Cox v. State

• Decision Date: 02 January 1904
• Citation: 78 S.W. 756
• Parties: COX et al. v. STATE ex rel. ATTORNEY GENERAL.
• Court: Arkansas Supreme Court

78 S.W. 756

COX et al. v. STATE ex rel. ATTORNEY GENERAL.

Supreme Court of Arkansas.

January 2, 1904.

Appeal from Circuit Court, Pulaski County; Edward W. Winfield, Judge.

Action in the nature of quo warranto by the state, on the relation of the Attorney General, against Thomas Cox and others. From a judgment of ouster, defendants appeal. Affirmed.

The General Assembly of 1903 passed an act for the purpose of completing the state capitol. Acts 1903, p. 248. The title of the act is "An act to provide for the completion of the state capitol building, and for other purposes." To carry into effect the purposes of the act, it created a board to be known as the "State Capitol Commission." It provided that the board should consist of five persons, to be elected by the Senate and House of Representatives in the manner provided in the act. This act was passed over the veto of the Governor, he having vetoed the bill on the ground that the Legislature had no power to select the commissioners provided for by the bill, and also for other reasons stated by him. After the passage of the act the Governor immediately appointed five commissioners to carry out the purposes of the act. The action of the Governor was ignored by the Legislature, and the two houses in joint session soon afterwards elected five commissioners as provided by the statute act. Afterwards the Attorney General brought in the circuit court of Pulaski county an action in the nature of an action of quo warranto against the commissioners appointed by the Governor, asking that they be compelled to show by what authority they were attempting to act as a board of capitol commissioners, and that upon a hearing they be ousted. The defendants appeared, and filed their answer, setting up their appointment by the Governor. The case was tried by the circuit judge on an agreed statement of facts. He found the law to be in favor of the contention of the Attorney General, and gave judgment of ouster against the defendants, who took an appeal to this court.

Chas. Jacobson, for appellants. Geo. W. Murphy, Atty. Gen., Jno. M. Rose, and Chas. T. Coleman, for appellee.

RIDDICK, J. (after stating the facts).

This is an action brought by the Attorney General against Thomas Cox and four other defendants, who were appointed by the Governor to serve as members of the board of state capitol commissioners, created by act of the last Legislature. The act in question provided that the members should be elected by the two houses of the Legislature in joint session. Acts 1903, p. 249. In pursuance of this provision of the act commissioners were duly elected by the Legislature. But the Governor, acting on the theory that the Legislature had no power to make such selection, and that the power to appoint the members of the board was vested in him, appointed the five defendants to serve in that capacity, and this action was brought to test the validity of the appointments made by the Governor. All parties wish to have the matter determined, and no objection is made to the form of the action or to the proceeding adopted, and we will proceed to consider the questions presented.

First, as to the power of the Legislature to make appointments to office. In the United States the general power to appoint officers is not inherent in the executive or in any other branch of the government. It is a prerogative of the people, to be exercised by them or that department of the state to which it has been confided by the Constitution. The Legislature has, we think, power to make appointments to office unless its powers in that respect are restricted by the Constitution either expressly or by implication. Hovey v. State, 119 Ind. 386, 21 N. E. 890; People v. Hurlbut, 24 Mich. 64, 9 Am. Rep. 103; State v. George, 22 Or. 142, 29 Pac. 356, 16 L. R. A. 737, 29 Am. St. Rep. 586; People v. Freeman, 80 Cal. 233, 22 Pac. 173, 13 Am. St. Rep. 122, and extended and full discussion found in note; Cooley, Const. Lim. (6th Ed.) 104-133; 23 Am. & Eng. Ency. Law (2d Ed.) 340. Now, an examination of our Constitution will show that it not only contains no general or express prohibition against the exercise of the appointing power by the Legislature, but it affirmatively shows that it was the intention of the framers of the Constitution to permit the Legislature to exercise such power to a limited extent. This is shown by the provision to the effect that if in an election for Governor, Secretary of State, Treasurer, Auditor, or Attorney General two or more candidates for either of said offices shall receive an equal number of votes, then one of those persons receiving the highest votes "shall be chosen by the joint vote of both houses of the General Assembly." Article 6, § 3, Const. 1874. It is shown also by the section which declares that "whenever an officer, civil or military, shall be appointed by the joint or concurrent vote of both houses, or by the separate vote of either house of the General Assembly, the vote shall be taken viva voce, and entered on the journals." Article 5, § 14. The contention...