Attorney General Ex Rel. McKenzie v. Warner

300 N.W. 63, 299 Mich. 172

• Court: Michigan Supreme Court
• Decided: June 12, 1941
• Docket: Docket No. 75, Calendar No. 41,577.
• Status: Published

Opinions

The attorney general, upon the relation of a citizen and taxpayer, has filed an information in the nature of quowarranto asking that Howard M. Warner be required to show by what authority he claims to hold the office of State corporation and securities commissioner for a term expiring September 20, 1943. The facts are not in dispute. On September 20, 1935, the then governor appointed a corporation and securities commissioner for a term ending September 20, 1939, by virtue of Act No. 13, Pub. Acts 1935 (Comp. Laws Supp. 1940, §§ 9769-1 to 9,769-4, Stat. Ann. §§ 19.781-19.784). The legislature was not in session and the appointment was not submitted to the senate for confirmation. In January, 1937, the then governor appointed another individual as commissioner for the unexpired term ending September 20, 1939, which was confirmed by the senate, the appointee qualified, and filled the office until the expiration of term, September 20, 1939. At that time, the then governor, Luren D. Dickinson, appointed this defendant, Howard M. Warner, to said office for a full term of four years, to expire September 20, 1943. The senate was not then in session. A commission was issued, Warner qualified, and has since held the office continuously to the present time. On December 20, 1940, Governor Dickinson signed and delivered to the secretary of the senate a message advising that during the recess of the legislature he had appointed the defendant to the office of corporation and securities commissioner for the term expiring September 20, 1943, and requesting consideration and action. Governor Dickinson's term ended December 31, 1940, and Governor Van Wagoner took office January 1, 1941. The legislature convened on that date (the first Wednesday in January) in accordance with the Constitution. On that day, and prior to the convening of the senate, Governor Van Wagoner transmitted to the president of the senate a communication presenting for the consideration and confirmation of the senate the appointment of the relator herein, Walter I. McKenzie, for the office of corporation and securities commissioner to succeed Howard M. Warner, until December 31, 1942. The date of expiration of term was obviously a mistake, and it was corrected by the governor on January 7th to read "for the term ending December 31, 1944." Both appointments were received by the senate and read on January 2, 1941, and referred to the proper committee. On February 5th, the senate, by regular procedure, confirmed the appointment of defendant Howard M. Warner as corporation and securities commissioner for the term ending September 20, 1943.

Plaintiff concedes that the appointment of Warner by Governor Dickinson, September 20, 1939, was valid and that Warner became the legal incumbent, but contends that such appointment could not be legally effective for a period beyond the close of the next succeeding session of the legislature, which would be the present session. It seems to be conceded for the purpose of this decision that the legislature is still in session and, therefore, the information might be prematurely filed. However, in the interests of good government, and at the request of interested parties, the question presented being of public importance, we accept jurisdiction for the purpose of decision herein. See Oakland County Treasurer v.Auditor General, 292 Mich. 58, 66.

The applicable provision (section 1) in Act No. 13, Pub. Acts 1935 (Comp. Laws Supp. 1940, § 9769-1, Stat. Ann. § 19.781), reads as follows:

"A commission to be known and designated as the Michigan corporation and securities commission is hereby created. Immediately upon the taking effect of this act a corporation and securities commissioner shall be appointed by the governor for the term of four years, subject to confirmation by the senate. * * * Upon the expiration of the said term a successor shall be appointed in like manner for a term of four years and until his successor is appointed and qualified."

It is apparent from the act that for the purposes of this case three events are essential to the legal appointment of a successor-commissioner for a full term: (1) Expiration of term of the incumbent; (2) appointment by the governor; (3) confirmation by the senate.

