Blalock v. Johnston
| Decision Date | 30 March 1936 |
| Docket Number | 14263. |
| Parties | BLALOCK v. JOHNSTON, Governor. |
| Court | South Carolina Supreme Court |
Original mandamus proceeding by J. C. Blalock against Olin D Johnston, as Governor of the state.
Peremptory writ of mandamus denied.
Wolfe & Fort, of Gaffney, for petitioner.
A. Ray Godshall, of Gaffney, and C. S. Bowen, of Greenville, for respondent.
The petitioner, J. C. Blalock, commenced this action in the original jurisdiction of the court against the respondent Olin D. Johnston, as Governor of the state, praying that a rule be issued to the Governor, directing him to show cause why a peremptory writ of mandamus should not be granted, requiring him to perform the duty of appointing the petitioner as tax collector for Cherokee county, as required by the special statute referred to in the petition.
The allegations of the petition, so far as necessary to an understanding of the questions presented, are, in substance that in conformity with an act of the General Assembly, i. e., Act No. 778, approved April 4, 1932 (37 St. at Large, p. 1362), which amends section 2868 (1, 2), of the Code of 1932, the Honorable G. W. McKown and the Honorable C. E. Saint-Amand, constituting a majority of the legislative delegation in the General Assembly from the county of Cherokee, formally recommended to the Governor, in writing, the appointment of the petitioner, as a discreet and capable person, as tax collector, and attached to said recommendation certain testimonials showing the fitness of the petitioner to discharge the duties of the office acceptably to the public.
This recommendation, together with the testimonials referred to, was duly presented to and filed with the respondent, and the allegation is made, and not denied, that the Governor has refused to make the appointment as recommended.
The pertinent parts of the act of the General Assembly which creates the office of tax collector for Cherokee county, and prescribes the method of appointment, reads as follows:
On presentation of the verified petition to the Chief Justice a rule was issued against the respondent, and made returnable before the court. The respondent appeared by counsel and filed a demurrer to the petition and the rule; and also filed a return in the alternative, subject to the demurrer, and without waiving his rights to be heard thereunder.
By the demurrer two questions are presented for our consideration: By the first, the respondent challenges the jurisdiction of the court to issue the writ of mandamus against the Governor. We shall first dispose of this issue, because, if it should be decided in favor of the respondent, a consideration of the other questions presented by the petition would become unnecessary.
It is a general rule, universally recognized, that a demurrer admits the truth of all allegations of fact in the pleading demurred to, in so far as such allegations are well pleaded.
The mandamus issue is squarely presented for the determination of this court, and the duty of the court to decide this issue may not be avoided.
In considering and passing upon the identical question, the courts of our sister states, under our form of government, recognize the duty as being an extremely delicate one, and undertake its solution with great reluctance. We, too, are conscious of its great gravity and importance.
The question presented here has been discussed ably and learnedly in many cases from other jurisdictions. In fact, it has been presented in some phase to the courts of last resort of practically every state in the union, and in addition to these has furnished the occasion for frequent adjudications by the federal courts.
We have carefully considered many of these cases. It will not be possible to comment at length upon the various decisions. To do so would unduly extend this opinion. To a considerable extent the authorities are in direct conflict. We shall endeavor to express our own views as briefly as may be; and, recognizing the serious nature of the question before us, endeavor to rest the decision upon those basic principles of right and justice recognized and established by our free constitutional government.
The issue here has never been adjudicated in this state. It was discussed generally in State ex rel. Rawlinson v. Ansel, Governor, 76 S.C. 395, 57 S.E. 185, 190, 11 Ann.Cas. 613, where the court said: "We have noticed at some length the question as to the right to issue mandamus against the Governor, not to take sides in that controversy, as this is not a case in mandamus, but to show the conflict on that vexed question and the difficulty in the way of asserting that in no case can a Governor be subjected to judicial process."
