Broom v. Henry

100 So. 602, 136 Miss. 132, 1924 Miss. LEXIS 110

• Court: Mississippi Supreme Court
• Decided: June 16, 1924
• Docket: No. 24218
• Status: Published

Opinion

Sykes, J.,

delivered the opinion of the court.

Quo ivarra/nto proceedings were instituted in the circuit court of Hinds county by the appellant, Broom, against tlie appellee, Henry, for the purpose of having the court declare which of these two men is the state insurance commissioner.

The information of Broom in short alleges the following facts: That Broom is the insurance commissioner of the state, but that Henry unlawfully holds and exercises the functions of the office; that he, Broom, was appointed insurance commissioner by Governor Russell on the morning o,f the 22d day of January, 1924, and immediately thereafter qualified by executing proper bond which was duly approved by the Governor and filed with the secretary of state ;'that he took the oath of office, and a commission was issued to him: by the Governor,: after ■(hus qualifying as state insurance commissioner, and about noon of that same day, viz., January 22, 1924, he went to the offices of the state insurance commission for the purpose of demanding that Henry surrender the offices, records, etc., to him; that these offices were locked at that time, supposedly for the Governor’s inaugural parade; that some time during the afternoon upon Henry’s return to the office this demand was madé upon him, which was by Henry refused. The information further alleges that Henry was elected to this office and executed a bond as required by law, and tendered it to Governor Russell for approval but that the Governor, for reasons sufficient to himself, as stated in a letter from Governor Russell to the secretary of state, refused to approve Henry’s bond, and refused to issue to him a commission as insurance commissioner, and returned the bond to the secretary of state, giving his reasons in a letter for refusing to approve same. This letter was made an exhibit to the information, and states the appointment of Broom, and that on yesterday (January 21, 1924), the Governor had returned the" bond of Henry to the secretary of state, and that he refused to approve the bond, and also refused to sign Henry’s commission because Henry is a defaulter, being short in his accounts to the state, and was not eligible to hold the office for the last four years hy his own admissions of defalcations, and is still disqualified; that the office has been conducted in such way that he, as chief executive, under his sworn duty, cannot approve. The letter then deals with the appointment, etc., of Broom;. This letter is dated January 22, 1924, and was evidently written before Governor Whitfield became Governor, viz., at noon that day. The information further alleges that the term of office of the state insurance commissioner, which was at that time also held by Henry, expired on January 21, 1924, and the office thereupon became vacant at that time; that under the law when a vacancy thus occurs the Governor has the right to appoint an officer to fill this vacancy. To this information are attached as exhibits the letter of the Governor referred to above, the oath of office executed by Broom, and his commission and bond approved by the Governor.

The defendant, Henry, pleaded the general issue and a special plea! It is necessary to set out somewhat in detail the averments of this special plea. It alleges Henry’s election to this office at the regular November election in 1923, and that he received a majority of the votes in this election, which votes were properly certified to the secretary of state, by him delivered to the speaker of the House of Representatives at the regular session of the legislature which began in January, 1924, and a proper opening and counting of these votes by the speaker of the House in the presence of the members of the House, and that it was there found that defendant had received a majority of all the votes, and he was declared to be elected to this office for the term beginning January 21,. 1924. A copy of the resolution declaring Henry elected is attached as an exhibit to the plea. The plea then alleges that Henry was eligible to hold the office, and that on January 17, 1924, he took and filed the oath of office as required by law, and executed a proper and legal bond for this term in the proper penalty with a surety company as surety, which company was authorized to do business in this state and- to execute this bond; that the bond was a legal .and valid bond, conditioned in' accordance with law; that this bond was tendered to Governor Bussell to'be approved; that, the Governor knowing that the bond was a good and solvent bond in the proper penalty and properly conditioned, as required by law, that the surety was qualified to make a bond in this state, nevertheless he refused to approve the bond, for the alleged reason that the defendant was ineligible to hold the office of insurance commissioner, although the defendant was eligible; that the Governor did not find either that the bond was insufficient or not in proper form or penalty or that the surety was not solvent or possessed of the proper capital required by law; that the Governor did not notify Henry to appear and give a new bond with other sureties. Defendant then avers that he did everything required by law of him to do to qualify as insurance commissioner, but that the Governor arbitrarily refused to approve the bond. The defendant then averred that Governor Russell’s term of office expired at noon January 22, 1924, and that he was succeeded by Governor "Whitfield at that time; that immediately after Wlritfield became’ Governor he approved the defendant’s bond and issued to him a commission.

t The plea further alleges that after the attempted appointment of Broom by Governor Bussell the Governor notified the Senate then in session of this appointment, but that the Senate did not confirm Broom.