In the instant case, it is agreed that the following circumstances exist: (1) Expiration of term of the incumbent, Carl A. Olson, September 20, 1939; (2) the appointment at that time by the then governor (Dickinson) of the defendant, Howard M. Warner; (3) the acceptance and qualifying for office by Warner, and his acting as commissioner up to and including the present time; (4) that the senate was not in session at the time of his appointment and it was not confirmed prior to January 1, 1941; (5) that Dickinson, while governor (on December 20, 1940), sent a message to the senate, received by the secretary of the senate, giving official notice of the appointment, asking for the consideration and action of the senate; (6) that the senate officially received this communication January 2, 1941, and referred it to the proper committee; (7) that the senate officially confirmed this appointment February 5, 1941.

In the absence of any intervening circumstance, it would be apparent that nothing further would be necessary to complete the appointment of the defendant for the full term. Plaintiff alleges several reasons why the appointment should be considered to be only during the present session of the legislature, and not for the full term.

It is claimed that because Dickinson's term ended December 31, 1940, his message could not thereafter be submitted to the incoming senate; therefore, the senate could not legally confirm this appointment. Plaintiff relies upon People, ex rel.Attorney General, v. Haggerty, 167 Mich. 682. In that case, we were considering an appointment to fill vacancy under the following statutory provision^*:

"Whenever a vacancy occurs in either of such boards,otherwise than by the expiration of a term, such vacancy shall be filled by the governor for the remainder of the term, by and with the advice of the senate, if in session. If the senate isnot in session, the appointment shall continue until the nextregular session of the senate."

The appointment had been made while the senate was not in session, and we held that it continued only until the next regular session of the senate. It necessarily followed that the attempt of a governor, whose term of office had ended on December 31st, to make an appointment after the next regular session had started was a nullity. A mere comparison of the statute there construed with the statute now under consideration discloses the distinction. In that case, the outgoing governor attempted to make an appointment after his term expired. In the present case, the outgoing governor made the appointment during his term and notified the senate, seeking confirmation, during his term. His part in making the appointment was complete during his term.

It is claimed that the act of the outgoing governor in submitting his message to the secretary of the senate was not the official action of submitting the message to the incoming or "new" senate. The office of secretary of the senate is a continuous one, and the secretary performs many duties as such in the interim between sessions. He is the official keeper of the senate records and documents, and is paid an annual salary. 1 Comp. Laws 1929, §§ 5-13^*, 42 (Stat. Ann. §§ 2.31-2.36, 2.41, 2.51, 2.52, 2.154). The outgoing governor not only may submit reports and messages to the next legislature but is required both by statute and by the Constitution to do so. See Constitution (1908), art. 6, §§ 5, 9; art. 9, § 7. Unless the secretary of the senate or some other senate official may receive such messages and transmit the same to the senate after the next legislature convenes, there would be an unfortunate hiatus between legislative sessions not in accord with good government.

It is claimed that because the message of the outgoing governor was received by the senate under the business of "Messages from the Governor," it was not legally received and, therefore, was a nullity. The senate is master of its own rules. It matters not under what designation the senate chooses to receive messages and communications.

It is claimed that because the outgoing governor's, term ended December 31, 1940, and his successor thereafter submitted the name of another appointee to the senate for confirmation, the senate could not thereafter legally act upon the former appointment. Such a conclusion would obviously be an infringement by the executive department upon the powers of the legislative department. The message of the outgoing governor was legally received by the legislature. The incoming governor did not attempt to withdraw it, and could not interfere with the right of the senate to act upon it by submitting another appointment. The Constitution forbids the executive (who makes the appointment) from exercising the powers of the senate.

"The powers of government are divided into three departments: The legislative, executive and judicial." Constitution (1908), art. 4, § 1.

"No person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this Constitution." Constitution (1908), art. 4, § 2.

In this field of the law in an early case the supreme court of California reached the following conclusion as stated in the syllabus of the opinion:

"Where the appointment to an office is vested in the governor, with the advice and consent of the senate, and the term of the incumbent expires during the recess of the senate, the governor has the right to fill such vacancy, and his appointment vests in the appointee the right to hold and discharge the duties of such office for the full term, and subject only to be defeated by the nonconcurrence of the senate." People, ex rel. Attorney-General, v. Addison, 10 Cal. 1.

