Henry v. State

• Citation: 87 Miss. 1,39 So. 856
• Court: United States State Supreme Court of Mississippi
• Decision Date: 22 January 1906
• Parties: JOHN J. HENRY, WARDEN OF THE PENITENTIARY, ET AL., v. STATE OF MISSISSIPPI

39 So. 856

87 Miss. 1

JOHN J. HENRY, WARDEN OF THE PENITENTIARY, ET AL., v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 22, 1906

OPINION

Chief Justice WHITFIELD, after the appearance of the last preceding volume of these reports, called attention to the fact that his dissenting opinion in the above entitled case did not contain an addendum made by him some days after its delivery. This addendum should be read into his dissenting opinion, following the paragraph ending near the top of page 112, 87 Miss. Reports.

The addendum is as follows:

"Since writing the above, one of the learned judges of the supreme court of Florida called my attention to a case precisely in point and squarely upholding the power of the governor to institute this suit. The case is State ex rel. Francis P Fleming, Governor, v. John L. Crawford, Secretary of State, 28 Fla. 441 (10 So. 118; 14 L. R. A., 253). The facts are these: The governor appointed Robert H. M. Davidson United States senator to succeed Wilkinson Call, whose term expired on March 3, 1891. This appointment was made during a recess of the legislature, and was to last until the next meeting of the legislature. The governor issued the commission and signed it, and instructed and directed the secretary of state to seal it with the great seal of the state and to countersign it, as required by the constitution. The secretary of state refused to do either. Afterwards the governor instructed the attorney-general of the state to institute proceedings for a writ of mandamus to require the secretary of state to seal and countersign said commission. The attorney-general refused to institute the proceedings, and the governor then in his own name, in order to protect the public interest in the premises, etc., sued out a writ of mandamus. The secretary of state, in his return to the mandamus, denied the power of the governor to institute the suit, saying, in his second objection (p. 445 of 28 Fla., p. 119 of 10 South. Rep. ) "that the relator, the governor, has no such interest in or relation to the specific act sought to be enforced, upon the allegations of the writ, as authorizes or justifies him in instituting this proceeding." He also insists, third "that the state has no such interest in or relation to specific act sought to be enforced, upon the allegations of the writ, as authorizes the institution of the proceeding by the state, or on its behalf, or by or on relation of the governor of the state." The opinion of the court was delivered by Chief Justice RANEY, one of the greatest judges this country has ever produced. Responding to the contentions indicated, he said, for a unanimous court:

"It is also contended that neither the state nor the governor has any such interest in or relation to the specific act sought to be enforced as authorizes or justifies the institution of this suit. It is entirely clear, from the authorities (Marbury v. Madison, 1 Cranch 137 ; United States v. Le Baron, 19 HOW 73 , and Advisory Opion, 12 Fla 686), and what has been announced in preceding portions of this opinion, that the executive or governmental duty of completing a commission is not consummated until it has been sealed and countersigned. Even admitting that, when a commission has been signed and delivered by the governor to the secretary of state, the appointee named therein, who may have previously taken the oath and given bond or done anything necessary to justify him in entering into the office upon the perfection of the commission, has such a private interest therein as gives him a status to require through the instrumentality of this writ the sealing and countersigning, or admitting that the executive power of revoking his action has passed as soon as a commission so signed has been delivered to the secretary, or even as soon as it has been signed with the intention of such delivery these positions and concessions, if proper, are in no way inconsistent with, nor do they effect, the interest of the public in the appointment and commissioning of public officers, nor do they remove the fact that the governor is...