55 Kan. 317 | Kan. | 1895
The opinion of the court was delivered by
It is alleged in the alternative writ of mandamus issued in this case that the plaintiff was on the 4th of March, 1893, duly appointed by the governor as one of the trustees of the benevolent and charitable institutions of the state; that he was confirmed by the senate, and duly commissioned as such trustee for the term of three years commencing on the 1st of April, 1893. It further appears from the writ that charges were preferred against the plaintiff, and a committee of members of the legislature was thereupon appointed to investigate said charges in accordance with the provisions of chapter 239 of the Laws of 1889, and that the governor served the notice on the plaintiff stating that by authority of law he was suspended
“The writ of mandamus may be issued by the supreme court or the district court, or any justice or judge thereof, during term or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or station ; but though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion."
‘' The only acts of public functionaries which the courts ever attempt to control by either injunction or mandamus are such acts only as are in their nature strictly ministerial; and a ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed.”
By the provisions of the statute under which the governor assumed the right to act, he must first determine, before taking any steps whatever, whether the charges are worthy of credit or emanate from a reliable and trustworthy source. This requires the exercise of judgment and discretion, and therefore is not a purely ministerial act. (Martin v. Lacy, 39 Kas. 703 ; Insurance Co. v. Wilder, 40 id. 561.) In this case the governor has unquestionably acted as governor, and not as a mere ministerial officer. There is no statute making it his duty to revoke the order complained of, even if made without authority of law. If the court were to assume the power to compel him to revoke his order and restore the plaintiff to his office it would do so because it determined that it was his duty as governor to reinstate the plaintiff. This is all we deem it necessary to decide in this case. It will be time enough to consider other questions when they
The writ does not state a cause of action, and will be quashed.