Both the factual and legal aspects of Barrett v. Duff,114 Kan. 220 (217 P. 918), are strikingly similar to those in the instant case. We quote two of the headnotes:

"Where the appointment to an office is vested in the governor, with the advice and consent of the senate, and the term of the incumbent expires during a recess of the legislature, and the governor appoints a successor to the office, held, that the appointment vests in the appointee a right to hold for his full term, subject only to be defeated by nonconcurrence or rejection of the senate.

"Where the power of the governor has been exercised by the appointment to an office and the appointee has qualified and been vested with the powers and prerogatives of the office, neither the governor nor his successor has any further control over the appointment unless and until the appointee has been rejected by the senate."

Quite an exhaustive review of related decisions will be found in People, ex rel. Emerson, v. Shawver, 30 Wyo. 366 (222 Pac. 11). The Wyoming Constitution provided that the appointment should be "by the governor of the State and confirmed by the senate." We quote from the syllabus:

"The appointment of a State engineer under Constitution, art. 8, § 5, during senate recess, could be confirmed at the next session of the senate, although the term of office of the governor making the appointment had then expired."

And, touching a question with which we are not concerned in the instant case, the Wyoming court further asserted that the senate had the right so to confirm although "neither the new nor the old governor requested a confirmation, and the senate was without executive communication concerning the appointment."

The foregoing and other authorities which might be cited are in accord with our holding herein that under the circumstances of this case the senate in session in 1941 had the right to consider and confirm Governor Dickinson's appointment of the defendant made in December, 1940, and submitted to the senate for its action.

The conclusion of Mr. Justice CHANDLER that defendant's term of office would expire at the close of the present session of the legislature is based upon the assumption that Act No. 13, Pub. Acts 1935, is not complete in itself and therefore resort must be had to other statutory provisions quoted in his opinion. In substance Justice CHANDLER states that in Act No. 13, Pub. Acts 1935, there is "complete silence upon the question of appointment during the recess of the legislature;" and for that reason he asserts the necessity of resort to 1 Comp. Laws 1929, §§ 3361, 3364 (Stat. Ann. §§ 6.704, 6.707). I cannot agree that Act No. 13, Pub. Acts 1935, is silent on appointments during recess. Instead, under the terms of the act, the original appointment was contemplated as a recess appointment. The act provides: "Immediately upon the taking effect of this act (90 days after the adjournment of the legislature) a corporation and securities commissioner shall be appointed by the governor for the term of four years, subject to the confirmation by the senate." And further the act provides: "Upon the expiration of the said term a successor shall be appointed in like manner for a term of four years and until his successor is appointed and qualified." This latter provision clearly applies to the appointment of a successor official regardless of whether "the expiration of said term" occurs during a recess or during a session of the legislature.

The gist of plaintiff's contention is that because Governor Dickinson was not elected to succeed himself, therefore the right which the senate otherwise unquestionably would have had to confirm defendant's appointment was nullified. We know of no constitutional provision or statutory enactment to that effect. The powers of the senate are not dependent upon who at the moment happens to occupy the official position of governor. As above noted, every phase of this appointment in which Governor Dickinson participated occurred during his term as governor, and the occasion for such action arose during his term of office, not after he was out of his office. It would hardly be contended that in case of the death of a governor who had submitted an appointment for confirmation to the legislative body, that body could not confirm such appointment subsequent to the demise of the executive.

In legal effect the facts and circumstances of the instant case coincide with those in a quo warranto proceedings decided by the supreme court of South Dakota. We quote the pertinent portion of the decision.

