Page v. Hardin

• Decision Date: 30 September 1848
• Citation: 47 Ky. 648
• Parties: Page, Second Auditor v. Hardin.
• Court: Kentucky Court of Appeals

47 Ky. 648

Page, Second Auditor v. Hardin.

Court of Appeals of Kentucky.

September 30, 1848

Mandamus. Judicial power. Executive power. Officers and offices.

APPEAL FROM THE FRANKLIN CIRCUIT.

Cates, Attorney General, for the Commonwealth

J & W. L. Harlan for appellee.

OPINION

MARSHALL CHIEF JUSTICE.

Case stated

AT the October term, 1846, of the Franklin Circuit Court, Benjamin Hardin filed his petition, setting forth his appointment, on the 16th day of January, 1845, to the office of " Secretary of State of the Commonwealth of Kentucky," by a commission from his Excellency, William Owsley, Governor by and with the advice and consent of the Senate: To have and to hold the same (office,) with all the rights and emoluments thereunto legally appertaining, during good behavior, and until the end of my (his) administration; " and averring that he had accepted the said office, taken the requisite oaths and entered upon its duties; that under the authority of the act of December 24, 1805, he had, with the assent of the Governor, appointed A. S. Mitchell his assistant, by whom, acting in the name of the Secretary of State, according to law, and by the petitioner, all the duties pertaining to the office of Secretary of State have been faithfully performed; and that he has behaved himself well in the office of Secretary of State. He alleges that on the 12th day of October, 1846, he had demanded from Thomas S. Page, Second Auditor, at his public office, a warrant on the Treasurer for the amount of one quarter year's salary, due him for his services as Secretary of State, for the quarter year ending on the 30th of September, 1846, according to law and usage in such case, but that said Page refused and still refuses to issue his warrant, & c. Wherefore he prays for a rule against the Second Auditor, to show cause why a mandamus should not issue requiring him to issue his warrant, & c., for said quarter year's salary.

Upon this petition a rule to show cause, & c., was made, to which the Second Auditor responded, first protesting against the right of the petitioner to be heard upon the matters of the petition, and then stating that on the first day of September, 1846, the Hon. William Owsley, Governor, & c., caused to be filed in his office, the following extract from the Executive Journal:

" September 1st, 1846. Whereas Benjamin Hardin, by his failure, willful neglect and refusal to reside at the Seat of Government, and perform the duties of Secretary, has abandoned said office, and said office, in the judgment of the Governor, has become vacant for the causes aforesaid, it is, therefore, declared by the Governor, and ordered to be entered on the Executive Journal, that the office of Secretary has become and is vacant. Wherefore, to fill said vacancy, the Governor this day commissioned George B. Kinkead, Esq., to be Secretary till the end of the next General Assembly of Kentucky. And George B. Kinkead having qualified to his commission, entered upon the discharge of his duties."

By which extract, (the response proceeds to say,) it is manifest that on the 1st day of September, 1846, the petitioner " by his failure, willful neglect and refusal to reside at the Seat of Government, and perform the duties of Secretary had abandoned said office, and said office, in the judgment of the Governor, had become vacant, and was so declared to be by the Executive, in due form of law," and stating the commission to George B. Kinkead and his qualifying thereto and assuming the duties of Secretary, & c., says that the respondent has never declined, but is willing to issue his warrant for petitioner's salary, up to said first day of September, 1846, but has declined and still refuses to issue his warrant in his favor, for any claim for salary accruing after that day, for the reasons aforesaid; and prays the judgment of the Court whether he is bound to issue his warrant as demanded.

At the April term, 1847, (the case having been held under advisement from the preceding term,) this response was adjudged to be insufficient on demurrer, and a peremptory mandamus was awarded. From which judgment and award, an appeal to this Court was granted to the Attorney General on his motion, and in pursuance of an act of the Legislature authorizing him to appeal in such cases. The assignment of errors questions: 1st. The jurisdiction of the Court; and, 2nd. The propriety of its decision on the demurrer. The numerous questions arising under this general assignment of errors, will be discussed without any farther preliminary statement of them.

