Sewell v. Bennett
| Decision Date | 16 April 1920 |
| Citation | 220 S.W. 517,187 Ky. 626 |
| Parties | SEWELL ET AL. v. BENNETT ET AL. |
| Court | Kentucky Court of Appeals |
Suit by N. B. Sewell and another against A. S. Bennett and another. On motion to Court of Appeals for injunction refused by circuit court. Motion overruled.
Hazelrigg & Hazelrigg and Charles H. Morris, all of Frankfort, for plaintiffs.
Moorman & Woodward, of Louisville, for defendants.
This controversy is between N. B. Sewell and H. J. Allington, on the one side, and A. S. Bennett and Clyde R. Levi, on the other, each claiming places as members of the Workmen's Compensation Board.
It arose in this way: On April 1, 1918, Allington was appointed a member of the board for a term of four years, and on April 1, 1919, Sewell was appointed a member of the board for a term of four years. These appointments were made by Gov. A O. Stanley at a time when neither the General Assembly nor the state Senate was in session, and were what is commonly called vacation appointments.
In December, 1919, the term of office of Gov. Stanley expired and Gov. Edwin P. Morrow took the office as his successor. In January, 1920, the Legislature of the state convened in regular session, and this was the first meeting of the Assembly, or either branch thereof, after the appointments mentioned were made.
On January 15, 1920, Governor Morrow advised the Senate that he had, subject to its consent and approval, appointed as members of the Workmen's Compensation Board, R. C. P Thomas for a term of four years from April 1, 1916, A. S. Bennett for a term of four years from April 1, 1918, and Clyde R. Levi for a term of four years from April 1, 1919, and thereupon the following resolution was adopted by the Senate:
Following this, and on January 16, 1920, Allington and Sewell, as plaintiffs, filed their separate petitions in equity in the Franklin circuit court against Bennett and Levi, as defendants. These petitions, which were identical except as to names and dates, set out in substance their appointments by Gov. Stanley as members of the Workmen's Compensation Board at the time and for the terms heretofore stated; that each of them possessed the necessary qualifications for the office; that while they were acting as members of the board under and by virtue of their appointments, and on January 15, 1920, Gov. Morrow sent to the Senate, for its approval or rejection, the names of Bennett and Levi to succeed these plaintiffs as members of the board, and their nominations were confirmed by the Senate; that these appointees of Gov. Morrow were asserting title to the offices to which they had been appointed, and claiming the right to take possession of the books and papers of the board and exercise the duties required of members of the board; and they asked that Bennett and Levi be enjoined from asserting claim to the offices, from taking possession of the rooms, books, and papers belonging to the office and from attempting to exercise the duties of the office, or interfering in any way with Allington and Sewell in the discharge of the duties of the office.
To these petitions Bennett and Levi filed separate answers, setting up their right to the offices by virtue of the appointments of Gov. Morrow, and the confirmation thereof by the Senate. On these pleadings the cases were heard together by the judge of the Franklin circuit court, and the injunctions asked refused. Thereupon the plaintiffs in the manner authorized by the Code of Practice applied to me to grant the injunctions prayed for.
The Workmen's Compensation Act was enacted by the Legislature in 1916, and it is provided in part in section 4920 of the act, which may be found in volume 3 of the Kentucky Statutes, that:
It will be observed that the power to appoint members of the board for a full term, as well as to fill vacancies, is lodged by the act in the Governor; that an appointee for a full term shall hold his office for four years and until his successor shall have been appointed and qualified; and that vacancies on the board shall be filled by appointment for the remainder of the unexpired term.
It will further be noticed that no provision was made requiring the Governor to submit to the Senate for its rejection or confirmation the names of the persons appointed by him for either a full term or to fill a vacancy, and if this act was the only applicable law on the subject of these appointments, it is very plain that the Governor would have no warrant or authority for sending the names of members of the board to the Senate for its approval or disapproval, and equally plain that, if he should do so, the action of the Senate, whatever it might be, would have no binding force on either the Governor or his appointees.
