By virtue of the provisions of Act 126 of 1928, the Governor of the state appointed the relator, Dr. Joseph A. O'Hara as president of the Louisiana state board of health on August 20, 1928, during a recess of the Senate. Relator was duly commissioned by the Governor, has taken his oath of office, and has complied with all requirements of the law.
During the pendency of the application for rehearing in this case, the respondent, Dr. Oscar Dowling, filed an exception to relator's petition on the following grounds:
First. That relator's appointment is null and void and inoperative, and has never taken legal effect, and respondent is entitled to hold over until the appointment of his successor has been perfected by the required concurrence of the Senate.
Second. That if relator's appointment was legal and valid, and of full force and effect, it lapsed and fell thereafter by the failure of the Governor of the state to send the name of the appointee to the Senate for confirmation during the special session, which convened December 10-16, 1928.
Third. That, for these reasons, the Attorney General has no further right or capacity to stand in judgment in this case, since no *Page 923 other grounds for respondent's removal are involved than the right of relator to the office.
1. We have held that Act 126 of 1928, under which relator was appointed by the Governor, is constitutional and valid. The effect of this act was to remove respondent from office and to put an end to his term of office as president of the state board of health.
Since Act 126 of 1928 went into effect during the recess of the Senate, and relator has duly qualified under the commission issued under the act, respondent occupies the same position as if the term of his office had expired by limitation while the Senate was not in session.
In State et al. v. Young, 137 La. 102, 68 So. 241, cited by respondent, this court, after an exhaustive review of the authorities on the subject, held that expiration of office creates a vacancy, which may be filled by appointment during the recess of the Senate, and that the appointee may take the oath and enter upon the discharge of the duties of the office before his appointment is confirmed by the Senate.
It was also held in the Young Case that the right of an officer, whose term has expired during the recess of the Senate, to continue to discharge the duties of his office, until his successor is inducted into office, cannot interfere with the authority of the Governor to appoint his successor, nor with the right of the successor to be inducted into office as soon as he has taken the oath and qualified in the manner prescribed by law. Const. 1913, art. 172; Const. 1921, art. 19, § 6.
The Young Case was a suit for the possession of the office of examiner of state banks, and was brought under the intrusion into office act. The plaintiff, R.N. Sims, was appointed and commissioned by the Governor on January 6, 1915, during a recessof the Senate, to succeed the defendant, Young, *Page 924 whose term of office was supposed to have expired. The latter refused to surrender the office, asserting that his term had not expired, and that in any event he had the right to hold over until the appointment of his successor is confirmed by theSenate.
Sims, the plaintiff, contended that Young's term of office expired either on August 30, 1914, or on December 28, 1914, and that the expiration created a vacancy which the Governor had authority to fill by appointment during a recess of the Senate.
Young, the defendant, contended that his term did not expire until July 24, 1916, and, in the alternative, in the event it be held that his term did expire in 1914, he insisted that the expiration of his term did not create a vacancy in the office such as the Governor could fill by appointment during a recess of the Senate, "because he (defendant) is fulfilling the duties of the office, and has a right to hold over until his successor shall be appointed, and the appointment confirmed by the Senate."
The office of state bank examiner was created by article 194 of the Constitution of 1898, and the office of state health officer was created by article 6, § 11, of the present Constitution. Each of these offices is a constitutional office, and each is filled by appointment by the Governor, with the advice of the Senate.
If you substitute Dr. O'Hara for Sims, and Dr. Dowling for Young, you have in State v. Young, 137 La. 102, 68 So. 241, a case identical with the present case.
Defendant, Young, contended that the expiration of a term of office during the recess of the Senate does not cause a vacancy in the office because the Constitution provides: "All officers, except in case of impeachment or suspension, shall continue to discharge the duties of their offices until their successors shall have been inducted into office." Article 172, Const. of 1898. *Page 925
In the present case Dr. Dowling makes the same contention, based on article 19, § 6, of the present Constitution which declares: "All officers, state, municipal and parochial, except in case of impeachment or suspension, shall continue to discharge the duties of their offices until their successors shall have been inducted into office."