There was a demurrer to this special plea. The demurrer, was overruled, the appellant declined to plead further, and judgment final was entered in favor of appellee. From which judgment this appeal is here prosecuted.

It is the contention of the appellant that one of the necessary steps in qualifying to hold the office is the approval of the bond by the Governor; that this is a condition precedent, and must be complied with, and that the tender of a good and sufficient bond is not such a compliance, unless and until it is approved by the Governor; that, because of the failure of the Governor to approve the bond, the election was avoided, and that the failure to qualify created a vacancy in this office, which vacancy under our law the Governor had the right to fill by appointment, and did fill by the appointment of the appellant; that it is not necessary for the Senate to confirm tide appointment of the Governor under these conditions; that the Governor exercised his judgment and discretion in refusing to approve Henry’s Bond, and that 'the judicial department has no jurisdiction to review this action of the Governor.

To sustain these contentions the appellant relies principally upon section 2797, Hemingway’s Code (section 3459, Code of 1906); Swann v. Gray, 44 Miss. 393; Andrews v. Covington, 69 Miss. 740, 13 So. 853; Shotwell v. Covington, 69 Miss. 735, 12 So. 260; Railroad v. Lowry, 61 Miss. 102, 48 Am. Rep. 76.

Section 2797, Hemingway’s Code (section 3459, Code of 1906), is as follows:

“If any person elected to any office shall fail to qualify as required by law, on or before, the day of the commencement of his term of office, or if for any cause an officer should hold over after his regular term of office expires under the authority given him to hold over until his successor is elected and qualified, a vacancy in such office shall occur thereby, and it shall be filled in the manner prescribed by law for filling vacancies in such offices, unless the failure to qualify arises from there being no officer to approve the bond of such officer elect, and except the Governor-elect, when the legislature fixes by resolution the time of his installation.”

The cases of Swann v. Gray and Shotwell v. Covington, supra, both hold that the act of the officer in approving or disapproving an official bond is quasi-judicial, and, however arbitrary or unjust this officer may act, his action cannot be controlled by mandamus.

The case of Railroad v. Lowry, supra, holds that the Governor of the state cannot be compelled by mandamus to perform any act.

In this case there was no attempt by either party to compel the Governor to act or to refrain from acting*. Both Governors have acted in fhis matter, and the question here presented is the legality of these acts. We might say, in passing, that we thoroughly agree with the rules announced in the above cases which preserve the independence of the three departments of government.

While the judicial department cannot in any way compel the Governor to act or refrain from acting, yet, when he has acted, this court has also uniformly held, as is in accord with the overwhelming weight of authority, that the legality of the act is a judicial question for the courts. Brady v. Howe, 50 Miss. 607; Colbert v. State, 86 Miss. 769, 39 So. 65.

The case of Andrews v. Covington, supra, is more in point, and the latter part of this opinion apparently sustains the contention of the appellant. We quote that part of the opinion:

“But relator’s petition was also subject to demurrer. He shows by it that he has not qualified himself (if otherwise competent) to enter into the discharge of the duties of the office-by having* given an official bond appr oved b}^ the proper authorities, as the law requires. The law requires that one desiring to enter upon the offices named in the petition shall, as a condition precedent thereto, execute'and have approved by certain officials designated an official bond for each office. The tender of a good bond, if rejected by the approving officer, cannot be held to be a compliance with this statutory condition. Nothing short of what the law requires is sufficient. ’ ’

