Montana Attorney General Opinion 17-18

Opinion No. 18. Officers-Appointment of - Governor Powers of. HELD: The members of the State Highway Commission are appointed by the Governor, without the consent of the Senate. 20 OPINIONS OF THE ATTORNEY GENERAL January IS, 1937. Hon. W. D. Lasby House of Representatives The Capitol Dear Mr. Lasby: You have submitted the following questions: "1. What is the term of office of appointees to the Highway Commis- sion made by former Governor Holt, to end of legislative assembly or until successors qualify? "2. Must Senate confirm such ap- pointments? "3. May present Governor make new appointments and submit same to Senate for confirmation?" We shall answer them in order. 1. On December 23, 1936, Governor Holt made the following appoint- ments: D. L. O'Hern for the term end- ing- April I, 1939; Fred A. Fligman for the term ending April I, 1937 and Thomas O. Collins for the term ending April 1, 1939. 2. Relative to your second nues- tion, Section 7, Article VII of the Mon- tana Constitution provides as follows: "The governor shall nominate, and by and with the consent of the senate, appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for. If during a recess of the senate a vacancy occur in any such office, the governor shall appoint some fit person to discharge the duties thereof until the next meeting of the senate, when he shall nominate some person to fill such office." (Blackface ours.) Section 1783, R. C. M. 1935, pro- vides: "There is hereby created a com- mission to be known as the state highway commission to consist of three members to be appointed by the governor and each of said mem- bers shall be a eitzen of the United States and of the state of Montana." It is my opinion that since the ap- pointment of the State Highway Com- mission is provided for in said Section 1783. the appointment of said members of the Highway Commission is made by the Governor without consent of the Senate. Said section provides that the Governor shall "appoint". In inter- preting Section 7, Article VII of the Constitution, the Supreme Court of Montana, speaking by Mr. Justice Hol- loway, said in the case of In re Terrett, 34 Mont. 325, 333, 86 Pac. 266: " * * * the power to appoint or delegate the appointing power is reserved to the people, acting through the legislature, in every instance, ex- cept in those enumerated in the Con- stitution." That reserved power, so far as con- cerns the State Highway Commission, was delegated by the legislature to the Governor by said Section 1783. To say that the Governor may only "nominate, and by and with the consent of the senate, appoint" the members of the State Highway Commission, would be disregarding the plain mandate of the legislature, which said in said section that the "governor shall ap- point" the said members of the State Highway Commission. Our position is supported by the authorities which have had occasion to construe similar constitutional provisions. An identical constitutional provision in Idaho was considered in Eiliott v. McCrea, 23 Ida. 524, 130 Pac. 785, where the court said, p. 786 (Pacific Reporter): "Again, the Constitution (section 6, art. 4), provides that the GOVPrtlor 'shall nominate and, by and with the consent of the Senate, appoint all officers whose offices are e.:tablished by this Constitution, or which may be created by law and whose appoint- ment or election is not otherwise pro- vided for.' The Constitut'on itself provides the method of selection of the legislature, executive, and ju- dicial officers named in the Consti- tution. The framers of the Constitu- tion, however. could not foresee what offices might 'be created by law' sub- sequently enacted, and so they pro- vided that such offices should be filled by the Governor, unless the ap- pointment or election s h 0 u 1 d be 'otherwise provided for.' The Legis- lature in this case has 'otherwise provided.' They ha ve clearly exercised their constitutional right in naming and designating the person or officer who shall make these particular ap- pointments. This question has re- ceived frequent consideration by the OPINIONS OF THE ATTORNEY GENERAL 21 courts, and they have almost in- variably reached the conclusions we have indicated. People v. Freeman, 80 Cal. 233, 22 Pac. 173, 13 Am. St. Rep. 122, and note at page 125; State ex reI. Sherman v. George, 22 Or. 142, 29 Pac. 356, 16 L. R. A. 737, and note, 29 Am. St. Rep. 586; Ross vs. Board, 69 N. J. Law, 291; 55 At I. 310; In re Terrett, 34 Mont. 325, 86 Pac. 266; In re Ryers, 72 N. Y. I, 28 Am. Rep. 88." See also 46 C. J. p. 950, Section 63, Note 30, and cases cited. If we are correct in our interpre- tation of the Constitution and the statute, then the fact that a vacancy occurred during the recess of the Senate is of no consequence for by the express words of the Constitution the interim appointments by the Gov- ernor do not apply to "such office", that is, State Highway Commission. 3. From what we have said in answer to your second question. your third question, of course, should be answered in the negative.