State ex rel. Miller v. Barber

• Citation: 34 P. 1028,4 Wyo. 409
• Parties: STATE EX REL. MILLER v. BARBER, SECRETARY OF STATE
• Decision Date: 01 December 1893
• Court: United States State Supreme Court of Wyoming

34 P. 1028

4 Wyo. 409

STATE EX REL. MILLER v. BARBER, SECRETARY OF STATE

Supreme Court of Wyoming

December 1, 1893

Rehearing denied March 14, 1894.

This was an original action in mandamus brought on the relation of Louis Miller against Amos W. Barber, Secretary of State, to require the latter to countersign and affix the great seal of State to a commission issued by the Governor purporting to appoint said Miller to the office of fish commissioner. The case was heard upon demurrer to the answer. All the material facts are stated in the opinion.

A. C Campbell, for relator.

The duties of the Secretary of State are ministerial in their nature. (Chap. 95, Laws 1890-91, p. 382.) Mandamus will lie to compel him to attest a commission duly issued by the Governor. (Mecham Pub. Off., Sec. 958; Merrill on Mandamus Sec. 102; State ex rel. v. Wrotnowsky, supra.) The Governor is presumed to have done his duty. Appointments are intrinsically executive. (Coogan v. Barbour, 53 Conn. 83; French v. Cox, 6 Dak. Ty., 501; Const Art. 4, Sec. 1; Art. 4, Sec. 11.) The Governor has plenary power to fill a vacancy. (Const., Art. 4, Sec. 7; Laws 1890-91, p. 238.)

The office of fish commissioner became vacant by the expiration of the term of the incumbent; the refusal of the senate to act upon the nomination of the Governor; by the issuing of the commission to relator. (State ex rel. v. McD. Tate, 68 N.C. 546.) In the absence of statute the Governor has power to remove at will without notice. (Trainer v. Wayne Co. Auditor, 15 L. R. A., 93; Ter. ex rel. French v. Cox, 6 Dak., 501; State v. Kohl, 17 A. 102; Ekloff v. D. C., 133 U.S. 240; U. S. v. Avery, Deady, 204-215.) As to vacancies and removal. (See Mecham Pub. Off., 127; In re Board Com. Johnson Co. (Wyo.), 32 P. 850; Const., Art. 6, Sec. 16; Art. 3, Sec. 19.)

Charles N. Potter, Attorney General, for respondent. (Laccy & Van Devanter, with him on the oral argument.)

The Secretary of State is not required to affix the great seal to and countersign an unlawful instrument issued by the Governor, or to attest his doing an unlawful act. It is his duty only to attest such official acts of the Governor as are required by law to be done by him. (Chap. 95, Sec. 8, Laws 1890-91; People v. Farquer, 1 Breese (Ill.), 104; State v. Trenton, 49 N. J. L., 349; State v. Dusman, 39 N. J. L., 677; Rose v. Co. Comrs., 50 Me. 243; 1 Dutcher N. J., 331; 39 Mo. 388.) To obtain a mandamus the relator must have an absolute and unquestioned legal right which has been invaded. (Illinois Watch Co. v. Pierson, 140 Ill. 423; Christman v. Peck, 90 Ill. 150; People v. Leib, 85 Ill. 484; People v. Board of Canvassers, 129 N.Y. 360; 34 Mo. App., 337; 88 Mich. 247; State v. Archibald, 45 N. W., 606.) The Governor cannot appoint to the office of fish commissioner without the consent of the senate except in case of a vacancy. An office is not vacant so long as it is supplied in the manner provided by constitution or law with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it. (Mecham on Pub. Off., Secs. 126-127; Throop, Sec. 431.) Where an officer is authorized by law to hold over after the expiration of his term, until his successor is qualified, no such vacancy exists after the expiration of the term, which permits an appointment by the executive alone, in those cases where the original appointment is required to be made by the Governor by and with the consent of the senate. (Mecham, 128-129; Throop, 431; People v. Tilton, 37 Cal. 614; State v. Howe, 25 O. St., 588; State v. Harrison, 113 Ind. 234; People v. Tyrell, 87 Cal. 475; Grossman v. State, 106 Ind. 203; People v. Hardy (Utah), 8 Utah 68; Kimberlin v. State, 130 Ind. 120.)

CLARK, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

ON APPLICATION FOR REHEARING.

