Keenan v. Perry

• Decision Date: 01 January 1859
• Parties: CHARLES G. KEENAN v. JOHN C. PERRY.
• Court: Texas Supreme Court

24 Tex. 253

CHARLES G. KEENAN

v.JOHN C. PERRY.

Supreme Court of Texas.

1859.

The act of the 28th of August, 1856 (O. & W. Dig. art. 1362), was not repealed by the act of the 5th of February, 1858 (O. & W. Dig. art. 1366), nor was an appointment to the office of superintendent of the lunatic asylum under the former act, superseded by the latter.

These statutes were enacted, manifestly, in pari materia, and must stand, and be construed together, as one act, as respects the office of superintendent.

The manifest intention of the legislature, in the latter act, was, not to create a new, but to regulate an existing office; and there is nothing in its provisions to lead to the conclusion, that it was their intention to act upon the incumbent of the office of superintendent, appointed under the former act, either to continue or determine his appointment.

The continuation in office of the superintendent of the lunatic asylum, appointed under the act of 1856, was determinable at the pleasure of the governor; the law providing for the appointment, by the governor, but not prescribing the duration of the office, the power of removal is incident to the power of appointment.

The act of 1858, expressly recognizes the power of removal by the governor, for certain enumerated causes, and in order that the exercise of such power, by the executive, may be effective and conclusive, it is not necessary that he should assign the causes, or manifest, by any official record, or otherwise, the particular cause or causes, upon which he acted. The law makes him the sole judge of the existence of the causes of removal.

No principle is more firmly established, than that, where a special and exclusive authority is delegated to any tribunal, or officer of the government, and no mode of revising his decision, by appeal, or otherwise, is provided by law, his action is final and conclusive, of the matter submitted to his decision.

REHEARING. Where the power of appointment is exclusively vested in any tribunal, or department of the government, and the office is held at the discretion of the tribunal, the mere appointment of a successor is, per se, a removal of the prior incumbent, so far, at least, as the right to the office is concerned.

APPEAL from Travis. Tried below before the Hon. Alexander W. Terrell.

This was a suit brought by John C. Perry against Charles G. Keenan and James B. Shaw, comptroller of public accounts, for a restoration to the office of superintendent of the state lunatic asylum, which he had lately held; alleging that Keenan had been then recently appointed thereto, and had, by virtue thereof, usurped its privileges; that the defendant, Shaw, refused to pay to him the salary to which he was entitled; that the appointment of Keenan was void; that his own term of office had not expired, and that he had in no manner been removed from the said office.

The petition prayed, that Keenan might restore to him the office aforesaid, of which he had possessed himself, and that Shaw might be required to show cause why a peremptory mandamus should not issue, commanding him to draw a warrant for his salary.

The plaintiff was appointed and commissioned to the office, by the governor of the state, on the 27th day of May, 1857, for the term of four years, and he continued to discharge its duties, until after the passage of the act of the 5th of February, 1858, entitled, “An act to provide for the organization of the state lunatic asylum, and for the care and maintenance of the insane.” After the passage of that act, to wit, on the 5th day of February, 1858, he executed the bond required by that law, which was duly approved; and he possessed the qualification of being a married man. Keenan was appointed to the said office, by the governor, on the 13th of February, 1858, gave the bond required by the act of February 5th, 1858, and took possession of the office, about the date of his appointment. The plaintiff was verbally notified, by the governor, of the appointment of Keenan, and at the same time and manner, that he was removed. No cause therefor was then or had since been assigned.

Upon this state of facts, a jury was waived, and the cause submitted to the court for decision; judgment was rendered for the plaintiff, restoring him to the office aforesaid; and a writ of mandamus was awarded for that purpose, to the defendant, Keenan, and also to require the defendant, Shaw, to draw in favor of the plaintiff, the warrant on the treasury, as prayed for.

The defendant, Keenan, appealed to the supreme court.

Oldham & White, for the appellant.

John W. Harris, for the appellee.

W. Alexander, for the appellee. There can be no legal appointment where there is no vacancy. Hill v. The State, 1 Ala. 559. The office of superintendent of the state lunatic asylum, was not vacant on the 15th of February, 1858, when, it is contended, Dr. Keenan was appointed. Dr. Perry was then the incumbent. Being in office, by appointment under the act of August 28th, 1856, and possessing all the requisites for continuing to hold the office, under the act of February 5th, 1858, he had given the bond with security it prescribed, which had been duly approved, and had continued to discharge the duties of the office, until illegally ousted--not removed according to law. No presumption can be indulged in favor of the governor and against Dr. Perry. Bowman v. Slifer, 25 Penn. St. 29; Auditor v. Howdin, 8 B. Mon. 672.

