State Ex Rel. Lyon v. Bowden

September 14, 1912. The opinion of the Court was delivered by In these actions instituted by the attorney general under chapter 2, title 13, of the Code of Procedure, is to be determined the tenure by which a magistrate holds office under the Constitution and statutes of the State. The complaints, which are substantially the same in all the cases, allege that under commissions issued by the governor, without authority of law, certain of the defendants have undertaken to exercise the duties of the office of magistrate in Spartanburg county in the place of magistrates whose terms of office have not expired, namely: J.M. Bowden in the place of A.H. Kirby, S.S. Tiner in the place of D.T. Gossett, W.R. Tanner in the place of E. Potter, and T.O. Fowler in the place of W.C. Harrison.

The Court is asked to adjudge that A.H. Kirby, D.T. Gossett, E. Potter and W.C. Harrison are lawful magistrates, and that the defendants, J.M. Bowden, S.S. Tiner, W.R. Tanner and T.O. Fowler, be excluded from the offices they claim, and that each of them pay the costs of the proceedings against him, and a fine not exceeding two thousand dollars. An order was made requiring the defendants to show cause why the relief asked in the complaint should not be granted. There were returns and demurrers thereto, but there is no controversy as to the facts.

Kirby, Gossett and Potter were appointed magistrates in Spartanburg county and their appointments confirmed by the Senate in February, 1909. No appointments were sent to the Senate at the session 1911, but in February, 1911, after the adjournment of the Senate his Excellency, the governor, undertook to appoint as successors to Kirby, Gossett and Potter the defendants Bowden, Tiner and Tanner. These appointments were submitted to the Senate at its session in 1912, and the Senate refused to confirm them. W.C. Harrison was appointed by the Governor magistrate in Spartanburg county in 1910 and his appointment was confirmed by the Senate at the session of 1910. On 29th of February, 1911, after the adjournment of the Senate, the Governor undertook to appoint the defendant T.O. Fowler as successor to Harrison. This appointment was submitted to the Senate at the session of 1912, and the Senate refused to confirm it.

The authority of the Governor to appoint magistrates is conferred and limited by the Constitution, and if the appointments of Bowden, Tiner, Tanner and Fowler were not made in accordance with that authority they were of no effect. The principle is universally recognized that the Governor of a State has no inherent power of appointment to office and that his power must be found in the Constitution or statutes of the State. Elledge v.Wharton, 89 S.C. 113; Bruce v. Matlock (Ark.),111 S.W. 990; Throop on Public Officers, sec. 362; 8 Cyc. 857.

After a review of the cases the principle deduced is thus stated in the note to People v. Freeman (Cal.), 13 Am. St. 130:

"The truth is that the power of appointing or electing to office does not necessarily and ordinarily belong to either the legislative, the executive or the judicial department. It is commonly exercised by the people, but the legislature may, as the law-making power, when not restrained by the Constitution, provide for its exercise by either department of the government, or by any person or association of persons whom it may choose to designate for that purpose. It is an executive function when the law has committed it to the executive, a legislative function when the law has committed it to the legislature, and a judicial function, or at least a function of a judge, when the law has committed it to any member or members of the judiciary."

What, then, is the limitation placed by the supreme law of the State on the power of the Governor to appoint magistrates? The Constitution thus provides for magistrates as officers of the judicial department of the State government:

"A sufficient number of magistrates shall be appointed and commissioned by the Governor, by and with the advice and consent of the Senate, for each county, who shall hold their offices for the term of two years and until their successors are appointed and qualified." Article V, section 20.

Since this supreme law which confers on the Governor the power of appointment expressly limits and conditions that power on the advice and consent of the Senate, it is clear beyond controversy that an appointment for the full term provided by the Constitution without the advice and consent of the Senate is beyond the power of the Governor and without effect. State v. Howe, 25 Ohio 588, 18 Am. Rep. 321;People v. Bissell, 49 Cal. 407; Attorney General v. Rareshall, 32 La. Ann. 934; Watkins v. Watkins, 2 Md. 354; Brady v. Howe, 50 Miss. 607; Tappan v. Gray, 9 Paige's Ch. 507; State ex rel. Standish, Attorney General, v.Boucher (N.D.), 56 N.W. 142.

