WALKER v. BAKER, Chairman of Board of Control et al., 196 S.W.2d 324

BREWSTER, Justice. This is a mandamus proceeding brought by N. J. Walker, relator, against Weaver Baker, Tom DeBerry and Hall Logan, members of the Board of Control of the State of Texas, and George PI. Sheppard, Comptroller of Public Accounts, respondents, to compel payment of a claim of $87.57 for printing the Senate Journal for sessions of the 49th Senate of Texas held on January 8, 9 and 21, 1946.

The regular session of the 49th Legislature of Texas adjourned sine die on June 5, 1945, pursuant to House Concurrent Resolution No. 90, Acts 1945, p. 1029, which was: “Be It Resolved by the House of Representatives, the Senate concurring, That the Regular Session of the Forty-ninth Legislature shall stand adjourned sine die at 12:00 o’clock noon on Tuesday June 5, 1945.” The Senate adjournment motion was that “the regular session of the Senate adjourn sine die for legislative purposes, subject to the provisions of S.R. 88.” Senate Resolution No. 88, referred to in the adjournment motion, was adopted by the Senate on June 2, 1945, and was as follows : “Be It Resolved by the 49th.

Senate of Texas that: “The 49th. Senate of Texas shall meet and convene in session in the Senate Chamber at Austin, Texas, on the 8th day of January, 1946, at 12 o’clock noon for the purpose of acting on and confirming or rejecting such appointments and nominations of the Governor as the Constitution and laws of the State require the Senate to act upon and confirm or reject.” In obedience to that resolution the Senate convened in the Senate Chamber at Austin on January 8, 1946, when, for want of a quorum, it stood at ease until January 9, 1946, at 11 A.M.

A quorum being then present, the Senate notified the Governor that it was’in session and ready to receive his nominations for public office. Tiren it adopted the following motion: “That the Senate stand at ease until 12 o’clock noon Monday, January 21st, 1946, subject to being called to order sooner by the President upon 24 hours notice, and that the Secretary of the Senate be directed to receive and accept any communications •from the Governor.” The Senate was called to order at 12 M. on January 21, 1946, but there was no communication from the Governor.

Thereupon a member presented a list of all ap ointments made by the Governor after June 4, 1945, and before January 21, 1946, the list being officially certified by Hon. Claude Isbell, Secretary of State. The Senate then went into executive session and either confirmed or rejected all nominees on the list which were subject to Senate confirmation. The Senate Journal for these meetings was printed by an Austin concern under its contract with the Board of Control to print the Journal for the fiscal year 1945-•1946. The printers assigned their claim for this printing to relator for a valuable consideration.

Respondents refused to pay the account “for the sole and only reason” that they “have been advised by the Attorney General of Texas that the sessions of the Senate of Texas on the 8th, 9th and 21st of January, 1946, were illegal and void and were not in law sessions of the 49th Senate of Texas.” Respondent Sheppard certified “that the money is available in the contingent expense fund of the 49th Legislature to pay such account if the Senate sessions of January 8th, 9th and 21st, 1946 were valid sessions of the Senate of Texas.” Thus is raised the precise question for our decision, namely, whether the Senate of Texas can lawfully convene, of its own motion, to consider recess appointments made by the Governor.

While not decisive of the question, this apparently is the first time in the history of Texas that the Senate has attempted to exercise the power here asserted. Under the Constitution of 1845, Art. V, Sec. 20, it was provided: “Nominations to fill all vacancies that may have occurred during the recess shall be made to the Senate during the first ten days of its session. And should any nomination so made be rejected, the same individual shall not again be nominated during the session to fill the same office.

And should the governor fail to make nominations to fill any vacancy during the session of the Senate, such vacancy shall not be filled by the governor until the next meeting of the senate.” The same language appeared as Art. V, Sec. 20, of both the Constitutions of 1861 and 1866, except that in the former the word all before “vacancies” in the first sentence was omitted. Art.

IV, Sec. 12, of the Constitution of 1869, provided: “Nominations to fill vacancies occurring in the recess of the legislature shall be made by the governor during the first ten days of its session; and should any such nomination be rejected, the same person shall not again be nominated, during the session, to fill the same office.” The language of our present Constitution (1875) is: “All vacancies in State or district offices, except members of the Legislature, shall be filled unless otherwise provided by law, by appointment of the Gov-.•r -or, which appointment, if made during its session, shall be with the advice and consent of two-thirds of the Senate present.

