State v. Dowling , 167 La. 907 ( 1928 )

The questions presented on the application for rehearing are of such transcendent importance, and concern so vitally the public interest, as to demand, in my judgment, that a rehearing should be granted to the end that a full hearing in open court can be had, and the grave constitutional questions considered and determined in the usual and proper manner.

I cannot bring myself to believe that such emergency exists, or that it is right and proper, that such momentous questions should be considered and finally determined by the court in chambers on an application for rehearing.

However, as a majority of the court has declined to grant a rehearing, I feel compelled to record my reasons for dissenting.

I fully concur in the views expressed in the dissenting opinion of the CHIEF JUSTICE on the two main questions discussed by him — that is to say, whether the temporary appointment of the relator lapsed and ceased to be effective for lack of confirmation of the Senate at the extra session, and whether the defendant can urge the necessity of such confirmation.

The position of the CHIEF JUSTICE on the two questions in my judgment is unanswerable; that is, if the Constitution can be taken to mean what it says, and if plain words have not ceased to have their usual and accepted meaning.

It will be admitted that the Governor cannot make an appointment to fill a vacancy, except temporarily and when the Senate is not in session.

The appointments so made expire at the end of the next session of the Senate, unless they are confirmed by the Senate at suchnext session. The failure of the Governor to send to the nextsession of the Senate the name of the person he had appointed while the Senate was not in session has the effect of a rejection by the Senate.

This is the plain language of section 12, art. 5, of the Constitution.

Any attempt to interpolate in the Constitution the word "regular" between the words "next" and "session" is not justified, in my opinion. I can conceive of no reason for making a distinction between an extra session and a regular session in matters of confirmation of appointments.

The Senate is a part of the appointing power. It is charged with the duty and has the privilege of advising on and consenting to all appointments made by the Governor which by law are required to be submitted to the Senate. This duty and responsibility can not be evaded by the Senate when in session.

Nor can the Governor deprive the Senate of the exercise of such power of confirmation when it is in session by withholding appointments from it. If he does so, then the penalty imposed on the Governor and his appointee is the rejection of the appointment. This is the fiat of the Constitution, and the courts have no right to ignore it, or to write it differently.

If it is necessary, to complete a temporary appointment; for the Senate to confirm such appointment (and it is conceded that such confirmation can be made at an extra session), then why the necessity and whence arises the exigency, for holding that the Executive can withhold the appointments from the next session, which happens to be an extra session, and make the tenure of the appointee extend to the end of the next biennial session. The ruling of the court in this case destroys the very purpose and intendment of the Constitution, which obviously requires that the Senate confirm all temporary appointments which are required by law to be made by and with the advice and consent of the Senate at the very first opportunity it has to do so.

The present case is the first instance in the history of this state that such a construction as adopted by the court has been placed on the constitutional provisions.

In addition to the cases cited by the CHIEF JUSTICE, I refer to the case of State ex rel. Duffy v. Goff, 135 La. 335, 65 So. 481.

In that case Duffy was appointed November 15, 1912, by the Governor to the office of recorder of the third recorder's court of New Orleans, to fill the unexpired term of Borne, who had resigned.

Acting under the charter (Act 159 of 1912), the mayor and council located a recorder's court in the Fifth district, and appointed Goff as the recorder thereof. The relator, Duffy, then brought suit against Goff to show cause why he Goff should not be declared a usurper, and Duffy declared to be entitled to the office. The court rejected the relator's demands for two valid and sufficient reasons, one of which was that Duffy's appointment had not been confirmed by the Senate at its session in 1913, which was an extra session.

On page 344 of the cited case (65 So. 483) the court said:

"Again, although relator was appointed to an office by the Governor of the state, under article 157 of the Constitution, the Senate has rejected him. The Governor failed to send relator's name to the Senate. Article 72.

"Relator admits that he has not been confirmed by the Senate, which was in session in 1913. He has been rejected; and he has no interest in any office."

The contention that Dr. Dowling cannot raise the question just discussed is equally as untenable and unjustified in law as the other contention. It would introduce a strange and heretofore unheard-of doctrine in jurisprudence for the court to hold that an incumbent in office, who is holding over until his successor is legally appointed, cannot question the validity of the appointment of the person who is to displace him.

The present suit was brought against the incumbent — it could be brought against no one else — and it seems to me that it would be the very refinement of absurdity to say that a defendant against whom the suit is required to be brought cannot question the right of the plaintiff to maintain his action against him.

To say that Dr. Dowling cannot raise the question is to ignore the elementary and fundamental principle that, before a party plaintiff in a suit of this character can succeed in ousting the incumbent, he must show a valid and legal title to the office which he claims.

