State ex rel. Brotherton v. Moore

• Decision Date: 14 December 1976
• Docket Number: No. 13762,13762
• Citation: 230 S.E.2d 638,159 W.Va. 934
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. William T. BROTHERTON, Jr., etc., et al. v. Arch A. MOORE, Jr., Governor of the State of West Virginia.

Page 638

230 S.E.2d 638

159 W.Va. 934

STATE ex rel. William T. BROTHERTON, Jr., etc., et al. v. Arch A. MOORE, Jr., Governor of the State of West Virginia.

No. 13762.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1976.

Syllabus by the Court

1. A citizen and taxpayer of this State has a right to maintain a mandamus proceeding in order to compel a public official to perform a nondiscretionary constitutional duty.

2. When, during the recess of the senate, a vacancy occurs within the meaning of Article VII, Section 9 of the Constitution of West Virginia, it is the mandatory duty of the governor to fill such vacancy by appointment.

3. Mandamus lies to compel the governor to exercise his power of appointment under Section 9 of Article VII of the Constitution of West Virginia when the governor declines or fails to exercise his power for an unreasonable period of time.

Jack M. McCarty and Victor A. Barone, Charleston, for petitioners.

Kay, Casto & Chaney, John S. Haight, Michael T. Chaney and Don R. Sensabaugh, Charleston, for respondent.

FLOWERS, Justice:

This mandamus proceeding was instituted by William T. Brotherton, Jr., and Lewis N. McManus, in their respective capacities as President of the Senate and Speaker of the House of Delegates and in their individual capacities as citizens and taxpayers, and by the Joint Committee on Government and Finance of the Legislature of West Virginia. The relators seek to compel the respondent, Arch A. Moore, Jr., Governor of the State of West Virginia, to fill a vacancy in the office of superintendent of the West Virginia Industrial Home for Girls and to submit the name of the nominee to the Senate for its consideration.

A vacancy was created in that office on August 31, 1974, when the incumbent superintendent, Betty Lou Bambrick, was forced to resign. The United States Civil Service Commission had ordered that Miss Bambrick be dismissed from her post for a violation of the federal Hatch Act. The respondent admits that a vacancy was created and that the vacancy has not been filled. In the interim the responsibilities of the office have been discharged by various 'acting superintendents', including within the last year Miss Bambrick, now Mrs. Betty Lou Tompkins. Mrs. Tompkins was returned to the payroll of the institution on April 12, 1976.

The relators by brief and pleading assert that Mrs. Tompkins is serving and being compensated for serving in contravention of the laws of this State. By their choice of parties to the suit, however, the relators have excluded from our consideration the legal status of Mrs. Tompkins. Since Mrs. Tompkins is not a party to these proceedings, we cannot determine any right or title she may have in the office. State ex rel. Wayne v. Sims, 141 W.Va. 302, 90 S.E.2d 288 (1955); Stowers v. Blackburn, 141 W.Va. 328, 90 S.E.2d 277 (1955). Similarly, since the auditor has not been made a party, the case is not in a proper posture to determine her right to compensation for her services. State ex rel. Warder v. Gainer, 153 W.Va. 35, 167 S.E.2d 290 (1969).

The sole issue framed by the pleading is whether the chief executive of this State may be compelled by mandamus to fill a vacancy in a public office. Necessarily incident to adjudication of that issue, however, are determinations by this Court on questions of mootness and standing.

I

The prayer of the mandamus petition requests that the Governor be compelled to fill the vacancy and submit the name of the nominee when the Second Extraordinary Session of the Legislature reconvened. Shortly after this case was submitted for decision, that session reconvened and adjourned.

Under the Constitution of this State, no regular session of the Legislature will convene until January 12, 1977. ¹ Pursuant to the constitutional provisions regarding the time and place of assembly, the Legislature shall convene on that date, restricting its business to the election of its officers and the publication of election returns, and adjourn until February, 9, 1977. ² The respondent's term of office expires on January 16, 1977, ³ prior to the date that the Legislature may consider regular business.

However, under Section 19 of Article VI of the Constitution of West Virginia, the governor may by proclamation convene the Legislature whenever, in his opinion, the public safety or welfare shall require it. In addition, the governor has a duty to convene the Legislature upon the written application of three-fifths of the members elected to each house. Since the Legislature, either upon the application of the requisite number of its own membership or upon the call of the governor, can reconvene, the issue presented for decision in this case is not moot.

