The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1917-03-24

| Prospective Appointments.
The second point raised by the attor-
ney general that nndsr the .d terms tS os
emergency clause, the law did not be-
i come operative till the first day or
July and no appointment could be
| then taken up in the brief.
| 1.-THE only claimed legal justification
4 for the attempted appointment or the
named in the petition tS Is stt the
| ney generals department, that because
the respondents were appointed before
| the law was to become operative, in
other words. because their appointees
were prospective. they were therefore
wholly void and a. vacancy existed
which could be filled by appointment
by the governor. To this claim h.1n-n we
"First, that a prospective appoint
ment is valid, legal and binding.
terms of this legislative act, no APP
/ pointment whether for the full term
/ or a vacancy, can be made or right
/ to the office created, except with con-
i the senate and Sthe present claimants
| have not secured such consent ,sE49A
| ~ ---- Gases Are Considered.
| Authorities presented by the attor-
ney general in support OF the ,contef-
ton that prospective appointments are
| invalid, are discussed in the brief, with
the contention that none are in point.
The North Carolina case, state vs..
Meares, involving Meares' title to the
office of judge, turned against the ofii-.
/ cial on the point that he was elected
| by the legislature. three days before
| the law was complete legislative act.
The Nevada VS.. Irwin case, cited by
| the attorney general, is quoted by the
Crawford board counsel as specifically
pointment to a new Office to take eff
feet at future date, when the act
| creating such office is to go into effect,
| is a good appointment.
That the Rhodes VS.. Hampton IN G.
s S. e. 219) is not in point, because IL
| revolves on the question of right to
offices that had been re-established on
been held, the appointee not being
given the right to take the office till
the are-establishment order had been
State VS.. Kuhns (Delawarel, which
| turned on an appointment by the gov
ernor, is construed by the defense as
case in which the governor has sole
| ferentiated from the combined gov
ernor-senate appointing power effect
i've in North Dakota.
In the Commonwealth VS.. Fowler
| (Massachusetts) case, the point was
| that OF an appointee attempting to
take office before the Office was really
| created.
I'm the first place. it is the estab-
1 lished rule in this state that the APP
pointive power is not inherent in the
executive department., continues the
of state VS.. Boucher. this court said:
Under section IS of the state con-
stitution, the appointing power of the
governor is confined to filling vacan-
cies in office in cases where no other
mode is provided by the constitution or
laws for filling the same.
1T is, however, clear that the pow
err of appointment is not an executive
power in the sense that it belongs to
the governor as a result of grant to
him in the constitution of the execu-
tive power, and in the absence OF
statute giving him power to appoint.
I'm the second place. it must be
borne in mind that the appointment is
not made nor is complete until the ac-
had so that the appointment in this
case was not made until March s, 1915,
one day subsequent to the approval of
the legislative act by the governor.
Where the appointment is made as
the result of nomination by one
authority and confirmation by another,
the action OF all bodies concerned had
| been had 20 eye, 1872
Every intendment should be in fa,4
vor Of the present appointees; If for
tempt is made in this proceedings not
to comply with the general objects and
purposes Of act, by appointing two
VI NhS pVdAuy DuL TO throw
the present, board in it's entirety out
of Office without any reason existing
| therefor except a claimed technical ir--
regularity in the manner of the APP
"In accordance with usual rule that
omnia presumuntur rite acta an an
pointment will be presumed to have
been made in accordance with the law
20 eye, 1874"
Claims Rule liz Clear.
Taxing up the question of prospect
i've appointments, as these are termed.
the brief follows:
ut seems an idle ceremony To eIah-
crate by argument upon such a mat
ter, especially where 1t Is estabIished
to be the law in practically evei.w
state where the question has been I'M.
The authorities we desire to submit
are as follows:
First the general rule:
The appointment may not he nadA
70 an ONCE. which Is not vacant
but an appointment to a new once 10
take erect on the establishment af
such office may be made before tha
law establishing such law goes into
effect. 20 eye, 1879
AS a general rule. A nrosnacttx,a
appointment. made BY body which ! :
then constituted has power to filI tis
vacancy when Iii arises. is vall5S
Throop on public officers, section AZ.
$50 an appointment to talre aegao+
on future day when the statute ere
ating the office shall take effact 5s
good. Ihroop on public offlcera See
ton 81, page 100,"