In the case of State v. Beaird, 34 La. Ann. 280, it was held that the authority vested in the Governor to fill vacancies can only be exercised, and, when exercised, prove conclusive, where he has made an appointment to fill a vacancy actually and legally existing in the discharge of his official functions.

"In the eventuality that an appointment has not been made in such contingency, it could not prove conclusive. The issuance of a commission under it would not debar the aggrieved [incumbent] from resisting displacement and appealing to the tribunals of the country, who would then be competent, on inquiry, to determine the question of vacancy vel non."

Equally untenable in law and unsound in reason, is the suggestion that the relator's right to the office is to be determined as of the date he filed suit.

The appointment may have been legal at that time (a fact I do not admit), and if he had been inducted into the office thereby ousting the incumbent, the matter would have been ended so far as the defendant was concerned.

But the relator has never been inducted into the office. He sought the authority of the courts to put him in office, but before he could get a final decision a situation arose which rendered his appointment inoperative and ineffective.

The decisions are too numerous to require citation, where suits have been dismissed where the plaintiff, though having an interest when the suit was filed, ceased to have such interest before the case was finally determined in this court.

The opinion up to this point has proceeded on the assumption that in making the appointment of the relator the Governor exercised the authority vested in him by section 12, art. 5, of the Constitution, which provides for the filling of vacancies that may occur during the recess of the Senate, and which appointments shall expire at the end of the next session of the Senate.

It is my deliberate conviction, however, after careful examination into the matter, that there was no such vacancy in the office of president of the state board of health as would justify or authorize the appointment in the manner attempted.

The appointment of the relator was inoperative from the beginning and will continue inoperative until it is confirmed by the Senate, either in extra or a regular session.

There are only two provisions of the Constitution conferring the general power of appointment on the Governor and these are sections 11 and 12 of article 5 of the Constitution, the first of which relates to original appointments where an office has been created and is without an incumbent, and to cases where a constructive vacancy has been created but the incumbent holds over until his successor is duly appointed, confirmed, qualified, and inducted into office.

Under this article in the two instances named no appointment can become effective until confirmed by the Senate, where confirmation is required.

The second article refers to vacancies which occur when the Senate is not in session, and there is no one to discharge the duties of the office. For instance, where the vacancy occurs by death, resignation, removal, or from any other cause which leaves the office without an incumbent to perform the duties. It is only in such cases in my judgment, a vacancy occurs which requires or authorizes an appointment under section 12, art. 5, of the Constitution.

In such contingency the Governor is authorized to make a temporary appointment to last only till the Senate has met and adjourned, and hence is afforded the opportunity of confirming the appointment.

In the instant case there was manifestly no vacancy to fill which occurred during the recess of the Senate. There was obviously no unexpired term of office to be filled within the meaning and contemplation of section 12. The Governor under the express terms of the act could make no appointment except by and with the advice and consent of the Senate and that for the full term of four years.

The Constitution authorized the Legislature to create a state board of health and declared that such board should be composed of a president and eight members, who should be appointed by the Governor by and with the advice and consent of the Senate.

The Legislature put this provision of the Constitution into effect by Act 79 of 1921, and therein fixed the term of the president at seven years, dating from August 29, 1925. The defendant was appointed and confirmed by the Senate for that term.

The act of 1928 (126) did not abolish the state board of health, but, on the contrary, retained in full force section 1 of the act of 1921, which created the state board of health pursuant to section 11 of article 6 of the Constitution.

Nor did the act of 1928 abolish the office of president of the state board of health, indeed it could not do so under the plain mandate of the Constitution directing the Legislature to create it. All that the act did or was intended to accomplish, which is pertinent to this inquiry, was to recreate the board and to provide for its reorganization and to fix the term of the president and other members. The term of the president was fixed at four years, beginning August 15, 1928, and ending August 15, 1932, and he was to be appointed for that term, no more and no less, and the appointment was to be by and with the advice and consent of the Senate.

The appointment was in no sense to be temporary, and for an unexpired term, but was for a full term, and required the advice and consent of the Senate.

No one will pretend that the Legislature was without right or power to legislate Dr. Dowling out of office by curtailing his term. But it is perfectly obvious from the plain language of this act that its object was to fix a full term for the office of president of the board of health, and that the Governor when he appointed the relator could only appoint for that term and by and with the advice and consent of the Senate.

I say therefore that in making the appointment of relator the Governor was not exercising the power of appointment as in case of a vacancy occurring during the recess of the Senate, but was doing so under an appointive power which required the concurrent action of the Senate, until which and without which, the appointment was without effect.

