Royster, Clerk v. Brock

Opinion of the Court by Judge Rees Affirming. The novel question presented for determination by this appeal is whether or not the Governor of the commonwealth of Kentucky, after having issued a proclamation under and by virtue of the authority Vested in him bv section 80 of the Kentucky Constitution calling the General Assembly of Kentucky to convene in special session, can revoke that call before the members of the General Assembly meet and organize. On February 6, 1935, while Governor Ruby Laffoon was absent from the state, Lieutenant Governor A. B. Chandler, acting as Governor, issued a proclamation convening the General Assembly in extraordinary session at the seat of government in Frankfort, Ky., at noon on February 8, 1935. The only subject stated in the proclamation to be considered was “to enact a compulsory primary law for the selection of all party nominees for all state offices at state wide primaries.” After the proclamation had been signed by the Acting •Governor and the seal of the state affixed thereto, it was registered in the office of the secretary of state pursuant to section 91 of the Constitution. Governor Laffoon returned to the state on the morning of February 7, 1935, and at once issued a proclamation in the preamble of which it was stated that no extraordinary occasion had arisen for the assembling of the Legislature within the meaning of section 80 of the Constitution. Following the preamble this appears: “I, Ruby Laffoon, Governor of the Commonwealth of Kentucky, do hereby revoke, rescind and annul the said proclamation of A. B. Chandler, Lieutenant Governor, while acting as Governor, which is *148 above referred to and do hereby request, enjoin and direct the members of the General Assembly of the Commonwealth of Kentucky that they forebear to and do not meet at the seat of government at 12 o’clock noon on February 8> 1935.” On February 8, 1935, a few members of each branch of the General Assembly met in their respective chambers at the Capitol, but there was not a quorum of either house present, and they adjourned until the following day. On Saturday, February 9, 1935, the same procedure was had, and thereafter Honorable Hiram Brock, a member of the Senate, brought an action in the Franklin circuit court against Byron Royster, clerk of the Senate, to require him to draw his voucher upon the auditor of public accounts for the pay and mileage of the plaintiff and others similarly situated. On February 11, 1935, Honorable Pat Rankin and five other members of the General Assembly brought an action under the Declaratory Judgment Act against Honorable Ruby Laffoon, Governor, Honorable J. Dan Talbott, auditor, and Honorable Elam Huddleston, treasurer of the commonwealth of‘Kentucky, for. a declaration of the rights of the parties, and especially to have determined whether or not the proclamation issued on February 7, 1935, by the Honorable Ruby Laffoon, Governor, had the effect of anulling, setting aside, and vacating the proclamation issued by the Acting Governor on February 6, 1935. The two suits were consolidated, and the circuit court adjudged that the Governor was without authority to revoke the proclamation issued by the Acting Governor, and that his proclamation issued on February 7 did not have that effect. It was further adjudged that the General-Assembly was lawfully convened, and that the plaintiffs were entitled to be paid their mileage and per diem compensation. The Governor, the auditor, and the treasurer of the state have appealed. It is appellants’ contention that the right and power to revoke a proclamation convening the General Assembly rests with the Governor until the General Assembly meets and' organizes for business. The correct determination of the question requires an examination of the powers of the Governor, their source and extent. The office of Governor is unknown to the com-' mon law. It is the title universally applied to the head *149 of the executive department of a state, but in every instance the office is created by the State Constitution. Section 69 of our Constitution creates the office of Governor and vests in him the supreme executive powers . of the commonwealth. He has only such powers as the Constitution and Statutes, enacted pursuant thereto, vest in him, and those powers must be exercised in the manner and within the limitations therein prescribed. Section 27 of our Constitution provides for the separation of governmental powers into legislative, executive, and judicial, and section 28 provides that no person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances expressly directed or permitted by the Constitution. The right to convene the General Assembly in extraordinary session does not inhere in the office of Governor, nor is it a necessary incident of the office. The power • might have been lodged in some other state official, or in the Legislature itself. It is no more an incident of the office of Governor than is the right to-adjourn the Legislature, and, that being true, we must look to the grant of power itself to determine its extent. The power to convene the Legislature in special session is conferred upon the Governor by section 80 of the Constitution which reads: “He may, on extraordinary occasions, convene the-general assembly at the seat of government, or at. a different place, if that should have become-dangerous from an enemy or from contagious, diseases. In case of disagreement between the two-houses with respect to the time of adjournment, he may adjourn them to such time as he shalL think proper, not exceeding four months. When he shall convene the general assembly it shall be-by proclamation, stating the subjects to be considered, and no other shall be considered.” It will be noted that he only has the power to. adjourn the General Assembly in case of disagreement between the houses with respect to the time of adjournment, and then only for a limited time. His power to convene the General Assembly is limited by this section both as to the occasion and the manner in