Markham v. Cornell

• Decision Date: 28 January 1933
• Docket Number: 31206.
• Citation: Markham v. Cornell, 136 Kan. 884, 18 P.2d 158 (Kan. 1933)
• Parties: MARKHAM v. CORNELL.
• Court: Kansas Supreme Court

18 P.2d 158

136 Kan. 884

MARKHAM v. CORNELL.

No. 31206.

Supreme Court of Kansas

January 28, 1933

Syllabus by the Court.

Officer for political subdivision is generally powerless to perform official acts when beyond limits of subdivision.

Temporary absence of Governor from state does not constitute "disability" permitting Lieutenant Governor to assume powers and duties of Governor (Const. art. 1, § 11).

Real emergency must exist threatening public welfare before Lieutenant Governor may assume powers and duties of absent Governor (Const. art. 1, § 11).

Except in extraordinary circumstances, Lieutenant Governor must communicate with Governor in Governor's absence before assuming Governor's powers and duties, and should publicly announce his intention (Const. art. 1, § 11).

Several days' absence of Governor from state held not to authorize Lieutenant Governor's appointment of Superintendent of Public Instruction to fill vacancy caused by death (Const. art. 1, § 11).

On death of Superintendent of Public Instruction between thirty days prior to general election and new term, one appointed to fill vacancy holds office until next general election (Const art. 1, § 14).

1.Ordinarily an officer who holds an office for a particular political subdivision is powerless to perform an official act when beyond the territorial limits of the political subdivision for which he was elected.

2.Under the provisions of section 11 of article 1 of the Constitution, temporary absence of the Governor from the state does not constitute becoming "incapable of performing the duties of the office" so as to permit the Lieutenant Governor to assume the powers and duties of the Governor.

3.There must be a real emergency threatening the public welfare before the Lieutenant Governor is justified in assuming the powers and duties of the Governor because of the absence of the Governor from the state.

4.Except in extraordinary circumstances where it cannot be done without manifest danger to the public welfare, the Governor should be communicated with by the Lieutenant Governor before the latter assumes the powers and duties of Governor on account of the absence of a Governor from the state, and there should be a public announcement and some open display of his intention so to do.

5.In the case at bar, the facts are examined, and it is held that no emergency existed which justified the Lieutenant Governor in assuming the powers and duties of Governor.

6.Under the provisions of section 14 of article 1 of the Constitution, where a person is elected to one of the offices named in the section to succeed himself, and dies any time between thirty days prior to the general election, and the starting of the new term, there is a vacancy in the office for the term deceased is then serving, but no vacancy in the office for the new term.

7.One appointed to fill a vacancy under the circumstances stated in the foregoing syllabus is entitled to hold the office till the next general election.

Original action in mandamus by W. T. Markham against E. A. Cornell.

Peremptory writ granted, with instructions.

T. M Lillard, Clayton E. Kline, and O. B. Eidson, all of Topeka for plaintiff.

Robert Stone, James A. McClure, Robert L. Webb, Beryl R. Johnson and Ralph W. Oman, all of Topeka, for defendant.

SMITH J.

This is an original action in mandamus to compel the Secretary of State to countersign a commission appointing plaintiff Superintendent of Public Instruction.The case was submitted on the pleadings and a stipulation as to the facts.

The facts are as follows: George A. Alien was elected Superintendent of Public Instruction at the election in 1930 for a two-year term.He qualified and served that term till he was killed in an automobile accident on December 7, 1932.At the election in November, 1932, he had been re-elected for the two-year term beginning January 9, 1933.The certificate of election had been delivered to him the day before his death.His death left about a month to serve on the term to which he had been elected in 1930.On account of his death there is no one with a certificate of election for the term beginning January 9, 1933.

On the day that Mr. Allen was killed, and for several days thereafter, Governor Woodring was out of the state on other than official business.He was Governor at the time of the death of Mr. Allen, but had been defeated at the election in 1932.His term expired January 9, 1933.J. W. Graybill was the Lieutenant Governor at the time of the death of Mr. Allen.His term expired January 9, 1933.

