State v. Dinkins

77 Miss. 874 | Miss. | 1900

Lead Opinion

Terral, J.,

delivered the opinion of the court.

On the 21st day of May, 1894, the governor of the state, by proclamation, offered a reward of $500 for the arrest of J. A. C. Shrader, Jr., who had prior thereto shot and killed K. N. Parish, in Sharkey county, and for the delivery of said Shrader to the sheriff of said county; said reward was payable one-half on the delivery of said Shrader to the sheriff of said county, and one-half upon his conviction. Suit is here brought for the one-half of the said reward, which was to be paid upon the conviction of Shrader. The plaintiff in his declaration alleges that he arrested Shrader and delivered him to the sheriff of Sharkey county, when he was paid one-half of said reward, and that thereafter Shrader was convicted of manslaughter in the killing of said Parish, and was sentenced therefor, when he applied to the governor for the remaining half of said reward, who refused to pay the same. Plaintiff further alleges that he has applied to the auditor of public accounts for the payment of said sum of money, but said auditor declined to issue his warrant for said, amount, wherefore he sues. A demurrer to the declaration was overruled. An issue -upon said claim was tried by a jury, and a verdict was given for the plaintiff. The state appeals.

The demurrer of the state to the declaration should have been sustained. The declaration shows no cause of action. A claim against the state for which suit may be brought must be such as the auditor of public accounts must audit as the ministerial officer of the state for that purpose, under § 4248 of the annotated code. The claim here is not of that sort; it is not in any sense examined and audited by the auditor of public accounts. lie issues his warrant for the payment of rewards only upon the order and direction of the governor. The auditor is ‘not concerned to determine whether the reward has been earned or not; he settles nothing in the case; if directed by the governor, he issues a warrant for the reward in mere compliance with the order of the governor, and not as settling or adjusting a claim due the person calling for the warrant.

The offering of rewards and the payment of them are matters intrusted solely to the discretion of the governor. The legislature controls his diseretioin in a measure by fixing the amount that may be expended in this branch of the public service, for without an appropriation, no reward could be paid. In all other respects the subject is solely within the discretion of the executive.

This is an effort to accomplish indirectly what cannot be done directly. It is manifest that the payment of a reward is to be made by the direction of the governor alone. If he should direct the auditor to issue his warrant on the treasury for a reward, and the auditor should refuse' to issue it, we doubt not a mandamus would lie against the auditor to compel its issuance. No suit to fix liability would be necessary. The auditor would not be beard, for any cause whatever, to question the right of the governor. And as he could not question the governor’s right to direct the issuance of the warrant or refuse to issue a warrant thereon, so he cannot question the wisdom of the governor’s discretion in withholding or refusing his order for the issuance of a warrant for the payment of a reward, when it is withheld or refused. Even if it be true that the plaintiff has a right as an individual, of which he is deprived, and that he should have a remedy according to the maxim of the common law on that subject, he cannot prevail in this suit, for every claim against the public as a corporate body must come within the letter of the law conferring such right, and the method of its payment must be specifically pursued. In a case similar to this in respect to its being a claim of right based upon a meritorious consideration, Judge Cooley, speaking for the court, said: “The law must leave the final decision upon every claim and every controversy somewhere, and when that decision has been made, it must be accepted as correct. The presumption is just as conclusive in favor of executive action as in favor of judicial. The party applying for action, which, under the constitution and laws, depends on the executive discretion, or is to be determined by the executive judgment, if he fails to obtain it, has sought the proper remedy, and must submit to the decision.” Sutherland v. The Governor, 29 Mich., 320, 330. The reasoning of the court in this class of cases proceeds upon the principle that the legislative, executive, and judicial branches of government are co-ordinate, equal, separate and independent departments of government, and that the powers and duties of one of these departments' cannot be performed through the instrumentalities of one of the other departments of the government. Eor if the authority confided to any one department of government may be exercised by another department of the government, the integrity and independence of the department whose powers are usurped by ■the other are lost and destroyed. This cardinal principle of constitutional governments among the American states is sustained by reasoning of unsurpassed ability by the judges in the Michigan case above cited, and in Hawkins v. The Governor, 1 Ark., 570; The State v. Governor, 25 N. J., 331.

All the duties enjoined upon the chief executive of the state are imposed by the constitution or by law. They are political in their nature, not ministerial, and are of such administrative -character that they are wholly confided to his sole judgment and discretion. In Vicksburg, etc,, R. R. Co. v. Lowry, 61 Miss., 102, Chief Justice Campbell emphasized the integrity and independence of the head of the executive branch of the government by declaring that the governor could not be compelled to do any act.

Undoubtedly we indulge the presumption, as it is our duty and pleasure to do, that the governor rightly refused his order in the instance here before the court. The record discloses that the person arrested surrendered himself upon an understanding had with his counsel, that a part of the reward was to be applied to the making of his defense. If the case had been one of which the court had jurisdiction, the verdict should have been for the state. But we do not rest our decision upon that ground. We prefer to place it distinctly upon the ground that the action of the executive cannot be coerced, nor can the effect of his refusal to act be evaded by an application to the judicial department of the government. What cannot be done directly should not be done by indirection.

The able brief of the learned counsel of appellee has made us to hesitate upon the decision of the case; but in our apprehension of the matter, the point of the case is too clear for argument. And when counsel in his brief admits, as he distinctly does, that no process could issue against the auditor to compel him to issue a warrant without the order of the governor, it logically follows from this premise that the order of the governor is the proper warrant to the auditor for that end. In our opinion, no other authority can be substituted for it. Great common law powers exist in the circuit court in supervising ministerial officers and inferior courts, but It has no jurisdiction in this case.

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Concurrence Opinion

Judge Whitfield

concurs on the ground that the facts clearly show a case not proper for a reward within the contemplation of the law, it being a voluntary surrender, and not a capture in any legal sense.

Oalhoon, J., concurs in the conclusion reached by the opinion on both points.

Reversed and dismissed.