Witherspoon v. State ex rel. West

• Decision Date: 02 March 1925
• Docket Number: 24544
• Citation: 103 So. 134,138 Miss. 310
• Court: Mississippi Supreme Court
• Parties: WITHERSPOON v. STATE ex rel. WEST. [*]

103 So. 134

138 Miss. 310

WITHERSPOON v. STATE ex rel. WEST. ^[*]

No. 24544

Supreme Court of Mississippi

March 2, 1925

APPEAL from circuit court of Washington county, HON. S. F. DAVIS Judge.

Quo warranto by the state, on the relation of Waddy West, to try the right of S. F. Witherspoon to the office of Commissioner of Mississippi Levee District. From the judgment removing respondent from office, he appeals. Reversed and remanded.

Judgment reversed and case remanded.

R. B. Campbell, J. M. Cashin and Ernest Kellner Jr., for appellant.

I. As to the error of the court below in overruling the demurrer to the information: See section 3018, Hemingway's Code.

II. As to the error of the court below in admitting in evidence certain alleged extracts from the executive journal of the Senate: Section 55, Constitution of Mississippi; Section 5408, Hemingway's Code; Section 7476, Hemingway's Code; Section 1628, Hemingway's Code; Jones on Evidence, (3 Ed.), sec. 117; Green v. Weller, 32 Miss. 650; Swan v. Buck, 40 Miss. 268; Ex Parte Wren, 63 Miss. 512; U. S. Rev. Stat., section 895; U. S. Comp. Stat., sec. 1508; 3 F. Stat. Ann., 895.

III. Presumption arising from the commissions introduced by appellant and by appellee: State ex rel., Ard v. Bankston, 23 La. Ann. 375.

IV. As to burden of proof upon relator: 72 R. C. L. 716; 1917-B Ann. Cas. 467; Anderson v. State, 69 Miss. 740, 13 So. 853; 1914-C Ann. Cas. 483.

V. As to error of the court below in admitting exhibit "C," alleged rules of the Senate of 1924: Jones on Evidence (3 Ed.), sec. 543; Jones on Evidence (3 Ed.), sec. 526, and authorities cited in Note 83.

VI. As to the right of the Senate to reconsider the confirmation of appointment of a levee commissioner: Section 231, Constitution of Mississippi; Section 175, Constitution of Mississippi; 1914-D Ann. Cas. 304; 17 Ann. Cas. 1011; 19 Ann. Cas. 823; Marbury v. Madison, I Cranch, 285, 2 L.Ed. 135 and cases cited in Rose's Notes in that case; State v. Wadhams (Minn.), 67 N.W. 64; State v. Barbour, 22 A. 686, 22 R. C. L. 423-4; State ex rel. Whitney v. Van Buskirk, 40 N. J. L. 463; Re Fitzgerald, 88 A.D. 434, 84 N.Y. 1125; 22 Cyc. 341; 2 McQuillin Mun. Corp., sec. 614; 2 Dill. Mun. Corp. (5 Ed.), sec, 529, p. 858; People ex rel. Laise, 251 Ill; 527, 36 L. R. A. (N. S.) 1203, 96 N.E. 346; State ex rel. Calderwood v. Miller, 67 Ohio 436, 78 Am. St. Rep. 739, 57 N.E. 227; State v. Phillips, 79 Me. 506, 11 A. 274; People ex rel. Mosher v. Stowell, 9 Abb. N.C. 456; State ex rel. Barwick v. Tyrell, 158 Wis. 425, 149 N.W. 280, 1916-E Ann. Cas. 270; State ex rel. Coogan v. Barbour, 53 Conn. 76, 55 Am. St. Rep. 65, 22 A. 686.

Boddie & Farish and Clements & Wright, for appellee.

I. On overruling of demurrer and competency of testimony offered, see, section 3012, Hemingway's Code; Section 1628, Hemingway's Code; Section 38, Constitution of Miss.; Monette v. State, 44 So. 989; Section 5408, Hemingway's Code; Green v. Weller, et al., 32 Miss. 650; Turnipseed v. Hudson, 50 Miss. 429; Adams v. Standard Oil Co., 97 Miss. 908.

II. On which of two commissions is presumptively valid, see, Dubuc v. Voss, 19 La. Ann. 210, 92 Am. Dec. 526.

III. On right of Senate to reconsider confirmation of appointments, Section 55, Constitution of Mississippi; Rules 11, 13, 40, 41, 42, 43 of the Senate of Mississippi, 1924 Session; Dust v. Oakman, 126 Mich. 717, 86 Am. Rep. 574, 86 N.W. 151; Ex rel. McMahon v. Davis, 284 Ill. 439, 2 A. L. R. 1650, 120 N.E. 326; Crawford v. Gilchrist (Fla.), 59 So. 963; Allen v. Morton, 94 Ark. 405; Baker v. Cushman, 127 Mass. 105; Pulman v. Langley, 133 Mass. 204; Wood v. Cutter, 138 Mass. 149; Reed v. Deerfield, 176 Mass. 473; Whitney v. Van Buskirk, 40 N. J. L. 467; Conger v. Gilmer, 32 Cal. 79.