If made during the recess of the Senate, the said appointee, or some other person to fill such vacancy, shall be nominated to the Senate during the first ten days of its session. If rejected, said office shall immediately become vacant, and the Governor shall, without delay, make further nominations, until a confirmation takes place.

But should there be no confirmation during the session of the Senate, the Governor shall not thereafter appoint any person to fill such vacancy who has been rejected by the Senate; but may appoint some other person to fill the vacancy until the next session of the Senate or until the regular election to said office, should it sooner occur. Appointments to vacancies in offices elective by the people shall only continue until the first general election thereafter.” Art. IV, Sec. 12, Vernon’s Ann.St.

There is no substantial difference in these several provisions, in relation to the question before us, except that the Constitution of 1869 refers to sessions and recesses of the Legislative while the others refer to sessions and recesses of the Senate.

With the Senate’s power and duty of confirmation thus prescribed in the Constitution for a hundred years, it is significant that forty-eight legislatures passed before it occurred to the Senate that the power to confirm or reject the Governor’s appointments implies a duty to convene at will for that purpose — before anyone decided, to quote relator’s brief, that the Senate “being under the duty of confirmation and there being no prohibition, it necessarily follows that the power to convene must follow the duty, and that the power rests where the duty is placed.” Sharp differences have arisen between the Governor and the Senate at intervals during a century of statehood; therefore, had it not been at least doubtful as to the power of the Senate to convene itself to pass on the Governor’s recess appointments, it is reasonable to assume that some earlier Senate would have attempted to exercise it.

That no such attempt was made before 1945 becomes more significant in view of the fact that relator does not contend that the authority is expressly conferred upon the Senate by the Constitution. In that situation we have the principle that although nonuser will not defeat the power to exercise rights expressly delegated in a written Constitution, an established practical construction “should not be disregarded unless the terms of the provision furnish clear and definite support for a contrary construction.” 11 Am. Jur., p. 701, Sec. 80.

According to another authority, “Where there has been a practical construction, which has been acquiesced in for a considerable period, considerations in favor of adhering to this construction sometimes present themselves to the courts with a plausibility and force which it is not easy to resist.” Cooley, Constitutional Limitations, 8th Ed., Vol. 1, p. 1-14. As declared by this court, “The rule is that contemporaneous construction of a constitutional provision by the Legislature, continued and followed, is a safe guide as to its proper

interpretation.” Jones v. Williams, Collector, 121 Tex. 94, 45 S.W.2d, 130, 133, 79 A.L.R. 983. Again, it has been said that “while not conclusive, the construction given by the Legislature to those provisions of the Constitution dealing with legislative procedure is entitled to great weight.” Johnson v. City of Great Falls, 38 Mont. 369, 99 P. 1059, 1060, 16 Ann.Cas. 974. Other authorities are Mumme et al. v. Marrs, Supt, 120 Tex. 383, 40 S.W.2d 31; Gulf, C. & S. F. R. Co. v. City of Dallas, Tex.Com.App., 16 S.W.2d 292; Myers, Adm’r, v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160.

But more positive principles determine this case against 'relator. .Against him is that stated by this court in Parks et al. v.

West et al., 102 Tex. 11, 111 S.W. 726, 727: “It is a rule for the construction of Constitutions, constantly applied, that where a power is expressly given and the means by which, or the manner in which, it is to be exercised is prescribed, such means or manner is exclusive of all others.” “When the Constitution defines the circumstances under which a right may be exercised * * *, the specification is an implied prohibition against legislative interference to add to the condition.” Cooley’s Constitutional Limitations, 8th Ed., Vol. 1, p. 139. The application of that principle to this case is clear.

Under the constitutional provision above quoted (Art. IV, Sec. 12), the Senate has the express power to confirm or reject the Governor’s appointments to vacancies in state or district offices. It follows as a matter of course that there must be some means or manner by which the right can be exercised; that is, under the issue before us, there must be sotne session or sessions of the Senate in order that it may have an opportunity to confirm or reject the Governor’s appointments. That is provided in Art.

III, Sec. 5: “The Legislature shall meet every two years at such time as may be provided by law and at other times when convened by the Governor. When convened in regular Session, the first thirty days thereof shall be devoted to the introduction of bills and resolutions, acting upon emergency appropriations, passing upon the confirmation of the recess appointees, of the Governor and such emergency matters as may be submitted by the Governor in special messages to the Legislature * * Moreover, Art.

