Taylor v. Commonwealth

Decision Date08 April 1830
Citation26 Ky. 401
PartiesTaylor v. the Commonwealth.
CourtKentucky Court of Appeals

Appointment of Clerk. Writ of Error. County Courts. Paymaster.


Crittenden Haggin, Mills and Brown, for plaintiff.

Richardson and Marshall, for defendant.



This is a writ of error, prosecuted by James Taylor, to reverse an order of the county court of Campbell, declaring that the said James Taylor had forfeited and vacated his office of clerk of the said county court, by accepting the commission of paymaster of the army of the United States, and therefore appointing John N. Talliaferro, clerk pro tempore, to fill the supposed vacancy in the office.

The appointment of a clerk, is not, strictly speaking, a judicial act. Appointment to office is intrinsically " EXECUTIVE."

Appointment of clerk is not judicial act.

Appointment to office, is intrinsically executive.

And although the constitution has confided to the courts the appointment of their own clerks, still the nature of the power is not changed. It is essentially executive, whensoever, or by whomsoever it may be exercised. It is as much executive when exercised by a court as by the governor. It is the prerogative of appointing to office, and is of the same nature, whether it belong to a court or to a governor.

The appellate jurisdiction of this court is judicial. We can revise that only which is judicial.

Neither a writ of error, nor an appeal will lie to this court, to reverse or nullify any executive appointment, or other executive act. If the governor make an illegal appointment, or if any other depository of any portion of the executive functions of government, act irregularly or illegally in the exercise of its appointing power, the appointment can not be set aside by a direct appeal to this court; nor can an incumbent who may have been illegally or unjustly supplanted by the unauthorized appointment of a successor, rectify the error, and procure his reinstatement, by writ of error, or appeal to this court, to reverse the order, appointing the successor, or superseding himself.

Neither writ of error nor appeal, lies, to reverse an executive act.

To appoint to an office, which had been before filled, implies that it had become vacant; and whether the vacation of the office be thus inferred, from the fact of making a new appointment to it, or be expressly declared by the appointing authority as the reason for such appointment, can not be essential.

The question is in effect, still the same, and that is, whether or not the appointment be legal and valid? If the appointment be valid, there was a vacancy.

If there were no vacancy, the appointment was unauthorized. It was the duty of the county court, to appoint a clerk, whenever, in its opinion, it was without a legal clerk. If it erred in its opinion, Taylor may have redress, but not by writ of error, to set aside the order of the county court.

Appointment of clerk when no vacancy, is illegal.

There has been no judicial proceeding against him for trying his right to the clerkship; nor for removing him from the office. He could be removed only by this court.

If the county court had made an order, declaring that he should not act as its clerk, because it deemed him not its clerk, he could maintain no writ of error to reverse such order.

There has been no attempt to remove Taylor from office, for any alleged malfeasance or other cause for a motion. The county court only proceeded on the hypothesis, that he was out of office.

If then, an appointment of a clerk, be, as we have supposed it must be, the exercise of an executive function, and is, therefore, as purely an executive act, as if it had been performed by the governor, (which is the necessary consequence of its being executive,) it necessarily follows, that, a writ of error can not be prosecuted by Taylor, to reverse either the order declaring that he had vacated the office of clerk, or that appointing Talliaferro his successor.

When the governor makes an appointment to fill a supposed vacancy, if there were no such vacancy, his error is executive simply. So if a court appoint a clerk, supposing and declaring that the clerkship had become vacant, when in fact, or in law, there was no vacancy, the error is executive, and not judicial. The inferior courts have no power to remove their clerks. Taylor's removal from office has not been attempted in this case. The county court has acted on the fact, or the assumption of the fact, that he was not in office. The court had the right to appoint a clerk, whenever it had no clerk. In determining that there was no clerk, and appointing one, it acted in its executive, and not in its judicial character.

The governor possesses the general appointing power. The courts have the special power of appointing their own clerks. Neither the governor nor a court can rightfully exercise the power of appointment to an office unless it be vacant; and if either should arrogate the power or exercise it through a mistake of law or fact, this court would have no more right to revise the error of the one, than that of the other. In either case (as has been observed) is it material whether it be expressly declared or decided that the office was vacant, because by appointing a successor, it is necessarily implied, that the appointing power had determined that the was a vacancy.