I say this because the Workmen's Compensation Act is purely a legislative creation and in providing for the appointment of members of the board the Legislature had the undoubted power to make these appointments itself or give them to the Governor, or indeed any other person or body that it might designate, and also the power to provide that the appointing authority should submit his or its appointments to any person or body the Legislature might designate for his or its approval or rejection.
This power is conferred on the Legislature by section 93 of the Constitution, providing in part that:
"Inferior state officers, not specifically provided for in this Constitution, may be appointed or elected, in such a manner as may be prescribed by law, for a term not exceeding four years, and until their successors are appointed or elected and qualified."
A full discussion of the power of the Legislature in this respect may be found in Sinking Fund Commissioners v. George, 104 Ky. 260, 47 S.W. 779, 20 Ky. Law Rep. 938, 84 Am.St.Rep. 454; State v. Boucher, 3 N. D. 389, 56 N.W. 142, 21 L.R.A. 539; Davis v. State, 7 Md. 151, 61 Am.Dec. 331; People v. Freeman, 80 Cal. 233, 22 P. 173, 13 Am.St.Rep. 122.
As illustrating the manner in which this power has been exercised by the Legislature of this state, reference may be made to the act creating the board of penitentiary commissioners, set forth in the George Case, supra, in which the Legislature itself appointed the board; to the act creating the office of hotel inspector (Ky. Stats. 2059a), in which provision is made for the appointment by the Governor of a hotel inspector, subject to the approval of the Attorney General; to the act creating the state board of health (2047, Ky. Stats.), in which the Governor, although given the appointment of the members of the board, is required to select them from names submitted to him by medical associations; to the act creating a state board of election commissioners, who were to be appointed by the Governor from a list of names furnished by the two political parties; and to the acts creating a board of pharmacy (section 2621, Ky. Stats.), and a board of dental examiners (Ky. Stats. § 2636), which boards were to be appointed by the Governor from a list of names designated by the Kentucky Pharmaceutical Association and the Kentucky State Dental Association.
But when the power to appoint or reject or confirm is given by the Legislature to a described person or body, to the exclusion of any other person or body, the authority so confided cannot, of course, be surrendered to or transferred to any other person or body by those to whom it is confided; and, as the Legislature vested in the Governor the power to appoint members of this board, if there were no other law on the subject, he could not transfer the duty and responsibility conferred to the Senate or to any person or body for approval or rejection.
So that, looking alone to the provisions of the act, it is...
To continue reading
Request your trial
-
Leek v. Theis
...power is the exception. . . .' (pp. 263, 264, 47 S.W. p. 779.) (See also the Kentucky opinion in, Sewell and Allington v. Bennett and Levi, 187 Ky. 626, 220 S.W. 517 (1920); and Elrod v. Willis, Governor, 305 Ky. 225, 203 S.W.2d 18 The Supreme Court of North Dakota in a landmark case, State......
-
People v. Shawver
...of time, is not regarded as at all incongruous. See, State v. Williams, 20 S.C. 12; Stamps v. Tittle (Tex. Civ. App.) 167 S.W. 776; Sewall v. Bennett, supra. And the generally accepted seems to be that the two acts need not necessarily occur at the same time, though it may be conceded that,......
-
Grieb, County Clerk v. Natl. Bank of Ky.'s Rec.
...other prior and contemporaneous facts and circumstances that throw intelligent light on the intention of the Legislature. Sewell v. Bennett, 187 Ky. 626, 220 S. W. 517; Burdine v. White, 173 Ky. 158, 190 S.W. 687; Brown v. Thompson, 14 Bush, 538, 29 Am. Rep. 416. The general conditions at t......
-
City of Covington v. State Tax Commission
...188 Ky. 629, 224 S.W. 187, 14 A.L.R. 1369; State Text-Book Commission v. Weathers, 184 Ky. 748, 213 S.W. 217; Sewell & Arlington v. Bennett and Levi, 187 Ky. 626, 220 S.W. 517; Shelby v. Shelby, 192 Ky. 304, 233 S.W. 726; Houghton v. Payne, 194 U.S. 88, 24 S. Ct. 590, 48 L. Ed. 888, and num......