28 Fla. 441 | Fla. | 1891
That the writ of mandamus lies to require the performance of a clear official duty, not involving discretion, by any one of the “ administrative officers of the executive department ” of this State, (secs. 5, 17, 20, 28 of Art. IV, Constitution of 1885,) is a settled proposition of law in Florida, Towle vs. State ex rel. Fisher, 3 Fla., 202; State ex rel. Weeks vs. Gamble, 13 Fla., 9; State ex rel. Bloxham vs. Board of State Canvassers, 13 Fla., 55; State ex rel. Drew vs. Board of State Canvassers, 16 Fla., 17; State ex rel. Bisbee vs. Board of State Canvassers, 17 Fla., 29; State ex rel. Bisbee vs. Drew, 17 Fla., 67; State ex rel. Moody vs. Barnes, 25 Fla., 298. To hold that the mere fact of these officers belonging to the executive department of the government should exempt them from this judicial process as to a plain ministerial duty or where they are given no official discretion, would be inirreconcilable antagonism to a consistent line of judgments running back over forty years. There is moreover nothing in the five cases specially called to our attention in behalf of
The case of Commonwealth vs. Wickersham, 90 Penn. St., 311, holds that the writ did not lie in the Court of Common Pleas against the defendant, who was Superintendent of Public Instruction, as that court-had never been given power to issue it against State officers. It is stated, however, in the opinion of the Judge of the Common Pleas, which opinion is adopted by the Supreme Court, that by an act of May 22, 1792, which continued in force until abrogated by a convention held in 1872-3 for forming a new Constitution, (Com. ex rel. Butler vs. Hartranft, 77 Penn. St., 154,) such power had existed in the Supreme Court, and that no inconvenience was ever felt from its exercise by that tribunal, but the Convention limited the power, as an exercise of original jurisdiction, to cases against inferior courts, and that the Legislature had not given to any inferior court the power now invoked. The decision in State ex rel. vs. Hobart, 12 Nev., 408, is that the office of State Comptroller, which Hobart held, was one of public trust and conferred upon the individual for the benefit of the public, and if the acts which he refused to perform concern the public in
It is not within the possibilities of any one opinion to review ail the authorities referred to in the note to Dane vs. Derby, in the 89th volume of the American Decisions. This court long ago decided the question, and in doing so and in adhering consistently in past years to that decision, it has followed in the footsteps of Marshall and his associates, and others who have rested their conclusion upon the ground that ours is “a government of laws and not of men,” and that where there is no right to exercise discretion in the premises any officer less than a Governor, acting as such, (as in State ex rel. vs. Drew, 17 Fla., 67, and cases therein cited,) is not exempt from this process of tlie law; and upon this theory it was held in Marbury vs. Madison, 1 Cranch, 137, that the Secretary of State would be the subject of a mandamus to compel him to deliver a commission which had been signed and sealed, and upon the same principle peremptory writs of mandamus have been awarded against other Secretaries of departments of the general government. Kendall vs. United States, 12 Peters, 524; United States vs. Schurz, 102 U. S., 378. See also Butterworth vs. Hoe, 112 U. S., 50. In Com. ex rel. Butler vs. Hartranft, 77 Penn. St., 154, the Supreme Court deplored the limitation,
2nd. It appears that on the fourth day of August last the Governor issued an address to the people of Florida, announcing as his judgment and conclusion that the action of the joint assembly of the Legislature taken on the 26th of May last, at which Mr. Call received the votes of fourteen Senators and of thirty-seven Representatives, and Mr. Mays received the vote of one Representatative, and at which the President of the joint assembly announced that Mr. Call having rceived a majority of all the votes of the joint assembly, a majority of all the members elected to both houses being present and voting, was duly elected United States Senator for the term beginning March 4, 1891, was not an election of Mr. Call, and the reason,
The election mentioned is set up by respondent as a bar to the allowance of a peremptory writ. He says that by virtue of this action of the joint assembly on the 26th day of May, Mr. Call was duly and constitutionally elected United States Senator, and that consequently no vacancy existed when the Governor made the alleged appointment, the vacancy occurring on ex-
The Constitution of the United States provides: That the Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, and (after directing how they shall be classified as to length of terms) ordains that if vacancies happen by resignation or otherwise during the recess of the Legislature of any State, the Executive thereof may make temporary appointment until the next meeting of the Legislature, which shall then fill such vacancies, sec. 3, Art. I; and that the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof, but Congress may at any time by law make or alter such regulations, except as to the place of choosing Senators, sec. 4, Art. 1; and that each house shall be the judge of the elections, returns and qualifications of its own members, sec. 5, Art. I.
