(222 P.) that he shall be appointed by the Governor and "confirmed by the Senate." the day that the Senate acted, evidently, aminer and state engineer are, in each case, deeming the fact immaterial whether its action was before or after the inaugural; and certainly the court regarded the action of the Senate as confirming an appointment by the Governor, notwithstanding that the individual who, as Governor, had made the appointment and nomination had gone out of office. The Supreme Court of Kansas has recently said in Barrett v. Duff, 114 Kan. 220, 217 Pac. 918: "The supreme executive power of the state is vested in the Governor. Const. art. I, § 3. This executive power is continuous-never ending. It knows neither names nor persons. It began with the first Governor, has continued ever since, and will continue unbroken so long as the Constitution exists." Notwithstanding the very infrequent use in our statutes of the word "nominate" when directing an appointment by the Governor, with the consent of or to be confirmed by the Senate, a reference to the published legislative journals coming under our observation has disclosed the fact that the several Governors for at least 20 years have been in the habit of using a form of communication stating that the Governor nominates for the described office and term, and requesting the consent or confirmation of the Senate. That custom has no doubt resulted from using as a model the phraseology of presidential communications to the Senate of the United And again, in State v. Matassarin, 114 States submitting official nominations to that Kan. 244, 217 Pac. 930: "The supreme executive power vested in the Governor is a continuous one, and is to be exercised as the law provides by the one who happens to hold the office at the time of its exercise. Terms of office are not ended, nor is there any authority to revoke appointments because there has been a change or succession in the office of Governor." We shall have occasion presently to refer again to one of these Kansas cases, for it is directly in point upon the question of the necessity of an executive communication submitting an appointment to the Senate to authorize that body to act. Our Constitution and statutes contain 25 or more separate provisions for official appointments by the Governor with the consent of or to be confirmed by the Senate, and the word "nominate" is used in only 4 of those provisions, if we are correct in the result of a rather hasty examination. Those occasional cases are the State Veterinarian, the Board of Live Stock Commissioners, the Board of Pharmacy Commissioners, and the University Trustees, and they are found in the statutes; those relating to the Veterinarian and the Live Stock Commissioners having been originally enacted while Wyoming was under a territorial form of government and the procedure for submitting federal appointments to the United States Senate would naturally be followed. And it may be doubtful whether the statutory requirement that the Governor "nominate" members of the University Board may be controlling, since the Constitution declares only that they shall be "appointed" by the Governor with the consent of the Senate. The usual provision in the statutes for appointments by the Governor is that he shall appoint by and with the advice and consent of the Senate, and a provision in those words is found in the Constitution for the appointment of the state geologist and inspector of mines. But the words employed in that instrument providing for the selection of the state ex body. The use of the word in the case of federal appointments is proper to comply with the provision of the Constitution of the United States providing that the President shall "nominate" and by and with the advice and consent of the Senate shall appoint. Said executive custom in this state, however, is not sufficiently potent, in our opinion, to require or justify the court, in determining the right of the Senate to exercise its confirming or rejecting power in the absence of executive communication, to consider the meaning or effect of the word "nominate" or a provision that the Governor shall nominate, where a nomination is not required for the particular office in question. Nor, except in the very few instances in our statutes providing that the Governor shall nominate, do they contain anything restricting the authority of the Senate in the exercise of its said power to cases where its action has been directly invited by a communication from the Governor, unless such restriction is to be implied from the fact that its power is to advise and consent to or confirm or to refuse to consent or confirm. And that we think presents a very important question and one upon which the authorities directly in point are few. They support, however, the contention that the Senate may act upon an appointment where such action is provided for by law, although the appointment has not been communicated to it by the executive or through his office. [10] The orderly and contemplated method is of course an executive communication placing the matter before the Senate for its consideration, and that is the method usually employed here and elsewhere. We suppose also that upon a reasonable anticipation of a necessity therefor the Senate might request by resolution the submission to it of recess appointments which when so submitted it would be authorized to consider under its said power. But why may not the Senate act upon an appointment of which it has knowledge, if the Governor should refuse or * * * * * "The Governor having informed the Senate that he has, subject