Gorham v. Luckett

• Decision Date: 13 October 1845
• Parties: Gorham v. Luckett.
• Court: Kentucky Court of Appeals

45 Ky. 146

Gorham v. Luckett.

Court of Appeals of Kentucky.

October 13, 1845

Jurisdiction of the Court of Appeals. Jailers. Judicial acts.

ERROR TO THE FRANKLIN COUNTY COURT.

Cates & Lindsey for plaintiff.

Hewitt for defendant.

OPINION

MARSHALL JUDGE:

The case stated.

AT the June term, 1845, of the Franklin County Court, the following orders were made, viz: " For divers good causes to the Court appearing?? it is ordered that William A. Gorham be removed from the office of Jailer, in and for the County of Franklin--and that Benjamin Luckett be appointed Jailer of said county," whereupon he took the several oaths required by law, and entered into bond, with William K Taylor his security in the penal sum of one thousand dollars, conditioned according to law.

And afterwards, on the same day, & c., William A. Gorham, by his attorney, upon affidavit, moved the Court to set aside the order dismissing him as Jailer, and appointing Benjamin Luckett in his place, and the said Benjamin Luckett appeared by his attorney; and the said parties being fully heard, and the Court being fully advised of and concerning said motion, it is ordered by the Court that said motion be overruled, the Court refused to take any action on the affidavit--to which opinion of the Court, the said Gorham tendered a bill of exceptions to the Court. The Court refused to sign and seal the same as presented, and thereupon the attorney for Gorham procured the signing thereof, by (persons named,) three by-standers, and then tendered the said bill as signed again to the Court, but the Court peremptorily refused to take any action whatever, in regard to the said exceptions thus signed and presented. And then the said Gorham moved the Court to grant him an appeal to the Court of Appeals, but the Court refused to grant said appeal, to which said Gorham tendered a bill of exceptions which the Court refused to sign, and which bill of exceptions was signed by ____ (three persons named,) and tendered to the Court as signed, and on which the Court also refused to take any action.

The bill of exceptions contains, besides the affidavit of Gorham, the statement of one of the Justices who was on the bench and voted for the order, and also the statement of the Clerk of the Court, both of whom were sworn and examined; and it contains the order appointing Gorham Jailer at the October term, 1839, and the bond then entered into by him.

It might be assumed from the proceedings as stated on the order book of the Court, that in removing Gorham, the Court was asserting a power to remove at pleasure, and was not either professedly or in fact, removing him for misbehavior or breach of duty in any respect, or for any other cause but their own will that another person, and not Gorham, should thenceforth be the Jailer. And the case is scarcely varied by the matters contained in the bill of exceptions, although it appears from the affidavit, that Gorham had no notice that such a proceeding would be attempted, and was not present when the order was made; and although the Justice who was examined as a witness, stated " that no cause was assigned for the removal, that he had heard, by any one, that the order had been drawn up by some one and passed among the members of the Court, and was approved without any cause being assigned, or any chance given said Gorham to be heard, or any notice given to him, or any proof being made in relation thereto; that he knew nothing against said Gorham failing in any instance to discharge faithfully the duties of Jailer; that he was actuated by his preference for Benjamin Luckett." And the Clerk stated that the order was written by one of the Justices, and he heard nothing about the removal until the order was handed from the bench to him to be recorded.

For the revisal and reversal of these proceedings by this Court, Gorham sued out a writ of error, which the counsel of Luckett moved to quash, on the ground that this Court had no jurisdiction of the case. And as this question was regarded as involving all others presented by the record, the case was argued and submitted for final decision.

The fundamental proposition on which the question of jurisdiction rests, and to which all reasoning applicable to it must relate, is that the power of this Court as a revisory tribunal, is judicial only, and extends only to those acts of the inferior tribunals which are in their nature judicial, or which are done in the exercise of a power which is itself judicial. If the power of removing the County Jailer, which is undoubtedly vested in the respective County Courts, be a judicial power, then in whatever form or name, or however irregularly it may have been exercised, the removal must be regarded as a judicial act.

