Ingard v. Barker

147 P. 293, 27 Idaho 124, 1915 Ida. LEXIS 25

• Court: Idaho Supreme Court
• Decided: March 19, 1915
• Status: Published

Opinions

BUDGE, J.

— On January 21st, 1915, the Honorable Moses Alexander, Governor of the state of Idaho, directed the defendant, as Secretary for the state of Idaho, to issue commissions as members of the state board of horticultural inspection to Daniel L. Ingard, Louis A. Blackman and O. G. Zuck.

The defendant complied with the said direction of the Governor in so far as the same pertained to O. G. Zuck, but declined to comply with the same in so far as it pertained to Daniel L. Ingard and Louis A. Blackman, alleging that as to the two latter, the attempted appointment was void and of no effect, because of being in conflict with sec. 1310 of the Revised Codes of Idaho, as amended by chapter 58 of the Session Laws of 1911, which provides: “The state board of horticultural inspectors shall consist of five (5) members, who shall be appointed by the Governor of the state, and shall hold their offices for a term of two (2) years, or until their successors are appointed and qualified; and in making said appointments, the Governor shall consider any recommendations made by the State Horticultural Association as the proper person to be so appointed.”

Daniel L. Ingard, as plaintiff and petitioner, brings this as an original action in the supreme court of this state for the purpose of securing writ of mandate directing the defendant as Secretary of State, to issue to the said plaintiff a commission as member of the state board of horticultural inspection.

As suggested by able counsel, who, upon the hearing of this case in the supreme court, appeared on behalf of the honorable Secretary of State, two questions are submitted, answers to which will be decisive of this ease.

“1. Is it competent for the legislature to provide that the State Horticultural Association shall have the right or authority to present or recommend to the Governor a list of names from which he must appoint the members of the state board of horticultural inspection ?

“2. If the legislature has authority so to provide, has it done so by the language used in see. 1310 of the Revised Codes of Idaho, as amended by sec. 1 of chapter 58, Laws of 1911?”

We will consider these questions in the order in which they are stated.

Sec. 1, art. 2, of the constitution, provides that “The powers of the government of this state are divided into three distinct departments: the legislative, executive, and judicial, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”

Sec. 6 of art. 4, provides that “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.”

Sec. 1 of art. 2, and sec. 6 of art. 4, supra, have been construed by the supreme court of this state in the case of In re Inman, 8 Ida. 398, 69 Pac. 120, and in the case of Elliott v. McCrea, 23 Ida. 524, 130 Pac. 785, to the effect that the legislature may create an office or offices, which may be filled by appointment either by the chief executive or by any person, board, corporation, or association of individuals, and that such appointment would not be in conflict with the constitution or an improper exercise of power properly belonging to the executive department of the state government, and as stated by this court in the case of Elliott v. McCrea, supra, the constitution itself provides the method of selection of legislative, executive and judicial officers named in the constitution.

The framers of the constitution could not foresee what offices might be created by laws subsequently enacted, and so they provided that such offices should be filled by the Governor unless the appointment or election should be otherwise provided for. The legislature, in enacting the statute in question, has exercised its constitutional right in naming and designating the officer or officers who shall make these particular appointments.

House Bill No. 92, passed by the twelfth session of the legislature and approved Feb. 21, 1913, entitled “An act to provide for the establishment of drainage districts, and the construction and maintenance of a system of drainage, .... ” authorizing the district judge of a judicial district in which a drainage district is located to appoint the drainage commissioner for the district, was held not to be in violation of the constitutional provisions, supra, and was not an infringement by the judicial department of the state government upon the functions of the executive branch of the government.

The rule would seem to be that in passing upon the constitutionality of statutes generally, no matter from what standpoint the assault thereon may be made, it is well settled that nothing but a clear violation of the constitution will justify the courts in overruling the legislative will, and where there is reasonable doubt as to the constitutionality of an act, it must be resolved in favor of the act.