The manner of making appointments by the Governor to fill vacancies is as follows:

First, the Governor makes up his mind whom he wishes to appoint.He then signs a requisition requesting the Secretary of State to issue a commission to the person named.It has been the custom for the Governor when expecting to be absent for a few days to sign a few of these requisitions in blank and to leave instructions with his private secretary to sign his name when necessary.The next step is that the Secretary of State fills in and countersigns a commission.This commission is then returned to the Governor, who signs it and causes the great seal of the state to be affixed to it.The appointment is then complete.

On December 7, 1932, Mr. Allen was killed.On December 9th, Governor Woodring called his secretary from New York and directed him to send a requisition to the Secretary of State requesting a commission for the appointment of W. T. Markham to be superintendent of public instruction.No commission was issued upon this requisition.

On the day of the death of Mr. Allen, Mr.

Graybill was in Arkansas.On December 10th he returned to Kansas and to Topeka.At Topeka he called on Mr. Stacey, who had been assistant to Mr. Allen during all the years that he had been superintendent.He offered Mr. Stacey the appointment to succeed Mr. Allen.Mr. Stacey signified his willingness to accept the appointment, whereupon Mr. Graybill stated that he as Lieutenant Governor and President of the Senate of the state of Kansas, and in the absence of the Governor from the state, did appoint W. A. Stacey as Superintendent of Public Instruction to fill the vacancy caused by the death of George A. Allen.He then attempted to deliver the written appointment and commission to the Secretary of State.That office was closed, however, and these documents were sent to the home of the Secretary of State.

On December 12th, Governor Woodring returned to Kansas.On that day he signed personally and issued to W. T. Markham, plaintiff herein, a commission appointing him State Superintendent of Public Instruction.He affixed the seal to this commission, and presented it to the Secretary of State.He requested that official to countersign this commission.This, the Secretary of State refused to do.This action was brought by the plaintiff to compel the Secretary of State to countersign that commission.

The theory of the Secretary of State, the Lieutenant Governor and Mr. Stacey, is that the Governor had no authority to perform any official act while he was outside the state; that on that account his action of December 9th, in directing his secretary to requisition a commission for Mr. Markham, was of no effect whatever.From this propositionthey reach the conclusion that, since the Governor was out of the state and could not act, the Lieutenant Governor became executive head of the state government and could name Mr. Stacey.

The case presents two questions: What was the effect of the action of the Governor when he was in New York?Did the absence of the Governor give the Lieutenant Governor power to act as Governor?The answer to the first question lies in a number of decisions of this court where it has been held that the powers of any officer are limited to the territory of which he is an officer.In Morrell v. Ingle,23 Kan. 32, we held that a sheriff could not act outside his own county.In Board of Com'rs of Marion County v. Barker,25 Kan. 258, the court followed the same rule with reference to county commissioners who met outside of the state and made a levy.To the same effect is Phillips v. Thralls,26 Kan. 780, as to proceedings of a justice of the peace outside his township.See, also, A., T. & S. F. R. Co. v. Rice,36 Kan. 593, 14 P. 229;State v. Durein,65 Kan. 700, 70 P. 601.The same rule has been followed in other jurisdictions.SeeEichoff v. Caldwell,51 Okl. 217, 151 P. 860, L.R.A. 1917E, 359; also Harris v. State of Mississippi,72 Miss. 960, 18 So. 387, 33 L.R.A. 85.We conclude then, that as far as conferring any right or title to the office of Superintendent of Public Instruction, the act of the Governor in telephoning his private secretary to send the requisition to the Secretary of State for a commission for Mr. Markham was without effect.It may be said here, however, that the mere act of making the requisition on the Secretary of State by itself would have conferred no right or title on Mr. Markham even if the Governor had been in his office at the time.The appointment was not complete till it had been signed by the Governor, countersigned by the Secretary of State, and had the great seal of the state affixed.

Having agreed with defendant so far, we must now consider the next step in his theory.He argues then: The Governor was powerless to act; the state must never be without an executive head; therefore in the absence of the Governor the Lieutenant Governor could act.If this reasoning is sound the appointment of Stacey by Mr. Graybill was good, and there was no vacancy for Governor Woodring to fill when he returned from New York.This question must be determined under the Constitution.The pertinent section is as...