IV, Sec. 8, empowers the Governor to call special sessions of the Legislature, and its effect is to rest that matter exclusively in his judgment and discretion. In re State Census, 9 Colo. 642, 21 P. 477. Since a meeting of the Legislature is a meeting of the Senate, these provisions furnish a regular session of the Senate every two years and a special session at such other times as the Legislature may be convened by the Governor.

The means being thus expressly provided for the Senate to be in session and thereby to have an opportunity to consider the Governor’s appointments, it follows that any authority in the Senate to convene itself at other times for that purpose is excluded. Authorities, next supra; Houchins v. Plainos, 130 Tex. 413, 110 S.W.2d 549; Crabb et al. v. Celeste Independent School District, 105 Tex. 194, 146 S.W. 528, 39 L.R.A.,N.S., 601, Ann.Cas.1915B, 1146; Story On the Constitution, 4th Ed., Vol. 1, Sec. 448, p. 331.

In the face of this rule, the argument that the power of the Senate to convene itself exists in order “to prevent unworthy persons from being placed or continuing in high office to the detriment of the State” must be rejected. As said by the Supreme Court of Illinois, in Field v.

People, 2 Scam. 79, 83, “Where the means for the exercise of a granted power are given, no other or different means can be implied, as being more effectual or convenient(Italics ours.) That statement is quoted with approval in Cooley’s Constitutional Limitations, 8th Ed., Vol. 1, p. 139, with the observation that it “applies to the exercise of power by all departments and all officers.” And Cooley’s text is, in turn, cited with approval in Ferguson v. Wilcox, 119 Tex. 280, 28 S.W.2d 526. In that situation there can be no enlargement by implication or inference, irrespective of the reasons for the attempt.

In this connection we are not overlooking the fact that the Constitution provides in Art. III, Sec. 1, that “the Legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled ‘The Legislature of the State of Texas,’” which means all legislative power — the power to make, alter and repeal laws — not expressly or impliedly forbidden by other provisions of the State and Federal Constitutions. Brown v. City of Galveston, 97 Tex. 1, 75 S.W. 488; Scribner’s Sons v. Marrs, Supt., 114 Tex. 11, 262 S.W. 722; Smisson v. State, 71 Tex. 222, 9 S.W. 112.

But that rule applies to legislative power to be exercised by the Legislature, not to a non-legislative power to be exercised by the Senate. Confirmation or rejection of the Governor’s appointments is an executive function expressly delegated to the Senate. Denison v. State, Tex.Civ.App., 61 S.W.2d 1017, error refused. To that extent it represents a permitted invasion by one branch of the Legislature of that field of power which is confided to the executive department by Art. II, Sec. 1, of the Constitution.

Under those circumstances there is no ground for relator’s contention that the power asserted in this case exists because not expressly prohibited. It being a power ordinarily and intrinsically belonging to another department of the government, 16 C.J.S., Constitutional law, § 168, p. 509, and the means and time for its exercise being provided in Art. Ill, Sec. 5, supra, no other or different means can be implied. Ferguson v. Wilcox, supra.

In other words, since the Constitution specifies the circumstances under which the Senate may defeat the Governor’s appointments, there is an implied prohibition against its power to add to those circumstances. Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799. In Lytle v. Halff, 75 Tex. 128, 132, 12 S.W. 610, 611, this court said: “The declaration (of Art.

II, Sec. 1) is that the executive, legislative, and judicial departments shall exist, • — -this is the fiat of the people, — and neither one nor all of the departments so created can enlarge, restrict or destroy the powers of any one of them, except as the power to do so may be expressly given by the constitution.” See French et al. v. Senate of State of California, 146 Cal. 604, 80 P. 1031, 1032, 69 L.R.A. 556, 2 Ann.Cas. 756; In re Legislative Adjournment, 18 R.I. 824, 27 A. 324, 327, 22 L.R.A. 716.

Not only are there no implications in support of the power here asserted, but there are definitely some against it. Under Art. IV, supra, as well as under our four previous Constitutions, if the Governor has made an appointment during recess of the Senate he must submit the name of that appointee or some other to the Senate “during the first ten days of its session.” Undoubtedly that means that he may wait ten days after the Senate convenes to submit his recess appointments.

The Senate obviously so construed it in this case when it stood at ease from January 9 until January 21, “subject to being called to order sooner by the President upon 24 hours notice.” For the Governor to prepare a list of persons appointed to office since the Senate was last in session would seem to be a simple process requiring little time, certainly not ten days.