Primarily the rule is well settled by numerous authorities that in the absence of a constitutional provision to the contrary, any one of the three departments of government may, under the authority of the statute, appoint for any class of office in any of the three governmental departments. (People v. Hoffman, 116 Ill. 587, 56 Am. Rep. 793, 5 N. E. 596, 8 N. E. 788; Eddy v. Kincaid, 28 Or. 537, 41 Pac. 156, 655; State v. George, 22 Or. 142, 29 Am. St. 586, 29 Pac. 356, 16 L. R. A. 737; Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93; Davis v. State, 68 Ala. 58, 44 Am. Rep. 128.)

A state legislative body existing by virtue of a constitutional provision has power to enact any laws that are not expressly, or by necessary implication, prohibited either by the federal constitution or by the constitution of the state. (Lowry v. Gridley, 30 Conn. 450; Commonwealth v. Plaisted, 148 Mass. 375, 12 Am. St. 566, 19 N. E. 224, 2 L. R. A. 142; Commonwealth v. Moir, 199 Pa. St. 534, 85 Am. St. 801, 49 Atl. 531, 53 L. R. A. 837; State v. Cherry, 22 Utah; 1, 60 Pac. 1103; Kimball v. Grantsville, 19 Utah, 368, 57 Pac. 1, 45 L. R. A. 628.)

The power to create an office, unless otherwise provided by the constitution, is vested in the legislative department of the government. The method of filling the office is to be determined by the legislature in the absence of constitutional provisions. (United States v. Maurice, 2 Brock. 96, 26 Fed. Cas. No. 15,747; People v. Lindsley, 37 Colo. 476, 86 Pac. 352; State v. Bryan, 50 Fla. 293, 39 So. 929.)

The powér of the legislature to pass laws regulating appointments to statutory offices is absolute unless restrained by some constitutional provision. (See State v. Covington, 29 Ohio St. 102, and authorities there cited; French v. State, 141 , 41 N. E. 2, 29 L. R. A. 113; Sun Printing Assn. v. New York, 8 App. Div. 230, 40 N. Y. Supp. 607; Cherry v. Burns, 124 N. C. 761, 33 S. E. 136.)

Sec. 6 of art. 4, of the constitution, provides: “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. ’ ’ Under this constitutional provision, the legislature has the power to create an office and provide for the filling of the same whenever such office is not established by the constitution, and to provide for the appointment of such officer either by the chief executive or in any other manner that in the wisdom of the legislature it may deem proper, there being no inhibition in the constitution as to the creation of other offices than those named therein, but, on the contrary, there being an express recognition of such power in the following terms: “ or which may be created by law, and whose appointment or election is not otherwise provided for.” Many offices in this state have been created by law that were not provided for in the constitution, and in numerous instances the manner of their appointment has been clearly provided for by law. The chief executive in certain instances has been given the absolute power to nominate and appoint persons to fill certain offices created by the legislature. This, however, is not true in all cases. In some instances it requires the concurrence of certain state officials whose offices are provided for by the constitution, in order to make appointments by the Governor legal, in others the concurrence of the Senate, and in still others, the concurrence of a majority of certain boards.

That the legislature may limit the power of the chief executive in the matter of making appointments cannot be successfully refuted. (State v. Boucher, 3 N. D. 389, 56 N. W. 142, 21 L. R. A. 539.)

As held in the case of In re Bulger and In re Merrill, 45 Cal. 553, and People v. Osborne, 7 Colo. 605, 4 Pac. 1074, the legislature can abolish or change an office created by it. It may extend or abridge the terms of its incumbents at pleasure. It may confer the power of appointment upon any voluntary association of persons and prescribe the method of selection of said officer by such voluntary association.