1. By the third section of an act of 1812, (1 Stat. Law, 182-8,) it is expressly made the duty of the Auditor to " issue warrants for the quarterly payment of the salaries of every person entitled thereto, as the same shall come due, on the last days of March, June, September and December annually," and for the portion of a quarter as the case may be. Upon the creation of the office of Second Auditor, this duty was devolved upon that officer. And there is no mode by which a salaried officer can regularly draw his salary from the Treasury, but by a warrant from the Second Auditor. By an act of 1825, (2 Stat. Law, 1413,) the Secretary of State, who was before a salaried officer, is entitled to a salary of seven hundred and fifty dollars. Neither this nor any other act authorizes the Auditor to make any deduction from the salary of the Secretary on account of absence, neglect of duty or other cause. But so long as he continues in office, he is entitled, under the law, to receive at the end of each quarter, a rateable proportion of his salary, computed alone with reference to time and the fact of his continuance in office. If he has been in office from the beginning to the end of a quarter, he is entitled to a warrant for the quarter's salary, and it is the Auditor's duty to issue it. The writ of mandamus commanding the Auditor to issue the warrant in such case, would seem to be an appropriate, as it is obviously a simple and direct remedy for enforcing the right of the Secretary to his salary, by enforcing the legal duty of the Auditor to furnish him with the legal and necessary means of obtaining it.

All officers of government receive their compensation upon the warrant of the Auditor upon the Treasurer. The salary of Secretary of State, $750 yearly, payable quarterly. The mandamus is an appropriate mode of compelling the issue of the warrant.

The Circuit Courts of this Commonwealth being invested with the jurisdiction and powers of the District Courts which preceded them, and which had been expressly authorized to issue writs of mandamus, have undoubtedly the power to issue such writs when appropriate. According to the nature of the writ and the practice in regard to it in England and the United States, it may be directed to an inferior tribunal or to an inferior officer or functionary, to compel the performance of a particular duty. And although it is not so extensively applicable in this State, as it is in England, where the Court of King's Bench, by which alone it is issued, has a general supervisory jurisdiction over the operation of the laws throughout the kingdom, we suppose it must even here be applicable to every case in which an inferior tribunal or officer refuses to perform a merely ministerial act which he or it is bound by law to perform, and of which the refusal defeats or violates the vested right of an individual, recognized and enforcible by law Whether this remedy may be employed for t??e enforcement of a public duty not affecting an individual right, or for any other purpose than for the effectuation of individual right, we need not inquire.

The mandamus in Kentucky, is an appropriate mode of compelling the performance, by an inferior tribunal or officer, of a duty merely ministerial, which is en joined by law.

Writs of mandamus have been issued by the Circuit Courts to the County Courts, in this State, to compel the performance of a ministerial act essential to the right of an individual, and when the proceeding has been reversed by this Court, it has been on the ground of want of right in the individual, and with the recognition, expressed or implied, that the remedy was appropriate if the right asserted had existed.

This writ has been awarded in Kentucky by the Circuits to the County Courts, to compel the performance of a ministerial duty involving individual right.

In Virginia, the writ has been issued by the superior to an inferior Court, to compel the admission and qualification of an individual claiming to have been the lawful clerk of the inferior Court.

It has been awarded in Virginia to compel the qualification of a clerk claiming to have the right to the office; and in Kentucky to compel the Register to register a survey, and compel the Auditor to issue his warrant on the Treasurer: Devine vs Harvey, (7 Mon. ) Kendall vs U. S. for Stockton, (12 Peters; ) Marbury vs Madison, (1 Cranch. )

In this State it has been issued to the Register of the Land Office to compel the registration of a survey; and in the case of Devine vs Harvey, (7 Monroe, 439,) this Court asserted that it was a proper remedy, to compel the Auditor to issue his warrant in favor of a public creditor. The same is in effect decided by the Supreme Court of the United States, in the case of Kendall vs United States, for Stockton, (12 Peters, 524.) In this last case, the remedy was sustained, on the ground that the officer to whom the writ was directed, was bound to perform the act required; that it was not a matter of discretion whether he would do it or not, and that the complaining party had a right to its performance, and an interest in it which was injured by the refusal of the officer. The case of Marb...