So we think that had the framers of this provision contemplated that the Senate could convene itself for the purpose of passing on the Governor’s recess appointments they would have required him to submit those appointments immediately upon receiving official notice that the Senate was in session. We cannot ascribe to them any intention to prescribe that the Senate meet and organize and then mark time for ten days awaiting the Governor’s pleasure in the matter of making his nominations.

That that would be a pointless procedure would doubtless have suggested itself to the framers of some one of our five successive Constitutions had they intended Senate sessions such as that involved here. Therefore it must have been contemplated that whenever the Senate should come into session it would be convened for business other than, and additional to, that of passing on the Governor’s recess appointments.

Again, if the Senate has the power to convene at will, as relator claims, it has the power to have as many sessions as it elects; in fact, it could remain in continuous session for the purpose of passing on the Governor’s appointments; but a member could not collect any pay for his attendance, because he would not be attending a séssion of the Legislature. Under Art. III, Sec. 24, as amended in 1930, the pay of members of the Legislature is fixed at $10.00 per day for the first 120 days of each session and not exceeding $5 for each day thereafter.

This per diem, multiplied by the number of days the Legislature remains in regular or called session, is the entire compensation a member is entitled to receive, and for it he must attend the legislative sessions and perform all the other duties of his office each biennium. Terrell, Comptroller, v. King, 118 Tex. 237, 14 S.W.2d 786; Spears v. Sheppard, Comptroller, 136 Tex. 277, 150 S.W.2d 769. We think that indicates that the Constitution never intended that sessions of the Senate such as that under review should or could be held.

Since travel was slow, uncertain and otherwise difficult in 1875 and before, it is not reasonable to suppose that it was expected that members of the Senate, with many of them living in distant parts of the state, could be required to attend without pay one or many “solo” sessions of that body each biennium to pass on appointments to office. Had such service been expected compensation therefor undoubtedly would have been provided.

We are well convinced that the power here asserted does not exist, but if we entertained any doubt we would still have to resolve it against relator’s contention. “When all the legitimate lights for ascertaining the meaning of the Constitution have been made use of, it may still happen that the construction remains a matter of doubt. In such a case it seems clear that every one called upon to act where, in his opinion, the proposed action would be of doubtful constitutionality, is bound upon the doubt alone to abstain from acting.” Cooley’s Constitutional Limitations, 8th Ed., Vol. 1, p. 153.

That principle applies both to the Senate and to this court. Nothing we have said in this opinion has reference to the powers of either the Senate or the House with respect to impeachment, since no question in that field is before us. Neither confirmation nor impeachment is a legislative function; but there analogy ends. Impeachment is a judicial function of government which is expressly vested by Art. XV of the Constitution in the two Houses of the Legislature, with the office of each in its performance distinctly prescribed. Sec. 7 of that

article also directs that the “Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution.” That provision the Legislature sought to make by Art. 5961 et seq., R.S.1925, Acts 3rd C.S. 1917, p. 102, which prescribes, among other things, a method by which the two houses may convene themselves to perform the function of impeachment; but we are not called upon to construe any part of that enactment. We observe in that connection that the decision of this court in Ferguson v.

Maddox, 114 Tex. 85, 263 S.W. 888, is in no sense determinative of the issue here involved. In that case the Legislature was in special session at the call of the Governor and impeachment of the Governor was not stated in his proclamation as one of the purposes of the session. The House voted articles of impeachment against the Governor, and the Senate began a trial on those articles but had not completed it when the special session expired. Thereupon the acting Governor called another special session to begin immediately in order that the Senate could conclude the trial.

Consequently the power of the Legislature to consider the impeachment of the Governor at a special session when that subject had not been submitted by him and the power of the Senate to conclude the trial at a special session of the Legislature immediately following and duly called were the questions before the court. The power of the Senate to convene itself even to try an impeachment of the Governor was not an issue in that case. Likewise, People ex rel. Robin v. Hayes, 82 Misc. 165, 143 N.Y.S. 325, cited by relator, is concerned with impeachment of the Governor and is not in point here.

Construing the applicable constitutional provisions together, we have decided that they furnish no warrant for the Senate to convene of its own motion to pass on the Governor’s appointments. We hold, therefore, that the Senate session involved in this case was void. Relator’s prayer for the writ of mandamus is refused.