to the consent and approval of the Senate, appointed * * and having asked that the Senate take appropriate action upon said appointments: Be it resolved that all vacation appointments [to said board] by Governor A. O. Stanley be, and the same are, by the Sensaid [naming three appointees] ate hereby rejected, and the appointment of this day submitted by the Governor Edwin P. Morrow to the Senate for its approval be, and the same is, hereby consented to and confirmed by the Senate." Governor Stanley's appointees contended that their appointments were valid and com neglect to ask for such action especially, was apparently no suggestion in the case that where the appointee is known to have entered such action was improper. Governor Morupon the duties of the office? A provision row, who had succeeded Governor Stanley, for an appointment by the Governor with the informed the Senate that, subject to its conconsent of or to be confirmed by the Senate sent, he had appointed certain named offidirects not only what shall be done, but cers. We quote from that case a part of also in effect what shall not be done. The the Senate resolution: affirmative act of the two governmental agencies is required to confer title to an office under such a provision. A completed appointment cannot be made in any other way than as so provided. People v. O'Toole, 164 Ill. 344, 45 N. E. 683; Clark v. State, 177 Ala. 188, 59 South. 259. While the Governor's act in selecting the person to be considered for an office may be the principal and perhaps the more important one of the two, it is not alone sufficient. A construction of such provision denying the right of the Senate to act in any case unless directly requested to do so by the Governor or by a communication from his office would obviously give him the power to ignore the co-plete without confirmation. The court held ordinate right of the Senate, and might mean against them, upon a consideration of the the abolition of that right, and certainly several provisions of the statute affecting would make it entirely dependent upon the the matter, and a greater part of the opinion Governor's pleasure. The probability of that is taken up with a consideration of that effect would be more marked, perhaps, matter. But, concluding the opinion, the where a recess appointment for a fixed term court said in substance: That the Governor, is held to be effective until rejected by the unless the statute creating the office otherSenate, but under the rule adopted in this wise provides, must submit the appointments state, and to which we adhere, that confirma- to the Senate at its first session after making tion when required is necessary to complete the appointments, and that no person whose an appointment, the same result would not appointment is not approved by or is rejectbe impossible. Indeed, we think the pointed by the Senate is entitled to hold the office may be illustrated by the facts in this case, showing two appointments to the same office, each for a full term of six years extending beyond the term of the governor making it, neither of which has been submitted by executive communication to the Senate. allowed to stand, said second appointment might of course be submitted at the next session of the Senate. But if not so submitted, would not the effect above suggested follow from a decision that the Senate would then be powerless to act? It is usually held that the Senate, in the exercise of its power to consent to or confirm executive appointments, performs an executive or administrative rather than a legislative function. Herman v. Harwood, 58 Md. 1. And see Opinion of Justices, 72 Me. 542. If after another person appointed thereto by the Governor has been approved by the Senate. We find nothing in the opinion to indicate that the Senate was deemed to be without authority to consider and reject such appointments, though not directly submitted for its action by the executive. The above-cited Kansas case of Barrett v. Duff, decided in July of the present year, but not published until after the submission of the case at bar, presented a situation somewhat similar to that in this case. The appointments were made during a recess of the Legislature following its session of 1921, as we understand, for fixed terms to expire on specified dates in 1925, and the Governor making them was thereafter succeeded in office by another, presumably before the next In Sewall v. Bennett, 187 Ky. 626, 220 S. legislative session. Said appointments were W. 517, cited above on another point, the not communicated to the Senate at that next Senate adopted a resolution rejecting certain session; but, without any such communicarecess appointments by a former Governor tion, they were severally acted upon and and confirming new appointments for the confirmed at that session. In that case, it same positions by the Governor then in office, appeared also that the succeeding Governor and that action was sustained. That case, had transmitted to the Senate the names of aside from the statement of certain princi- other persons for the same offices, with the ples, is important upon the question here to information that he had revoked and canthe extent only that it shows a consideration celled the aforesaid appointments of his of and rejection of recess appointments with- predecessor. The procedure of the Senate out their having been submitted to the Sen-respecting said appointments is stated in ate by executive communication. And there the opinion in substance as follows: (222 P.) * * * That the Legislature having convened on functioning under the law, or