Whether, therefore, the county court had simply appointed Talliaferro its clerk, or had, as a reason for appointing him, also first declared that Taylor had surrendered or forfeited the office, by the acceptance of another incompatible with it, the act of the court is, in legal effect, the same. Therefore, if Taylor can maintain a writ of error to the order, declaring that he was not the clerk, he might " pari ratione, " prosecute the like writ, to reverse the order appointing Talliaferro, clerk, or " totidem verbis, " that the office had become vacant.

Talliaferro can not be the legal clerk, unless Taylor had forfeited or abandoned his precedent right to the office. Consequently, the direct object of this writ of error is to ascertain, by the judgment of this court whether Taylor or Talliaferro is the rightful clerk, by procuring either a reversal or an affirmance of the order, appointing Talliaferro. The whole inquiry therefore, is resolved into one single question, was the appointment of Talliaferro illegal?

In appointing Talliaferro its clerk, and in assigning the reason for doing so, the county court pronounced no judgment, nor decree. It is true, that in making this, as well as every other appointment to office, a decision that the office was vacant, is necessarily implied, if not expressed; but this is the opinion of the executive understanding and not the judgment of the judicial mind. And what other tribunal had any right to make the appointment, or to direct when it was proper or necessahy to make it?

Appointment of clerk, by county court, is no judgment or decree.

In every writ of error, as well as judgment, there must be both " actor" and " " reus." In such a case as...

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14 cases
  • Matheson v. Ferry
    • United States
    • Utah Supreme Court
    • January 11, 1982
    ...St. Thomas & St. John v. Gordon, 78 F.Supp. 440 (D.Virgin Islands 1948); Tucker v. State, 218 Ind. 614, 35 N.E.2d 270 (1941); Taylor v. Commonwealth, 26 Ky. 401, (3 JJ Marsh.) (1830); Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928); Myers v. United States, 27......
  • Wimberly v. Deacon
    • United States
    • Oklahoma Supreme Court
    • December 21, 1943
    ...43 A.D. 325, 60 N.Y.S. 309; Oliver v. City of Jersey City, 1899, 63 N.J.L. 96, 42 A. 782; Kerr v. Jones, 1862, 19 Ind. 351; Taylor v. Commonwealth, 1830, 26 Ky. 401; State v. Sadler, 1899, 25 Nev. 131, 68 P. 284, 59 P. 546, 63 P. 128, 83 Am.St.Rep. 573; Chisholm v. Coleman, 1869, 43 Ala. 20......
  • State ex rel. Attorney General v. Moores
    • United States
    • Nebraska Supreme Court
    • June 23, 1898
    ... ... 37; State v. Ream, 16 ... Neb. 681; Shaw v. State, 17 Neb. 334; Magneau v ... City of Fremont, 30 Neb. 843; Commonwealth v ... McCloskey, 2 Rawl. [Pa.] 368; State v. Irey, 42 ... Neb. 186; Gillespie v. City of Lincoln, 35 Neb. 34; ... State v. Seavey, 22 Neb ... constitution, but the appointment of officers generally is ... naturally and properly an executive function. ( Taylor v ... Commonwealth , 26 Ky. 401, 3 J.J. Marsh. 401; Letter of ... Thomas Jefferson to S. Kerchival, dated November 21, 1816; ... Marbury v ... ...
  • Wimberly v. Deacon
    • United States
    • Oklahoma Supreme Court
    • December 21, 1943
    ...App. Div. 325, 60 N. Y. S. 309; Oliver v. Jersey City (1899) 63 N. J. L. 96, 42 Atl. 782; Kerr v. Jones (1862) 19 Ind. 351; Taylor v. Commonwealth (1830) 26 Ky. 401; State v. Sadler (1899) 25 Nev. 131, 58 P. 284; Chisholm v. Coleman (1869) 43 Ala. 204, 94 Am. Dec. 677; Lowe v. State (1918) ......
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