This record presents only questions of law.- By the pleadings it is admitted that the appellee, Henry, was duly elected to this office, and so declared by the House of "Representatives; that he subscribed to the oath of office, and executed a legal and valid bond, which was tendered to the Governor for approval; that Henry was eligible to the office, but that the Governor declined to approve the bond, because he thought Henry was a defaulter, and therefore not eligible to hold the office. The Governor, because of his failure to approve Henry’s bond, thought Henry for this reason had failed to qualify as insurance commissioner, and that a vacancy existed, and he therefore appointed appellant, Broom, to fill this vacancy in accordance with section 6822, Hemingway’s Code (section 4188, Code of 190&), which provides that, when a vacancy occurs in a state office which is elective, the same shall he filled by appointment by the Governor for the unexpired term. Broom immediately qualified as such officer. After this, and that same afternoon, Governor 'Whitfield approved Henry’s bond.

It is of vital importance to consider what authority is vested in the Governor by our statutes relating to the approving of official bonds by him. Is his authority limited to the question of merely passing upon the sufficiency of the bond both in form and substance, or has he the right to consider the eligibility of the officer elect? If his authority is merely limited to the sufficiency of the bond, then should he fail to approve, necessarily it can only be for one reason, viz., that the bond is insufficient-In considering this question it is necessary to consider the Constitution and the statutes relating to this matter in order to ascertain the general scheme of our government in relation thereto.

Section 140 of our Constitution states how the Governor is chosen. Section 143 requires that other state officers be chosen at the same time and in the same manner as is the Governor. Hnder these sections the speaker of the House of Bepresentatives opens and publishes these returns in the presence of the House, and the House ascertains and declares who is elected.

Section 268 of the Constitution prescribes that all officers elected or appointed shall, before entering upon the discharge of tlieir duties, take and subscribe a certain oath.

Under these sections of the Constitution the House of Representatives declare what officers are elected. It then becomes the duty of the officers to take this oath.

Certain sections of the Code provide that certain officer's execute bonds. Section 3462, Code of 1906 (section 2800, Hemingway’s Code), requires certain state officers to execute these bonds to be approved by the Governor and the commissioner of .insurance', and, when so approved, the same shall be filed and recorded in the office of the secretary of state, except that the bond of the secretary of state, when recorded by him, shall be filed with the clerk of the supreme court.

That part of Section 2551, Code of 3906 (Section 503.5', Hemingway’s Code), relating to the insurance commissioner, which is material, is as follows:

“Before entering upon the discharge of his duties the commissioner shall take the oath of office required of state officers, and give a bond in favor of the state in the penalty of ten thousand dollars, with some guarantee company or companies authorized to do business in this state, to be approved by the Governor-, conditioned for the faithful performance of the duties of said office during his term, which bond and oath of office shall be filed with the seeretai-y of state.”

Section 3463, Code of 3906' (section 2801, Hemingway’s Code), provides that a failure to observe the form of the bond prescribed by statute does not vitiate the bond, and that all official bonds are valid, whether approved by the proper officer or not approved by any.

Section 3469, Code of 1906 (section 2807, Hemingway’s Code), is important, and reads as follows:

“In case the sureties, or any of them, of any state 'ox-county officer shall permanently remove out of the state or become insolvent, or if, from any cause, an official bond shall be found insufficient, the Governor iix the case of a state officer, and board of supervisors in the case of a county officer, shall notify such officer to appear, at a day and place to be named within ten days thereafter, to give a new bond with other sufficient sureties, in a penalty equal to that of the former bond and with the like condition, or show cause why the same should not be required; and if such officer fail or neglect so to do within a time to be designated, his office shall thereby become vacant, and he shall cease to discharge any of the duties thereof; and, if a state officer, the Governor shall cause the vacancy to be filled as in other cases; and, if a county officer, the vacancy shall be filled as in other cases of vacancy in county offices. From proceedings under this section there shall be no appeal; and if the officer to be notified be without the state or abscond, he may be notified by publication as defendants in chancery are so notified.”

Section 2669; Code' of 1906 (section 5135, Hemingway’s Code), provides what sort of surety bonds may be accepted as surety.

Section 1135, Code of 1906 (section 863, Hemingway’s Code), makes it a misdemeanor for a person elected to office to undertake to discharge the duties thereof without having first taken the oath of office or given bond.