II

The respondent Governor maintains that the relators have no standing to maintain this mandamus proceeding. We agree that the Joint Committee on Government and Finance does not have sufficient interest or authority to litigate the issue raised. While the committee is a statutory body representative of legislative interests, its purpose is to study and survey matters of government, finance and claims against the State. Its power is restricted to the submission of reports and the exercise of any such special duties or responsibilities as may be, by resolution, delegated to it. ⁴ There is no showing here, by resolution or otherwise, that the Joint Committee on Government and Finance has been authorized or empowered to institute and maintain this or any other case in behalf of the Legislature of West Virginia.

We do not feel compelled to determine what standing William T. Brotherton, Jr., or Lewis N. McManus may have in their official capacities as President of the Senate and Speaker of the House. Any standing which could be demonstrated in this regard, either through the role of the Senate in the confirmation process or through the role of the House of Delegates in its consideration of appropriations, is superfluous. Both of these relators have standing to maintain the proceeding as citizens and taxpayers of this State.

We have faithfully adhered to the principle that a citizen and taxpayer may maintain a mandamus proceeding to compel any public officer to perform a nondiscretionary legal duty. State ex rel. Brotherton v. Blankenship, W.Va., 214 S.E.2d 467 (1975); Delardas v. County Court, 155 W.Va. 776, 186 S.E.2d 847 (1972). No special or pecuniary interest must be shown by individuals who sue in this capacity. Frantz v. County Court, 69 W.Va. 734, 73 S.E. 328 (1911).

III

The crux of the issue which is properly before us turns upon the nature of the Governor's appointment powers. Article VII, Section 8 of the Constitution of West Virginia requires the governor to '. . . nominate, and by and with the advice and consent of the senate, . . . appoint all officers . . . created by law, . . .' Section 9 provides that the governor shall fill by appointment any vacancy in a non-elective office which occurs during the recess of the Senate and to submit the name of the nominee for consideration at the next meeting of the Senate. In pertinent part, Section 9 provides:

'In case of a vacancy, during the recess of the senate, in any office which is not elective, the governor shall, by appointment, fill such vacancy, until the next meeting of the senate, when he shall make a nomination for such office, and the person so nominated, when confirmed by the senate, (a majority of all the senators elected concurring by yeas and nays) shall hold his office during the remainder of the term, and until his successor shall be appointed and qualified. . . .'

In State ex rel. Wayne v. Sims, supra, this Court held that the duty imposed upon the governor by the Constitution with regard to filling vacancies in nonelective offices was mandatory.

Were we limited in this case to determining the mandatory nature of the constitutional duty imposed by Article VII upon the governor, our decision would be a simple one. The issue of the right of the judicial branch to compel performance of that duty is, however, fraught with complexity. ⁵ It presents problems distinct from the usual considerations incident to the issuance of the writ in cases involving other executive officers. The existence of such right or authority must be determined within the context of Article V, Section 1 of the Constitution of West Virginia which provides:

'The legislative, executive and judicial departments shall be separate and distinct, so that Neither shall exercise the powers properly belonging to either of the others; . . .' (emphasis added)

There is wide divergence of opinion among the courts of this country upon the jurisdiction of state courts to compel a governor to perform an act pursuant to powers entrusted to him by constitutional or statutory provision. Annot., 2 L.Ed. 107, 130; Slack v. Jacob, 8 W.Va. 612 (1875). The conflict results from varying interpretations of the fundamental principle of separation of powers found in the federal as well as most state constitutions.

Reasoning that within his constitutional duties and powers a governor is supreme--answerable only to the people and the impeachment process, some courts have refused to issue the writ against a chief executive regardless of the circumstances or duty involved. Kelly v. Curtis, 287 A.2d 426 (Me.1972); People ex rel. Bruce v. Dunne, 258 Ill. 441, 101 N.E. 560 (1913); Rice v. Draper, 207 Mass. 577, 93 N.W. 821 (1911); People ex rel. Sutherland v. Governor, 29 Mich. 320 (1874).

Courts in other jurisdictions, however, tempered perhaps by a less restrictive interpretation of the 'separation principle', acknowledge the right and authority to mandamus the governor in limited instances involving the existence of a nondiscretionary statutory duty. Tennessee &...