whether there January 9, 1923, the Senate in regular ses- is a vacancy therein. The Senate, sion on January 16 adopted a motion to con- which has official knowledge of all of the acts sider recess appointments. The aforesaid of another state department, may not close its recess appointments were then referred to eyes to an existing fact merely because the executive has failed to transmit a communicaa Senate committee. On specified dates tion giving it the advice. * * * The Senthereafter from February 21, 1923, to and in- ate must be permitted to investigate on its own cluding March 16, 1923, the new Governor initiative, and without communication from the transmitted to the Senate the names respec- Governor, the status of offices; otherwise the tively of his appointees in place of Gover- Governor could fill and refill them at his pleasnor Allen's appointees. Said appointees of ure by simply failing to advise the Senate. Governor Allen had each entered upon the The investigation by the Senate discharge of his duties at or about the time brought before it the records of the secretary of his appointment. On March 7 the Senate, fendants. We conclude that the Senate did not of state showing the appointments of the dein executive session, confirmed the said ap- go beyond its powers in making the investigation pointments of Governor Allen and for the concerning the offices held by the defendants, terms for which they had respectively been and, having satisfied itself, that it could propmade. Governor Allen's successor, Gover-erly exercise its judgment thereon. While it nor Davis, also issued papers "in form and is the usual and customary courtesy of the with intent" to commission the persons re- executive to transmit such facts to the Senate, spectively whose names he had sent to the we believe it the better view to hold that the Senate may, on its own initiative, if it so deSenate. sires, ascertain the facts upon which to base its deliberate and final judgment in confirming or rejecting appointees of the Governor." The same contention was made there as here, that a confirmation to be effective must be in response to a communication by the executive directly to the Senate. The court considers that contention at some length, and refers to the fact that the statutes do not provide for a nomination by the Governor preceding the Senate action, but that his privilege and duty is to appoint by and with the advice and consent of the Senate, thereby differing from the provision of the federal Constitution regulating federal appointments. And the power of the Senate to act under the conditions stated is further discussed as follows: The There were three appointments and three cases disposed of in the one opinion. Five of the justices joined in the opinion. other two concurred in the result as to one of the cases, which involved a vacancy appointment, and dissented as to the others. One of them wrote a dissenting opinion, in which it was said upon the question now under consideration that the defendants' rights were not strengthened by the Senate's procedure; that no authority was cited in support of that procedure; and that, where the statute requires an appointment to be made "The Senate, on January 16, 1923, entered by the concurrent action of the executive upon the consideration of the names of de- and a confirmatory body, such concurrent fendants as appointees to their respective offices. This procedure was usual and customary. action cannot be established by showing The only element lacking in the consideration that one of them consented to something of such recess appointments was the fact that which the other did not want to do. That the Governor, in this instance, failed to trans-is substantially the argument made here by mit the names of the defendants as respondent's counsel, based upon the fact having been appointed. The Senate, after due that the Governor who made the appointconsideration, confirmed the appointments of ment went out of office before it was conthe defendants, which was, in effect, a rejection firmed. We think the fallacy in it is to be of the appointees of Gov. Davis, the plaintiffs found in the implication that the Governor herein. The plaintiffs deny any force or validity to the action of the Senate * be- did not want what the Senate consented to, cause of the failure of the executive to directly for it assumes what we believe to be errotransmit the names of defendants. No good neous, that because the appointments were reason is advanced why the Senate would not made by one who had since retired from consider such recess appointments without such office they had ceased to be executive acts, direct word from the executive. or to express the executive will. * The offices in controversy are all located in the Capitol Building, in which the Senate holds its deliberations. They are important departments of the state government. The Senate may, and often does, have official business with them. It receives reports from them. It considers 'the service which the departments are, by law, required to perform. It considers the extent of such service and its requirements. It considers and passes appropriations in order that they may lawfully and properly function. Under all the circumstances, the Senate cannot shut its eyes to the facts as to whether the respective offices are filled; whether they are [11] The appointment here was made by one who was Governor when it was made, and while he remained Governor his appointee acted under it, though remaining in possession as his own successor. And, so far as we are advised, the appointment