State Ex Rel. Giles, Attorney General v. Hyde

I concur in the result. My concurrence is based on the ground that the consent of the Senate was obtained before the bill became a law. If the bill had become a law and the consent of the Senate obtained between the time the bill became a law and the 16th day of June when it became *Page 443 operative I think the appointment would have become complete. The consent does not need to be had after the law becomes operative for reasons hereunder stated.

It appears to me that some note should be taken of counsel's contention that the nomination of Mr. Hyde was a continuing one and that the confirmation by the Senate on the 29th day of March, 1941, was also a continuing consent so as to carry over into the Second Special Session of the Twenty-Fourth Legislature. Counsel contends that the Twenty-Fourth Session was a unit, the regular and two special sessions being all parts of the same legislature. The senatorial members were the same. Of course, the reasoning of the main opinion that "the Governor's purported appointment of defendant to the office of Commissioner of Finance and the purported confirmation by the Senate in the First Special Session of 1941 were a nullity and of no effect whatever" and the later statement that "a nomination for appointment once acted upon ceases to be before the legislative body" (italics mine in both quotations) are quite inconsistent. If the purported confirmation was a nullity and of no effect whatever it could not have the effect of exhausting the efficacy of the nomination.

I could reconcile myself to the concept that the nomination of the governor dated March 28, 1941, was a "when and if" nomination and if it had been acted on after April 1st (date when the bill became law) would have been a valid and completed appointment. Certainly the Governor and Senate acted in good faith and for a good purpose. Mr. Hyde assumed the office in blissful ignorance that there was any flaw in his appointment. I see no reason, therefore, for being technical. But I do not think the requirement that the bill be a law (even if not operative) before confirmation, rests solely on logic. There is a substantial reason for the rule besides the structure reared in logic that there was no office in existence to which the appointive power could apply. Before a bill becomes law it is in the stage of evolution and change. A nomination and confirmation *Page 444 of a certain person before the bill became a law might be made in view of the provisions of the bill as they existed at the time of confirmation. There might be many changes in the duties of the office, the qualifications of an incumbent and the salary fixed which might make it advisable that the Senate appraise the appointee in the light of those changes. The state is entitled to a consideration of the appointee in the light of the bill as it finally emerges as a law. True in this case the bill was at the time of confirmation in the hands of the Governor awaiting his signature. Unless he sent it back with a veto and reasons for his veto it would have become a law. But the rule that the Senate should appraise the nomination in the light of the provisions of the law as they are when the appointment is to be completed is too important to allow of a variation to suit a special situation.

It is contended by counsel for Mr. Hyde that the consent of the Senate may be shown by implication and that there was action by it after April 1, 1941, in the Second Special Session from which consent could be inferred. If so such confirmation by implication rather than by direct expression would meet the substantive purposes of the rule above set out. My difficulty lies in putting my finger on any acts of the Second Special Session from which confirmation could be inferred. It is true that the other two commissioners were confirmed and Hyde not considered and it is most probably true that the Senate did not consider Hyde because it was under the impression that he was already confirmed. But ratification requires acts which show an affirmative intent to adopt the actions and consequences of another and treat them as applicable to the one whom it is claimed ratified those acts, or at least requires such deliberate intention to avoid action in the face of a duty to repudiate the actions or consequences of another as would work an estoppel to deny lack of affirmance. I find no such deliberate intention nor duty. A silence based on the assumption that one has already performed what in fact *Page 445 he did not perform is not to be construed as a ratification or confirmation. In the case of Larsen v. City of St. Paul,83 Minn. 473, 86 N.W. 459, cited by defendant, the council approved the payrolls containing the name of the appointee. Such was an implied confirmation. But where the legislature appropriated money for the salaries of three commissioners which it might do regardless of who they were or even if none were yet appointed, is not the same as appropriating money specifically for a named commissioner or approving a payroll on which his name appears.

While I deplore the predicament in which Mr. Hyde finds himself I must place regard for the correct pursuit of constitutional requirements as a paramount consideration.