Mr. Justice O'Niell, as the organ of the court in the Young Case, said: "Until now it has never been doubted — perhaps because no one has [ever] thought of denying — that, when the term of an appointive office expires during a recess of the Senate, the person appointed to succeed to the office may immediately qualify and enter upon his official duties, withoutwaiting for his appointment to be confirmed by the Senate.
"Counsel for defendant refer us to the case of State ex rel. Attorney General v. Rareshide et al., 32 La. Ann. 934, where this court laid down the doctrine:
"`Appointments of public officers by the Governor which are by law subject to the advice and assent of the Senate are inoperative, if made after adjournment of the Legislature, unless to fill up such vacancies as are caused by death, resignation, orremoval.'
"It was not said, however, in the above syllabus, nor in the opinion with regard to the facts of that case, that such appointments are inoperative if made during a recess of theSenate." State v. Young, 137 La. 113, 114, 68 So. 245.
"Our analysis of the facts of the Rareshide Case discloses that the decision is not a precedent for holding that the expiration of a term of office does not create a `vacancy' in its legal sense. Nor was the question decided in the case of State ex rel. Baumback v. Dubuc, 9 La. Ann. 237, where the Governor had undertaken, during a recess of the Senate, to appoint a successor to an officer whose term had not expired." Page 116 of 137 La. (68 So. 246). *Page 926
"It is true the court quoted a California case (People ex rel. Parkinson v. Bissell, 49 Cal. 407) and cited decisions rendered in other jurisdictions, declaring that the expiration of the term of an appointive office does not cause a vacancy that the Governor may fill without the advice and consent of the Senate, if the expiration occurs during a recess of the Senate, and the incumbent has the legal right and is willing to discharge the duties of the office until his successor is appointed and qualified.
"But these expressions went further than was necessary, and, in so far as they went beyond the facts and issue presented, they are mere obiter dicta, and form no part of the decision." Pages 115, 116 of 137 La. (68 So. 246).
"Defendant's counsel have referred us to a sentence in 29 Cyc. 1399, announcing the doctrine, supported by numerous decisions cited in the footnotes, viz.:
"`Where provision is made by statute for holding over, the hold-over is regarded as in all respects a de jure officer, and the expiration of the term does not produce a vacancy which may be filled by the authority having the power to appoint to fill vacancies.'" Page 116 of 137 La. (68 So. 246).
But, says Mr. Justice O'Niell in the Young Case: "The plaintiff's counsel have submitted another list of decisions holding that, when a term of office expires during a recess of the Senate, and the incumbent is holding over, under express authority of the law, until his successor is inducted into office, there is a vacancy in the office, which the Governor may fill by appointment." Pages 116, 117, of 137 La. (68 So. 246).
And this line of decisions is followed in the Young Case.
In the original opinion in this case, written by the Chief Justice, it is held that Act 126 of 1928 is constitutional and valid, and had the effect of removing respondent, Dr. Dowling, *Page 927 from office. If removed, his term of office has expired, and, if expired, there must be a "vacancy" under the holding in the Young Case, which may be filled by the Governor, without the right of hold-over by the respondent.
It is clear, therefore, that if relator was not rejected by the failure of the Governor to have the recess appointment confirmed at the special session of the Senate, held December 10-16, 1928, his commission is still in full force and effect, and, as the rightful claimant to the office, relator is entitled to all of the emoluments from the date of his qualification under his commission until the office is surrendered to him by respondent. Act 102 of 1928, § 3.
2. The question, therefore, for decision is whether the failure of the Governor to send relator's name to the Senate for confirmation at the special session was equivalent to a rejection or not.
The determination of this question depends entirely upon the legal proposition whether, under the present Constitution, it is the mandatory duty of the Governor to have recess appointments confirmed at a special session of the Legislature, or whether it is merely a matter within his discretion.
