Traynor vs Beckham

74 S.W. 1105 Page 1 25 Ky.L.Rptr. 283, 116 Ky. 13, 74 S.W. 1105

TRAYNOR v. BECKHAM, Governor.
Ky.App. 1903.

Court of Appeals of Kentucky.
TRAYNOR
v.
BECKHAM, Governor.
June 11, 1903.

Appeal from Circuit Court, Franklin County.

“To be officially reported.”

Application by John Traynor against J. C. W. Beckham to
compel the issuance of a commission authorizing
plaintiff to discharge the duties of the office
of police judge. From a judgment in favor of
defendant, plaintiff appeals. Reversed.

West Headnotes

Mandamus 250 77(2)

250 Mandamus
250II Subjects and Purposes of Relief
250II(B) Acts and Proceedings of Public Officers
and Boards and Municipalities
250k77 Title to and Possession of Office

250k77(2) k. Administering Oath and Issuing Commission
or Certificate. Most Cited Cases Where the Governor of
a state refused to perform the ministerial duty of
issuing a commission to a police judge legally appointed
by a city council, as required by Ky.St. § 3758, mandamus
was maintainable against the Governor to compel the
issuance of such commission.

Mandamus 250 77(2)

250 Mandamus
250II Subjects and Purposes of Relief
250II(B) Acts and Proceedings of Public Officers
and Boards and Municipalities
250k77 Title to and Possession of Office
250k77(2) k. Administering Oath and Issuing Commission
or Certificate. Most Cited Cases Under Ky.St. § 3758,
providing that police judges shall have commissions
issued to them by the Governor, where a police judge
was legally appointed by a city council to fill a
vacancy, the Governor was under a ministerial duty to
the appointee to issue such commission.

Judges 227 8

227 Judges
227I Appointment, Qualification, and Tenure
227k8 k. Vacancy in Office. Most Cited Cases

Municipal Corporations 268 131

268 Municipal Corporations
268V Officers, Agents, and Employees
268V(A) Municipal Officers in General
268k128 Appointment or Election
268k131 k. Authority to Appoint. Most Cited Cases

Const. § 152, provides that vacancies in all offices
for the state at large, or districts larger than a county,
shall be filled by appointment of the Governor and that
all other appointments shall be made as prescribed by law.
Ky.St. § 3551, declares that, if a vacancy shall occur in
any office which city council has the right to fill by
appointment, such vacancy may be filled by it for the
remainder of the unexpired term; and section 3552 provides
that, if a vacancy shall occur in any elective office,
including the office of councilman, such vacancy shall be
filled by the council, subject to the provisions of the
Constitution. Section 3758 requires the Governor to issue
commissions to certain officers, and provides that, should
a vacancy in any of such offices occur where there is no
provision of law for filling the same, the vacancy shall be
filled by the Governor. Held that, since Ky.St. § 3510,
provides that the office of police judge of a city may be
filled by election or by appointment of the council, as it
may determine by ordinance, where a vacancy occurred in the
office of policy judge the city council had authority to fill
the same under sections 3551, 3552.

*1105 N. L. Bronaugh, for appellant. A. O. Stanley, for appellee.

PAYNTER, J.
In March, 1903, a vacancy occurred in the office of police
judge of Nicholasville, a city of the fourth class, by the
death of the incumbent, T. B. Crutcher. On the 20th of that
month the board of council appointed the appellant, John Traynor,
to fill *1106 the vacancy, and issued to him a certificate of
appointment. On the 23d of the same month it was presented to
the Honorable J. C. W. Beckham, with the request that he, as
Governor of the commonwealth of Kentucky, issue to him a
commission authorizing him to enter upon the discharge of the
duties of the office to which he had been appointed. The Governor
declined to issue the commission.
This action was instituted by the appellant against the appellee,
asking that a mandamus be issued to compel the Governor to issue
a commission to him.

Three questions are presented on this appeal:
(1)Did the board of council have the right to make the appointment?
(2) Was it the duty of the Governor under the law to issue
the commission?
(3) Have the courts authority to issue a mandamus against
the Governor to compel him to issue the commission?

