State v. Bush
| Decision Date | 27 January 1947 |
| Docket Number | No. 4-8189.,4-8189. |
| Citation | 198 S.W.2d 1004 |
| Parties | STATE ex rel. PILKINTON, Prosecuting Attorney, et al. v. BUSH, Circuit Judge. |
| Court | Arkansas Supreme Court |
James H. Pilkinton, of Hope, and Philip G. Alston, of Texarkana, for petitioners.
Shaver, Stewart and Jones, of Texarkana, for respondent.
A petition has been filed in this court by Honorable James H. Pilkinton, prosecuting attorney of the eighth judicial circuit of Arkansas, asking us to grant a writ of mandamus against the respondent, Honorable Dexter Bush, judge of that circuit, commanding him to approve the appointment of Mr. Henry Woods as deputy prosecuting attorney of Miller County.
It is alleged in the petition that the appointment has been duly made by petitioner, that the appointee is duly qualified for the position, and that the respondent has arbitrarily and without good reason refused to approve the appointment. The respondent has answered, asserting that he had the right, without giving any reason, to approve or disapprove the appointment, but denying that he had acted arbitrarily and alleging that the appointee was not qualified for the position to which he had been named. The respondent also challenges the availability of the writ of mandamus in the instant case.
The authority of prosecuting attorneys to appoint deputies is found in Section 10884 of Pope's Digest as follows: "Except as otherwise provided, the Prosecuting Attorneys of the several Judicial Circuits of this State may appoint one deputy in each of the several counties composing their circuits; provided, that such appointment shall not take effect until approved, in writing, by the Judge of the Circuit Court of such circuit, which approval shall be filed in the office of the Clerk of the Circuit Court of the county for which such deputy is appointed; * * *."
The legislature did not intend that the duty imposed on a circuit judge in connection with the appointment of a deputy prosecuting attorney should be a merely formal or ministerial one. The word "approved," as used in the statute, connotes the exercise of discretion on the part of the judge.
"The very act of approval, unless limited by the context of the statute providing therefor, imports the act of passing judgment, the use of discretion and a determination as a deduction therefrom." Fuller v. Board of University and School Lands, 21 N.D. 212, 129 N.W. 1029, 1032. See also Baynes v. Bank of Caruthersville, Mo.App., 118 S.W.2d 1051; People v. Hall, 140 Cal.App.Supp. 745, 31 P.2d 831; Key v. Board of Education of Granville County, 170 N.C. 123, 86 S.E. 1002; Melton v Cherokee Oil & Gas Co., 67 Okl. 247, 170 P. 691; In re Robinson's Will (Henneman v. Robinson), 218 Wis. 596, 261 N.W. 725.
The circuit judge is a member of the judiciary and his duties and powers are judicial. We held in the case of Oates v. Rogers, 201 Ark. 335, 144 S.W.2d 457, 463, that the legislature could not vest in a circuit judge or chancellor a non-judicial duty. In that case we were considering the validity of an Act of the general assembly creating the office of tax collector in counties having a population of 125,000 and an assessed valuation of real and personal property of $50,000,000 or more. The Act authorized the appointment of the collector by the judges of the circuit, chancery and county courts, and we held that this Act was unconstitutional because "the nature of the act of appointment is essentially non-judicial, and therefore not to be exercised by circuit and chancery judges * * *." So, if the power of the circuit judge to pass on the appointment of a deputy prosecuting...
To continue reading
Request your trial