I dissent.
In the instant case there was no abolition of an office and the creation of a new office. Hunziker v. Kent, 111 N.J.L. 565,567, 168 A. 825, 826; Butler v. Pennsylvania, 10 How. 402, 13 L.Ed. 472; Prince v. Skillin, 71 Me. 361, 36 Am. Rep. 325; Malloy v. City of Chicago, 369 Ill. 97, 15 N.E.2d 861;Groves v. Board of Education of Chicago, 367 Ill. 91,10 N.E.2d 403; People v. McCormick, 261 Ill. 413, 103 N.E. 1053, Ann. Cas. 1915A, 338; Visor v. Waters, 320 Pa. 406,182 A. 241; State v. Wright, 211 Ind. 41, 5 N.E.2d 504; Suermann v. Hadley, 327 Pa. 190, 193 A. 645. There was continuity of office and continuity of functions attendant to the office. There was not a change in a single function — not even a change in name. Respondents admit this. In fact, the eligibility of Grover is founded on the proposition that no new office was "created" but that the office continued to exist and that only the term of the office was changed. I do not understand that the opinion of Mr. Justice LARSON holds otherwise in that respect. Mr. Justice LARSON concludes that provision reading:
"No member of the Legislature, during the term for which he was elected, shall be appointed or elected to any civil office of profit * * * which shall have been created," etc., should be read in effect as "No member of the Legislature during the term for which he was elected, shall be appointed or elected to any civil office of profit * * * or any vacancy in any such civil office which shall have been created," etc.
The italicized portion is interpolated by expanding the meaning of the word "created" to cover not only a new office but a vacancy in an existing office. An impressive argument is made for this construction and one which appeals very strongly from the standpoint of public policy. If the purpose of Section 7, Article VI, were to remove the risk of any *Page 66 judgment on a bill being influenced by the extraneous consideration that the legislator might individually benefit by voting for the bill, it would appear that it was just as necessary to make ineligibility extend to a vacancy created as to a new office. It should be noted in this connection that vacancies occurring in the regular course furnish greater opportunity for the allurement of prospective appointments influencing the support of a bill, than do vacancies specially created by legislative acts. However, the latter tendency might have an unfortunate growth. But the Constitution did not by its language specify vacancies created in an existing office. Many, in fact I think practically all, of the excerpts contained in the main opinion are taken from opinions which dealt with cases where there was a new office created, or with constitutional provisions which prevented the governor from appointing or the people from electing a member of a legislature to any office during his legislative term. The provision was broader than the limited provision of our Constitution.
As pointed out by Mr. Justice McDONOUGH, the framers of our Constitution must have had before them the phraseology of most state constitutions as they then existed and with studied care confined ineligibility to an office created, and intended not to include a vacancy created.
When we interpolate vacancies created by the legislature in order to satisfy a seeming demand of public policy not covered by the literal words of the section we are confronted by the difficulty of knowing where to draw the line in the interpolated field. Should the member be ineligible for any vacancy which is traceable to a legislative act of the legislature of which he was a member, during his legislative term, however remote the connection? In the instant case the vacancy was not directly caused by legislative action. The governor was required to act. He could have withheld action. When he did act the final result would be considered as having its primary cause in the enactment. But even this is not certain, for it may be that at least as to executive officers *Page 67 the governor may himself have power to remove without cause as inherent in his appointive powers. Such was the holding inMyers v. United States, 272 U.S. 52, 47 S.Ct. 21,71 L.Ed. 160. And if so, could it not then be said that the action by the governor in appointing, ostensibly under the act, may be considered in fact as having been done in the exercise of his power of removal, if it exists? If the vacancy is caused by the exercise of executive power independently of legislative action, I assume Grover would not have been ineligible even under the opinion of Mr. Justice LARSON. There are many other situations to be conceived of in which a vacancy occurs which may be indirectly due to legislative action. Let us suppose Grover's legislature had passed a law compelling every office holder to retire at sixty-five years of age and such had caused several vacancies throughout the commissions. Could a member of that same legislature be appointed? Situations entailing vacancies even more remotely connected with legislative actions come to the mind. Where should the line be drawn? Once having opened the door on the theory that it would be desirable from a standpoint of public policy to forbid legislators whose actions contributed to the creation of a vacancy from filling such vacancy, the problem of determining in more remote situations involving legislative cause and effect whether the pull of public policy should make the legislator ineligible will depend on judicial opinion rather than on statutory construction. I do not think we are warranted in expanding the idea of creation of offices to take in the idea of a creation of a vacancy in an office in view of the great likelihood that the framers were conscious of those very distinctions. They were hard-headed practical men and fully aware, by their general knowledge of governmental life and conduct and from the provisions of other constiutions which impliedly or expressly drew the distinctions, of the situation.