It will be observed that the section of the Constitution above quoted, providing for the appointment of magistrates by the concurrent action of the Governor and the Senate and fixing the term, does not provide for temporary vacancies in the office by resignation, death, removal or other cause. The only section of the Constitution relating to the filling of vacancies in judicial offices is section 11 of article V, which provides:

"All vacancies in the Supreme Court or inferior tribunals shall be filled by elections as herein prescribed: Provided, That if the unexpired term does not exceed one year such vacancy may be filled by executive appointment. All judges, by virtue of their office, shall be conservators of the peace throughout the State; and when a vacancy is filled by either appointment or election, the encumbent shall hold only for the unexpired term of his predecessor."

This section, by its terms, relates exclusively to elective judicial officers, for it provides that all vacancies shall be filled by election. The "unexpired term" referred to, then manifestly means the term which will expire at the next election. The impossibility of making this section, relating to elective judicial officers, fit the office of magistrate, which is not elective, but filled by the Governor's appointment and the Senate's confirmation, is too manifest to require elaboration.

As it thus appears that the Constitution does not provide for the filling of vacancies in the office of magistrate, there can be no doubt of the authority of the General Assembly, under its general legislative power, to provide for filling such vacancies occurring while the Senate is not in session. The principle is stated in McAllister v. U.S., 141 U.S. 174, 35 Law. Ed. 693, and many other cases, and the exact point was decided in Tappan v. Gray, 9 Paige N.Y. Ch. 506.

The General Assembly in the exercise of this power has by section 254 of the Civil Code authorized the Governor to fill by appointment vacancies "in any of the offices of any county of the State, whether from death, resignation, disqualification, refusal or neglect to qualify of the person elected or appointed thereto, expiration of the term of office, removal from the county or any other cause; * * * and if it be an office which was filled originally by appointment, until the adjournment, of the General Assembly at the regular session next after such appointment."

The office of magistrate falls under this statute. Section 624 provides for the appointment of magistrates and other officers by the Governor, by and with the advice and consent of the Senate, and enacts further with respect to vacancies that "any vacancy which may happen in any of said offices during the recess of the Senate may be filled by the Governor, who shall report the appointment to the Senate at its next session, and if the Senate do not advise and consent thereto at such session, the office shall be vacant."

No one will doubt that under these statutes the Governor's power of appointment without the advice and consent of the Senate is limited to vacancies occurring during a recess of the Senate and that the appointment ceases to be of force if the Senate at its next session fails to confirm it.

The appointments in the cases now under consideration were made by the Governor without the advice and consent of the Senate; and they were without effect because when they were made there were no vacancies in the office. The length of the term of office of magistrate is specifically ordained by the Constitution to be "two years and until their successors are appointed and qualified." Therefore, one who is appointed to the office of magistrate by and with the advice and consent of the Senate holds the office until the expiration of two years, and until his successor has been appointed by the Governor by and with the advice and consent of the Senate and has qualified. Unless the words "until their successors have been appointed and qualified" are to be erased from the Constitution, the time which may elapse between the expiration of the two years and the actual appointment by and with the advice and consent of the Senate and the qualification of the successor is as much a part of the specific term of office fixed by the Constitution as the two years. The failure of the Governor to appoint, or of the Senate to act upon the appointment, or the rejection by the Senate of the appointment of the Governor does not create a vacancy. On the contrary, it was the clear intention of the framers of the Constitution to provide against the inconvenience to the people of a vacancy arising from the failure of due appointment by the Governor and confirmation by the Senate of a successor in the office at the expiration of the two years.

To take any other view would be not only to erase words from the Constitution, but to attribute to the constitutional convention and the General Assembly the purpose to empower the Governor to exercise sole control of the appointment of magistrates of the State in total disregard of the constitutional safeguard that his appointment shall be subject to the advice and consent of the Senate.

The manner in which such sole control could be exercised is obvious. Upon the expiration of the term of two years, the Governor could refuse to appoint and submit to the Senate for confirmation. If it were true that the office then became vacant on the adjournment of the Senate, the Governor could, under the statutes, appoint to the vacancy and the appointee would hold until the Senate should act upon the appointment at its next session. If the appointment should be rejected by the Senate or not submitted to the Senate, the Governor could again refuse to submit an appointment to the Senate, and again after its adjournment, appoint to the vacancy. This process could be continued indefinitely to the complete subversion of the Constitution and the destruction of the checks on the executive power which the Constitution has so clearly ordained.