Among other provisions, section 152 of the Constitution contains
the following: “Vacancies in all office for the state at large,
or for districts larger than a county, shall be filled by
appointment of the Governor; all other appointments shall be
made as may be prescribed by law. “It will be observed that
by this provision of the Constitution the exclusive authority is
conferred upon the Governor to fill vacancies in all offices for
the state at large, or for districts larger than a county.
Vacancies in other offices shall be filled as prescribed by law,
which means in such manner as the General Assembly may provide.
Section 3551, Ky. St., reads as follows: “If a vacancy shall
occur in any office which the board of council has the right to
fill by appointment, such vacancy may be filled by the board
for the remainder of the term of such vacant office.”
Section 3552 reads as follows: “If a vacancy shall occur
in any elective office, including the office of councilman,
such vacancy shall be filled by the board of council, subject
to the provisions of the Constitution applicable thereto.
If the election of any elective officer in cities of this class
be contested, such contest shall be conducted and determined
as provided by law in cases of the election of county
officers.” The office of police judge may be filled
by election or by appointment of the board of council, as
the board may determine by ordinance.
Section 3510, Ky. St. Where the board of council shall have
provided by ordinance, as required by section 3510, for the
appointment of police judge, then, under section 3551, if
a vacancy occurs, the board of council may, by appointment,
fill it for the rest of the term. If it is made elective,
then the board of council is authorized to fill it subject to
the provisions of the Constitution applicable thereto. Whether
the office of police judge is filled by election or by
appointment, if a vacancy occurs therein, it is to be filled
by the board of council. Sections 3551 and 3552 were enacted
subsequent to section 3758, which reads as follows:
“The following officers shall have commissions issued
to them by the Governor, that is to say: Secretary of state,
register of the land office, auditor of public accounts,
treasurer, commissioner of agriculture, labor and statistics,
superintendent of public instruction, judges of the court of
appeals, clerk of the court of appeals, judges of the
circuit courts, county judges, police judges, railroad
commissioners, commonwealth's attorney, justices of the peace,
notaries public, and all officers of the militia of rank and
grade higher than and including the rank and grade of captain.
Should a vacancy occur in any of said offices, by reason of
the death, resignation or removal of the officer, or from any
other cause, or should a like vacancy occur in any other office
where there is no provision of law for filling same, such
vacancy shall be filled by the appointment of the Governor,
subject to the provisions of the Constitution applicable
thereto.” As sections 3551 and 3552 provide for the
filling of a vacancy in the office of police judge, they
control, because section 3758 only authorizes the Governor
to fill a vacancy in the office of police judge “where there
is no provision of law for filling the same.” It follows,
therefore, the board of council had the right to fill the
vacancy.

When a police judge has been duly appointed or elected, it is
made the duty of the Governor, by section 3758, to issue such
one a commission authorizing him to enter upon the discharge
of the duties of the office; for it is written in that section
that certain officers (including police judges) “shall have
commissions issued to them by the Governor.”

The third and last question involved is more delicate and
difficult of solution. It is one upon which the Supreme Courts
of the states of the Union hold widely divergent opinions, which
have been expressed in a plausible, scholarly, and forceful
manner. These differences of opinion result from the fact that
our national and state governments are divided into judicial,
legislative, and executive branches. To maintain the independence
and efficiency of each, one must not usurp or encroach upon the
rights of the others. Each must steadfastly pursue its
constitutional and other duties with due regard and consideration
of the other branches of government. In the matter of enacting
laws the legislative department is supreme, and the other branches
must obey them. It is the business of the executive department to
enforce the laws thus enacted. To determine whether legislative
enactments are violative of the organic law, to interpret the
laws, and decide controversies is the peculiar province of the
judiciary. It is no encroachment upon the rights of the Congress
for the federal courts to determine whether or not its enactments
are constitutional. Those courts time and time again have done so.
Neither is it an encroachment *1107 upon the rights of the
legislative branch of state governments for their courts to declare
legislative acts to be in violation of state constitutions. State
courts frequently do so. The assertion of individual rights often
calls in question the validity of legislative enactments, and the
courts never allow an unconstitutional enactment to stand in the
way of the enforcement of such rights. This court has likewise
had in review executive acts in determining the rights of
individuals, and has not failed to determine whether they were
valid or invalid. In Bruce v. Fox, 1 Dana, 447, the court decided
the act of the Governor in appointing Horatio Bruce
commonwealth's attorney to be void. In Justices of Jefferson
County v. Clark, 1 T. B. Mon. 86, it held the appointment by the
Governor of a justice of the peace to be void. In Page v. Hardin,
8 B. Mon. 648, the court held invalid the act of the Governor
declaring a vacancy in the office of the Secretary of State,
and appointing another to fill it. The courts regard that they
are acting within their appropriate sphere under our system of
government when they pass upon the constitutionality of an act,
or declare upon the validity of an act of the executive
department. In those cases the court did not pretend to have
direct control over the action of the legislative or of the
executive departments. They passed upon the validity of the act
affecting private rights. Attention has been called to instances
of the exercise of judicial power over legislative and executive
acts to show that the judiciary has in certain cases reviewed
and held void such acts.