which it is exercised. The occasion must be extraordinary, and *150 the exercise of his power must be by proclamation stating the subjects to be considered. Whether or not. the extraordinary occasion justifying a special session of the General Assembly exists is a matter for his determination, and the issuance of the proclamation convening the General Assembly is left to his discretion. But once having exercised that discretion by issuing a proclamation, has he exhausted the power granted to him, or can he, as contended by the appellants, revoke the proclamation? If the# power to revoke exists, it must be implied, for no such power is expressly given. Appellants cite and rely on the ease of People v. Parker, 3 Neb. 409, 19 Am. Rep. 634, in which it was held that under the provisions of the Nebraska Constitution, which are substantially the same as the provisions of section 80 of our Constitution, a proclamation of the Governor convening the Legislature in extraordinary session was revocable. The opinion was rendered in 1872 when the Supreme Court of Nebraska was composed of three justices. Chief Justice Mason dissented. Each of the two justices composing the majority wrote an opinion, and they based their conclusion that the proclamation was revocable on the ground that the Governor stood in the place of the people, and, having been constituted the sole judge of the necessity for calling the Legislature, he must be the sole judge as to when such necessity had ceased to exist. It was further said in one of the opinions that the proclamation vested no rights in the Legislature. Chief Justice Mason in his ■dissenting opinion pointed out that the Governor possessed such powers as the Constitution and laws conferred upon him, and none other ;■ that the only implied powers he possessed were such as were necessary or convenient to carry into practical execution the powers .granted by the Constitution and Statutes. In the course -of the opinion he said: “After the executive proclamation convening the legislature is issued his power in respect to that matter is exhausted. * * * He may convene the legislature with a proclamation. What is it that convenes them? It is the proclamation, an official document expressly authorized by the constitution, and which the members of the legislature are morally and legally bound to obey. They have no dis *151 cretion. It is their duty to convene as commanded in the proclamation. The proclamation is vitalized with the potent energies of the law the moment it is issued. It takes effect at once. It is a law unto the members of the legislature and they must yield obedience to its authority. * * * The authority to vitalize and call into life the dormant power, granted in the constitution, to convene the legislature on extraordinary occasions is vested in the executive. The way in which he can do this is specifically pointed out. It is to be done by the executive proclamation. Such a proclamation having been issued, the legislature is as much bound to assemble, as they are on the first Monday in January, biennially after July, 1866, which is expressly required by the constitution. The proclamation convening the legislature, calls into life a constitutional requirement which is dormant until the proclamation is issued. After that time, the executive can no more suspend the operation of this constitutional provision, which requires the legislature to meet at the time named in his proclamation, than he can revoke or suspend any other constitutional requirement. ’ ’ The case of Foster v. Graves, 168 Ark. 1033, 275 S. W. 653, relied on by appellants, is clearly distinguishable from the case before us. There it was held that the Governor, after issuing a proclamation convening the Legislature in extraordinary session, might issue a supplemental proclamation specifying additional subjects for legislation and fixing the same time for the meeting of the Legislature as was fixed in the first-proclamation. To the same effect is Pittsburg’s Petition, 217 Pa. 227, 66 A. 348, 120 Am. St. Rep. 845., The question whether the Governor might, before the meeting of the session, revoke his call was not presented in either of those eases. The right of the Governor to withdraw his approval or disapproval of a bill which has been presented to him for his consideration presents an analogous question. Practically all, if not all, of the State Constitutions contain provisions similar to those of section 88 of our Constitution, which confers the veto power upon the Governor. Every bill which shall have passed the two houses must be presented to the *152 Governor for Ms approval or disapproval, and lie is given ten days in which, he may examine and - consider the bill and determine whether he should approve or disapprove it. As long as it remains in his custody and under his control, he may reconsider or retract any approval or disapproval previously made, for the final act in the exercise of his discretion has not been consummated. Cammack, Attorney General, v. Harris, 234 Ky. 846, 29 S. W. (2d) 567. But when he returns the bill to the house in which it originated with a veto message, or signs it and delivers it to the secretary of state, he exhausts his powers in respect to that matter, and the time alloted to him for deliberation and for the exercise of his discretion has expired. In State v. Whisner, 35 Kan. 271, 10 P. 852, it was held that where the executive approves and signs the bill voluntarily and deposits it with the secretary of state, it passes beyond his control, and its status becomes fixed and unalterable and cannot be affected by later objections on his part. To the same effect, see People v. McCullough, 210 Ill. 488, 71 N. E. 602; Allegany County v. Warfield, 100 Md. 516, 60 A. 599, 108 Am. St. Rep. 446; Powell v. Hays, 83 Ark. 448, 104 S. W. 177, 13 Ann. Cas. 220. In the last-cited case a newly elected Governor, upon assuming the duties of his office, found a bill in the Governor’s office which had already been signed by his predecessor. The time for consideration