The Secretary is not a mere amanuensis of the Governor. Affixing a seal to a commission not only attests his signature, but declares the legality of the act done. The Governor is not the custodian of the seal. The Secretary is. If the Governor can arbitrarily direct its use, there is little utility in providing a separate custodian of it. The Secretary necessarily has some discretion with respect to its use, and he should refuse to attach it to a document not required or authorized by law to be issued. No person has a substantial right or interest in becoming a mere de facto officer.

CLARK JUSTICE.

This is an original proceeding in mandamus commenced in this court, under the provisions of Section 3 of Art. 5 of the constitution conferring original jurisdiction upon this court in cases of mandamus as to all State officers.

The relator in his petition substantially sets up the following facts:

1st. That he is and for more than two years last past has been a resident citizen and a qualified elector of the State of Wyoming.

2d. That respondent is the duly qualified Secretary of State of the State of Wyoming.

3d. That it is the duty of the said Secretary of State to affix the great seal of the State and to countersign all commissions and other official acts required by law to be issued or done by the Governor of the State.

4th. That on the 9th day of February, 1893, the Governor of the State duly nominated to the senate of the State the relator to the office of fish commissioner for the State of Wyoming, which nomination was duly received by said senate, and said senate thereafter on the 18th day of February, 1893, adjourned sine die without either consenting to or disapproving or in any manner acting upon said nomination.

5th. That thereafter on the 17th day of March, 1893, the legislature not being in session, the Governor of this State did duly appoint and commission relator as fish commissioner of the State of Wyoming, and did transmit said appointment and commission to the said Secretary of State with the request that he countersign the same and affix thereto the great seal of the State; that the said Secretary did refuse to so countersign and affix the said seal and returned said commission and appointment to the said Governor without having affixed thereto said seal or countersigned the same.

6th. That by reason of such refusal relator is kept out of the fees and emoluments of the office, etc.; that he is entitled to speedy relief, etc., and is entirely without relief unless it be afforded by this court.

7th. That Gustave Schnitger is now exercising the duties and receiving the emoluments of said office, wherefore he prays for the writ of mandamus.

To this petition the respondent filed his answer, in which he admits all the statements of the petition excepting only those stated in the sixth paragraph as above set forth, which he denies, and further sets forth as a defense herein:

1st. That on the 24th day of January, 1891, the Governor of this State, by and with the advice and consent of the senate, duly and regularly appointed and commissioned Gustave Schnitger fish commissioner of the State of Wyoming for a period of two years thereafter and until his successor should have been duly appointed and qualified; that thereafter the said Schnitger duly qualified and entered upon the duties of said office, and ever since has been and still is exercising and discharging the same.

2d. That at the time the relator was appointed to said office to wit: March 17, 1893, Gustave Schnitger was the lawful incumbent thereof; that there was then no vacancy in the office and hence the Governor of the State did not then have power or authority to appoint or commission relator thereto; nor was he then required or authorized by law to make such appointment or to issue any such commission.

3d. That defendant as Secretary of State is not required by law to affix the great seal of the State, or countersign any commission issued by the Governor of the State unless such commission is required or authorized by law to be issued by the Governor.

4th. That relator has not been appointed to the office by the Governor, with the advice or consent of the senate; that he has not been appointed to fill any vacancy occurring or existing in the office and is not entitled thereto.

5th. That should the commission to relator be sealed and countersigned as prayed for the same would not authorize him to qualify as such officer or give him any right or title to the said office.

To this answer relator demurred, generally, and upon these pleadings, the petition, answer and demurrer, the cause was submitted to the court.

The first question which meets us in the consideration of this cause may be thus stated:

Is the Secretary of State, under the constitution and laws of the State of Wyoming, a mere ministerial officer as regards the countersigning and sealing by him of the official acts and instruments of the Governor of the State, when such acts are presented to him and he is requested by the Governor to countersign the same and affix the great seal of the State thereto; or is he, under the constitution and laws of the State, vested with discretionary and supervisory power, which enables him, before executing the functions imposed by law upon him in this particular, to judge for himself whether such official acts or instruments as need his authentication are constitutional or unconstitutional, legal or illegal, and to affix or withhold from such acts or instruments, at his option, according to his discretion, his official signature and the impress of the great seal of the State?

In our opinion the duty of the Secretary of State with respect to countersigning and affixing the great seal of the State to the commissions, official acts and other instruments issued or done by the Governor are simply and merely ministerial and he has no power or authority to...