McChesney v. Sampson
| Decision Date | 17 January 1930 |
| Citation | 232 Ky. 395,23 S.W.2d 584 |
| Parties | McCHESNEY v. SAMPSON, Governor, et al. |
| Court | Kentucky Court of Appeals |
Action by Frank V. McChesney against Flem D. Sampson, Governor, and others. Judgment for plaintiff. On motion before a judge of the Court of Appeals to dissolve temporary injunction granted for plaintiff. Motion denied.
See also, 23 S.W.2d 575, 588.
Henry Jackson and Sanders E. Clay, both of Danville, and Morris & Jones, of Frankfort, for plaintiff.
J. W Cammack, Atty. Gen., and Leslie W. Morris and Edward C. O'Rear, both of Frankfort, for defendants.
The problem presented by the pending motion is to determine the powers of the Governor of Kentucky respecting removal or recall of an unconfirmed appointee to membership on the state text-book commission, when there has been no session of the Senate subsequent to the appointment.
The state text-book commission was created by statute to consist of twelve members, including the Governor and superintendent of public instruction ex efficio. The other ten members were to be appointed by the Governor at the time and in the manner specified. "Five of the members so appointed shall serve for two years, and five for four years from and after their appointment, and until their successors are appointed and qualified, the terms of the respective members to be designated in their appointment." Chapter 77, Acts of 1926, p. 248, § 1; section 4421a-1, 1928 Supp., Ky. Stats. Governor Fields, who was in office when the act became effective, appointed ten members constituting, with the Governor and superintendent of public instruction, a complete commission. The Senate at its next session in 1928 failed to confirm the appointments so made, and a new commission was appointed by Governor Sampson in September, 1928. Litigation ensued raising an issue as to the rightful incumbents of the offices in which it was held by this court, all members concurring, that section 3750, Kentucky Statutes, applied to persons appointed as members of the state text-book commission, and the failure of the Senate to act upon the appointments of Governor Fields terminated the rights of the respective appointees, and resulted in vacancies which Governor Sampson was authorized to fill. Bell v. Sampson (Ky.) 23 S.W.2d 575. Among the appointees of Governor Sampson was Frank V. McChesney, to whom a commission was issued on September 12th, 1928, reading:
"In the Name and by the Authority of the Commonwealth of Kentucky
Flem D. Sampson, Governor of Said Commonwealth.
To All to Whom These Presents Shall Come, Greeting:
Know Ye, That Frank V. McChesney, Fifty Appellate District, Danville, Ky. having been duly appointed a member of the State Text-book Commission for a term of two years from April, 1928, and until his successor is appointed and qualified, to succeed H. C. Burnett.
I hereby invest him with full power and authority to execute and discharge the duties of the said office according to law. And to have and to hold the same, with all the rights and emoluments thereunto legally appertaining, for and during the term prescribed by law.
In Testimony whereof, I have caused these letters to be made patent, and the seal of the Commonwealth to be hereunto affixed. Done at Frankfort, the 12th day of September in the year of our Lord one thousand nine hundred and 28 and in the one hundred and 37th year of the Commonwealth.
Flem D. Sampson.
By the Governor:
Ella Lewis,
Secretary of State.
Robert Dixon, Jr.,
Assistant Secretary of State.
[Seal of the commonwealth of Kentucky.]"
McChesney accepted the appointment, qualified, and exercised the functions of the office until the 5th of August, 1929, when an executive order was entered as follows:
"For sufficient and satisfactory reasons I have this day and do now remove Frank V. McChesney of Danville, Kentucky, from office as a member of the State Textbook Commission from the fifth appellate court district of Kentucky, and he is now removed from said office and his said office is declared vacant and is now vacant."
Miss Nasbye Kephart was then appointed to fill the vacancy and accepted the appointment. This action was instituted by McChesney to compel his recognition as a member of the commission and to enjoin the commission from recognizing Miss Kephart and from excluding him from participation in the work of the commission. The circuit court granted the relief sought by McChesney, and a motion has been made before the undersigned Judge of the Court of Appeals to dissolve the temporary injunction granted.
Two contentions are sharply contrasted. It is insisted that an appointment to the office in question is not complete without the consent of the Senate, and until the title to the office is thus vested, the Governor is free to designate, revoke, and reappoint at will. On the other hand, it is argued that the power to appoint vested by statute in the Governor is exhausted with its exercise, and that an appointee is not removable, holding the office subject alone to the action of the Senate. The act creating the commission conferred upon the Governor no power to remove members. Such power is not incidental to the power of appointment, except where the authority to appoint is conferred in general terms for an indefinite period, without other provision of law restricting the power of removal. Votteler et al. v. Fields, Governor, manuscript opinion by Judge Dietzman, whole Court concurring, filed Jan. 17, 1930. 23 S.W.2d 588; Commissioners of Sinking Fund v. Byars, 167 Ky. 306, 180 S.W. 380; Simons v. Scott, 188 Ky. 535, 222 S.W. 1075. It follows that no power of removal exists in the present instance unless it is conferred by some other statute. In so far as we are advised, section 3750, Ky. St., is the only provision affecting the matter. It reads:
This section applies to members of the state text-book commission as was held in the case of Bell v. Sampson, where the status of McChesney, as a member of the board, was adjudicated and his right to the office upheld as against the former members appointed by Governor Fields. It is apparent that the power of removal conferred upon the Governor by section 3750, supra, is confined to persons appointed by the Governor "by and with the advice and consent of the Senate." It does not apply to appointees who have not been confirmed by action of the Senate. Votteler v. Fields, supra. As to such persons, "whether to fill a vacancy, or as an original appointment," the statute expressly says they "shall hold office, subject to the advice and consent of the senate, which body shall take appropriate action upon such appointments at its first session held thereafter." That is necessarily exclusive and means that such appointees are subject to no other power or authority than the Senate and hold office until rejected by the Senate. Barrett v. Duff, 114 Kan. 220, 217 P. 918. The statute invests the Governor with power to remove for cause appointees confirmed by the Senate, but does not confer upon the chief executive like authority over unconfirmed appointees to office. It is suggested that unconfirmed appointees thus have a position more secure than those who have been confirmed by the Senate, in that the former may not, while the latter may, be removed for cause by the Governor. It may be that the Legislature did so on the assumption that the commonwealth in such cases is not without remedy. If an officer proves derelict, section 68 of the Constitution authorizes impeachment, but impeachment is not necessary when the appointee has not been confirmed. The Legislature may be called in special session, and an appointment summarily rejected. The General Assembly may have thought the remedy afforded by rejection of an appointed member was sufficient, while a more speedy and less cumbersome remedy than impeachment was believed to be necessary after confirmation. It may be seen that the appointee has no such permanent status as would enable him to flout the law or defy the statutes governing his office. But however that may be, we...
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...(5 Okl. pp. 299, 300, 47 P. p. 1094.) It has been held gubernatorial appointments may be summarily rejected. (McChesney v. Sampson, Governor, 232 Ky. 395, 23 S.W.2d 584, 586 (1930).) A summary removal, if authorized by statute, has also been accepted. Gray v. McLendon, 134 Ga. 224, 67 S.E. ......
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