The act entitled, “An act for the erection and support of a lunatic asylum,” of August 28th, 1856 (Acts of 1856, p. 60), was not repealed and superseded by an act entitled, “An act to provide for the organization of the state lunatic asylum, and for the care and maintenance of the insane,” of February 5th, 1858. Acts of 1858, p. 114. Neill v. Keese, 5 Tex. 23. Both acts are in furtherance of the same object, the later act being cumulative of the earlier. They are not inconsistent, or conflicting with each other.

The act of 1856, contains provisions which are not to be found in the act of 1858. It makes an appropriation of $50,000 for a building. Sec. 1. It provides for the appointment of a superintendent. Sec. 4. It fixes the salary of the superintendent, and appropriates $10,000, for the expenses of the asylum, until the meeting of the next legislature. Sec. 4. If the act of 1856, be repealed, could a building, if begun, be completed? could a superintendent, in case of a vacancy, be appointed? If appointed could he draw a salary? The position that the act of 1856, is repealed, is inconsistent with the claim asserted by the appellant. If correct, the appropriation for building, the appointing power, and the salary, are gone. Dr. Keenan could not have been appointed. It is evidently an afterthought, or else, why did the governor notify Dr. Perry? The power of appointing a superintendent, is not inherent in the office of governor; it is solely conferred by the 4th section of the act of 1856. The first section of the act of 1858, invests him with the further power to appoint five managers. No further appointing power is conferred by that act. Expressio unius exclusio est alterius. Broom, Legal Maxims, 515 et seq.;Bryan v. Sundberg, 5 Tex. 418.

The acts of 1856 and 1858 are in pari materia. Sedgw. Const. 247; Smith, Com. 757, 770. The removing power of the governor (as to the superintendent) is not general. It is special, and is limited to one of three specified causes: incompetency, refusal to discharge any official duties, and misconduct. The record shows that Dr. Perry was not removed for any of these causes, or, in other words, that he has never been legally removed at all. Bryan v. Sundberg, 5 Tex. 418. Where a governor, who is vested with only a special and limited power of removal for certain causes, exceeds the power conferred upon him by law, his action can be attacked collaterally. Such action is not a judgment (Lewis v. Lewis, 9 Mo. 183), and is void. Thomas v. Burrus, 23 Miss. (1 Cush.) 550; Constitution of the State of Texas, art. II, § 1; Id. art. V, § 10; Id. art. I, § 16; Commonwealth v. Shaver, 3 Watts & Serg. 340.

Dr. Perry has neither been legislated out of office, nor removed. As no notice of appeal was given, and no appeal was perfected by the comptroller, the judgment of the court below, deciding that Dr. Perry is the incumbent of the office of superintendent of the state lunatic asylum, and is entitled to recover the salary appertaining thereto, is conclusive, as to him. Lacy v. Williams, 8 Tex. 182;Burr v. Lewis, 6 Id. 76;Herndon v. Robertson, 15 Id. 604;Herndon v. Bremond, 17 Id. 432;Sartain v. Hamilton, 14 Id. 348;Hendrick v. Cannon, 5 Id. 248.

WHEELER, C. J.

We are of opinion that the act of the 28th of August, 1856 (O. & W. Dig. art. 1362), was not repealed, nor the appointment of the appellee to the office of superintendent of the lunatic asylum superseded, by the act of the 5th of February, 1858. Id. art. 1366. The latter act does not create the office, or provide a salary for the incumbent; but the former does. The latter annexes additional qualifications, and prescribes the duration and duties of the office. The former undertakes to create, and the latter only to regulate, the office. They were enacted manifestly in pari materia, and must stand and be construed together, as one act, as respects the office of superintendent. Both must be looked to for the law creating the office, and fixing the salary, and prescribing the duties of the officer.

If it be admitted that the governor might have appointed a superintendent, and the managers have determined his salary, under the act of 1858, though the office had not been before created; yet the manner in which the subject was treated by the legislature, in the latter act, seems very plainly to manifest their understanding, that they were not creating an office theretofore unknown to the law. The manifest intention was not to create a new, but to regulate an existing...