Section 12 of article 5 of the Constitution of 1921 declares that: "The Governor shall have the power to fill vacancies that may occur during the recess of the Senate, in cases not otherwise provided for in this Constitution, by granting commissions which shall expire at the end of the next session. * * * The failure of the Governor to send to the Senate the name of any person appointed to office, as herein provided, shall be equivalent to a rejection."
It is provided in section 8 of article 3 of the Constitution of 1921 that: "The Legislature [of the State] shall meet at the seat of government on the second Monday in May, 1922, at twelve o'clock noon, and biennially *Page 928 thereafter, and the sessions thereof shall be limited to sixty days."
These are the regular or biennial sessions of the General Assembly of the state. They are compulsory sessions and are held at fixed and consecutive dates. At these sessions, ample time and opportunity are afforded for the consideration of general legislative and administrative measures, including the proper investigation of recess appointments and their confirmation or rejection by the Senate.
No dates for holding special sessions are established in the Constitution of 1921.
Therefore, in construing the provision of section 12 of article 5 of the present Constitution, it cannot be well doubted that the regular or biennial session is intended as the proper session, or "the next session," at which a recess appointee must be confirmed, since the date of no other legislative session is fixed in the Constitution of the state, either as a first or a successive session.
Besides, from the very nature of a regular or biennial session, it is the appropriate session for the confirmation of recess appointments by the Senate.
The question before us for decision is not whether the confirmation of a recess appointee may not be made at a special session, but whether it is the mandatory duty of the Governor of this state to have such confirmation acted upon at any other than a regular or biennial session. In our opinion, section 12 of article 5 must be construed in connection with section 8 of article 3 of the Constitution, fixing the dates for the sessions of the Legislature, in order that we may determine what is intended by "the next session," as used in section 12 of article 5.
Under section 8 of article 3, it is manifest that "the next session" refers to the next regular or biennial session of the Legislature.
In fact, special sessions are of such exceptional character, and are so limited as to duration and as to objects of legislation, that *Page 929 they are not even included under the head of "Legislative Department" in the present Constitution, but are placed under the head of "Executive Department" and within the control of the Governor of the state.
At his discretion, the Governor may call a special session, set the date for its assembling, determine the length of its sitting, and designate the objects of legislation to be enacted. Const. 1921, art. 5, § 14.
Under such conditions, it would be anomalous indeed if the chief executive of the state did not have the discretion to decide also whether recess appointments shall or shall not be confirmed by the Senate at a special session; especially as such session is convened on extraordinary occasions only, and is intended primarily for the enactment of emergency legislation, and not for action upon administrative measures. Besides, the appointive power is vested exclusively in the Governor of the state by the Constitution, and therefore it is left to him to take the initial step in having recess appointees confirmed by the Senate.
In its very nature, a special session is inappropriate for the confirmation of recess appointments.
We have not been able to find any provision in the state Constitution, either under the heads of "Legislative Department" or "Executive Department," which may be reasonably construed as charging the Governor of the state with the mandatory duty of sending to the Senate the names of recess appointees for confirmation at a special session.
Therefore, our conclusion is that, under section 12 of article 5 of the present Constitution, the Governor is compelled to have recess appointees confirmed by the Senate only at regular or biennial sessions of the Legislature, although, in his discretion, he may have such appointees confirmed at a special session. State ex inf. Major, ex rel. Sikes v. Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. *Page 930 Cas. 1006; People ex rel. Knight v. Blanding, 63 Cal. 333; 22 Ruling Case Law, p. 432.
It follows that the failure of the Governor to send the name of relator to the Senate for confirmation at the special session, held December 10-16, 1928, did not operate as a rejection of his appointment, and that he may be confirmed later at the regular or biennial session of the Legislature in 1930.
Relator, therefore, is the rightful claimant to the office of president of the Louisiana state board of health. He is duly qualified to fill the position, and may at once take possession of the office and enter upon the discharge of his duties.
