The record-union., 1891-01-23
1t Was in His Power to Withdraw
Waterman's Appointments.
Attorney-Genelal Hart Says the Demo-
Gratis Established Precedent
Which Markham Followed.

cation you ask:
l: 'Is it in the power of the Governor of
the preceding Governor for the Senate's con-
sent before the Senate has acted thereon?"
= III the Governor has this power, from
whence is it derived?"
/ have given your questions as much atten-
tion as can in the short time allotted to me
IN which to answer, as the business of this
Office is very much behind and Is accumulat-
ing every day faster than it can be disposed OF.
Therefore l must reply to you generally, in
stead of specifically.
In the first place you do not inform me what
officers have been withdrawn by the Governor
in order that l may examine the statutes per-
tanning to that office, its creation, appointment
and term. If had the name of the Offices for
which the parties named were originally ap-
pointed or nominated, and / had sufficient
time to examine the question, l should be
glad to give my opinion in reference to each
one. AS you belong to the opposite political
faith to myself, consider that your letter is
entitled to a full and complete answer, so far
as am able to give it, but from the reasons
above given and from the fact that the matter
is to be acted upon to-day by the Senate, as
am informed, will be compelled to give you
a hasty opinion; and yet in doing so l can
only refer to the subject upon general prin-
ciples and as to what has been the custom in
this State on the same subject. 1t is provided
by Section 8, Article V. of the Constitution of
California, follows:
"When any office shall, from any cause, be-
come vacant, and no mode is provided by the
Constitution and law for filling such vacancy,
the Governor shall have power to ill such va
cancy by granting q commission, which shall
expire at the end of the next session of the
Legislature, or at the next election by the
people,"
You will notice that this section of the Con-
st1tution, which is the paramount law of the
State is from its terms selfoperative $50 far as
1t applies) without the intervention of any
statute upon the subject. l interpret it to
mean this:
1. If any Office shall from any cause (after
the adjournment of the Legislature) become
vacant and the Constitution and the law does
not provide for the filling of such vacancy the
Governor has the power to fill the vacancy by
granting commission, which commission
must expire at the end of the next session of
the Legislature.
2. If, however,, the Office in which the
vacancy has occurred as aforesaid specified
is an elective office, there should be nominated
by the people person to be voted for at the
next election to fill such vacancy. That is to
say, if the Office is not an elective Office then
the Governor appoints by granting commits
sion, which shall expire at the end of the next
session of the Legislature; but if it is an
elective Office, he grants commission to ex-
plre at the end of the next election by the peo-
pie.
3. If the mode is provided for by the Consti-
tuition and law for filling such vacancy. then
that mode must be pursued because Section s
OF Article V, quoted as aforesaid, provides for
such contingency.
Section g of Article Xxx. of the Constitution
provides as follows: @as
.'When the term of any officer or commits
Sioner Is not provided for in this Constitution
the term of such officer or commissioner may
be declared by law; and, if not so declared,
such officer or commissioner shall hold his
position as such officer or commissioner DUR
ing the pleasure of the authority making the
appointment; but in no case shall such term
exceed four years"
You will notice by Section 16 of the Consti-
tuition just quoted that if the term of office is
not declared by law the officer commits
sioner shall hold his position during the
pleasure of the authority making the appoint
ment. not exceeding four years. presume
hn int. nflf
that if the law creating the office fixed the
term, then the term would be declared as fixed
by law. Therefore it becomes necessary for
us to consider in determining this question,
what is the law provided upon that subject.
Section 995 of the Political Code provides
how designations of officers shall be made.
Section 996 of the same code provides how
vacancies occur
Section 999 of the Political Code provides
in substance the same as Section s of Article
V. of the Constitution.
Section 1000 of the same code provides :
Vacancies occurring in Office during the re-
cess of the Legislature, thelappointment to
which is vested in the Governor and Senate,
or in the Legislature, must be filled by ap-
pointment made by the Governor: but the
person SO appointed can only hold the Office
until the adjournment of the next session of
the Legislature"
You will notice that Section 1000 only ap-
plies to such officers the appointment of which
is vested in the Governor and Senate, and does
not apply to officers who are appointed under
statute by the Governor, and the appointment
of which need not be confirmed by the Senate
Section 3S1 of the Political Code provides
that, within ten days after the meeting of the
Legislature, the Governor must transmit to it
list OF all appointments made by him under
the provisions of Section 1000" during the
| recess of the Legislature), and that the persons
| so appointed occupy their positions from the
issuance OF the commissions and qualifica-
ton of the officers until the close of the next
session of the Legislature.
| You will find no law, either by implication
or enactment, which provides that the names
transmitted to the Senate, under the provis-
ions of Section. 3S1 of the Political Code are
| to be acted upon by the Senate and the Senate
has nothing to do with such appointments
the transmission being made to the Senate
only for the purpose of notifying the Senate
of what vacancies have occurred during the
previous recess, and by whom the positions
| have been filled.
| submit that if the present Senate had any
| intention that such transmission of names
warranted them in acting thereon, then such
intention was not warranted by law, and the
| Governors action therein was proper.
1t is provided by Section $50 of the Politi-
| cal Code, as follows: denominations made by
| the Governor to the Senate must be in writ
| ing, designating the residence of the nominee
and the Office for which he is nominated"
You Will see that this section used the ex-
| preston nominations made by the Governor
| to the Senate" This certainly does not mean
| the appointments made by the Governor dur
| ing the recess of the Legislature.
The next Section, $50, provides: 'When-
ever the Senate concurs in q nomination, .
ETC., which means that the, Senate only acts
| upon such persons who may be nominated
under Section $50.
| The Supreme Court of this State on the 9TH
| day of January, 1891, rendered 81 decision in
the case of The People ex rel. Laine, respond.
ent, vs.. G, G. Tyrrell, appellant, and held, in
| substance, that in order to constitute the ap-
pointment of an officer, where the nomina-
| tion must be concurred in by the Senate to
| constitute an appointment four things must
exist:
1. The nomination by the Governor.
| 2. The concurrence therein by the Senate.
3. The issuance of the commission.
4. The qualification of the officer
Each one OF these four things must take
! place, and the appointment was not complete
| until each had taken place.
You can, therefore, readily see that this pro-
vision cannot be applied to appointment OF
such officers made during the recess of the
| Legislature.
| am therefore of the opinion:
1. That the Senate has no right to act upon
appointments made by the Governor during
| the recess of the Legislature and his Excel,
| lency, Governor Markham had the right to SO
| inform the Senate which he did. by with.
| drawing from confirmation the names which
| the Senate supposed they were to act upon
| 2. If your request was for the purpose of as
certaining my opinion of the relations of the
| Senate to the appointment of Mr.. Campbell as
| Prison Director to succeed Mr. Reddy resigned
i will state that Mr.. Reddy having been ar.
| pointed during the recess of the Legislature
| his commission would only run from the date
OF its issuance to the end of the present session
of the Legislature; he having resigned after
| the present Senate opened its session. and
| Governor Waterman's message simply being
| to nominate Mr.. Campbell to occupy the term
of Mr.. Reddy, resigned, the effect OF that nom
| ination only would have been, had it been
confirmed, to continue until the close of the
session of the present Legislature
/ 3. am also of the opinion that the Gov
ernor cannot appoint when the Legislature is
| in session, an officer who must be confirmed
| by the Senate; he can simply nominate. Mr.
| Campbell being nominated by the Governor,
/ the Governor had the right to withdraw that
nomination at any time before il was acted
! upon by the Senate. That is TO say, nominu
i