IV. On the right of Gov. Russell to issue commission while a motion to reconsider pending, see, 22 R. C. L. 433; State v. Bowden, 92 S.C. 393, 75 S.E. 866.

V. On right of Gov. Whitfield to withdraw appointment from Senate consideration. Clearly the governor had the right to withdraw these appointments with the consent of the Senate, if he had a right to refuse to issue the commission after the Senate had acted; and this cannot be questioned, because mandamus does not lie to compel the governor to sign or issue a commission and for this reason it still remains in the power of the governor, even though the Senate had reconfirmed the appointment, to have nullified the action of the Senate by refusal to issue the commission. And this court would have been powerless to have compelled him to do so.

We have carefully searched the law books that we own and the books of the state Library, but have been unable to find where the question of withdrawal of this kind has ever been directly and in point decided by any court, and we unhesitatingly say that the direct point has never been passed upon by a court and apparently is one of first impression, and it is up to this court to "blaze the trail" on this point. However, in addition to the authorities hereinbefore cited, showing that the appointing power as long as they are in control and possession of the appointment, may deal with it as they may see fit. We are not without precedent on the point. U. S. Senate Rule 38.

We have made a careful examination of the Congressional Records and we find in almost every volume of every session where appointments have been made by the President, that from time to time he has withdrawn from consideration of the senate certain appointments. Vol. 43, Part I, p. 812, of the Second Session of the 60th Congress, he withdrew from the Senate January 12, 1909, two appointments. Vol. 42, Part I, of the First Session of the 60th Congress, pp. 303, 354, 642, 929.

Argued orally by R. B. Campbell, for appellant, and H. P. Farish and W. H. Clements, for appellee.

SMITH, C. J. ETHRIDGE, J. dissenting in part.

OPINION

SMITH, C. J.

This is an information in the nature of a quo warranto to try the right of the appellant to the office of commissioner of the Mississippi levee district.

It appears from the pleadings and competent testimony that the appellant was appointed and commissioned as the commissioner of the Mississippi levee district for Washington county by Governor L. M. Russell on January 23, 1924, and that on April 5, 1924, the relator was appointed and commissioned to the same office by Governor H. L. Whitfield, who in the meantime had succeeded Governor Russell, whose term had expired. The appellant and the relator each executed proper official bonds and subscribed to the required oath of office.

The relator introduced in evidence a certified copy of certain pages of the executive journal of the Senate of the state of Mississippi for the session of 1924, certified to by the secretary of the senate, from which it appears that the appellant was appointed by Governor Russell and a resolution confirming his appointment was adopted by the Senate in a secret executive session on January 18, 1924. The ban of secrecy was removed from this executive session, but no order was made directing that the Governor be notified of the vote on the appellant's confirmation. On January 30, 1924, within the time fixed by the rules of the Senate therefor, the vote by which the resolution confirming the appellant's appointment was adopted was reconsidered by the Senate, and with its permission the appellant's name was withdrawn from the Senate by Governor Whitfield, who had then succeeded Governor Russell as Governor of the state of Mississippi and who thereupon appointed the relator, Waddy West, as commissioner of the Mississippi levee district for Washington county, which appointment the Senate confirmed.

This evidence was introduced over the objection of counsel for the appellant, the judge of the trial court stating that, while he was of the opinion that the excerpt from the journal of the Senate should be certified to by the secretary of state, he was also of the opinion that the court could take judicial notice of the contents of the journal. A certificate by the secretary of state was introduced by the appellant, from which it appears that the journal of the Senate for the session of 1924 was deposited with him by the secretary of the Senate pursuant to the provisions of section 4638, Code of 1906 (Hemingway's Code, section 7476), and that it "contains no reference to the appointment or confirmation of the appointment of either S. F. Witherspoon or Waddy West as members from Washington county, Miss., of the board of Mississippi levee commissioners."

The case was tried by the judge of the court below by agreement, without a jury, and on this evidence a judgment was rendered removing the appellant from office.

Among the appellant's contentions are:

(1) The excerpt from the Senate's journal certified to by the secretary of the Senate was not admissible in evidence, and the court below should not have taken judicial notice of the Senate's journal.

(2) Conceding the competency of the evidence thereof, the Senate was without power to reconsider the vote by which it adopted the resolution confirming the appointment of the appellant as commissioner; consequently evidence that the Senate did reconsider that vote could not affect the right of either the appellant or the relator to the office, and therefore is wholly irrelevant and immaterial.

(3) There being no competent evidence of what occurred in the Senate with reference to the appointment of either the appellant or the relator, the court below should have presumed that the commission issued to the appellant by Governor Russell was issued pursuant to a confirmation of his appointment by the Senate, and, being prior in time to that issued by Governor Whitfield to the relator, the court should...