Respondent cites State ex rel. Morgan v. Kennard, 25 La. Ann. 238, State ex rel. Meyer v. Van Tromp, 27 La. Ann. 569, and State v. Powell, 40 La. Ann. 241, 4 So. 46, 8 Am. St. Rep. 522, in support of his contention that it was the compulsory duty of the Governor to send in the name of relator to the Senate for confirmation at its special session.
In the Kennard and Meyer Cases, the recess appointee first named was not presented for confirmation at the special session of the Legislature for the plain reason that a new appointee was subsequently named and confirmed in his stead at that session. In the Kennard Case, Kennard was the first recess appointee named, but Morgan later was nominated and confirmed by the Senate at the next special session. In the Meyer Case, Van Tromp was the first recess appointee named, but thereafter Meyer was nominated and confirmed at the next special session.
The real issue in both of these cases is made unmistakably clear in the Meyer Case by the following citation from the opinion in that case: "When the Senate was in recess, a vacancy occurred in the office of recorder of the parish of West Feliciana. Van Tromp was appointed to fill it. The Governor afterward convened the Legislature in extra session. At this session he nominated J.G. Meyer for *Page 931 the office. The nomination was confirmed, and a commission was issued to him. Van Tromp claims that the appointment of Meyer wasillegal, and refuses to give him up the office. The vacancy having occurred when the Senate was not in session, the nomination to fill the same was properly made at the called session, which was the `next session' after the vacancy occurred.To fill this vacancy the Governor had the power to nominate whomhe pleased, and this without regard to any appointment he mighthave made during the recess." (Italics ours.)
So, it is apparent that the first named appointee in each of these cases lost his appointment not because the Governor failed, under article 61 of the Constitution of 1868, to send in his nameat "the next session" of the Senate, but for the plain reasonthat his name was withdrawn before the next special session convened, and another person was nominated and confirmed by the Senate for the place.
It is obvious, therefore, that the attempt of the court to justify its decision in the Kennard Case, on the ground that Kennard was rejected because his name was not sent into the Senate for confirmation before the end of "the next session," is beside the question and is purely obiter dictum.
It was not necessary in the Kennard Case for the court to interpolate the word "special," between the words "next" and "session," in article 61 of the Constitution of 1868 (similar in its provisions to section 12 of article 5 of the present Constitution), in order to maintain the decision in that case as, manifestly, the only sound reason upon which it was based, as stated in the Meyer Case, was that "the Governor had the power to nominate whom he pleased, and this without regard to any appointment he might have made during the recess." Unquestionably, this is a correct statement of the actual issue involved in each of these cases. *Page 932
We do not criticize the Kennard Case or the Meyer Case for holding that recess appointments may be confirmed at a special session of the Legislature, but we are thoroughly convinced, for the reasons already assigned, that such confirmation isobligatory only at the next regular session of the Legislature.
In order to make this view of the case apparent, we quote from the Constitution of 1868 the following articles:
"Art. 17. The General Assembly shall meet annually on the firstMonday in January, unless a different day be appointed by law."
"Art. 61. The Governor shall have power to fill vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of the next sessionthereof, unless otherwise provided for in this Constitution."
If we began with the first Monday in January, 1870, and asked when "the next session" of the Legislature would take place under the Constitution of 1868, we would undoubtedly receive the answer that "the next session" would commence the first Monday in January, 1871, and would be a regular session. This is the plain, common-sense interpretation of Articles 17 and 61 of the Constitution of 1868, notwithstanding learned dissertations on the subject to the contrary. Necessarily, a commission granted for a recess appointment in 1870 must be confirmed at the next regular session in 1871, and not before.
The Senate does not convene separately from the House of Representatives, and cannot hold a session except when the Legislature meets. "The next session," provided for in the Constitution of 1868 and in the present Constitution, being a regular session for the entire General Assembly, it is necessarily a regular session for the Senate, a component part of the legislative body of the state.