The Constitution of the United States has not elsewhere given to this court the power to pass upon the cpiestion of the legality of the election of a United States Senator, but by the last of the provisions quoted above it has expressly excluded from it the right to do so. The Constitution of the State has not attempted to
The question occurs to us, however, that admitting we cannot decide upon the legality of the election, is it not a sufficient answer to the application for this writ, that the joint assembly is shown to have done what it in fact did and as it was constituted, and to have announced through its presiding officer the same to be a legal election. It is we find, after the most careful consideration, impossible to pursue this course without usurping the functions of the Senate. As shown above, the Executive of a State may, if a vacancy happens during the recess of the Legislature, make temporary appointments until the next meeting of the Legislature, which shall then fill the vacancy, and it is unquestionably the primary function of the Executive, subject solely to the judgment of the United States Senate, to decide when any such vacancy exists. The correctness of his decision, and the. legality of his action in making an appointment is a matter entirely beyond our jurisdiction. Whether the Constitution gave' the Governor power after the adjournment of the Legislature to appoint, was a question which addressed itself primarily to the Governor, and however erroneous may be the conclusion which he has reached, he has in fact made a decision in favor of his power, and has proceeded to the extent indicated by this record, in making an appointment to fill what he holds to be a vacancy within the meaning of that clause of the Constitution which confers upon him the power of appointment.
III. It is, however, contended in effect, that the right to have this writ issued is dependent upon the right of Mr. Davidson to the office of Senator; or in other words, the legal right of the Governor to make the appointment. In support of this contention counsel for respondent cites the case of the State ex rel. Clarke vs. Trenton, 49 N. J., (Law), 349, which was an application by Clarke for a mandamus to compel-the Board of Health of the City of Trenton to admit
It is true that mandamus will lie to compel the surrender of books, and papers, and buildings to one possessing certain prima facie evidence of title to the office, and this even though quo warranto may be pending to test the real title to the office; and the award of the writ of mandamus will have no effect upon the other proceeding, for mandamus is not the proper proceeding to determine the title to office as between contestants, and where the party seeking the latter writ has not muniments of title to the office which the law has made prima facie evidence, relief, even to the extent indicated above, will not be given if his right to the office is even doubtful. High on Ex. Legal Rem., Secs. 70, 73, et seq.; State ex rel. O’Donnell vs. Dusman, 39 N. J., (Law), 677; State ex rel. Law vs. Saxon, 25 Fla., 792, 796. It is however established by the overwhelming current of authority that where .an office is already filled by an actual incumbent, exercising the functions of the office de facto and under ■color of right, mandamus will not lie to compel the admission of another claimant, or to determine the disputed question of title, and for the reason that an adequate and specific remedy at law exists, which is quo warranto, High secs. 49, 67; and in the New Jersey case relied on by respondent it is admitted that the relief in such cases is usually sought by quo war
The distinction between the New Jersey case and the one before us is unmistakable. There the claimant to an office was seeking to oust one holding possession of it, and obtain possession himself, not in the ordinary Avay. but by a remedy never available except under peculiar circumstances, not then existing, and when available not conclusive of the question of title to the office. Here there is no question of the right of possession to the office. Besides our not having jurisdiction to try this question of title, neither of the parties Avho may claim the office of Senator under the election, or the appointment, is before us, and whatever we may decide, can in nowise affect the decision of the right to the office, by the only tribunal which lias any power or jurisdiction to decide that question. The contest before us is between the Governor as Governor, and the Secretary of State. The Governor claiming that he has, as the “Executive” of the State, the right to appoint a Senator, has exercised that poiver to the extent of signing an appointment and placing it with the Secretary and requested him to' seal and countersign it. We have shown that the poAver to revieAv the legality of the Governor’s act is beyond our jurisdiction, as it is beyond that of the Secretary of State. In the case of the State ex rel. Bisbee v. Board of County Canvassers, 17 Fla., 9, it was contended that this court had no jurisdiction to award the writ of mandamus to compel the Board of
That there can be any reason -why the inability to en-quire into the legality of the appointment of a Senator should bar the power to award a mandamus to require the perfection of the evidence of the actual appointment of a Senator, when it does not do so where evidence of election as a member of the other branch of the National Legislature is concerned, or why in the one case it should be necessary to pass upon the legality of the appointment before the relief can be granted, and not on the legality of the election in the other, and this too, when the authority to appoint is to be found in the same article of the same Constitution of the general government, is something which is not only beyond the comprehension of the court, but for which no explanation has even been attempted.
