State v. Crawford

• Decision Date: 13 November 1891
• Citation: 28 Fla. 441,10 So. 118
• Parties: STATE ex rel. FLEMING, GOVERNOR, v. CRAWFORD, SECRETARY OF STATE.
• Court: Florida Supreme Court

10 So. 118

28 Fla. 441

STATE ex rel. FLEMING, GOVERNOR, v. CRAWFORD, SECRETARY OF STATE.

Florida Supreme Court

November 13, 1891

Petition for mandamus by Francis P. Fleming, governor of the state, to compel John L. Crawford, secretary of state, to seal and countersign the appointment and commission of Robert H. M Davidson as United State senator.

Syllabus by the Court

SYLLABUS

1.The performance of a clear ministerial duty may be required of the secretary of state by mandamus.

2.Neither the secretary of state nor the supreme court of Florida has power to pass upon the legality of an election of a United States senator by the legislature, or of an appointment of a senator by the executive of the state.The power is in the United States senate alone.

3.The commission of a United States senator appointed by the governor should be signed by the governor, and sealed with the great seal of state, and countersigned by the secretary of state, in accordance with section 14, art. 4, of the constitution of this state.

4.Where there has been an election of a United States senator by the legislature, and afterwards the governor, holding that there is a vacancy in the office on account of the illegality of such election, signs an appointment or commission of a United States senator, and requests the secretary of state to seal the same with the great seal of state, and to countersign it, it is the duty of the secretary to do so, and he has no right to refuse because he deems the governor's action illegal.If he refuses the performance of the duty, it may be required by mandamus.

5.A commission is not complete until it has been signed countersigned, and sealed in accordance with section 14 of article 4, nor is a copy of an uncompleted commission, or of the record thereof, evidence of any appointment to office.

6.Affixing the seal of state to an executive appointment of a United States senator, and countersigning the same, does not commit the secretary of state to the legality of such appointment.It implies no opinion as to the legality of either such appointment or of a previous election of another person to the same place by the legislature.

7.The commissioning of a United States senator or other public officer is a matter of public interest, and it is the duty of the executive to see that his commissions of persons appointed to office are completed; and as the chief magistrate, charged with seeing that the laws are faithfully executed, he is a proper relator in a proceeding by mandamus to require the sealing and countersigning of a commission.

COUNSEL

Fred.T. Myers, for plaintiff.

A. W. Cockrell & Son, for defendant.

OPINION

The other facts fully appear in the following statement by RANEY C.J.:

The alternative writ, the declaration in causes of this character, states in substance that, on the 22d day of September of the present year, the relator Francis P. Fleming, the governor of this state, he having ascertained and determined that a vacancy existed in the office of United States senator from this state, did, in exercise of the power conferred upon him by law, proceed to appoint Robert H. M. Davidson, a citizen of the state, having all the legal qualifications for such office, to be United States senator from Florida, to fill such vacancy until the meeting of the next legislature; and that, to evidence and give effect to such appointment, the petitioner prepared and signed an appointment or commission in the words and figures following, to-wit:

'In the name of the state of Florida.To all whom these presents may come, greetng:

'Whereas, the term of office of Wilkinson Call, as United States senator from Florida, expired on the third day of March, A.D. 1891, during the recess of the legislature of said state, whereby a vacancy then happened in the office of United States senator from Florida during such recess as aforesaid; and whereas, a senator has not been chosen by the legislature of the state of Florida to fill such vacancy; and whereas, the legislature of the state of Florida is not now in session, and a recess thereof exists at this time:

'Now, therefore, I, Francis P. Fleming, governor of the state of Florida, by virtue of the authority in me vested by the constitution of the United States, have appointed, and by these presents do hereby appoint, Robert H. M. Davidson to be United States senator from the state of Florida, until the next meeting of the legislature of the state of Florida.