But granting the correctness of the construction of Section 7, Article VI, of the Constitution as laid down by Mr. Justice LARSON, it does not seem to me that the court has *Page 68 given sufficient consideration to the status of Wiesley. The opinion appears to hold that the termination of the terms of the former incumbents could not take effect until there was an appointment and qualification of three new eligible members. Because this is a dissenting opinion, anything that I may say may only go so far as to indicate possible alternatives to the decision holding that neither Mr. Knerr, Mr. Wiesley nor Mr. Grover occupied under the amendment. Mr. Knerr of course occupied in any event as a holdover. In the first place I am not sure that the appointment of all three as a unit action in order to terminate the former incumbents' terms is required under the language of the act. While the language under the new Section 3, reads that
"the terms of office of the present members * * * shall terminate upon the appointment and qualification of the three members of the industrial commission,"
the Section could be construed to mean that the term of a present member shall terminate upon the appointment and qualification of a member under Section 3 to take his place, and that all the terms of the old members shall not be terminated until three new members are appointed and qualify under amended Section 42-1-1, Laws of Utah 1941. But it may be admitted that such construction might mix new terms and holdovers under the old act in such fashion as to destroy the scheme of staggering appointments; furthermore, that it would require both the amended section and the section before amendment to exist concurrently even after the amended section had become effectuated by action under it.
In consequence of what has above been said, the matter of Wiesley's status should therefore be examined on the theory thatnone of the terms of the old incumbents can be terminated untilall three of the new terms brought into existence by Section42-1-1, have been filled by qualified eligible appointees. What may be Wiesley's status under this view? Wiesley is a Republican. Mr. McShane the only Republican *Page 69 on the commission was a holdover. Mr. Knerr and Mr. Grover are Democrats. Is not the view quite tenable that the Governor intended at all events to appoint Wiesley as the Republican member in place of McShane? It is true that he thought he was appointing Wiesley as well as Knerr and Grover under the force of the new Section 3 to terms set out in the amended Section 42-1-1. He appointed Wiesley to the four-year term, i.e. to March 1st, 1945, but have we not here a situation somewhat analogous to that in which a Section of a legislative act is declared unconstitutional. If the nullified section is severable and the paramount intent of the legislature to legislate in regard to the subject covered has not been so seriously interfered with as to be able to say that it would not have legislated at all in regard to the subject if it knew that its action as to the nullified section would fall, the remainder of the act must then be allowed to stand even though a saving clause is not included. In this case it would seem that at all events it was the paramount intent of the Governor to appoint Wiesley as the Republican member. If the terms of the old incumbents were still extant at the time of appointment and qualification — McShane's by hold over, the appointment of Wiesley plus the approval of the Senate might with tenability be considered as the Republican successor to McShane, at least for such interim period until amended Section 42-1-1 was really effectuated. If the law is as announced in People v.Christian, Wyo. March 10th, 1942, 123 P.2d 368, that no vacancy occurs in an office by the mere coming about of the end of the period for which the incumbent is appointed where the law or constitution says such incumbent shall serve until his successor is elected and qualifies, then unless McShane can be considered as having abandoned his office by failing to appear to administer it or by non-user or to have created a vacancy by acquiescence. (People v. Christian, supra) it must be considered that there was no vacancy ripe for filling. But the holdover term of the Republican member was ripe for a successor who was properly appointed and qualified. *Page 70 Conceding for this argument that People v. Christian, supra, is correct in holding that one cannot succeed a holdover officer unless his appointment by the Governor is confirmed by the Senate — as an additional necessary act in terminating a holdover position as distinguished from the filling of a vacancy — such confirmation had taken place in Wiesley's case. Hence it seems to me that Wiesley stands in McShane's shoes as his successor until such time as the Governor shall appoint three eligible appointees under the new Section 3, to the terms set up in amended Section42-1-1, and they qualify. The matter then stands as if McShane had continued, which he could do until his term had been properly terminated by action under new Section 3, except that Wiesley having been appointed as his successor and confirmed by the Senate, stands in his shoes also awaiting the result of a proper appointment and qualification of three eligible members under new Section 3. This of course assumes throughout the correctness of the proposition of Mr. Justice LARSON that unit action is necessary to effectuate new Section 3. It would be my view, therefore, that even under the theory of Mr. Justice LARSON we should ignore that part of the Governor's communication appointing Wiesley to the term ending March 1, 1945, and treat the action of the Governor as one appointing him to succeed McShane as the Republican member, which being confirmed by the Senate would so constitute him McShane's successor until new Section 3 was properly effectuated.
Of course under the view taken by Mr. Justice McDONOUGH and myself, Mr. Wiesley and Mr. Grover are properly in office under the amendment because we view it as having been already effectuated.
I do not know whether there can be de facto officer when a de jure officer already fills a position. But I do not think it necessary to decide that question now. The last paragraph of the opinion attempts to do so. I think it must be considered obiter. If the analysis above set out pertaining to Wiesley's status is correct, he is a de jure officer. *Page 71
The constitutional aspects of amended Section 42-1-1, and new Section 3 have not in any of the opinions filed herewith been raised or considered.
For the reasons set out in this opinion and for the reasons given in the opinion of Mr. Justice McDONOUGH, I think the writ for the ouster must be denied.