The case of People ex rel. vs. Farquer, Secretary of State, 1 Breeze, 104, is also relied upon in behalf of respondent. A careful consideration of it will disclose that the commission of one as Paymaster-General, which it was sought to have the Secretary seal and countersign, had been signed by the Lieutenant-Governor after the return of the Governor to the State. The Lieutenant-Governor had upon notice from the Governor that he would be absent from the State, as surned the duties of Governor, and although the Governor had returned and resumed the duties thereof, the
The marked distinction between this case and the one at bar is, that neither we nor the Secretary of State have the power to pass upon the Governor’s act. It is a question between him and the United States Senate. The Illinois court, by assuming that the Lieutenant-Governor was rightfully the executive, could as against' the relator applying for the relief, decide that the relator’s appointment was illegal, there being no other
If it is the legal duty of the Secretary of State to seal and countersign the appointment of Mr. Davidson, we are entirely satisfied, both upon reason and authority, not only that the inability of the court to enquire into the legality of the appointment is not a reason for refusing the writ, but also that a decision upon the legality of the appointment is not necessary to an adjudication of the question of awarding the writ.
4th. The foregoing- conclusions bring us to the question, whether or not under the law obtaining in this State it is the duty of the Secretary of State to affix the seal of State to this commission and countersign the same.
The declaration of' the Constitution, sec. 12, Art. XVI, that “the present seal of the State shall be and remain the seal of the State of Florida,” implies that there is such a seal, as does the provision that ‘ ‘ the Secretary of State * * shall be the custodian of the Great Seal of the State,” sec. 21 Art. IV. It is not denied that there is such a seal, nor that the respondent is the actual and legal custodian thereof. There can be no doubt that the purpose of a seal of State is to authenticate, or prove the gen
We see from the provision of our own Constitution last quoted that the purpose of its framers, and the people who adopted it, was that all commissions issued by the State should be sealed with the great seal of State, signed by the Governor and countersigned by the Secretary of State. That it is under this section, the official duty of the officers named to sign and countersign, and the duty of the Secretary of State, who, by another section of the same article, is made the custodian of the seal, and whose countersigning is an attending testimony of the authorized use of such seal, to seal all commissions emanating from the State is the only interpretation of the organic law that would not violate common reason. What is a commission in the sense in which it is here used? It is written authority or letters patent issued or granted by the government to a person appointed to an office, or conferring public authority or jurisdiction upon him. Bouvier, Tomlin, and Abbott’s Law Dictionaries : “Commission; United States vs. Reyburn, 6 Peters, 352. The commission is not the appointment
There can be no doubt that the word “commissions,” as used in the above section of our constitution at least includes appointments to office. The provision in the constitution of the United States, that the Executive of any State may under the circumstances
. Any written appointment of a person to an office by the Governor of this State is a commission, and the exin-ess fiat of the constitution is that all commissions issued under the authority of the State shall be signed by the Governor, and sealed with the great seal of State, and countersigned by the Secretary of State. The purpose of the Constitution is that the warrant of all persons professing to represent the authority of the State shall be in the form indicated, and none other. The authority to appoint to an office, or to delegate the exercise of the State’s power, contemplates conformity to this section of the Constitution, in making the appointment; and this section makes it the duty of the officers named whenever the power of appointing is exercised, to see that the commission or written evidence of the appointment is signed and authenticated as therein directed.
