws 1913, § 477):

"The state board of pharmacy shall consist of five registered pharmacists. The members of said board shall be appointed by the governor upon the recommendation of the North Dakota pharmaceutical association, and the persons so appointed shall be chosen from the members of said association. Except as provided in the next section the members of said board shall be appointed for a term of five years and until their successors are appointed and qualified."

The following section provides that in case of a vacancy by death, resignation or removal the governor shall fill the vacancy by appointment for the unexpired term. The question involved in these proceedings is whether or not the governor in making an appointment to the board must accept as the recommendation of the pharmaceutical association the name of one person selected by it by a plurality but not by a majority of those voting.

The brief of the appellants is principally concerned with a question that is much broader in its scope than that stated above. It is said, "In their immediate aspects these cases involve the validity of a portion of § 477 of the Compiled Laws of 1913 providing for the appointment of a state board of pharmacy." It is also asserted that the appointment of the respondent having been made in violation of the provisions of the statute, it becomes apparent that the validity of the statute itself is in issue. Counsel cite various statutes of somewhat similar import which provide for the appointment of various boards from eligible lists furnished by or upon the recommendation of associations more immediately concerned with the personnel of such boards. Argument is advanced to demonstrate that the appointive power vested in the governor under §§ 71 and 78 of the Constitution does not embrace all appointive power and that such authority as is vested in the act in question is not so essentially executive that it may not with propriety be exercised by others under legislative direction. State ex rel. Standish v. Boucher, 3 N.D. 389, 21 L.R.A. 539, 56 N.W. 142. Clearly, this conception as to the scope of the question involved is predicated upon the assumption that § 477 of the Compiled Laws of 1913 so limits the exercise of the power therein given that the governor can make no appointment to the board other than that of an individual recommended by the association; also, the further assumption that the action taken by the association in the instant case was a recommendation upon which the governor was required to act in making an appointment. In short the principal argument of the appellants presents a constitutional question rather than a question of statutory construction. Manifestly, if the appointive power exercised in the instant case can be within the fair import of the statute, we are not concerned with whether or not the legislature had power to restrict it and render the governor's action amenable to the will or desires of others.

The statute says that the members of the board shall be appointed by the governor upon the recommendation of the association. The key words in this sentence are "appointed" and "recommendation." Obviously, both words do not mean the same. "Appoint" is defined, according to Funk Wagnalls New Standard Dictionary, as "To designate, fix upon, or select as being the person or subject for some position, object, or the like;" and, according to Webster's New International Dictionary, it means "To constitute; to ordain;" or "to exercise" or "designate." According to Bouvier's Law Dictionary, "appointment" is the designation of a person by the person or persons having authority therefor to discharge the duties of some office or trust; whereas, "recommend," according to Webster's New International Dictionary, means "to commend to the favorable notice of another; to commit to another's care, confidence, or acceptance, with favoring representations; to put in a favorable light before any one; to make acceptable; to attract favor to; to advise; counsel."

In light of these definitions, a holding that the governor is limited in making an appointment to the naming of one individual who may have been recommended by the association would be to deny that a power of appointment was conferred upon the governor. It would be equivalent to transferring the appointive power from the one in whom it was expressly placed and vesting it in the organization that was authorized merely to recommend. It would convert the power to recommend into the power to appoint and render the stronger power submissive to the weaker. It would take from a more natural repository of the power to appoint to an office and vest a governmental power in private hands. This is not to say that this may not be done, at least within limitations, but an intention to that effect should not be ascribed to the legislature unless clearly expressed.