'In testimony whereof I have hereunto set my hand, and caused the great seal of the state to be affixed, at Tallahassee, this twenty-second day of September, A. D. one thousand eight hundred and ninety one, and of the independence of the United States the one hundred and sixteenth year.

'FRANCIS P. FLEMING,

'Governor of Florida.

'Attest: -----,

'Secretary of State.'

That thereupon the said governor caused the said appointment or commission to be transmitted to the defendant, John L. Crawford, secretary of state of this state, and instructed and directed him to seal it with the great seal of the state, and to countersign the same as a due and proper attestation of the executive act of such appointment, to be delivered to said Davidson as his full and complete appointment to be such United States senator, and the evidence thereof; but that the said Crawford, secretary of state, in disregard of his duty in the premises, failed and refused to seal the said appointment or commission with the great seal of the state, and to countersign the same, and has failed and refused, and still refuses, so to do, to the great prejudice and injury of the people of the state.

That afterwards, on or about October 13, 1891, the said governor required and instructed William B. Lamar, the attorney general of the state, to institute proceedings in this court to procure the writ of mandamus to require the said secretary of state to seal such appointment or commission with such seal, and to countersign the same, but the attorney general has failed and refused, and still refuses, to institute the proceedings.

The writ then recites the prayer of the petition: That, in order to protect and secure the public interests in the premises, and to enforce and carry into effect his said executive act as such governor, the writ may issue, and, in compliance with such prayer, directs the secretary of state to seal and countersign the said appointment or commission, or to show cause, on the day and at the time mentioned therein, why he had not done so.

On the 29th day of October, at the time stated in such writ, the secretary of state made return to such writ, stating in effect:

(1) That this court has no jurisdiction of the respondent on the case made by the writ in respect to the specific act sought to be enforced.

(2) That the relator, the governor, has no such interest in or relation to the specific act sought to be enforced, upon the allegations of the writ, as authorizes or justifies him in instituting this proceeding.

(3) That the state has no such interest in or relation to the specific act sought to be enforced, upon the allegations of the writ, as authorizes the institution of the proceeding by the state, or on its behalf, or by or on relation of the governor of the state.

(4) That there is no law enjoining upon this respondent the performance of the specific act sought to be enforced.

(5) That it does not appear that the performance of the specific act therein sought to be enforced is necessary to make effectual the alleged appointment.

(6) That the allegations of the writ are not sufficient to show that the relator has a right to enforcement of the specific act sought to be enforced.

(7) That the petitioner is now, and was on September 22, 1891, governor of the state; that defendant has no means of knowing, and does not know, whether, on or before the day mentioned, the petitioner claimed to have ascertained and determined there was a vacancy in the office of United States senator from the state of Florida, nor the several grounds, methods, and processes upon and through which such alleged ascertainment and determination was had, other than as proclaimed by said petitioner to the people of Florida, under a writing made and published by him on the 4th day of August of the present year, a copy of which writing is annexed as a part of this return, for the purpose of showing merely the claim therein set up, and the alleged grounds and the reasoning upon and by which the alleged ascertainment and determination was reached.

That no vacancy in the office of the United States senator existed on the said 22d day of September; that 'theretofore' the vacancy created by the expiration of the term of office of Wilkinson Call, United States senator, had been filled by the legislature of the state, by whom Wilkinson Call was duly and constitutionally elected United States senator, 'as shown by a duly-certified copy of said legislative proceedings,' filed as a part of the return; and that Wilkinson Call applied for and obtained from the respondent a duly-certified copy of said proceedings, to be presented to the senate of the United States, as the due and legal evidence of his election as such senator.

That it is true that the governor did prepare and sign 'the document in writing.' a copy of which is set out in the alternative writ, and thereupon caused the same to be transmitted to respondent, with instructions to him to seal with the great seal of state, and countersign the same, and that this respondent refused so to do.

That the communications and transactions by and between the governor and the attorney general, constituting the former's alleged demand, and the latter's alleged refusal, to...