Broom v. Henry

• Decision Date: 16 June 1924
• Docket Number: 24218
• Citation: 136 Miss. 132,100 So. 602
• Court: Mississippi Supreme Court
• Parties: BROOM v. HENRY. [*]

100 So. 602

136 Miss. 132

BROOM v. HENRY. ^[*]

No. 24218

Supreme Court of Mississippi

June 16, 1924

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Quo warranto by Stewart C. Broom against T. M. Henry. From a judgment for defendant, plaintiff appeals. Affirmed.

Judgment affirmed.

Stewart C. Broom, Pro Se.

Our theory of the case is as follows: (1) Failure to qualify avoids election. (2) That the approval of the bond is a condition precedent and must be complied with; that tender of a good and sufficient bond is not a compliance with this condition if the bond be not approved. (3) When a vacancy occurs by reason of a failure to qualify as aforesaid, it becomes the duty of the Governor to fill same by appointment. (4) And when the appointment by the Governor is to fill a vacancy in an elective office, it is not required to be by and with the consent of the Senate. It is only in the case of an appointive office, that it is necessary to make the appointment by and with the consent of the Senate. (5) The Governor is the head of the Executive Department of the state and this department is co-ordinate with, of equal power and dignity to, but free and independent from, and separate and apart from, the judicial and legislative departments; therefore, in the exercise of judgment and discretion, entrusted to the head of the Executive Department, the Judicial Department has no jurisdiction, no right to review and no power to enforce their finding of law or fact, if they should review it. (6) Power and duty vested in the Governor as the head of the Executive Department by the organic law and by statute is notice to all the world that he will exercise his judgment and discretion in such matters when the occasion arises or when circumstances require it, and no further notice is necessary, except where specially designated by statute.

Proposition No. 1 is founded upon statutory law as shown by section 2797 Hemingway's Code (section 3459, Code of 1906). Proposition No. 2 is supported by authorities construing the foregoing section. Andrews v. Covington, 69 Miss 740; Shotwell v. Covington, 69 Miss. 735; Swann v. Gray, 44 Miss. 393. The third proposition is supported by statute, section 6822, Hemingway's Code (section 4189, Code of 1906).

From the foregoing it is manifest that the consent and confirmation of the Senate is unnecessary in the case of an elective office, such as the office of Insurance Commissioner. This statute is sometimes confused with section 4776, Hemingway's Code (section 2384, Code of 1906). The fifth proposition is the milk in the coconut in this case and yet, strange to say, the court and counsel all agree that in the exercise of judgment and discretion the Executive Department of the Government is free and independent; and the acts of the Chief Executive cannot be inquired into, reviewed, nor controlled by the judiciary but, says the court, in effect the Chief Executive must give notice before he exercises judgment and discretion.

The difference between a Republican form of government and a Monarchy, is that our government is divided into three separate and distinct departments: The Executive, Judicial, and Legislative. See articles 1, 2, and 3 of Federal Constitution, and article 1, section 1, of the Constitution of the state of Mississippi. The Organic Law deals in generalities, and the statutes go into detail, so we find that the legislature in carrying out this scheme of the Organic Law confided certain details to certain departments. See section 5015, Hemingway's Code (section 2551, Code of 1906).

We have already seen that failure to qualify avoids election (section 2797, Hemingway's Code), that approval of bond is a condition precedent that must be complied with, that tender of good, valid, solvent and sufficient bond to approving officer is not a compliance with the condition precedent if, as a matter of fact, it be not approved, and this is true even though the approving officer acted arbitrarily, capriciously, or out of a spirit of malice or prompted by pure cussedness, as is said in substance in the case of Andrews v. Covington, 69 Miss. 740, 13 So. 852; Shotwell v. Covington, 69 Miss. 735, 12 So. 260; Swann v. Gray, 44 Miss. 393. In these cases it was said that it was in the nature of a quasi-judicial act and not subject to mandamus.

Our court held in Vicksburg & Meridian R. R. Co. v. Governor Lowry, 61 Miss. 102, than even though the act was purely ministerial on the part of the Governor, it could not be coerced or dictated by the judiciary or the judicial department.

