Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-07-27
LAME WINS.
HE Is GIVEN HIS SEAT IN THE STATE
BOARD OF HEALTH.
Judge Van Fleet overrules DIR. TyrreIl,s
Demurrer, Practically Settling
the Matter.

far as this Court is concerned, practically
gives the office to DR.. Lame. Following is
the full text of the decision:
This action is for usurpation of Office. The
case comes up on general demurrer by defend
ant 10 the sutticiency Of the complaint The
complaint alleges in substance that in Novem-
per, 1854 and during recess of the Legisla-
tare. r. w. Hatch, a member of the State
board OF Health, died. That thereafter on the
18th day of said month of November and dur
ing said recess. the defendant, Tyrrell, was ap-
pointed BY the Governor q member of said
Board to fill the vacancy therein caused by the
death of said Hatch, and that he thereafter, on
the 18th of said month, qualified and took said
ohiee, That the Legislature convened for the
hrst time subsequent to said appointment in
the month of January 1896 and adjourned on
the l1th day of March OF said year. and there.
upon on said last date the defendants right to
hoid sad ONCE ceased, and said Office became
vacant: That defendant has not been reap
pointed to said Office, but he has notwith-
standing ever since said 18th day of March
1883, continued therein and usurped the same
and does yet continue TO usTrp said Office and
exercise the functions thereof 1t is then al
legged that on the lSth day of March, 1889 and
during recess of the Legislature, the Gov
ernor appointed the Telator, LAME a member
OF said Board TO nh said vacancy; that reIator
has duly qualified, and has demanded possess
Sion OF said office, but that defendant refuses to
surrender the same.
The only point made by defendant upon his
demurrer Is, that under the facts alleged no
vacancy existed in said Office at the date of re-
ldtOi Lldt IL appears from the
face of the complaint that defendant was at the
time legally incumbent of the Office and that
the Governor was not authorized 10 appoint
successor without the consent of the Senate.
the general power of appointment of members
OF the State Board of Health and various other
enumerated officers. is vested by the Code in the
governor, by and with the consent OF the Sen
ate. pol. c., Sec. 369) 1t is also provided that
every officer must continue to discharge the
duties OF his office, although hin term has ex-
pNeu. until his successor has qualified" (Pol.
C., sec. SO But Section l 900 of the same Code
provides as follows: Vacancies occurring in
Office during the recess of the Legislature, the
appointment of which Is vested in the Govern
or and Senate, or in the Legislat re- must be
filled by appointment made by the Governor
bnt the person so appointed can only hold the
once until the adjournment of the next session
of the Legislature" (Pol. T., Sec. l000)
It is conceded that defendant was appointed
under the provisions of Section l 900 Of the Pc.
ntical Code above cited, but the defendant con-
tends that his right to hold aud exercise the
unCtions of the office did not cease upon the
expiration OF the next session of the Legisla-
lure, put that by virtue of the provisions or sec
tion SIg. above quoted, he is entitled to retain
the office until his successor has been duly ap
POINTED and qualified. And he contends that
such an appointment can only be made by the
Governor, by and with the consent of the SEN
ate that the only instances in which a vacancy
IN office occurs such as to authorize the Gov
ernor to act independently of the Senate during
a recess, are those enumerated in Section 996 Of
the Political Code, OF which this is admittedly
not one and that the defendant having been
duly appointed and in occupancy of the office
at the date of REALTORS appointment there was
no vacancy therein and that the appointment
Oh the reistor Is void. In support Of this con,
Cal. So, Treadwell VS., Yolo county (62 ID, $685.
People vs. Tilton 81 Id, 6li), People vs. Bissell
li9 ID, 400, Myers VS. Alameda county go ID,
-2S0), People VS. Freeze rs ID, 6sSl, aud People
VS.. Cazaneau 90 Id, 500. But it will be seen
that this position of defendant gives controlling
effect to Section SIS. and emit ely ignores the
last Clause of Section 1000 of said Code. In
other words, defendant recognizes Section 1,eOO
as warrant for his appointment, but repudi-
ates II as a definition of his tenure. | d. not
think mis- construction can be maintained. In
my judgment the question must be determined
by construction of Section go, taken in con-
nection with $40, and such construction given,
IL possible, as TO give effect to the various pro-
VISIONS OF each. 1t VIII be found, upon exam
lnation, that none of the cases cited ty coun-
SCI throw any light upon this question except
perhaps, People VS.. Cazaneau. None of those
Cases involved the construction of Language at
ali similar to that of Section 600 above quoted
anu that section has never, to my knowledge
received judicial const ruction. The case of
People VS.. Cazaneau turned upon the construc-
ton OF Section 4S OF the Act OF 1851 concerning
oihceS, which provided that the Governor
should I'LL vacancies 'by granting commissions
thatshall expire whenever the Governor and
Senate or the Legislature, sh all appoint per-
son or persons to fill said Offices" Under that
provision 1t WAS properly held that commits
sion so granted did not ipsO jdcto. expire at the
end OF the next legislative session But it
panty appears, think, from the language
OF The Court, ana particularly from the con-
curing opinion of Judge Norton 10. sOql. that
the decision would have been otherwise had
the law been as it is now. Judge horton SAYS
that the language of that Act plainly gives
longer duration TO the office than that specified
IN section s. of Article v of the then Constitu.