In State v. Powell, 40 La. Ann. 241, 4 So. 46, 8 Am. St. Rep. 522, a tax collector was *Page 933 appointed during the recess of the Senate, and executed an official bond on May 26, 1880. As stated in the opinion in that case, "the commission under which the bond was furnished, * * *was limited to the end of the ensuing session of the Legislature, to wit, December 24, 1881."
Because of the limitation in the commission itself in the Powell Case, the court was compelled to hold that the commission expired at the end of the special session, without the necessity of interpreting article 61 of the Constitution of 1868.
In State ex rel. Duffy v. Goff, 135 La. 340, 65 So. 483, it is said: "Again, though 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."
But it is also stated in the Goff Case:
"Relator is not interested in the office held by respondent. The office to which relator was appointed to, and in which he was interested, has been abolished. He therefore has no right or cause of action."
"Relator has no interest in prosecuting this suit against respondents; and, were some of the issues raised by him decidedin his favor, he could not hold the office, he seeks, and he could not be declared to be entitled to the emoluments thereof claimed by him." Page 345, of 135 La. (65 So. 484).
To hold in the Goff Case that relator had no standing in court, because the office to which he was appointed had beenabolished, and then to add that relator lost the office, because "the Governor failed to send his name to the Senate," is not only illogical and inconsistent, but is rank obiter dictum for the plain reason that there was no office for relator *Page 934 to fill, even had his appointment been confirmed at the special session of the Senate.
3. At the instance of the recess appointees of Governor Simpson, confirmed at the special session in the year 1927, the Attorney General rendered an opinion holding the confirmations to be legal and valid, a proposition of law that no one disputes.
The question, however, of the mandatory duty of the Governor to have such appointments confirmed at a special session was not before the Attorney General at that time for opinion or ruling. He was dealing only with the validity vel non of recess appointments already confirmed at a special session of the Legislature.
In the opinion of the Attorney General only two authorities are cited. One is a decision of the Supreme Court of Missouri, State ex inf. Major, ex rel. Sikes v. Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas. 1006, holding that the Senate may confirm recess appointments made at a special session. The other is State ex rel. Morgan v. Kennard, 25 La. Ann. 245. We have analyzed this case already in the present opinion. It is authority only to the extent that recess appointments are permissible at special sessions of the Legislature.
Neither of the authorities cited makes it the mandatory duty of the Governor to have recess appointments confirmed at a special session. We do not concur, therefore, in the opinion of the Attorney General, expressed in his brief in this case, that such confirmations are necessary at a special session.
Because of the opinion of the Attorney General, respondent has filed a motion to dismiss the appeal on the ground that the Attorney General, the real plaintiff in this proceeding, has admitted that he has no case.
We overrule this motion, for the reason that the Attorney General has not concurred in the motion to dismiss, and for the *Page 935 additional reason that we do not approve his interpretation of the law. C.P. art. 594.
The real reason why a recess appointee may be confirmed at a special session is not because the Governor of the state is compelled, by the organic law, to have the confirmation made at such session. It is not because the term, "next session" of the Senate, as used in the Constitutions of 1868 and 1921, includes a special session; but because such confirmation is an administrative and not a legislative act, and it is not necessary, therefore, that such purpose should be included in the call for the special session issued by the Chief Executive. State ex inf. Mayor, ex rel. Sikes v. Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas. 1006; People ex rel. Knight v. Blanding, 63 Cal. 333.
The legal principle announced by these decisions, however, falls far short of the doctrine urged in the present case by respondent, that it is the mandatory duty of the Governor to send the names of recess appointees to the Senate for confirmation at the first special session that may intervene between regular sessions.
It would be most ill-advised, in our opinion, to compel the Governor of the state to submit recess appointments for confirmation at a special session, since such a step is too frequently the signal for a factional political fight, and the passage of urgent legislation should not be blocked or jeopardized in this way during the usually short period of a special session.
It is therefore ordered that the exception to the petition and the motion to dismiss the appeal, herein filed by respondent, be overruled.
It is further ordered that the application for rehearing be refused.