This is not a matter of first impression. This is the doctrine enunciated and the rule promulgated by the highest court in the land as set forth in the case of Decatur v. Paulding, 14 Peters, (U.S.) 515.

The most exhaustive treatise on the subject, the best-reasoned case and the most beautifully written opinion on the subject is to be found on pages 570 to 596, 1 Arkansas, in the case of Hawkins v. The Governor. This is a case strikingly in point and adopted by Justice CAMPBELL in the Vicksburg & Meridian R. R. Co. v. Lowry, supra. The opinion in the Arkansas case is a masterpiece of law, logic, and reason, and covers every phase of the question.

The case of the State of Florida, ex rel. H. Bisbee, Jr., v. George F. Drew, Governor, 17 Fla. 67, is also absolutely in point. An examination of this authority will disclose that it was there held that no court has jurisdiction over the official acts of the Chief Executive in the exercise of his judgment and discretion and in all cases where the question is submitted to a court, the court remands it to the "Conscience of the Governor."

The case of John L. Sutherland, et al., v. Governor, 29 Mich. 320, is also a case strikingly in point. To the same effect is the rule stated and authorities collated in 12 R. C. L. 1008. So conclusive and plain are the foregoing authorities on the subject that the court below and counsel for appellee conceded the point, but, said the court, the Governor should have given ten days' notice under section 2807, Hemingway's Code, before exercising his judgment and discretion, and this brings us to a consideration of the sixth and last proposition involved.

It will be observed that this is a specific statute for a specific need, to-wit: an insufficient or insolvent bond. The title to the act is, "New Bond Required in Certain Cases." Examine the statute and analyze it and we find that the cases referred to and the cases intended to be covered by this statute are as follows: When the sureties shall permanently remove out of the state, or become insolvent or in any case where the bond is found insufficient; these are the cases for which the statute was enacted, and the statute further designates what shall be done in such cases.

In this case there was no necessity for notice because there was no question of insufficiency involved. It did not come within the statute. If every surety company in the state had signed the bond, the Governor would not have approved it, not because it was insufficient, but because to have done so would have inducted him into office, and the Governor said he was ineligible to hold office because he was a defaulter.

Fulton Thompson, J. Harvey Thompson, and Robert H. Thompson, for appellee.

I. Much is said in appellant's brief to the effect that the courts are powerless to control the judgment and discretion of the Chief Executive and that he cannot by mandamus or other legal proceedings be compelled to do or refrain from doing what in his judgment and conscience should be done or left undone. This contention by appellant has no application to this case. This suit is neither one for a mandamus nor an injunction, seeking to control gubernatorial action. Surely the courts have never decided that the judiciary is powerless to consider and determine the legal effect, the validity or invalidity, of acts of the Chief Executive.

There are two decisions of this court exactly in point, wherein this court considered gubernatorial acts and in each case, the performances of the Governor were held to have had no legal effect, but were void for want of power to do what preceding Governors had assumed to do. Colbert v. State, 86 Miss. 769; Brady v. Howe, 50 Miss. 607.

II. The Governor is without power to create a vacancy in any state office by a mere failure to approve a perfectly unobjectionable bond of a newly elected state officer, duly presented for his approval or disapproval. If he has the power to create a vacancy in one state office, the power extends to all of them. This is a Republican Government and its officers are elected by the people. What becomes of it, if a Governor on the last day of his term can, by failing to perform an official duty or otherwise, capriciously set aside elections by the people, the adjudication of its results as provided by the Constitution and fill all state offices to his own liking? No monarch of modern days had such power. The people of Mississippi have never invested its Governor with such power, and could not be induced to invest any man therewith, even if he were as wise as Soloman, as strong as Sampson, and as beautiful as Absalom.

Two decisions of this court are to the effect that no man can be deprived of a right by the failure of an officer to approve an unobjectionable bond seasonably tendered him for approval. Winner v. Williams, 82 Miss. 669; Redus v. Gamble, 85 Miss. 165. The two Covington cases cited by appellant Broom in his brief, Shotwell v. Covington, 69 Miss. 736, s. c. 12 So. 260, and Andrews v. Covington, 69 Miss. 740, s. c. 13 So. 260, were both decided before the cases cited herein, from 82 Miss. and 85 Miss. respectively, and are not in point.

III. The...