ton, which was that the commission should
exoire at the end OF the next session of the
Legislature" etc.
In 1863. and apparently for the purpose of
meeting this decision People VS.. Cazaneua), the
Legislature repealed the Act of 1851, and enacted
Statutes 1868, p 800, Section q that such va.
eancies should be filled by the Governor by
granting commissions which shall expire at the
end of the next session OF the Legislature"
Thus the law stood until the adoption of the
Political Code, when Section coo was enacted
10 take its place. The language of Section eco
Is still stronger, and. taken alone, could leave
no doubt as 10 the intention OF the Legislature.
scented by section $50 These two Sc ctions are
TO be read together. Section $40 is intended 70
apply generally 10 all instances where there is
failure from any cause 10 i'll an Office in the
regular mode Immediately upon the expiration
of the term OF the incumbent, and provides that
the incumbent shall continue to perform the
duties, in order that the public service may not
suier Section 900 is intended to apply only to
the special class of instances to which It is linn
tied and 1t was the evident intent of the Legis-
lature, from the language employed that there
should be no misapprehension as 10 the time
for which the appolntce should hold 1t is MS
the Legislature had said: Every officer must
continue TO discharge the duties of his office al
though his term has expired, until his successor
has qualified; but person appointed by the
Governor during recess OF the Legislature, to
fill vacancy i'll an once the appointment to
which is vested in the Governor and Senate
can only hold the Office until the adjournment
OF the next session of the Legislature" n is
obvious that the effect OF any other construction
would simply be to repeal this last clause. or
hold It meaningless, neither of which we are at
liberty 10 do. 1t is TO be given force and mean
ing; and, IN my Judgment, it has both. To my
mud this provision is strictly in line with the
policy of the law that the appointing power of
the Governor should be restricted 10 narrow
limits. people VS., Iilton, supra.) The Leg
lsiature evidently contemplated thar in
instances such as provided for in Section / 600,
the office should be regularly filed by the Gov
'ernor and Senate, at the next session OF the
Legislature after a temporary appointment, and
they intended by their language to so clearly
limit the tenure of the person temporarily APP
pointed by the Governor that there should be
no chance for him TO hold over and defeat the
right TO the Office of the subsequent appointee.
The fact that such an appointment was not
INSIDE as contemplated by the Legislature GER
tainly cannot alter the construction TO be put
upon their language, nor operate 10 extend the
right OF the temporary appointee to
that one who "can hold the office until
the adjournment of the next session of the
Lfgisiatufe. can still continue 10 thereafter
discharge its duties, since the right to discharge
the duties of an Office is the right to hold it; the
two things are identic Al, and If person cannot
hold he certainly has no right TO perform its
duties-there is no trick or magic in words
am of the opinion that Section 600 must con-
troll IN such instances and that under the facts
alleged. the Office became vacant at the expirs-
ton of the next session of the Legislature sub
sequent TO the appointment of defendant: and
that thereafter the Goyerner could make a valid
appointment to i'll such vacsncy.
Ii Is worthy of note that the third clause OF
Section of Article II of the Constitution OF
the United States is almost in the precise Ian
guage of the Act OF 1863 above referred TO- and
Is, therefore, If anyth'ng less strong than the
words of Section ,0oo of the Political Code
Yet, under that clause the uniform construction
of the Executive Depai tment. which has never
been questioned, even In times of fierce politi-
cal excitement, has been that the President has
IN such cases, the power to make new appoint.
ment Immediately upon the expiration of the
next session of the Senate.
The demurrer should be overruled, and it is
so ordered"
CAPITAL DISTRICT SCHOOL.