In the case of Davis v. State, 7 Md. 151, 61 Am. Dec. 331, it was held in effect: “When the legislature creates an office by act of assembly, it can designate by whom, and in what manner the person who is to fill the office shall be appointed. .... Where an office is of legislative creation, the legislature can modify, control or abolish it; and within these powers is embraced the right to cHange the mode of appointment to the office. ’ ’

We have therefore reached the conclusion that sec. 1310, Rev. Codes, as amended, supra, is constitutional and not in violation of sec. 1, art. 2, and sec. 6, art. 4, of the constitution of this state, and that it was clearly within the power of the legislature to enact said statutory provision.

We now come to the consideration of the second proposition propounded, viz., has the legislature conferred upon the State Horticultural Association the power to nominate the state board of horticultural inspection, and is it incumbent upon the chief executive to appoint from the nominations so made ? In order to dispose of this question it will be necessary to place a construction upon sec. 1310, Rev. Codes, as amended, supra. If this section authorizes the State Horticultural Association to appoint the state board of horticultural inspectors, or if said section gives to the State Horticultural Association exclusive power to nominate the members of said board and confers upon the Governor the power to appoint, making both acts concurrent in order that such appointments be legal, or if the provisions of said section were not fully complied with by the Governor, it was clearly the duty of the honorable Secretary of State to refuse to issue a commission to Daniel L. Ingard as directed by the Governor.

Where the chief executive is expressly authorized by law to determine when a vacancy exists in an office and has the exclusive power to fill the same by appointment, it is clearly the duty of the Secretary of State to issue the commission as directed by the Governor and impress the same with the great seal of the state, but where the chief executive is clothed with no such authority and the concurrent act of an authority delegated by the legislature is necessary in order to constitute a legal appointment, the honorable Secretary of State would not be justified in violating the plain provisions of the law by issuing a commission of appointment and impressing the same with the great seal of the state to any person not authorized by law to fill the same.

If we were confronted with a provision such as we find in the session laws of 1911, page 614, “An act to provide for and regulate the examination and registration of graduate nurses,” to which attention is directed merely for the purpose of comparison with sec. 1310 as amended, supra, in which former act we find the following provisions: “Upon taking effect of this act, the Governor shall appoint, .... a State Board of Examination and Begistration of Graduate Nurses.....The Idaho State Association of Graduate Nurses shall nominate four (4) nurses and two (2) physicians, from which list the Governor of Idaho shall appoint an Examining Board of two (2) nurses and one (1) physician”; — we would experience no serious difficulty, as said statute is clear, it is mandatory, it fixes the power of nomination and appointment and limits the chief executive to the selection made by the Idaho State Association of Graduate Nurses. It is not necessary that words be added or stricken out, or that words be given any other meaning than is ordinarily understood to be the meaning intended. But this cannot be said of sec. 1310 as amended, supra. It is true the language used is ambiguous in some respects; however, we think it subject to a reasonable construction when considered in its entirety. The history of the statute and the acts of prior chief executives of the state in connection therewith afford us no particular aid in placing a proper interpretation upon the provisions contained in the act, so far as it relates to the appointment of the state board of horticultural inspection. In the case of Ada County v. Boise Com. Club, 20 Ida. 421, 118 Pac. 1086, 38 L. R. A., N. S., 101, this court held (quoting from the syllabus): “It is an elementary principle that the neglect or failure of public officers to do and perform their duty as required by law will not estop the public or prevent any rights or acts of the state in enforcing such laws, and the failure of the public officials to collect a. revenue license, where such is required by law, for a number of years, is not sufficient evidence of the intent of the legislature in passing such law to exclude from its operation persons and corporations from whom such officers have failed to collect such revenue license.” The presumption is that the legislature understood the meaning of the words used in the act, and that these words and phrases would be interpreted according to the common usage and understanding of such words and phrases.

