State Ex Rel. Ulrick v. Sanchez , 32 N.M. 265 ( 1926 )

I am compelled to dissent from the conclusion reached by the majority of the court.

The fundamental question involved is the question of power of the Governor in the premises. The provision on this subject as originally reported to and adopted by the constitutional convention was as follows:

"The Governor shall nominate and, by and with the consent of the Senate, appoint all officers whose offices are established by this Constitution, or which may be created by law, and whose appointment or election is not otherwise provided for, and may remove any such officer for incompetency, neglect of duty, or malfeasance in office."

See Proceedings of Constitutional Convention, p. 99.

This is an exact copy of the Colorado provision on the subject. See Roberts v. People ex rel. Hicks, 77 Colo. 281,235 P. 1069. This provision, together with all others which had been reported to and adopted by the convention, was referred to the committee on revision and arrangement, which committee reported the same back to the convention in the form in which it was finally adopted, which is as follows:

"Sec. 5. The Governor shall nominate and, by and with the consent of the Senate, appoint all officers whose appointment or election is not otherwise provided for, and may remove any officer appointed by him for incompetency, neglect of duty or malfeasance in office. Should a vacancy occur in any state office, except Lieutenant Governor and member of the Legislature, the Governor shall fill such office by appointment, and such appointee shall hold office until the next general election, when his successor shall be chosen for the unexpired term."

It is to be observed that the section, as finally adopted marks a wide departure from the letter and spirit of the provision as originally reported to the convention. As originally reported, the section authorized the removal by the Governor of officers appointed by him, with the consent of the Senate, and none others. It is so held in Colorado. See 77 Colo. 281,235 P. 1069, above referred to. There must have been some important reason in the minds of the members of the convention causing them to make the change above pointed out. Unfortunately the journal of the convention furnishes no report of any discussion of the subject, and we are left to an interpretation of the section without any aid from such source. It is likewise unfortunate that we can obtain no aid from the other states; there being no other Constitution like ours. The nearest approach to our Constitution, so far as language is concerned, occurs in the states of Illinois, Nebraska, and West Virginia. In each of these states, however, the language used in specifying the officers who may be removed by the Governor, is "any officer whom he may appoint." This language, in meaning, is vastly different from our provision. They provide for the removal of officers whom the Governor may appoint; that is, those whom he has the power in any event to appoint. But not so in our case. Here the Governor can remove only such officers as he has appointed. It is perhaps true, as elsewhere held, that, although the consent of the Senate is required before certain officers may be appointed by the Governor, he, nevertheless, makes the appointment. It is so held in Harman v. Harwood 58 Md. 1, and Lane v. Commonwealth, 103 Pa. 481. But this is not the case here. The question is as to the sense in which the words "appointed by him" were used by the constitutional convention. If the convention had intended that the Governor should have power to remove officers confirmed by the Senate, it certainly would have retained the language employed in the original section as reported to the convention above set out, and as embodied in the Colorado Constitution. The convention must have meant something else. There is provision in the Constitution for the appointment of officers by the Governor alone, and without the concurrence of the Senate. Section 4 of article 20 provides that, in case of a vacancy in the office of district attorney, judge of the Supreme or district court, or county commissioner, the Governor may fill such vacancy by appointment to last until the next general election. Section 5 of article 20 provides that, if the Senate is not in session, and a vacancy occurs in any office where the incumbent is appointed by the Governor with the consent of the Senate, the Governor may appoint to fill the vacancy until the next session of the Senate. Article 20 is an article of miscellaneous provisions, and was evidently adopted to cover omissions in the main body of the Constitution. It thus appears that the removal power of the Governor, mentioned in section 5 of article 5, has subject-matter on which to operate aside from those officers required to be confirmed by the Senate.

It is suggested that, had the constitutional convention so considered the scope and meaning of the provision of section 5 of article 5, the same would have been inserted in article 20, where the provisions for appointment by the Governor alone are contained. This is not conclusive. The Constitution must be interpreted as a harmonious whole, and each provision must have its proper importance and effect. The arrangement of the provision is not controlling, in the absence of some other consideration by way of language or subject-matter or other rule of construction. It seems clear, therefore, that the constitutional convention intended to restrain the power of the Governor to remove from office to such officers as are appointed by him alone and without the concurrence of the Senate. This result is in accord with the general trend of opinion in America. Some believe in the concentration of power in the executive, giving him full power to control all of the executive functions, and holding him alone responsible to the people. Coupled with this idea is the principle of the recall whereby an executive found to be unworthy may be stripped of his office and prerogatives. But these ideas have found no place in our institutions. We have adhered to the ancient landmarks. We have provided that public officers shall either be elected by the people, or appointed by the executive with the concurrence of the legislative branch of the government, or, in case of vacancy of office, appointment may be made temporarily by the Governor. When once seated in office, the officer is secure in his tenure, except in cases where the Governor alone appoints, or where the offenses are sufficient to warrant impeachment. In this connection it is suggested that impeachment is not applicable in cases like the present, and that therefore there is no way to get rid of an unworthy appointee if the Governor has not the power of removal. Our provision is section 36 of article 4, which is as follows:

