Allen v. The Governor

• Decision Date: 20 September 1928
• Citation: 151 Va. 21
• Parties: GEORGE E. ALLEN HIS EXCELLENCY, v. HARRY FLOOD BYRD, GOVERNOR OF VIRGINIA.
• Court: Virginia Supreme Court

Page 21

151 Va. 21

GEORGE E. ALLEN HIS EXCELLENCY, v. HARRY FLOOD BYRD, GOVERNOR OF VIRGINIA.

Supreme Court of Virginia, Staunton.

September 20, 1928.

1. GOVERNOR — Mandamus to Governor to Appoint Justices of the Supreme Court of Appeals. — Unless the duty of the Governor under the Constitution to fill vacancies on the Supreme Court of Appeals is merely a ministerial function, the Supreme Court of Appeals has no power to award a peremptory mandamus requiring the Governor to appoint justices to fill vacancies on the court.

2. SUPREME COURT OF APPEALS — Number of Judges — Section 88 of the Constitution Mandatory and Self-Executing. — Section 88 of the Constitution of 1902, as amended in 1928, is mandatory and self-executing, and requires that the Supreme Court of Appeals shall consist of seven justices.

3. GOVERNOR — Public Officers — Power to Appoint Officers Pro Tempore to Fill Vacancies — Section 73 of the Constitution and Section 332 of the Code of 1919. — Section 73 of the Constitution of 1902 confers power upon the Governor during the recess of the General Assembly to fill pro tempore vacancies in all offices of the State for which no other provision is made. Section 332 of the Code of 1919 undertakes to supplement this section as to the power of the Governor to fill vacancies. In so far as section 332 accords with and is not in conflict with section 73 of the Constitution, it is valid, but it cannot be construed to require, or make mandatory that which the Constitution has made discretionary, for this would be an invalid exercise of the legislative power.

4. GOVERNOR — Duty of Governor to Fill Vacancies Ministerial or Descretionary — Mandamus — Construction of Section 73 of the Constitution. — In determining whether the duty of the Governor to fill vacancies temporarily under section 73 of the Constitution is a ministerial function or an executive discretionary function, it is significant that the same language which empowers the Governor to fill vacancies temporarily is used in the paragraph immediately following conferring the power on the Governor to remit fines and penalties. It would not be contended that this latter power, to remit fines and penalties, is not an executive discretionary function, and to construe the identical words of the two paragraphs differently would be anomalous.

5. PUBLIC OFFICERS — Mandatory and Ministerial Duties. — It does not necessarily follow that because a duty imposed is mandatory that it is also ministerial.

6. GOVERNOR — Public Officers — Power to Appoint Public Officers to Fill Vacancies — Executive Discretion. — The power of the Governor to make temporary appointments during the recess of the General Assembly to fill pro tempore vacancies, whether the function be a ministerial duty or a discretionary power is in either event an executive function, requiring in its performance the exercise of executive discretion.

7. SUPREME COURT — Appointment of Justices to Fill Vacancies During Recess of Legislature — Method not Exclusive. — The filling of judgeships by appointment of the Governor is not exclusive, being only a provision for supplying the vacancies temporarily until the General Assembly shall convene and elect, and therefore differs from those cases in which the filling of an office has sometimes been construed to be a ministerial function, in that the method was exclusive.

8. GOVERNOR — Appointments to Fill Vacancies — Discretion of Governor. — If there can be any circumstance which might justify the executive in exercising a discretion to determine whether or when the power of appointment to fill a vacancy should be exercised, then clearly the duty imposed is not merely ministerial but rests in discretion, and if there be any such discretion it follows that the power is not merely ministerial.

9. GOVERNOR — Mandamus — Mandamus to Compel Governor to Fill Vacancies on the Supreme Court of Appeals — Case at Bar. — The instant case was a petition against the Governor praying for a mandamus requiring the Governor to appoint two justices of the Supreme Court of Appeals.

Held: That the power vested in the Governor to fill these vacancies is not merely a ministerial duty unconditionally prescribed, to be always performed without delay and without reference to time or circumstance, but is on the contrary an executive function which can be neither controlled nor directed by mandamus.

10. CONSTITUTIONAL LAW — Division of Powers — Executive and Judicial Departments. — While it is unfortunate that, notwithstanding section 88 of the Constitution of 1902, two justiceships of the Supreme Court of Appeals may remain vacant for many months by the failure of the Governor to appoint, yet this does not justify any invasion of the executive department by the judicial department. In the constitutional division of powers, each is and should be independent.

Original petition for a mandamus.

Geo. E. Allen, for the petitioner.

John R. Saunders, Attorney-General, for the Governor.

PER CURIAM.

The petitioner, who is a citizen and taxpayer of the State of Virginia and a member of the bar of this court, duly licensed, has filed his petition against the Governor, in which he prays for a mandamus requiring the Governor to appoint two judges of this court, alleging that in declining to do so he is refusing to perform a mandatory ministerial duty enjoined upon him by the Constitution and laws of Virginia, and that "he is vested with no discretion except in regard to the persons whom he will appoint."

The Governor has appeared and filed a demurrer, as to which it may be said, generally, that issue is taken upon all of the contentions made in the petition.

The...