We pass from the general observations to the question more directly
before us. The Supreme Courts of some of the states have held that
a mandamus will not lie to compel a governor to perform a
ministerial act imposed by law; refusing to discriminate between
those duties which are governmental and political in their
character, involving discretion and judgment, and those which
are ministerial, in the performance of which no judgment or
discretion need be exercised. The Supreme Courts of other states
discriminate between those duties which are governmental or
political in their character, involving discretion and judgment, and
those which are ministerial, in the performance of which no
judgment or discretion need be exercised. In the latter view we
concur. All courts agree that a mandamus will not lie against a
governor to compel the exercise of governmental, political, or
discretionary powers. In Page, Second Auditor, v. Hardin, 47 Ky.
648, the court said: “Where, by the Constitution or by the
law, the Governor has a discretionary power, or where on any ground
his act is made conclusive as to all rights involved, it is, of
course, not within the province of a court to inquire into the
propriety or impropriety of the act. Such a power controls all
rights which it may affect, and a properly authenticated act done
in pursuance of it cannot be questioned, for the reason that there
can be no legal right coming in conflict with it. Rights dependent
upon a discretionary power cannot exist in opposition to it, but
terminate at its will. The question, however, whether there is such
a power in a given case, or whether any particular power or act is
of the character referred to, is a judicial question, whenever the
right in litigation before a judicial tribunal depends upon it and
requires its decision.”
When the law imposes a duty on the chief executive of a state,
which is ministerial in character, involving neither discretion
nor judgment, a mandamus will lie to compel him to perform it.
Section 477, Civil Code, reads as follows: “The writ of
mandamus, as treated of in this chapter, is an order of a court
of competent and original jurisdiction, commanding an executive
or ministerial officer to perform an act, or omit to do an act,
the performance or omission of which is enjoined by law; and is
granted on the motion of the party aggrieved, or of the
commonwealth when the public interest is affected.” The
language of the Code embraces all ministerial and executive
officers. The Governor is not excepted from its operation. No
man is or should be above the law. That he should not be is in
accord with the spirit of a republican form of government. There
is no royal prerogative or official position in this country
which exempts one from yielding obeisance to the law. There is
nothing in the Constitution which forbids the suing of the
Governor. While courts cannot control executive acts of the
Governor, or executive powers conferred upon him, yet they can
control ministerial powers. Ministerial Power is certainly inferior
to judicial power. If one officer can be controlled in its exercise,
why not another. It may be conferred upon one person as well as
another. Whether it be conferred upon a governor of a state, or
some minor official is the recipient of it, the exercise of it
does not require the exercise of judgment or discretion any more
by the one than the other. The question as to whether a mandamus
will lie is not determined by the office of the person against whom
it is sought, but the nature of the thing to be done. In Marbury v.
Madison, 1 Cranch, 170, 2 L. Ed. 60, the court said: “It is
not by the office of the person to whom the writ is directed,
but the nature of the thing to be done, that the propriety or
impropriety of issuing a mandamus is to be determined.”
It is no more an invasion of the executive department whether the
writ be issued against the chief executive than it is when
issued against a subordinate executive officer. The difference
is only in degree, not in principle. In Great Britain the king is
sued, and it is said he always complies with the judgment of the
court. The state and federal governments are governments of laws,
not of men. The citizen only gets the shadow of civil liberty, not
its essence, when he has a legal *1108 right and is denied the right
to enforce it. The greatest duty of government is to afford such
redress. In Kendall v. United States, 12 Pet. 610, 9 L. Ed. 1181,
the court recognized the doctrine stated by Chief Justice Marshall
in Marbury v. Madison, and said: “The mandamus does not seek
to control the Postmaster General in the discharge of any official
duty partaking in any respect of an executive character, but to
enforce the performance of a mere ministerial act, which neither
he nor the President had any authority to deny or control.***
There are certain political duties imposed upon many officers in
the executive department, the discharge of which are under the
direction of the President. But it would be an alarming doctrine
that Congress could not impose upon an executive officer any duty
they may think proper, which is not repugnant to any rights secured
and protected by the Constitution; and in such cases the duty and
responsibility grows out of and is subject to the control of the
law, and not to the direction of the President. And this is
emphatically the case where the duty enjoined is of a mere
ministerial character. The law relating to mandamus against a
public officer is well settled in the abstract, the only doubt which
arises being whether the facts regarding a particular case bring
it within the law which permits the writ to be issued, where a mere
ministerial duty is imposed upon the executive officer, which duty
he is bound to perform without any further question. If he refuse
under such circumstances, mandamus will lie to compel him to perform
his duty.” In Page v. Hardin, the court said: “There can
be no reasonable ground for denying it the power and duty of
declaring upon the legal validity of any act of the executive
department, whether done by an inferior or by the supreme
executive officer. The executive department and all of its officers
are as much bound by the constitutional laws as the legislative,
and have no more power to violate the rights of individuals secured
by the laws. The power, obviously judicial, of ascertaining and
enforcing the legal rights of individuals, is, in effect, the power
of protecting those rights from violation by the act or authority
either of individuals or of the legislative or executive
departments; and it necessarily involves the function of deciding,
in every case properly before it, what are the legal rights of the
parties, and how far in point of law-that is, under the constitution
and laws-those rights have been affected by any and every act
relied on for their support or destruction.” In
United States v. Blaine, 139 U. S. 306-319, 11 Sup. Ct. 607, 35 L.
Ed. 183, the court said: “The writ of mandamus cannot issue in
a case where its effect is to direct or control the head of an
executive department in the discharge of an executive duty
involving the exercise of judgment or discretion. When, by special
statute or otherwise, a mere ministerial duty is imposed upon the
executive officers of the government-that is, a service which they
are bound to perform without further question-then, if they
refuse, the mandamus may be issued to compel them.”

