Phelps v. Byrne

• Decision Date: 19 November 1915
• Docket Number: 3923
• Citation: 154 N.W. 825,36 S.D. 369
• Parties: OSCAR W. PHELPS, Plaintiff, v. FRANK M. BYRNE, Governor, Defendant.
• Court: South Dakota Supreme Court

36 S.D. 369, 154 N.W. 825 (1915)

OSCAR W. PHELPS,

Plaintiff,

v. FRANK M. BYRNE,

Governor,

Defendant.

South Dakota Supreme Court

Original Proceeding

#3923--Writ Denied

W. A. Lynch

Attorneys for Plaintiff.

Byron S. Payne, Assistant Attorney General

Attorney for Defendant.

Opinion filed November 19, 1915

WHITING, J.

Chapter 109, Laws 1913, creates a board of public health and medical examiners, and defines the powers and duties of such board. Under its provisions the Governor is empowered and required to appoint the members of such board and to designate one of such appointees as the superintendent of the board. Three vacancies occurred on July 1, 1915, through the expiration of the terms of certain members of such board, one member whose term expired being the superintendent. The act makes no provision for the filing of an application with the Governor by one seeking appointment as a member of such board. It provides that the appointees shall be "skilled and capable physicians" resident in this state, and shall have practiced within this state not less than five years preceding their appointment. Sections 3242 and 3243, P. C., provide:

"Sec. 3242. In every public department and upon all public works of the state of South Dakota, and of the cities, towns and villages thereof, honorably discharged Union soldiers and sailors of the late war shall be preferred for appointment; age, loss of limb or other physical impairment which does not in fact incapacitate, shall not be deemed to disqualify them, provided they possess the requisite qualifications and business capacity necessary to discharge the duties of the position involved.

"Sec. 3243. All officials or other appointing power in the public service who shall neglect or refuse to comply with the provisions of the preceding section shall be deemed guilty of a misdemeanor, and shall on conviction thereof be punished by a fine not exceeding one thousand dollars or by imprisonment for a term not exceeding one year, or by both such fine and imprisonment at the discretion of the court."

The relator presents a petition wherein he alleges, among other things, that he is a citizen of this state; that several months prior to July 1, 1915, he filed with the Governor an application seeking appointment to the office of superintendent of such above-mentioned board when the vacancy should occur therein through the termination of the superintendent's term; that such application disclosed that he was an honorably discharged Union soldier of the War of the Rebellion, a holder of a certificate to practice medicine within this state, a resident physician in good standing within this state for more than ten years, in no manner incapacitated to fill the position sought, and that a vacancy would occur in the position of superintendent of such board on July 1, 1915; that he was the only honorably discharged Union soldier of the late war who was an applicant for such office; that it became and was the duty of the Governor to appoint him to the office sought; that, disregarding such duty, the Governor had appointed another party, not an honorably discharged Union Soldier of the late war to such position; that such appointment was null and void; that the Governor still refuses to appoint relator to such position. Upon the facts thus alleged, he seeks a writ of mandamus commanding the Governor of this state to appoint him to the position sought. Relator's counsel concedes:

"That this court cannot, by mandamus, or by any other process, control the defendant in the exercise of his political functions conferred on him by the Constitution; and that this court cannot control him in the performance of any duty when judgment and discretion is to be exercised."

He, however, asserts:

"That this court can, by this process, control the Governor in the performance of a purely ministerial duty when neither judgment nor discretion is to be exercised."

Although respondent has not questioned the correctness of this assertion, we find it unnecessary to determine or express any views upon the much disputed question of whether a state court can ever control the actions of the Governor of such state, even though the act sought to be controlled is but ministerial in its nature.

We decide nothing but: (1) That, in the exercise of the power to make an appointment to the office in question, the Governor is not performing a mere ministerial act; (2) that mandamus is not the proper remedy to procure the result sought by relator.

Counsel for relator says:

"This law fixes the qualifications of these officers. They must be resident physicians of the state in good standing, and must have resided and practiced five years in this state next preceding their appointment. These are the sole and only qualifications. In addition to these qualifications, however, any physician now engaged in the practice is required to be licensed to practice, and all medical practitioners are subject to have their license revoked for drunkenness, for immoral practice, or unprofessional conduct. This license is a guaranty to the public that every medical practitioner is a skilled and capable physician and in good standing in his profession. In addition to this, it is a guaranty to the Governor that all physicians practicing in the state are skilled and capable physicians and of good standing. The only facts the Governor is required to know are the facts which the law prescribes for qualifications to membership on this board. The license is conclusive of their standing and of their skill. Any licensed physician in this state who has resided and practiced in this state for five years, next preceding the term of appointment prescribed in the law, is eligible to appointment on this board. ...

"The plaintiff is an honorably discharged Union soldier. This fact makes it incumbent on the Governor to appoint him a member of this board. He has no discretion, and is not required to use judgment. Here are two men, both physicians, holding license to practice, both residents of this state for the time required by law, one an honorably discharged Union soldier, and the other not. The law says. 'Appoint the soldier,' The Governor says: 'What about my discretion and my judgment?' The law says: 'You have no discretion, nor do you have any right to exercise any judgment.' ...

"The offices in question are not positions that require business talent. This is a professional board, and its membership are required to be members of the medical profession. The functions of the office are entirely outside of the domain of business."

Counsel has cited no authority to support his position. We apprehend that, if any were to...