The Topeka state journal., 1909-02-24
SHORT ONE Man.
Vacancy on the Tax Commission
Is Probable.
Provisions for appointment
Have Been Overlooked.
JUDGE GLASS
Failure to Submit Name to Sem
ate for Confirmation.
Law Appears to Be Specific ON
This Point.

VI bAAC SldlC Tax COlQnlH-
sion?
Is there. or is there not, a vacancy
in the membership of that commis-
sion?
These are questions that have arisen
since last Monday in the minds of a
humber of persons who are Interested
officially more or less in matters per-
tanning to the government of the state
of Kansas. The questions have come
up by reason of the governors falling
to appoint for the confirmation of the
senate, a member of the commission
to complete the term begun by the late
Judge Humphrey.
The law creating the state tax COM
mission was passed by the legislature
of 1907. Judge Humphrey was ap-
pointed for the term which will ex-
pire in July 1909. But Judge Humph-
rey died in October 1907, and the then,
Governor Hoch, few days afterwards
appointed Judge w. S. Glass to fill the
vacancy. So far, so good, but
The law creating the tax commission
specifically provides that in case of a
vacancy in the commission, the gov
ernor shall appoint a qualified person
to fill the unexpired term, subject to
confirmation by the senate. The exact
wording of the provision is found in
section 8, chapter 40S, session laws OF
1907, as follows:
''In case of a vacancy Tin the office
of tax commissioner it shall be filed
by appointment by the governor for
the unexpired portion of the term in
which such vacancy shall have occur
red, subject to confirmation by the
senate. If such appointment be made
when the legislature is not in regular
session, the appointee shall hold his
office until the first Monday in Feb
ruary, in the next biennial session OF
the legislature, when If such appoint
ment is not confirmed by the senate.
~ -,
or before the last Monday I'm the same
month. the governor. by and with the
advice and consent of the senate. shall
appoint a suitable person to fill such
vacancy for the remainder of such
term"
Judge Glass was appointed to All the
vacancy caused by Judge Humphreys
death, but he has never been confirm
ed. Being appointed in October Of
1907, there has been no regular bien-
NAL session of the legislature since his
appointment until the present session.
Under the law Judge Glass, the ap-
pointee would hold his office until the
first Monday in February. which was
February l. and If the appointment
were not confirmed by the senate the
Office would become vacant. That ap-
pears to be just the state of affairs at
this time.
Further than that. the law provides
that if the appointee is not confirmed
the governor, by and with the advice
and consent of the senate, shall ap-
point another suitable person to fill the
on or before the last Monday
in February. Which was February z.
made no appointment as provided for,
the questions arise:
Is Judge Glass legally a member of
the tax commission and will his official
acts since February 1, be held legal
and binding by the courts?
And again, is not there now va
cancy in the membership of the tax
G-HTA
to appoint a successor to Judge
within the time specified by
law?
Another question arises in this con-
nection: What shall be done to tho
governor for failing to comply with tha
expressed order of the statutes relat-
ng to the appointment?
Also, why did the governor fall to
make this appointment?
No Vacancy Says Dawson.
John Dawson, private secretary to
Stubbs. and who has dis
played more or less facility in hand
ing down legal opinions, declared to-
day that there is no doubt in the
governors office as to the rights of
the chief executive in this matter. He
declared that he is "cocksure" that
there is no vacancy in the board OF
tax commissioners and that there Is
no doubt, but that Governor Stubbs
still has the right to appoint the
commissioners to complete Judge
unexpired term. He says
the statutes on this subject are df-
rectory and not compulsory.
An attempt to secure an opinion on
the meaning of the statutes in this
case from the attorney generals Of
flee proved unsuccessful No one in
that Office excepting the tanttor,
would trust himself to express an
opinion, and the 1anitor declined to
be quoted.
A number of lawyers in the senate
however, expressed the opinion that
the meaning of the law is sufficiently
clear in respect to when the office OF
tax commissioner shall become
vacant. They hold that when the law
declares that 1.-THE appointee shall
hold his Office until the first Monday
in February in the next biennial ses-
sion of the Legislature, when, II such
appointment is not confirmed by the
senate, the office shall become
vacant" the law means just what II
plainly states and that the Office does
become vacant when such con-
Lingency is fulfilled.
These iawyer-senators argue that
when a law is put on the statute books
II is put there with the idea of being
enforced, whether it applies to chief
executive of the state or to a town
constab BILE. In other words, that
provision of law in the statute books,
when clearly stated. really means
something and is entitled to more
eonsid Grafton than the mere title page
Of the book. On the grounds of pub
ic policy il is believed the governor
will have the right to make an ap-
oointment to fill the vacancy even IL