Under our laws all state officers, except the members of the judicial department are chosen at the same time. The House of Representatives declares who are the officers elect. The statutes require a number of these officers to execute bonds. All of these bonds, except that of the insurance commissioner, have to be approved by both the G-overnor and the insurance commissioner. The bond of the insurance commissioner has to be approved alone by the Governor. All of these bonds have to be filed with the secretary of state.'

The power rests with the qualified electors to select the state officers. The House of Representatives reports and declares the result of the choice of the people, and says what officers are elected. These officers then quality by subscribing to the oath of office, and in those cases, where required, by executing proper bonds and submitting to the proper officials for approval.

It is perfectly manifest that the only authority vested in the Governor and the insurance commissioner with reference to the approval of these bonds is to say whether they are sufficient or insufficient. Neither of these officials is vested with any authority to pass upon the qualifications of the officer elect. These officers have already been declared elected by the House of Representatives. These provisions relating to the approval of the bonds are merely safeguards to provide for an examination of these bonds. The insurance commissioner has just as much authority with reference to the bonds to be approved by him as has the Governor. It is contrary to the general scheme of our government and of the laws relating thereto to think that these state officers exercise any authority with reference to the qualifications or eligibility of the officers whose bonds they are to approve, but the authority vested in them by these laws is only to pass upon the sufficiency of the bond.

If the bond be found insufficient, then section 3469, Code’ of 1906 (section 2807, Hemingway’s Code), requires that the Governor notify the officer to appear at a day and place to be named within ten days thereafter to give a new bond. This was not done by the Governor, because from the record we know that he did not fail to approve the bond because of the insufficient surety, but he erroneously attempted to pass upon the qualifications of Henry. Under this statute the Governor, or other approving officer, can only fail to approve because of the insufficiency of the bond and this officer must be given ten days within which to execute a new bond. There is not-a failure to qualify because the bond was not approved by the Governor. The ten-day notification must be given and the officer permitted to execute another bond. In this case Henry’s bond was approved by Governor Whitfield the next day, and therefore every act prescribed by the statute has been complied with, and Henry is the duly elected and qualified commissioner of insurance.

In neither of the Covington cases, supra, was the question of the giving of a new bond raised. This statute was not invoked by Covington, the officer elect. There is nothing therefore in the Covington case in conflict with this opinion. It is to be noted, however, that that part of the opinion in that case above quoted was not necessary to a decision of the case, because the court bad already declared that under. Covington’s own admission he could not hold the office because he was not a qualified elector at the time of his election, and was therefore ineligible to the office. The court then goes on and gives another reason why Covington could not hold office, viz., that he failed to qualify.

In discussing this case in State v. Wharton, 104 Miss. 8, 61 So. 2, Ann. Cas. 1915D, 410, this court, through Judge Sam C. Cook, said this about it, at page 31, Mississippi Report:

“Counsel for the state relies on Andrews v. Covington, 69 Miss. 740, 13 So. 853, to support the theory that our statutes are mandatory. The writer was of counsel in the trial of this case in the circuit court, and has some knowledge of the points upon which the case went off. The facts were that Covington, although elected by the people, was not a qualified elector; he having* failed to pay all taxes legally assessed against him. He was not so qualified at the time he filed the petition, nor at the time the same was heard. What the court did really decide was that Covington was by the Constitution disqualified to hold the office to which he had been elected. He subsequently did pay up all taxes assessed against him, the board of supervisors called a special election to fill the vacancy, and Covington was re-elected and inducted into office, and held the office for four consecutive terms.”

We are not called upon in this case to consider the question of whether or not, when an officer has done all in Ms power to qualify by subscribing to the oath of office and giving a proper bond, that he can eventually be prevented from holding this office by the arbitrary refusal of the approving officers to approve the bond. Neither are we called upon to say- whether or not the approving of a bond is merely directory or mandatory. Our views of this case do not necessitate deciding these questions.

We are indebted to counsel on both sides of this case for their able and exhaustive review of the authorities bearing upon the questions involved. Their briefs have lightened very much the work of the court, as well as given us the benefit of all the authorities material to the issue.

The judgment of the court is affirmed.

Affirmed.