One of the most elementary rules of statutory construction is that a statute should be so construed, where possible, as to give effect to every word. 2 Lewis's Sutherland, Stat. Constr. 2d ed. § 380. Effect can only be given to the words "appointed" and "recommendation," as used in the statute, by giving to it a construction that will permit a selection to be made by the governor from among a number who are recommended to him by the association. There is room, of course, for the contention that the power of appointment is conditioned upon a recommendation and can only be exercised when a recommendation is made. This gives to the word "upon" the effect of a condition rather than a sense descriptive of a natural sequence. To hold that the expression "upon the recommendation of the North Dakota pharmaceutical association" prescribes the condition upon which alone the governor may make an appointment, would enable the association by nonaction to perpetuate the members of a board in office and render the important duty of making a selection from eligible candidates inoperative. It does violence to the expressed intention of the legislature to so construe the act in question as to enable the association to itself select from its own members the state board of pharmacy. Had the legislature desired to so provide, it would have been a simple matter to have expressed such an intention in unmistakable language. The power given here is not a power to appoint through recommendation but is a power to recommend so that another may appoint.

Our construction of the statute in question is borne out by expressions of the court of appeals of New York relating to a somewhat analogous situation in People ex rel. Balcom v. Mosher,163 N.Y. 32, 79 Am. St. Rep. 552, 57 N.E. 88. There the Constitution provided that city officers whose election or appointment was not provided for should be elected by the electors of such cities or appointed by such authorities of the city as the legislature should designate for that purpose, and it contained another provision that appointment in the civil service in the state should be made according to merit and fitness as ascertained by competitive examination. It was held that an act of the legislature which provided that appointments should be made of those graded highest in a civil service examination was in violation of the constitutional provision respecting the election or appointment of city officers. In defining the power of appointment, the court said (page 40 of the state report):

"The decisions of this and other courts, state and Federal, as to the meaning of the word `appointment' and what constitutes an appointment under the law, are to the effect that the choice of a person to fill an office constitutes the essence of the appointment; that the selection must be the discretionary act of the officer or board clothed with the power of appointment; that while he or it may listen to the recommendation or advice of others, yet the selection must finally be his or its act, which has never been regarded or held to be ministerial. 19 Am. Eng. Enc. Law, 423; Johnston v. Wilson, 2 N.H. 202, 9 Am. Dec. 50; Hoke v. Field, 10 Bush, 144, 19 Am. Rep. 58; People ex rel. Kresser v. Fitzsimmons, 68 N.Y. 514; Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60; Craig v. Norfolk, 1 Mod. 122, 86 Eng. Reprint, 780; People ex rel. Babcock v. Murray, 70 N.Y. 521; Taylor v. Kercheval (C.C.) 82 Fed. 497, 499; Menges v. Albany, 56 N.Y. 374; People ex rel. Killeen v. Angle, 109 N.Y. 564, 573, 17 N.E. 413. Thus it is seen that the authorities upon the subject . . . all agree in the conclusion that the power of selection for a public office is and should be vested alone in the officers or boards authorized to appoint, although it be limited to persons possessing the qualifications required by the civil service statutes and rules, and that at least some power of selection is necessary to constitute an appointment. . . ."

Again the court said (page 42 of the state reports, 57 N.E. 91): "As we have already seen, the right of appointment, of necessity, involves the power of selection and the exercise of discretion and judgment. Without that power in no just sense can it be said that the right exists."

Here the respondent possesses all of the qualifications prescribed by law for the office in question. We cannot hold that his title is bad without giving to the statute such a construction as would enable the North Dakota Pharmaceutical Association practically to exercise the power of appointment that is expressly conferred upon the governor. It has the undoubted power to recommend, but this, to be effective, must be exercised in such a manner as to leave to the governor his equally undoubted power to appoint.

