116 Ky. 13 | Ky. Ct. App. | 1903
Opinion of the court b?
Reversing.
In March, 1903, a vacancy occurred in the office of police-judge of Nicholasville, a city of the fourth class, by tbej death of the incumbent, T. B. Crutcher. On the 20tli of that month the board of council appointed the appellant,, John Traynor, to fill the vacancy, and issued to him a certificate of appointment. On the 23d of the same month if 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. Tbe 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 offices 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.”
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 govern-
We pass from the general observations to the question more directly before us. Tha 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 an© 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 u 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
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 can not 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 court® 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 Hartranft’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
■This opinion is no it 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.
Judges O’Rear and Barker dissent from so much as awards a mandamus.
The court delivered the following response to the appellee’s petition for rehearing:
From the conclusion of the court in Daugherty v. Arnold, 110 Ky., 1, 22 R., 1504, the Governor has authority to fill vacancies in the office of justice of the peace by appointment.