Cox v. State

Decision Date02 January 1904
Citation78 S.W. 756,72 Ark. 94
PartiesCOX v. STATE
CourtArkansas Supreme Court

Appeal from Pulaski Circuit Court EDWARD W. WINFIELD, Judge.



The General Assembly of 1903 passed an act for the purpose of completing the state capitol. Act 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. 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.

Judgment affirmed.

Chas Jacobson, for appellants.

The court should have granted the temporary injunction against the legislature's commission. Sand. & H. Dig., § 5712. The position of state capitol commissioner is an office, and not a mere employment. 68 N. Car. 457; 66 N. Car 59; 5 Bing. 91; 41 Mo. 29; 36 Miss. 273; 20 Wend. 595; 16 N.Y. 381; 73 U.S. 385; 2 Cr. C. C. 78; 11 R. I. 638. They are subject to the constitutional provisions governing the filling of vacancies in office. 17 L. R. A. 243; 4 Utah 421; s. c. 132 U.S. 632; 121 Ind. 495; 66 N.C. 59; 7 Oh. 546. Cf. 45 Ill. 410, 412. As to legislative power to fill vacancies in office, see: Const. 1874, art. 5, §§ 11, 14, 23; Id., Amendment No. 3. Cf. Const. 1836, art. 5, §§ 14, 15; Id., art 4, § 28; Const. 1861, art. 4, §§ 26, 27; Id., art. 5, §§ 14, 15, 6, 26; Const. 1868, art. 5, § 34. See, generally, as to appointive power of legislature: 34 Ind. 197; 10 Wheat. 46; 1 Ark. 576; 11 Pa. 489.

Geo. W. Murphy, Attorney General, John M. Rose and Chas. T. Coleman, for appellee.

The appointing power is not an exclusive prerogative of the executive department. Webst. Speech on Presidential Protest. See also 17 Ore. 460; s. c. 21 P. 880; 21 P. 24; 80 Cal. 233; Cooley, Const. Lim., 133; 22 Ore. 142; s. c. 29 Am. St. 586; 5 Nev. 111; 24 Mich. 44; 11 Nev. 128; 21 Oh. St. 14; 18 Mo. 333; 15 Md. 376; 114 Ga. 881; 20 Ark. 212; 15 Ark. 674; 28 Ark. 270. An officer, in the sense of the constitution, is one who, by authority of law, exercises some portion of the sovereign power of the state in one of the three great departments of the government. 45 Ill. 397; 3 Wall. 93; 3 Dak. 416; s. c. 20 N.W. 416; 3 Greenl. (Me.) 481; Mechem, Pub. Off., § 4; 28 Cal. 603; 33 La.Ann. 446; 3 Okla. 682; s. c. 41 P. 635; 89 N. Car. 133; 43 A. 646; 22 Ore. 142; s. c. 29 Am. St. 586; 14 Ore. 98; 81 Ky. 67; 16 Ind. 501; 21 N.E. 21; 141 Ind. 624; 21 Oh. St. 50; 20 Johns. 491; 52 N.Y. 478; 49 Oh. St. 437. The appointing power vested in the governor by the constitution only applies to elective officers. Cf. Const. 1836, art. 4, § 28; Ib., art. 5, § 15; Const. 1861, art. 4 §§ 13, 18, 27, 9; Const. 1864, art. 4, §§ 19, 26; Ib., art. 6, §§ 15, 16; Const, 1868, art. 5, § 34; Ib., art. 6, § 26; Const. 1874, art. 5, §§ 6, 14; Ib., art 6, §§ 22, 23; Ib., art. 7, § 50.


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 of 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 the proceeding adopted, and we will proceed to consider the questions presented.

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. 44, 9 Am. Rep. 103; State v. George, 22 Ore. 142, 29 P. 356, 29 Am. St. Rep. 586; People v. Freeman, 80 Cal. 233, 22 P. 173, 13 Am. St. Rep. 122, and extended and full discussion found in note; Cooley, Const. Lim. (6th Ed.) 104-133; 23 Am. & Eng. Enc. 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." Art. 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 Assemby, the vote shall be taken viva voce, and entered on the journals." Art. 5, § 14. The contention that this section refers only to the officers of the General Assembly, such as clerks, pages and others necessary to discharge the duties of that body, does not seem to be borne out by the language used. Why should it speak of the appointment of officers, "civil or military," if that was the meaning? We do not recall any military officer attached to the legislature, or to either of its branches, and we think that the language used is too broad to justify the construction contended for. It is, of course, not usual to have vacancies in office filled by appointment made by the General Assembly, and under our constitution there are many offices which could not be filled in that way. But, though not the usual method, the language of the constitution above quoted shows that the framers of that instrument intended that it might be done in some cases not otherwise provided for, and this is not the only instance in which such power has been exercised by the legislature. It is well known that the last legislature made provision for digesting the statutes of the state, and appointed both a digester and an examiner to do the work required. The act by which these appointments were made by the legislature was approved by the governor, who thus inferentially approved the contention that the legislature has in some cases power to make appointments, and that a statute which attempts to confer this power is not necessarily unconstitutional and void on that account. Acts of 1903, p. 414. We are, then, of the opinion from the language of the constitution itself that the legislature may to some extent, in cases not otherwise provided for, exercise the appointing power. It is also plain, we think, that the governor has not inherent power, by virtue of his position as chief executive of the state, to make these appointments. If he has such power, it must be because the constitution has conferred it upon him, and thus, inferentially at least, forbidden the legislature to make them.

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