Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-08
CULBERSON'S OPINION
On the Legality of Hon. L. \. whatIey's
Appoiut nient

| Special 10 the Gazette
! AUSTIN. TEN. June Below we give
| the full text OF At-orney-C Ter. raj CuIber-
| son opinion on the Legality OF lion. l.. y
| NhatleyS appointment ~ superintendent
/ OF the peniteutiary
| ATToRNET-G;ENE OEFI-F.
AUSTIN, JIlc II. 1901
| Hon. L. A Whatley. Huntsville Trx
DEAR SR-Actiug upon YOUR verbal re
| quest, made, It is presumed. 10 govern YOUR
| official action, the question OF the Legality
| of YOUR appointment Is Superintendent OF
| penitentiaries has been carefully and
! thoroughly considered.
! The facts upon which the opinion is
| sought are that You were elected state sen
| ltOr IN November. 1890. iul' four Years.
| duly qualified as such, served until the 18th
| day OF April last. and on that day you We're
| appointed 70 the position named by the
governor with the advice and consent Of
the senate.
The act OF 1881 provides = Sayles' Stat
uteS. Art 352l that the governor shall
appoint bI and with the advice and con-
sent Of the senate. Il superintendent OF pen
iteutiaries, who shall hold his Office Tor the
term of two years and until the appoint
ment and qualification of his successor. -
Tie only provision of the constitution
which can possibly bear upon Ihe question
IS that portion of section Is. article ). in
which it is declared that no member Of
either house shall during the term for
which he Is elected, he eli
s;oie to any office or place, the
appointment - which NAV be made
in whole or in part, by either branch ii the
legislature and thus considered, the sin
Gle point is presented whether under the
law the appointment 10 the office is made III
part by tue senate In the consideration of
this subject by this department a proper
respect for the opinion or the executive and
III
that the former would not make NJ ne lat-
ter advise and consent IL appointments
unauthorized by the constitution and in al
cases they should be deemed valid until the
contrary clearly appears. Appointments 10
office. moreover, are III THEN nature lntrlu-
Slcaly executive acts ana unless expressly
authorized by law neither the legislature
nor either branch thereof can. ordinarily,
exercise the appointing power This
authority rests primarily with the people.
which, under our system Of government,
they have generally delegated 20 The cNecu-
tive. -Aiecheul. public offices sects., l03-lO6.
II must consequently be assumed that I'M
less the constitution or laws expressly
confer the power of appointment in part
upon the senate it does not possess it. aud
inasmuch as such authority IS certainly not
found i'll the constitution we must look
alone to the statute. There it IS provided
that the governor shall appoint by and
with the advice and consent Of the senate
etc. BY appointment is meant tine at of
designation by the executive Of the person
who is 10 exercise the functions of the
office GMeCheul, section l02. Thus I'M
derStOOd and applied the appointment IS the
sole act of the governor. Tho senate does
not appoint in whole or in part, for the e>-
sential elements OF choice and selection are
contided exclusively to the governor 1;
cannot originate or suggest an appointment
nor inquire into the motive of the executive
in making il. , story on the Constitution.
section 1884,.
Its power is wholly passive OF preventive.
It's authority IS confined 10 asserting to an
appointment 10 be made by the governor or !
Withholding such assent II does not make |
or take part in making an appointment, but /
simply consents that the governor may !
Iuakt it. Although before an act can be |
performed it becomes necessary 10 obtain :
the consent of another the giving Of such I
consent does not make that other Il par :
ticipant IN the ac:. # is true that unless !
the senate consents the appointment cannot |
be made, yet when such consent Is obtained /!
and the appointment is made II is unqueS- |
tionablv that Of the governor 50. also, il |
may be true that the senate may prevent |
the governor from making certain APP !
pOintment. but in that case the most that /
can tc said i thai he had not his first
choice" e Story on the Const.. See 1881
The views expressed ABOVE are futN Suo-
tanned by the supreme court of the United
States in the leadin" case ON the subject
Marburv vs.. Madison. | Curtis. :i6S in
which the opinion was delivered BY Chief
Justice Marshall. Speaking of the nature
Of appointments under the constitution OF !
the United States. in which it is provided
that 'the president shall nominate. and by
and with the advice and consent Of the sen
ate, shall appoint ambassadors, etc. the
chief justice said: The appointment-1hiS
IS also the act of the president, anu j.
also voluntary act, though
i can only be performed by and
With the advice and consent of the senate ="
Al another point in the opinion he said the
appointment being the sole act of the preSi-
lent, must be completely evidenced, when
1 is shown that ne has done everything to
Dc performed b. him" aud that IKE ap-
continent IS the sole act of the president:
he acceptance IS the sole act of the officer"
This construction accordS with that given !
his provision ny members of the "ouven-
ion, attorney generaiS of the United States /