It is contended that this provision of the State Constitution is not applicable to the case at bar, for the reason that the power to appoint is not found in, or conferred by, the State Constitution or any law of the State; or, as it is otherwise put, because it is found in, or “conferred solely by, the Constitution of the United States, the supreme law of the land.” Counsel for respondent, while conceding that under the Federal Constitution, the time, place and manner of holding elections for Senator and Representatives are
The Governor of a State in appointing a Senator, exercises an executive function of the State, and it is none the less so because the power is conferred by the Constitution of the United States upon “the executive.” The authority is conferred upon the executive power of the State, and not upon any functionary or creature of the Federal government, and is inherent in that power, however it may be constituted by the State, and whether it be lodged in one Governor or an Executive Council of three or more, or otherwise. The purpose of the provision is to preserve the perpetual representation of the State in the Senate, and an appointment made by the Governor of Florida is the exercise of State authority, and none the less so because the State derives it from the Federal Constitu
In the absence of legislation by Congress providing the form in which the appointment of a Senator shall be authenticated, it is unnecessary to discuss the power of Congress to legislate upon the subject. If it has not such power, its deprivation of it is no reason why the State cannot exercise it. The Senate has as much power to enquire into the legality of the appointment of a Senator by the executive power of a State, as into that of the election of one by a Legislature. If it has not, any appointee can take his seat-in the Senate upon the assumption that the Governor has appointed him and given him evidence of the appointment satisfactory t-o executive discretion. In all cases of any alleged executive appointment a primary question for the Senate is : Has the executive authority of the State made an appointment ? Its validity as an executive appointment cannot be investigated until it is satisfactorily shown that there has been an appointment in fact by the executive. Under the Con
In the absence of any 'provision in the Constitution or statutes of the United States, when a Governor of this State wishes to appoint a Senator the only legal
It is in our judgment clearly the official duty of the Secretary to affix the seal of the State to the appointment, and to countersign or attest the same as evidencing the official act of the executive authority of the State in appointing a Senator in the Congress of the United States, and this duty is one involving no official discretion or judgment on his part. . It the case of the State ex rel. Bienvenu vs. Wrotnowski, Secretary of State, 17 La. Ann., 156, a mandamus was sought to require the Secretary of State of Louisana to affix the seal of State and countersign a commission signed by the Governor appointing the relator sheriff of the Parish of Orleans. The Secretary replied that the Governor was attempting to issue the commission without warrant or authority of law, and in direct violation of the Constitution and laws of the State; that the office of sheriff was then held by another person under a commission which would not expire until the next regular election for the office in question; and that the Governor had no authority .to supercede the incumbent sheriff. The statutes of Louisiana enacted that there
The distinction between the above case and that of State ex rel. vs. Farquer, supra, is clear. There is no language in the Constitution of the United States or in our own which can be construed to give the Secretary any discretion or judgment as to whether the G-overnor’s action in-appointing a Senator is legal.
The duty devolved upon the Secretary of State in the case before us is merely to authenticate the commission signed and presented to him by the admitted rightful •executive of the State. It is purely ministerial, and involves no exercise of discretion. . There is from the very nature of the duty no place in it for the exercise of j uclgment. It involves nothing but affixing the seal and signing officially. It is entirely impossible for anyone to infer, from, or to find implied in, the simple duty of authenticating this evidence of an appointment of an office known to exist, and which, under certain circumstances, the executive of the State has authority to fill, the further duty or the power to question the legality of the exercise of the authority to appoint. If such duty or power of enquiry exists at all,
In authenticating the executive appointment of a
5th. It is also contended that neither the State nor the Governor has any such interest in relation to the
It is entirely clear from the authorities, Marbury vs. Madison, United States vs. Le Baron, and Advisory Opinion, supra, and what has been announced in preceding- portions of this opinion, that the executive or governmental duty of completing a commission is not consummated until it has been sealed and countersigned. Even admitting that when a commission has been signed and delivered by the Grover nor to the Secretary of State, the appointee named therein, who may have previously taken the oath and given bond or done anything- necessary to justify Mm in entering into the office upon the perfection of the commission, has such a private interest therein as gives- him a status to require through the instrumentality of this writ the sealing and countersigning, or admitting that the executive power of revoking his action has passed as soon as a commission so signed has been delivered to the ¡Secretary, or even as soon as it has been signed with the intention of such delivery, these positions and concessions, if proper, are in no way inconsistent with, nor do they affect, the interest of the public in the appointment and commissioning of public officers, nor do they remove the fact that the Governor is charged with the “ care that the laws be faithfully administered,” sec. 6, Art. IY, Constitution. The commissioning of a public officer is not at any stage of its progress a mere matter of private interest. The entire public are directly interested in the consummation of his appointment in
6th. That there is no other adequate remedy, is clear from the fact that the commission must be complete before it can be recorded, or a copy of the original can
7th. Upon the case made by the pleadings, our conclusion is; that the peremptory writ should be awarded but, in view of the character of the parties, we will suspend until Monday next any formal order in the premises, further than one adjudging the return of the respondent insufficient and sustaining the demurrer thereto.