This case was later referred to in a brief per curiam order in Brown v. Ansel, Governor, 82 S.C. 141, 63 S.E. 449, where it was said: "Even if the Governor is subject to our writ of mandamus, a question noticed, but not decided, in State v. Ansel, 76 S.C. [395], 406, 57 S.E. 185, it appears from the petition that the act sought to be compelled is not a plain ministerial duty, but involves the exercise of discretion, and is therefore not compellable by mandamus." The holding in the latter case indicates the strong implication, however, that if the act sought to be compelled had been a plain ministerial duty, and had not involved the exercise of official discretion, the writ would have been issued. The decided leaning of the court is apparent also in the language used and quoted from in State ex rel. Rawlinson v. Ansel, Governor, supra. We have no case, however, which may be said to be controlling on the question at issue.
The subject is exhaustively treated by Mr. Freeman in a monographic note attached to Greenwood Cemetery Land Company v. Routt, 17 Colo. 156, 28 P. 1125, 1126, 15 L.R.A. 369, 31 Am.St.Rep. 284.
Under the American system of government, each of the states is, by its Constitution, divided into three co-ordinate branches; namely, the executive, the legislative, and the judicial. Under well-recognized constitutional construction, each of these branches is, within the sphere of its constitutional and governmental powers, independent and free from the control of the others. Within these limits, the legislative branch cannot control the judicial; nor can the judicial control the legislative or the executive. The Governor is, by the Constitution, invested with certain important governmental or political powers and duties belonging to the executive branch of the state government, and the due performance of these duties is intrusted to his official honesty, judgment, and discretion. As to these purely executive or political functions devolving upon the chief executive officer of the state, and as to any other duties necessarily involving the exercise of official judgment and discretion, the doctrine is uncontroverted, and settled beyond the shadow of a doubt, that mandamus will not lie to control or compel his action. In other words, the action of the Governor, in the exercise of his political or governmental powers, whether the same are conferred by the Constitution or by statute, cannot be controlled by mandamus. Hawkins v. Governor, 1 Ark. 570, 33 Am.Dec. 346 (which in the latter volume is followed by a most thorough note on the subject by Mr. Freeman); Tenn. & C. R. R. Co. v. Moore, 36 Ala. 371; People ex rel. Sutherland v. Governor, 29 Mich. 320, 18 Am.Rep. 89; Harpending v. Haight, 39 Cal. 189, 2 Am.Rep. 432; State ex rel. Whiteman v. Chase, 5 Ohio St. 528; State ex rel. Gruber v. Champlin, 2 Bailey, 220.
But aside from the governmental, political, or discretionary powers and duties vested in the Governor by the Constitution or by statute, there is another class of powers and duties imposed upon him which do not necessarily belong to his office as part of the functions to be performed by him, which are created by express statute, and are merely ministerial in their nature. These duties in many, and in nearly all, instances might as well have been imposed upon any other of the state officers as upon the Governor. Such duties are positive, and partake almost entirely of a purely ministerial character. It is as to these that the conflict of authority exists.
As was said in the well-considered case of State ex rel. Irvine v. Brooks, Governor, 14 Wyo. 393, 84 P. 488, 490, 6 L.R.A. (N.S.) 750, 7 Ann.Cas. 1108, the character of the duty must be determined by the nature of the act to be performed, and not by the office of the performer. And the same principle was announced in the great case of Marbury v. Madison, 1 Cranch, 137, 170, 2 L.Ed. 60, 71, by Chief Justice Marshall. He said: "It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus, is to be determined."
The cases opposing the view that the courts may issue a writ of mandamus against the Governor, either rest their decisions upon the ground that the duty enjoined upon the chief executive, the performance of...
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Easler v. Maybank
... ... mandamus to compel the performance of a purely ministerial ... duty is no longer a controversial question. See Blalock ... v. Johnston, 180 S.C. 40, 185 S.E. 51, 105 A.L.R. 1115 ... Indeed, as hereinbefore indicated, the respondent does not ... raise such issue ... ...