It is well settled in our jurisprudence that vacancies in office are either original, constructive, or accidental, or absolute, and they can only be filled by the Governor when the power to do so is expressly conferred on him and in the mode provided by the Constitution and laws. A vacancy is said to be original when an office is created and no one has been appointed to fill it. It is said to be constructive when the incumbent has no legal right or claim to continue in office, but can be legally replaced by another functionary. The vacancy is said to be accidental or absolute when, the incumbent having died, resigned, or been removed, there is no one in esse discharging the duties of the office.

It is not difficult to determine under which definition or classification of vacancy the present case falls.

It is clear that there was no original vacancy because that applies to an office created and there is no one to fill it. It was not an accidental or absolute vacancy, because Dr. Dowling was still living, had not been removed and had not resigned. It was therefore bound to fall under the designation of constructive vacancy, for the defendant was an actual incumbent, and had the legal right to continue in the office until his successor was duly appointed, and that could only be done by the Governor with the concurrent action of the Senate.

But it makes little or no difference whether the vacancy was original or constructive, for in either event no appointment could become effective until concurred in by the Senate.

The case of State ex rel. Attorney General v. Rareshide et al., 32 La. Ann. 934, is appropriate and sustains the position that the appointment of relator herein was and is without any legal effect until confirmed by the Senate.

In the case referred to the several defendants were appointed to certain offices therein named with the advice and consent of the Senate.

Before the expiration of their terms the Constitution of 1879 was adopted which vacated all offices, but the incumbents had the right to hold over until their successors were legally appointed and inducted into office. They held over after the Constitution went into effect and continued to discharge the duties of their respective offices.

The Legislature met in 1880, but the Governor made no appointments and submitted no names to the Senate to be confirmed as defendants' successors.

After the adjournment of the Senate, the Governor appointed and commissioned the relators in that suit to said offices under the pretense of filling vacancies.

The defendants holding over refused to surrender the offices, and the relators thereupon proceeded under the intrusion into office statute to oust the defendants and to have their appointments recognized.

The question presented, said the court, is whether the relators are the successors of the defendants, duly appointed and qualified, or, in other words, whether their appointment is constitutionally valid. The court proceeded to answer its own question in the negative and gave its reasons therefor.

"Had the defendants or any of them died, or resigned, or been removed, and the commissions of the last appointees, * * * expressly declared the vacancies arising from such cause or causes, and the filling of the same, we would have been powerless to go behind the appointments and pass upon the propriety or legality of the action of the executive."

"The adoption of the Constitution of 1879 of itself vacated all offices held under the previous Constitution and the laws in force under it, although the terms of those offices had not expired."

"The Governor had the right to fill, in the manner pointed out by law, the vacancies thus occasioned, but, as the defendants were in the actual discharge of their functions, holding over under constitutional authority until their successors were appointed and qualified, the power of appointment could only be exercised by and with the advice and consent of the Senate."

That is the precise situation here. The act of 1928 put an end to Dr. Dowling's term of office, but he continued in the discharge of the duties of the office under constitutional authority until his successor should be appointed in the manner pointed out by law, which is with the advice and consent of the Senate.

The court in the cited case went on to say that a vacancy is original when an office is created and no one has been appointed to fill it.

It is constructive when the incumbent has no legal right or claim to continue in office but can be legally replaced by another functionary.

It is accidental or absolute when the incumbent having died, resigned, or been removed there is no one in esse discharging the duties of the office.

"The vacancies in the cases before the court were not original or absolute in character. They were constructive vacancies. They became so previous to the assembling of the Legislature by virtue and effect of the adoption of the present Constitution, and continued so during the session of the Senate, and have not ceased to be such.

"The relators were not appointed before or during the session of the Legislature. Their appointments have not been confirmed by the Senate. They are therefore inoperative, have never taken effect, and the defendants are entitled to hold over until appointments to these offices have been perfected and made effective by the required concurrence of the Senate."

"If an office filled by appointment of the Governor requires the confirmation of the Senate, a vacancy therein, such as will authorize the Governor to fill it, without the concurrence of the Senate, can be caused only by the death or resignation of the incumbent or by the happening of some other event by reason of which the duties of the office are no longer discharged."

In the instant case there has been no death, no resignation, no removal, and the happening of no event by which the duties of the office of president of the board of health are no longer discharged.

The defendant is in the active discharge of the duties of the office under constitutional authority. The vacancy is a constructive vacancy, and while the Governor has the right to replace him by appointing a successor he can only do so with the concurrence of the Senate. That has not been done and the appointment of the relator is inoperative.

I think a rehearing ought to be granted.