In the case of Holmberg v. Jones, 7 Ida. 752, 65 Pac. 563, the court said (quoting from the syllabus) : “While courts do, in order to carry out the will of the legislature, which has been expressed in an imperfect way, interpolate punctuation, or words evidently intended to be used, into a statute, yet, when the matter to be interpolated comprises the real substance of the act, the court is not authorized to make such interpolation.” It would be clearly beyond the right of this court to make judicial amendments to the statute in question by adding words thereto. In our opinion, to do so, would be an unwarranted infringement upon the powers of the legislature. It might be conceded that the court was of the opinion, after a thorough consideration of sec. 1310, Rev. Codes, as amended, that the legislature intended to place upon the Governor a moral obligation to act concurrently with the State Horticultural Association in order that the members of the board appointed be proper persons; that is, that they possess the necessary qualifications, but we would not be justified in reading into the statute a mandatory provision and thus creating a legal obligation, where none existed, upon the Governor, requiring him to appoint said board from the list of names so furnished.

The chief and main purpose of sec. 1310, Rev. Codes, as amended, supra, is to provide a state board of horticultural inspectors and fix the method of their appointment. The power of appointment is clearly fixed in the act, which is evident from the following language: ‘ ‘ The state board of horticultural inspectors shall consist of five (5) members who shall be appointed by the Governor of the state The act provides no other appointive power, and in express terms places the appointment with the Governor. That portion of the statute is entirely clear. The only limitation.attempted to be placed upon the power of the Governor to appoint is that in making said appointments, he “shall consider any recommendations made by the State Horticultural Association as the proper persons to be so appointed. ’ ’ The statute fails to fix the number of persons that shall be recommended, the time or place when the recommendations shall be made, the qualifications of the persons so recommended, or that the Governor shall appoint said board from those recommended.

In the ease of the State v. Paulsen, 21 Ida. 686, 123 Pac. 588, we find the following rule of construction: “When there is a doubt in the mind of the court in regard to the proper construction of a statute, the court may resort to the title of the act in order to construe the statute and determine the intent of the legislature. But where there is no doubt in the mind of the court, the words and phrases of a statute must be construed according to the context and the approved usage of the language, as directed by the provisions of sec. 15, Rev. Codes.” We have resorted to the title of the act in order to assist us in placing a proper construction upon sec. 1310, Rev. Codes, as amended, supra, to aid us in determining the intent of the legislature. The title of the act, however, affords us no satisfactory solution, and we are therefore compelled to construe the words and phrases of the act as directed by the provisions of sec. 15, Rev. Codes, supra.

The word “recommendation” is defined in the Standard Dictionary as “The act of recommending or commending a person or thing to notice, use, confidence, or civility of another"; favorable representation; that which procures a favorable reception; a note commending a person to favor. ’ ’ The word “consider” is defined in the Standard Dictionary as “To think deliberately about; reflect upon; give close attention to; ponder; as, consider the matter well before deciding. To regard in a certain aspect; to look upon; hold; estimate. ’ ’ Neither of these terms, as used in sec. 1310 as amended, supra, can be construed to mean that any person so recommended, favorably presented; or any person considered, deliberated about, pondered over, shall be appointed a member of the state board of horticultural inspection.

In order to construe see. 1310, Rev. Codes, as amended, supra, and to hold, as contended for by counsel for defendant, that the joint act of the Governor and State Horticultural Association shall be concurrent in order to authorize the appointment of members’ of the state board of horticultural inspection, it would be necessary for this court to read into said section a mandatory provision, such as we have heretofore called attention to as a part of a statutory provision of a similar character, found in the 1911 Session Laws, supra, which, in substance, would be that the Governor, in making such appointment, shall not only consider any recommendation made by the State Horticultural Association as proper persons to be so appointed, but shall, from the list of names so recommended, appoint said state board of horticultural inspectors.

In the case of In re Kane v. Gaynor, 144 App. Div. 196, 129 N. Y. Supp. 280, the court says: “While it will not be questioned that it is within the power of the legislature in creating a new state office to confer a power of appointment on some individual or association other than a public officer or body (Sturgis v. Spofford, 45 N. Y. 446, 450), such a course is exceptional, .and nothing will be presumed in that direction. The appointment of public officials is generally looked upon as involving the executive power. It clearly contemplates’ a voluntary act on the part of the appointing power (Marbury v. Madison, 1 Cranch, 137, 155, 2 L. ed. 60), and it is impossible to dissociate the idea of discretion from the power. To appoint without discretion would be a mere ministerial act, and entirely takes away the essential element of an appointment, which is but a substitute for an election.