and possession of the office was acquiesced in by the other officials of the executive department of the state government, and we assume the appointment to have been a matter of record in the office of the secretary of state, as required by law. The mat There was no actual change in the possession of the office when the relator, as alleged, assumed to act under the 1921 appointment, for he was then in possession under the previous appointment. The only change, if any, was in the title under which possession was retained. Had another person been the vacancy appointee and continued to hold under it, we do not think he could have been legally compelled to surrender possession to the relator until the latter could show that he had been duly ter of an official appointment is not per- vote. It was held that said appointee having sonal. The right to make it does not attach entered upon the discharge of the duties of to the person, but to the official upon whom the office, his name having appeared as serthat right is conferred. The appointment geant on the monthly pay roll submitted to of relator, whether valid or not, was an of- and approved by the council for more than ficial act, and by no progress of time or seven years, and through its approval paychange in the succession to the Governor's ments were made to him during that period, office could it be changed from an official the council by those acts had given its conto a private or personal act. The Pennsyl- sent to the appointment. vania case of Commonwealth v. Waller is fairly in point on this, for, in that case, it appeared that the only communication the Senate had at the time of its action was from one who had been succeeded by another. It is certainly in point as against the proposition that a confirmation of the appointment of a Governor who prior thereto had gone out of office is a consent to an act which the Governor did not want, based upon the fact that the new Governor may not have desired such confirmation. The provision as to the office here in ques-appointed and confirmed for a full term. tion found in the Constitution does not say But if, in that case, possession had been that the appointment made by the Governor voluntarily surrendered to him, the relator shall be confirmed by the Senate when re- would have been at least a de facto officer quested by the former, or upon a communi- until confirmed, and then such officer de cation by him submitting the matter to the jure relating back to the date of his possesSenate. And we perceive no substantial rea- sion. Upon the facts here, however, during son for adding by construction any such said interim he was not only de facto but de restriction upon the Senate's right to act. We jure the state engineer, for he was entitled have no doubt that, to maintain the orderly to hold under his vacancy appointment unprocedure above mentioned and to avoid til the due appointment and qualification of friction in the administration of the affairs a successor. of the state government concerning the matter under consideration, the senate should not act hastily or without the appearance of some reasonable ground; nor should it endeavor by first proposing any such action to impose its will upon the executive. Each of these public agencies should be left free to act in the manner intended by the provisions granting the power. It appears, however, in this case, that the Senate did not act until the last day of its session, when, no doubt, it was well understood that the said appointment would not be sent to it for consideration. The fact of this appointment could not have been otherwise than well known to the Senate. We need not specify the apparent reasons for such knowledge, except to say that the office is an important one and its quarters are on the same floor as the Senate chamber in the Capitol Building, and, as alleged, the appointment had been delayed to carry out a stated policy and purpose of the Governor and Legislature. Another case, Larsen v. City of St. Paul, 83 Minn. 473, 86 N. W. 459, is somewhat in point on this question. It involved the right to the office of police sergeant by one appointed by the mayor. Although an appointment to the office required the consent of the common council of the city, it seems to have been the fact that its consent was not asked. At least it appears that the council had never acted upon the appointment by direct But whatever the title under which the relator was properly holding the office, the question arises upon the pleadings whether or not he was lawfully deprived of his right thereto by the alleged removal proceeding. It is conceded that the Governor acted in that matter under the provisions of section 318, Comp. Stat. 1920, originally enacted in 1905 (L. 1905, c. 59, § 1), reading as follows: "Any officer or commissioner of the state of Wyoming who shall hold his office or commission by virtue of appointment thereto by the Governor, or by the Governor by and with the advice and consent of the Senate, may be removed by the Governor from such office or commission for maladministration in office, breach of good behavior, willful neglect of duty, extortion, habitual drunkenness, or any other cause deemed sufficient by the Governor to justify and warrant such removal: Provided, reason for such removal shall be filed in the office of the secretary of state in writing, subject to inspection by any person interested." [12] The validity of the removal is challenged, first, on the ground that the state engineer is removable only by impeachment under the provisions of sections 18 and 19, art. 3, of the