"Sec. 36. All state officers and judges of the district court shall be liable to impeachment for crimes, misdemeanors and malfeasance in office, but judgment in such cases shall not extend further than removal from office and disqualification to hold any office of honor, trust or profit, or to vote under the laws of this state; but such officer or judge, whether convicted or acquitted shall, nevertheless, be liable to prosecution, trial, judgment, punishment or civil action, according to law. No officer shall exercise any powers or duties of his office after notice of his impeachment is served upon him until he is acquitted."

The provision is broad, and includes "all state officers." If a state tax commissioner is not a state officer, it is hard to define his status. Under a provision of the Colorado Constitution, much less clear and explicit, it was declared that a civil service commissioner was a state officer, and subject to impeachment. See 77 Colo. 281, 235 P. 1069, above referred to. While it is true that it is often held otherwise, the holdings are based on the phraseology of the constitutional provisions of the various states. State v. Grant, 14 Wyo. 41, 81 P. 795, 32 P. 2, 1 L.R.A. (N.S.) 588, 116 Am, St, Rep, 982, is an example. The constitutional provision there is different from ours. There the language is, in section 18 of article 3:

"The Governor and other state and judicial officers * * * shall be liable to impeachment."

Section 19 of article 3 provides that all officers not liable to impeachment shall be removable by the Governor in such manner as may be provided by law. These impeachment and removal provisions are common to those of Colorado. Montana, Nevada, North Dakota, South Dakota, Utah and Washington, and the impeachment provision is the same in Arizona. The Wyoming court relies much upon the Washington court's reasoning which is to the effect that, in order to give effect to section 19, above noticed, it must be held that the impeachment provision can apply to superior executive and judicial officers only; otherwise the removal provision would be superfluous. This case is followed, and more elaborate argument and citation of cases is had upon In re Opinion of the Justices, 167 Mass. 599, 46 N.E. 118, where it is held that a county commissioner was not subject to impeachment. The opinion is undoubtedly reached because county commissioners are in no sense "officers of the commonwealth," but are county officers. That court concluded that only elective state officers were subject to impeachment, although that was not necessary to a decision of the case.

It has been suggested that perhaps the Constitution itself defines "state officers," and that they must be held to be officers elected by the state at large. The last sentence of section 5 of article 5 provides that, in case of a vacancy in any state office, except Lieutenant Governor and members of the Legislature, the Governor shall fill the office until the next general election, thus showing, it is said, that state officers are elective officers. It may be that the officers referred to here are elective state officers, but we do not deem this significant in determining the definition of state officers within the impeachment provision. This is merely a provision for the filling of vacancies in elective state officers. Likewise the provisions of section 4 of article 20 provide for the appointment of officers to fill vacancies until the next general election, but some of the officers named are state officers, and some are local or county officers. It is merely a provision to fill vacancies, and does not define state officers. In Ward v. Romero, 17 N.M. 88, 125 P. 617, we held that a district attorney is a state officer within the meaning of section 9 of article 20, which is a provision in regard to compensation of state officers.

We are convinced that a state tax commissioner is a state officer, and as such liable to impeachment. His duties are state wide, and he has to do in a general way with the equalization and collection of the revenues of the state. It is so held in Roberts v. Hicks, 77 Colo. 281, 235 P. 1069. in referring to a civil service commissioner appointed by the Governor. The causes for removal and for impeachment, as specified in the Constitution, are different except in one instance; that is malfeasance in office. The causes for removal are much broader than those for impeachment. An officer cannot be impeached for incompetency or neglect of duty, but may be removed. This consideration, however, I do not deem to be controlling. The question is not, What should have been provided by the Constitution? It is, What has been so provided? If it is deemed proper by the people to extend to the Governor larger powers of removal than have been extended, it may easily be done by a constitutional amendment clearly giving the power. I think that the power attempted to be exercised in the present case does not exist.

On Motion for Rehearing.