“An election contemplates a free choice of public officers, and an appointment, being a mere substitution for an election, must necessarily involve the same idea, and we are not to look to the legislature to direct anything which is inconsistent with this fundamental element of an appointment. If there is anything of the kind in the statute, it should be expressed in clear and unequivocal language. "We ought not to read anything into the statute for the purpose of producing such a result.” Tried by this test, is there anything in this statute that takes away from the chief executive of the state the power to appoint the state board of horticultural inspectors, or would we be justified in reading into this statute, and at the same time giving to it a fair and reasonable construction, that the appointment of the state board of horticultural inspection depends upon the concurrent act of the State Horticultural Association and the Governor of the state? Does the act, when considered in its entirety, confer upon the State Horticultural Association the power to nominate and impose upon the chief executive the duty of selecting, as members of the state board of horticultural inspection, persons so nominated and none other? We think not. The language of the section is consistent with the recommendation for appointment by the State Horticultural Association, but wholly inconsistent in so far as it makes of the Governor the mere ministerial officer of the State Horticultural Association.

In the case of People v. Hunt, 1 Ida. 433, the court held (quoting from the syllabus) : “Statutes should be so construed as to give effect to each and every part thereof, if it is possible to do so.” We think that a proper construction can be given to sec. 1310, Rev. Codes, as amended, supra, and effect given to each and every provision thereof. The statute clearly imposes two duties upon the chief executive — first, to appoint a state board of horticultural inspectors; second, to consider any recommendations made by the State Horticultural Association as the proper persons to be so appointed. There rests upon the horticultural association the voluntary duty to make recommendations to the Governor of persons, who, in its judgment, are proper persons to be appointed members of said state board of horticultural inspectors. The act, neither in direct terms nor by implication, requires the Governor to appoint said board from the recommendations so made, but it does impose upon him the duty of considering any recommendations made by the State Horticultural Association, and from a reasonable construction of the statute, it is incumbent upon the Governor, not only to consider any' recommendations that are made of persons recommended to be appointed by the horticultural association, but to carefully consider such person or persons so recommended before appointing the members of said board. Said association would not be limited to but one recommendation, or recommendations made at one time, but should be allowed to make any number of recommendations of proper persons to be appointed, within a reasonable time, that the evident intention of the legislature might be carried out by the joint act of the association and the Governor, and that the board would be made up of members Avho are learned in the science of horticulture, to the end that the horticultural interests of the state be properly protected and expanded. In our opinion, as appeals from the record, the chief executive has not fully complied with see. 1310, Rev. Codes, as amended, supra, in this respect. The state horticultural association should be fairly dealt with in the selection of the state board of horticultural inspectors. That association is vitally interested in the personnel of this board and has a right to be considered.

In our judgment, the Avrit of mandate should not issue at this time, upon the ground and for the reason that the State Horticultural Association has not had an opportunity, as contemplated under said sec. 1310, Rev. Codes, as amended, supra, to make recommendations of proper persons to be so appointed. This being an original proceeding in this court and the facts are undisputed, what would be a reasonable time within which to allow the state horticultural association to make recommendations is a question of law and eminently proper for this court to decide. We have reached the eonelusion that the state horticultural association shall be allowed sixty days from and after the handing down of this- opinion in which to make any recommendations as to the proper persons to be so appointed, from which said names so recommended the Governor may appoint members of the state board of horticultural inspectors, but he is not confined, in making said appointments, to the names so recommended. At the expiration of sixty days, the Secretary of State shall issue a commission to any person or persons appointed by the Governor members of said- state board -of horticultural inspectors.

Morgan, J., concurs.