It will be noted that at the time of Rosoff's appointment the only name before the governor as that of a person recommended by the association was that of Costello who had received a plurality but not a majority of those voting in the meeting at which the selection was made. (Costello has since accepted an appointment to fill a vacancy.) The vote in question was taken in an assembly and in an assembly a majority is ordinarily required to carry any proposition submitted or to elect unless otherwise provided by the by-laws. §§ 46 and 48, Roberts' Rules of Order. Motions affecting procedure which may require a two-thirds vote are an exception. As said in Waples's Handbook on Parliamentary Practice, 2d ed. page 155, without special rules it takes a majority to pass anything or defeat anything "and the reason is that, as deliberative bodies exist to think and conclude, the deliberation and decision is not that of such a body, but of less, if a majority do not agree." Where one receives a plurality of votes but not a majority in an assembly, it is customary to have the majority approve. Waples, supra, page 156. Where there is an election by an unlimited number of electors, a plurality ordinarily elects but "in deliberative bodies the rule is the reverse; a majority is necessary to election unless a special rule requires only a plurality." Waples, supra, page 279. See also Cushing, Law Practice of Legislative Assemblies, § 1826; 9 R.C.L. page 1115; Lawrence v. Ingersoll, 88 Tenn. 52, 6 L.R.A. 308, 17 Am. St. Rep. 870, 12 S.W. 422. In the Tennessee Case, supra, reference is made to various authorities, including 6 Am. Eng. Enc. Law, 1st ed. 332, and to the Stockton senatorial election case (among others) which arose out of the action of the joint assembly or convention of the legislative bodies in New Jersey in proceeding to elect a United States Senator under the provisions of the Federal Constitution requiring Senators to be chosen by the legislatures of the various states. There was no law of New Jersey regulating the election of Senators, but there had been a practice of regulating the election of all officers by resolution of the convention or joint assembly. At the convention for the election of Senators in 1865 a resolution was adopted that a plurality of the members present might elect. Upon a vote taken in joint meeting, Stockton received 40 votes, Ten Eyck 37 votes, Wall one vote, Vroom one vote, Frelingheuysen 1 vote, Little one vote. See Report of Judiciary Committee, Congressional Globe, pt. 2, First Session, 39th Congress, 1564. Stockton was declared elected by the joint assembly but declared not elected by the United States Senate. The rule deduced upon the authority of this case and other expressions referred to in the opinion was stated by the Tennessee court as follows:

"Thus it appears, by concurrence of textbook, judicial, senatorial, congressional, and legislative authority, that the rule is settled that a majority of a definite body present and acting must vote for a candidate in order to elect him, and that it is not sufficient that he receive a plurality of votes cast or a majority if blank ballots are excluded. His claim must not depend upon the negative character of the opposition, but upon the affirmative strength of his own vote. It is not sufficient that a majority were not cast against him; to be elected, the majority must be cast for him." Lawrence v. Ingersoll, 88 Tenn. 65, 6 L.R.A. 308, 12 S.W. 422, supra.

The fact that the chairman of the meeting declared Costello elected did not alter the matter. State ex rel. Duane v. Fagan,42 Conn. 32. Hence, there was in fact no recommendation by the North Dakota Pharmaceutical Association at the time the appointment in question was made. I am of the opinion that the power to appoint, when occasion arises to make an appointment, cannot be construed to await the pleasure of the organization authorized by law to make recommendations.

It should be obvious from what is said in this dissenting opinion that the writer does not question that part of the opinion of the majority which discusses the power of the governor to fill a vacancy or the duty of the executive to submit appointments to a legislative branch where confirmation is required to complete the act of appointment or the constitutional power of the legislature to vest a limited appointive power in voluntary associations. As the writer views the case in hand, none of these questions is here involved. In his opinion the case turns alone upon the interpretation of the statute vesting a power of appointing to full terms in the governor and a power to recommend in a voluntary association. It seems to him that this statute should be so construed as to give effect to both of these powers. A construction of the statute which so subordinates the power of appointment vested in the chief executive as to make it reflect only the selection of those who merely have a power to recommend, sacrifices a primary legislative intention to a subordinate one. The legislature gave the power of appointment to the governor, not to the association. The title of the governor's appointee to the office should not be defeated by an attempt on the part of the pharmaceutical association to itself make an appointment. It must be remembered here that that organization avowedly declared its purpose to make the selection, and such proceedings as it took in the matter were taken for the purpose of making its selection binding.

I am authorized to say that Mr. Justice Burr concurs in this dissent.

BURR, J., concurs in dissenting opinion.