By some of the courts which hold that a mandamus will not lie it
is urged that, if the Governor opposes the judgment of the court,
it cannot be enforced, because he has entire control of the militia.
A court should not anticipate that the Governor will not obey its
judgment. If there was a well-grounded fear that a Governor would
resist the enforcement of the judgment, that should not excuse the
court for a failure to perform its duty by adjudging to an
individual the rights which the law of the land vouchsafed to
him. By some courts it is urged that the only relief that can be
obtained is by impeachment or an appeal to the electors.
These courses may result in the removal of the Governor from
office, or in supplanting him by another, but it absolutely
gives no relief to the individual whose rights have been invaded
or denied. He can only appeal to the judiciary for the protection
of his individual rights. The public may have recourse to other
remedies.
On the general question of the rights of the judiciary to compel
executive officers by writ of mandamus to perform ministerial
duties we quote with approval from the dissenting opinion of
Chief Justice Agnew in Hartraft's Appeal, 85 Pa. 433, 27 Am.
Rep. 667. He said: “It is said the Governor is the
representative of the people, and therefore not responsible.
This is true of executive duties, for therein the Constitution,
the adopted will of the people, is his warrant of authority; but
it is untrue of judicial powers, for therein the judiciary
represents the people by the same warrant of authority; and, if he
violate the law, which it is the province of the judiciary to
enforce by their authority, he is liable to the law. In a
government of law instituted by a free people for their own
benefit, there is no royal prerogative to do anything wrong, and
therefore there can be no representation of their dignity, such as
can strike down their law, and prevent its administration by its
appropriate functionary.” The court is of the opinion that
the act of issuing the commission which is enjoined by the law
is purely ministerial, and the writ of mandamus will lie to
compel the Governor to perform it.

This opinion is not predicated upon the idea that the Governor
does not desire to comply with the statute, but to announce the
rule which the judiciary will follow. The Governor only desires
to be advised as to the proper interpretation of the statute,
and, when interpreted, will cheerfully discharge his duty under it.

The judgment is reversed for proceedings consistent with this opinion.

O'REAR and BARKER, JJ., dissent from so much as awards a mandamus.
Ky.App. 1903.
Traynor v. Beckham
25 Ky.L.Rptr. 283, 116 Ky. 13, 74 S.W. 1105

Contributed by Dan Sweeney.