"He [relator] further contends that it is essential to the validity of Halladay's appointment that it be confirmed or concurred in by the senate, and that, since Governor Gunderson's term of office had expired before any action was taken on the appointment by the senate, there was no joint or mutual consent by the governor and senate to Halladay's appointment; that, the term of the governor who appointed Halladay having expired, the senate on January 7th assumed to confirm the action of one who was then only a private individual, and its confirmation could have no effect. * * *

"We cannot agree with relator's reasoning that, since the governor's appointment and the senate's confirmation must be concurrent as to the subject of the appointment, and Governor Gunderson's term of office had expired before the senate took any action, there could therefore have been no concurrence by the Governor with the senate in its action on January 7th with reference to the appointment. This ignores the obvious fact that the office of governor is a continuing one, irrespective of the person who occupies it. In this case the appointment of Halladay remained in force until it was acted upon by the senate. On January 7th, while it was still in force, the senate confirmed it. The appointment thereupon became complete, Halladay qualified, and has ever since been discharging the duties of the office, and therefore no vacancy existed on December 28, 1927, at the time the attempted appointment of relator [as successor to Halladay] was made." State, ex rel. Kriebs, v. Halladay, 52 S.D. 497,500, 501 (219 N.W. 125).

Our comparatively recent decision in Attorney General, exrel. Eaves, v. State Bridge Commission, 277 Mich. 373, in which Mr. Justice BUSHNELL wrote for the Court, is in accord with the above-cited authorities insofar as they hold that an interim appointee has title to the office until his appointment is adversely passed upon by the senate. Our syllabus reads:

"Under statute creating a State bridge commission and requiring that members be appointed by the governor with the advice and consent of the senate, interim appointees are assumed to have all powers granted by the act until senate passes adversely upon such appointments."

Act No. 13, Pub. Acts 1935 (Stat. Ann. § 19.781 et seq.), is a special act creating for the first time the office of corporation and securities commissioner. By this act, powers and duties previously exercised and performed by the Michigan securities commission and certain powers and duties previously exercised and performed by the secretary of State were combined and delegated to the newly-created office. If, as we hold, the act itself determines when the term of office of defendant will expire, under the circumstances of this case, there is no occasion to resort to other prior acts to ascertain the answer. Act No. 13, Pub. Acts 1935, is the last legislative enactment applying to the term of office of the commissioner and it controls. Attorney General,ex rel. Dust, v. Oakman, 126 Mich. 717 (86 Am. St. Rep. 574);Attorney General, ex rel. Owen, v. Joyce, 233 Mich. 619; Heims v. School District, 253 Mich. 248; Attorney General, ex rel.Lumley, v. Schulz, 262 Mich. 271. This special act is complete in itself. As noted just above, there is no need or justification for resorting to prior general statutes wherein may be found provisions fixing the tenure of office which are in conflict with those embodied in this special act. To do so would be in violation of the legislative intent expressed in the special act. The defendant's appointment made by Governor Dickinson during his term of office, having been regularly confirmed by the senate and appointee having duly qualified, vests in him title to the office of commissioner for the full term of four years which will expire September 20, 1943.

The senate received the appointment of the defendant to the office of corporation and securities commissioner. The senate likewise received from the incoming governor the appointment of the relator herein to the same office. This put the matter up to the senate. If the senate had confirmed the appointment of the relator, he would at the proper time have been entitled to qualify and hold the office, and there might have been a basis for the present proceeding. Such action would have been in effect a refusal to confirm the appointment of Warner. However, the senate chose to confirm Warner's appointment, thereby making it complete. There has been a concurrence of the essential requirements to a completed appointment for the term ending September 20, 1943, in accordance with Act No. 13, Pub. Acts 1935, viz: appointment by the governor, and confirmation by the senate. The full appointing power has been legally exercised.

Plaintiff's information in the nature of quo warranto is dismissed, but without costs.

BOYLES, WIEST, and BUTZEL, JJ., concurred with NORTH, J.

^* 1 Comp. Laws 1897, § 2081, now 3 Comp. Laws 1929, § 17545 (Stat. Ann. § 28.1372). — REPORTER.

^* 1 Comp. Laws 1929, § 13, was amended by Act No. 64, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 13, Stat. Ann. 1940 Cum. Supp. § 2.52). — REPORTER.