No citation of authority can make the matter plainer than the words of the Constitution, but we think it safe to say that the Courts have held with complete unanimity that, when a term of office is fixed by law at a term of years and until the appointment or election and qualification of a successor, the term of the encumbent does not end and there is no vacancy until the expiration of the time named and the appointment or election and qualification of his successor.State v. Hadley, 64 N.H. 473; 13 A. 643; State v. Metcalf, 80 Ohio 244, 88 N.E. 738; State v. Boucher (N.D.), 56 N.W. 142; People ex rel. Parsons v. Edwards (Cal.), 28 P. 831; Carr v. Wilson (W.Va.), 9 S.E. 31;State v. Harrison (Ind.), 16 N.E. 384.

It has been suggested, however, that the provisions of section 20, article V, of the Constitution, that magistrates shall hold beyond the two years until their successors are appointed and qualified is inconsistent with and must yield to section 11, article I, which provides that "no person shall be elected or appointed to office in this State for life or during good behavior, but the terms of all officers shall be for some specified period, except notaries public and officers in the militia." There is no inconsistency in the two provisions. Prior to the adoption of the Constitution of 1895 offices in this State might be held during good behavior. The purpose of section 11, article I, was to change this rule and make the term a limited one so as to make officeholders more amenable to the elective or appointive power. It would be most unreasonable to impute to the constitutional convention a purpose to give to the expression "some specified period" a meaning so narrow as to prohibit any legislative provision against the inconvenience arising from vacancies in public office, which would occur if the encumbent could not be allowed to hold until the appointment or election and qualification of his successor.

Such a construction of the Constitution is impossible. The convention could not have meant to prohibit itself and the General Assembly from doing that which it later in the same Constitution actually did in providing that the governor, and the Justices of the Supreme Court, should hold their office for the number of years mentioned and until their successors should be elected and qualified and that magistrates should hold their offices for two years and until their successors should be appointed and confirmed and should qualify.

But even if the two provisions were inconsistent no principle of construction is better settled, both by authority and reason, than this: Where, in a legislative enactment, a special provision is made as to a subject which would otherwise be embraced in a general provision on the same subject the special provision is held to be an exception, and not intended to be embraced in the general provision. Enlich on Statutes, sec. 399; 36 Cyc. 1151.

From these considerations the conclusion is inevitable that there were no vacancies when the Governor attempted to appoint without the advice and consent of the Senate, that the appointments were without authority of law and were of no effect.

The term of office of Kirby, Gossett and Potter extended from their appointment, with the advice and consent of the Senate, in February, 1909, for two years and until their successors should be appointed by the Governor, by and with the consent of the Senate, and should qualify. The Constitution and statute law of the State provide that the Governor should appoint their successors and submit the appointments to the Senate for its consent and advice at the expiration of two years from February, 1909, that is at the session of the Senate in 1911 and the session of 1912. It is thus evident that there has been no appointment of successors to these magistrates by and with the advice and consent of the Senate, that their terms of office had not expired and the offices were not vacant when the Governor undertook to appoint, without the advice and consent of the Senate and during a recess, Bowden, Tiner and Tanner as magistrates, that these last appointments were of no effect, and that Kirby, Gossett and Potter are still lawful magistrates of Spartanburg county. By the same reasoning it results, that the appointment of Fowler as successor to Harrison was without authority of law, and that Harrison is still the lawful magistrate.

The judgment of this Court, therefore, is that A.H. Kirby, D.T. Gossett, E. Potter and W.C. Harrison are lawful magistrates of Spartanburg county, and that the defendants, J.M. Bowden, S.S. Tiner, W.R. Tanner and T.O. Fowler, be excluded from the office of magistrate, and that they pay the costs of these proceedings.

MESSRS. JUSTICES HYDRICK and FRASER and CIRCUIT JUDGES GAGE, PRINCE, WILSON, DeVORE, RICE, SPAIN and FRANK B. GARY concur.