of 'the bill by the executive had not yet expired, and the incoming Governor, deeming the bill under Ms control, attempted to rescind the action of his predecessor by vetoing it. The court went so far as to hold that when the executive has exercised his discretion and approved and signed a bill, it then becomes a law, and his approval cannot be withdrawn although the bill continues in the possession of the Governor’s office and the constitutional period for consideration has not yet expired. In McChesney v. Sampson, 232 Ky. 395, 23 S. W. (2d) 584, 587, the Governor attempted to remove an unconfirmed appointee to membership on the state textbook commission, and it was held that the power of removal was not an incident of the power of appointment. In the course of the opinion it was said: “And action once taken and completed by the *153 executive is not ' subject to reconsideration or recall. ’ ’ The following from the opinion of Chief Justice Marshall in Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60, was quoted with approval: “The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done everything to be performed by him. * # * All that the executive can do to invest the person with his office, is done; and unless the appointment be then made, the executive cannot make one without the co-operation of others. “The last act to be done by the President, is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction. Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed.” Appellants suggest that in these and similar cases holding that the Governor could not revoke his act, the appointee, whose commission the Governor sought to recall, or in the pardon cases, the beneficiary of the pardon, had acquired vested rights. But the decisions are not put on that ground. The ratio decidendi of the cases is that the Governor exhausted his power when he completed the last act which he had authority to perform. ' The last act to be performed by him when he undertakes to exercise the power to convene the General Assembly in extraordinary session is to deliver *154 •the signed proclamation to the secretary of state pursuant to the requirement contained in section 91 of the Constitution, which says: “The duties of all these officers shall be such as may be prescribed by law, and the secretary of state shall keep a fair register of and attest all the official acts of the governor.” Johnson v. Sampson, 232 Ky. 648, 24 S. W. (2d) 306. When that act is completed he has exhausted his power under the .constitutional grant. All that he can do to convene the General Assembly in extraordinary session is done. No continuing duty exists and there is no implied power to retract. By his final action he has set the legislative machinery in motion and thereafter the General Assembly alone can act. He has created the authority for a session of the General Assembly which is just as legal and binding on its "members as are the regular sessions prescribed by the Constitution. As heretofore stated, the calling of the General Assembly in special session is not inherently an executive function. The exercise of that power or function has been intrusted to the Governor by the Constitution, and that instrument measures the extent and limits of his power and authority. His right to convene the General Assembly in special session is a delegated and limited power, which derives from the Constitution, and he can act only in the specified manner' and can exercise only the power granted to him. It is said the Governor should have the power to revoke and that his discretion in the matter should continue until the two houses have actually assembled and organized for business, since the emergency calling for the proclamation may pass away or, after more mature deliberation, he may conclude the emergency does not exist, and so, if clothed with the power of revocation, he would be able to avoid unnecessary expense. This was one of the reasons assigned in the majority opinions in People v. Parker, 3 Neb. 409, 19 Am. Rep. 634, for the decision in that case. On the other hand it might be argued that for reasons equally valid the power of revocation should be withheld. With the power of revocation lodged in the Governor, pressure, in many instances, would be exert *155 ed immediately by interests opposed to the call to have it revoked. The proposed organization of either house contrary to the wishes of, the Governor might influence him to rescind the call. The resulting uncertainty would tend to induce members of the General Assembly living at a distance from the seat of government to refrain from attending until .the two houses were in legal session. The published debates of the Constitutional Convention shed little light on the subject. There were arguments for and against granting the Governor the power to adjourn the Legislature, and that power was denied him except in the single instance mentioned above. Nothing was said one way or the other concerning the right to halt the convening of the Legislature once a proclamation had been issued. Section 80 of the Constitution was adopted by the Convention substantially in the form recommended by the committee. In any event, whether or not the power of revocation should be lodged with the executive is a question of expediency, and since the framers of the Constitution failed expressly to grant the power it ought not to be implied. The Governor is not hampered by this view. He need not issue the proclamation until, after reasonable deliberation, he has determined it is absolutely necessary. The fact that he “crosses the Bubicon” with the execution of the proclamation may have a deterring effect upon unnecessary calls. This may have been a controlling reason in the committee for the phraseology adopted in section 80, although the question was not carried to the floor of the Convention and thus escaped recording. Certainly, it furnishes a reasonable basis for refusing to imply the power. The judgment is affirmed. The whole Court sitting. Clay, C.J., and Thomas and Perry, J.J., dissenting.