Royster, Clerk, v. Brock
| Decision Date | 26 February 1935 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Royster, Clerk, et al. v. Brock. Laffoon, Governor, et al. v. Rankin et al. |
Appeal from Franklin Circuit Court.
BAILEY P. WOOTTON, Attorney General, and S.H. BROWN, DAVID C. WALLS, F.M. BURKE, WILLIAM R. ATTKISSON, H. HAMILTON RICE, and RAY MURPHY, Assistant Attorneys General, for appellants.
HIRAM BROCK and CLIFFORD E. SMITH for appellees.
Affirming.
The novel question presented for determination by this appeal is whether or not the Governor of the commonwealth of Kentucky, after having issued a proclamation under and by virtue of the authority vested in him by section 80 of the Kentucky Constitution calling the General Assembly of Kentucky to convene in special session, can revoke that call before the members of the General Assembly meet and organize.
On February 6, 1935, while Governor Ruby Laffoon was absent from the state, Lieutenant Governor A.B. Chandler, acting as Governor, issued a proclamation convening the General Assembly in extraordinary session at the seat of government in Frankfort, Ky., at noon on February 8, 1935. The only subject stated in the proclamation to be considered was "to enact a compulsory primary law for the selection of all party nominees for all state offices at state wide primaries." After the proclamation had been signed by the Acting Governor and the seal of the state affixed thereto, it was registered in the office of the secretary of state pursuant to section 91 of the Constitution. Governor Laffoon returned to the state on the morning of February 7, 1935, and at once issued a proclamation in the preamble of which it was stated that no extraordinary occasion had arisen for the assembling of the Legislature within the meaning of section 80 of the Constitution. Following the preamble this appears:
"I, Ruby Laffoon, Governor of the Commonwealth of Kentucky, do hereby revoke, rescind and annul the said proclamation of A.B. Chandler, Lieutenant Governor, while acting as Governor, which is above referred to and do hereby request, enjoin and direct the members of the General Assembly of the Commonwealth of Kentucky that they forebear to and do not meet at the seat of government at 12 o'clock noon on February 8, 1935."
On February 8, 1935, a few members of each branch of the General Assembly met in their respective chambers at the Capitol, but there was not a quorum of either house present, and they adjourned until the following day. On Saturday, February 9, 1935, the same procedure was had, and thereafter Honorable Hiram Brock, a member of the Senate, brought an action in the Franklin circuit court against Byron Royster, clerk of the Senate, to require him to draw his voucher upon the auditor of public accounts for the pay and mileage of the plaintiff and others similarly situated.
On February 11, 1935, Honorable Pat Rankin and five other members of the General Assembly brought an action under the Declaratory Judgment Act against Honorable Ruby Laffoon, Governor, Honorable J. Dan Talbott, auditor, and Honorable Elam Huddleston, treasurer of the commonwealth of Kentucky, for a declaration of the rights of the parties, and especially to have determined whether or not the proclamation issued on February 7, 1935, by the Honorable Ruby Laffoon, Governor, had the effect of anulling, setting aside, and vacating the proclamation issued by the Acting Governor on February 6, 1935. The two suits were consolidated, and the circuit court adjudged that the Governor was without authority to revoke the proclamation issued by the Acting Governor, and that his proclamation issued on February 7 did not have that effect. It was further adjudged that the General Assembly was lawfully convened, and that the plaintiffs were entitled to be paid their mileage and per diem compensation. The Governor, the auditor, and the treasurer of the state have appealed.
It is appellants' contention that the right and power to revoke a proclamation convening the General Assembly rests with the Governor until the General Assembly meets and organizes for business. The correct determination of the question requires an examination of the powers of the Governor, their source and extent. The office of Governor is unknown to the common law. It is the title universally applied to the head of the executive department of a state, but in every instance the office is created by the State Constitution. Section 69 of our Constitution creates the office of Governor and vests in him the supreme executive powers of the commonwealth. He has only such powers as the Constitution and Statutes, enacted pursuant thereto, vest in him, and those powers must be exercised in the manner and within the limitations therein prescribed.
Section 27 of our Constitution provides for the separation of governmental powers into legislative, executive, and judicial, and section 28 provides that no person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances expressly directed or permitted by the Constitution. The right to convene the General Assembly in extraordinary session does not inhere in the office of Governor, nor is it a necessary incident of the office. The power might have been lodged in some other state official, or in the Legislature itself. It is no more an incident of the office of Governor than is the right to adjourn the Legislature, and, that being true, we must look to the grant of power itself to determine its extent. The power to convene the Legislature in special session is conferred upon the Governor by section 80 of the Constitution which reads:
It will be noted that he only has the power to adjourn the General Assembly in case of disagreement between the houses with respect to the time of adjournment, and then only for a limited time. His power to convene the General Assembly is limited by this section both as to the occasion and the manner in which it is exercised. The occasion must be extraordinary, and the exercise of his power must be by proclamation stating the subjects to be considered. Whether or not the extraordinary occasion justifying a special session of the General Assembly exists is a matter for his determination, and the issuance of the proclamation convening the General Assembly is left to his discretion. But once having exercised that discretion by issuing a proclamation, has he exhausted the power granted to him, or can he, as contended by the appellants, revoke the proclamation?
If the power to revoke exists, it must be implied, for no such power is expressly given. Appellants cite and rely on the case of People v. Parker, 3 Neb. 409, 19 Am. Rep. 634, in which it was held that under the provisions of the Nebraska Constitution, which are substantially the same as the provisions of section 80 of our Constitution, a proclamation of the Governor convening the Legislature in extraordinary session was revocable. The opinion was rendered in 1872 when the Supreme Court of Nebraska was composed of three justices. Chief Justice Mason dissented. Each of the two justices composing the majority wrote an opinion, and they based their conclusion that the proclamation was revocable on the ground that the Governor stood in the place of the people, and, having been constituted the sole judge of the necessity for calling the Legislature, he must be the sole judge as to when such necessity had ceased to exist. It was further said in one of the opinions that the proclamation vested no rights in the Legislature. Chief Justice Mason in his dissenting opinion pointed out that the Governor possessed such powers as the Constitution and laws conferred upon him, and none other; that the only implied powers he possessed were such as were necessary or convenient to carry into practical execution the powers granted by the Constitution and Statutes. In the course of the opinion he said:
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