Constitution, viz.: "Sec. 18. The Governor and other state and judicial officers except justices of the peace, shall be liable to impeachment for high crimes and misdemeanors, or malfeasance in office, but judgment in such cases shall only extend to removal from office and disqualification to hold Wyo.) (222 P.) any office of honor, trust or profit under the laws of the state. The party, whether convicted or acquitted, shall, nevertheless, be liable to prosecution, trial, judgment and punishment according to law. pointed by the Governor; said language being like that employed in our section 18, aforesaid, and even more inclusive, for "all" other state officers were the words there "Sec. 19. All officers not liable to impeach- used following the mention of the office of ment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law." The same contention was made in this court as to the office of superintendent of a water division of the state, and it was held that said office, although mentioned in the Constitution by a provision directing the Legislature to provide for the appointment of superintendents of water divisions, and also when describing the constituent members of the board of control (article 8, §§ 2, 4), did not come within the meaning of "other state" officers declared to be liable to impeachment, but that the incumbent was subject to removal under section 19 of the Constitution and the statute aforesaid. State ex rel. Hamilton v. Grant, 14 Wyo. 41, 81 Pac. 795, 82 Pac. 2, 1 L. R. A. (N. S.) 588, 116 Am. St. Rep. 982. The court said: Governor. The Hamilton Case has since been cited. with approval in McDowell v. Burnett, 92 S. C. 469, 75 S. E. 873, where the right of the Governor to remove a magistrate whose appointment had been confirmed by the Senate was involved; and the court said, preceding that citation: * "The use of such general terms as 'all executive and judicial officers,' 'all civil officers,' and the like in the impeachment articles of Constitutions, where they must have been meant to have some limited meaning, is one of the most curious anomalies of legislation. However difficult the task, the court must try to find the line of distinction which the convention probably had in mind and mark that as Search for the line of the true line. * in the light of the hisdistinction, tory of the subject in this state and of judicial authority in this country, leads to this conclusion: Every executive and judicial officer whose authority and jurisdiction extends over "It will be observed that the causes for im- the entire state-in whose official conduct the peachment are, 'for high crimes and misde- entire state is concerned-and whose office was meanors, or malfeasance in office,' including created by the Constitution, or created by statonly criminal conduct or positive wrongdoing, ute and filled by election by the people at large, while officers not liable to impeachment may be is removable by impeachment or by the Govremoved for 'misconduct or malfeasance in of- ernor on the address of the General Assembly fice,' thus very greatly extending the causes or by conviction of embezzlement or of approfor removal authorized to be provided for by priation of trust funds and in these modes only. * The few precedents on the subject inlaw. We are very clearly of the opinion that it was not the intention of the framers of our dicate perplexity of the courts, but they also Constitution to require that the jurisdiction of indicate approval of the line between impeachathe high court of impeachment should be in-ble and nonimpeachable officers which we have voked to try and remove minor and subordinate stated." officers, especially as the term of office of many The Justices of the Supreme Judicial of such officers would expire by limitation during the session of the Legislature at which they could be impeached, and, again, that court Court of Massachusetts, in an opinion to the would have no jurisdiction in cases of 'miscon- House of Representatives on this subject, duct' not amounting to a high crime or mis- said that it was necessary to determine demeanor, or malfeasance in office. We are whether county commissioners came withstrongly inclined to the opinion, without de- in the description of "officers of the comciding the point, that the officers liable to im-monwealth"; that there were several classes peachment are the Governor and other state of civil officers within the commonwealth, officers mentioned in section II, art. 4, of the for example, town or city officers, county of Constitution, which does not include the office in question. Certainly, and it has generally been so considered, that only the superior executive and judicial officers of a state are subject to impeachment, and we have found no case where an officer holding by appointment, or an inferior officer of any kind, has been held subject to impeachment. On the other hand, it has been held that such officers are not so subject. 15 A. & E. Enc. (2d Ed.) p. 1065; State ex rel. Hitchcock v. Hewitt, 3 S. D. 187; State ex rel. Stearnes v. Smith, 6 Wash. 496, 33 Pac, 974; State ex rel. McGreavy v. Burke, 8 Wash. 412 (36 Pac. 281)." And the court quoted from the cited South Dakota case a remark to the effect that the language in the Constitution of that state defining what officers shall be liable to impeachment did not include officers ap not ficers, district officers, and state officers; and "Considering the nature and character of the proceedings by impeachment, it does not seem wise to extend their scope by a doubtful construction." Op. of Justices, 167 Mass. 599, 46 N. E. 118. |