The Court of Appeals as an appellate tribunal, has the power to revise judicial acts and judicial acts only.

By the Constitution of the State, (Art. IV., Sec. 2,) the appellate jurisdiction of the Court, subject to such restrictions as may be prescribed by law, is co-extensive with the State. It therefore extends to the revisal and regulation of the entire judicial power of the Commonwealth, as exercised by the inferior tribunals, except in those cases in which it is expressly or impliedly restricted by Legislative enactment. We have neither discovered nor been referred to any restriction, relating to the cases of removal from office by the inferior tribunals, and assume that none such exists. Wherever, therefore, the power of removal as conferred upon them is judicial, the revisory power of this Court attaches to the act of removal, though it be not done in the form of a regular judicial proceeding. One great object of erecting an Appellate tribunal, with jurisdiction co-extensive with the State, is to insure the uniform and regular action of the judicial power in all its channels, and to secure to all the benefits of those forms of proceeding which experience has proved to be essential to the attainment of justice, and to the preservation of individual rights.

In this it is subject to such restrictions alone as may be imposed by Legislative enactment.

To say that the question whether the act of the inferior tribunal is judicial or not, and whether therefore, it is subject to the appellate power or not, depends not upon the actual nature of the power under which alone the act can be lawfully done, but upon the form of the actual proceeding, and the nature of the power claimed, would be to place the jurisdiction of this Court, and the rights and interests of individuals in absolute subordination to the will of the inferior tribunal. The case of the irregular and unjudicial, or arbitrary and illegal exercise of judicial power, is the very case for which the appellate jurisdiction was provided, and which it was intended to correct and regulate. We do not understand these positions to be questioned.

The right of appeal is intended to guard against the irregular, arbitrary and illegal exercise of a judicial power.

The great question in the case, is therefore, whether the power of removing Jailers, as it now exists in the County Courts, is a judicial or a merely discretionary or arbitrary power. And in the investigation of this question, we refer, first to the Constitution and laws, to ascertain the actual extent and conditions of the power, as thereby conferred.

The Constitution in reference to the office of Jailer, does not fix the tenure of office.

The only reference which the Constitution makes to the office of Jailer, is contained in the last clause of the 9th section of article III, which provides that the County Courts shall be authorized by law to appoint various county officers, among whom Jailers are mentioned. In directing the Legislature to pass laws authorizing the County Courts to appoint Jailers, & c., the Constitution cannot be regarded as fixing the tenure of the office, but only as prescribing the appointing power, when the office is to be filled, and leaving to the Legislature the power of prescribing the tenure of office, and regulating the duties of the officer.

The act of 1799, (2 Stat. Law, 861,) " authorizing the County Courts to appoint certain officers, agreeably to the Constitution lately adopted," assuming the construction which we have given to the Constitutional provision on that subject, after requiring the respective County Courts, as often as it may be necessary, to appoint various county officers, and among them county Jailers, declares that the persons so appointed, shall take such oath, and enter into such bond, as shall be required by law, " and shall continue in office agreeably to the rules and regulations prescribed by law: Provided, That the appointment of all Jailers shall be for and during the pleasure of the Court by whom they are appointed." If the provision of this statute fixing the tenure of the office of Jailer be still in force, there is an end of the present question. Since, by the very term of the appointment as therein prescribed, the Jailer holds his office at the pleasure of the Court, and is deprived of it by their mere will. And although this power of removal at will was undoubtedly conferred, as a trust to be exercised with a view to the public interests; yet as it is in its nature discretionary and without limit or condition, beyond the will of the Court itself, there would, of course, be no right or means of questioning its validity or effect, however arbitrary or capricious might be its exercise in any particular instance, provided the removal were properly evidenced as the act of the Court.

The statute of 1799, (Stat. Law, 861,) directs the appointment of Jailers, and fixes the tenure of office, during the pleasure of the Court by whom they are appointed.

But by the...