The State of Florida ex rel. Francis P. Fleming, Governor, Plaintiff, vs. John L. Crawford, Secretary of State, Defendant, 28 Fla. 441

Raney, C. J.: That the writ of mandamus lies to require the performance of a clear official duty, not involving discretion, by any one of the “ administrative officers of the executive department ” of this State, (secs. 5, 17, 20, 28 of Art. IV, Constitution of 1885,) is a settled proposition of law in Florida, Towle vs. State ex rel. Fisher, 3 Fla., 202; State ex rel. Weeks vs. Gamble, 13 Fla., 9; State ex rel. Bloxham vs. Board of State Canvassers, 13 Fla., 55; State ex rel. Drew vs. Board of State Canvassers, 16 Fla., 17; State ex rel. Bisbee vs. Board of State Canvassers, 17 Fla., 29; State ex rel. Bisbee vs.

Drew, 17 Fla., 67; State ex rel. Moody vs. Barnes, 25 Fla., 298. To hold that the mere fact of these officers belonging to the executive department of the government should exempt them from this judicial process as to a plain ministerial duty or where they are given no official discretion, would be inirreconcilable antagonism to a consistent line of judgments running back over forty years.

There is moreover nothing in the five cases specially called to our attention in behalf of the defendant, and noticed in the next paragraph of this opinion, to cause us to doubt the correctness of the conclusion reached by our predecessors; even though the conclusion was arrived at in the face of conflict of authority — a condition not unfrequently confronting appellate courts. The case of Commonwealth vs. Wickersham, 90 Penn.

St., 311, holds that the writ did not lie in the Court of Common Pleas against the defendant, who was Superintendent of Public Instruction, as that court-had never been given power to issue it against State officers. It is stated, however, in the opinion of the Judge of the Common Pleas, which opinion is adopted by the Supreme Court, that by

an act of May 22, 1792, which continued in force until abrogated by a convention held in 1872-3 for forming a new Constitution, (Com. ex rel. Butler vs. Hartranft, 77 Penn. St., 154,) such power had existed in the Supreme Court, and that no inconvenience was ever felt from its exercise by that tribunal, but the Convention limited the power, as an exercise of original jurisdiction, to cases against inferior courts, and that the Legislature had not given to any inferior court the power now invoked. The decision in State ex rel. vs.

Hobart, 12 Nev., 408, is that the office of State Comptroller, which Hobart held, was one of public trust and conferred upon the individual for the benefit of the public, and if the acts which he refused to perform concern the public interests and are sncli as the law requires to be performed by him, the writ of mandamus should issue to compel the performance of the duy. The writ was issued. In State ex rel. vs.

Hayne and Mackay, 8 Rich., 367, it was decided that the Supreme Court has jurisdiction by mandamus over the executive officers of the State, as, for instance, the Secretary of State, and might by such writ supervise, control and direct their duties, the duty in the particular case being ministerial. The conclusion reached in Bledsoe vs. International R.

Co., 40 Texas, 537, in so far as the Comptroller was concerned, was that the duty in question was not a mere ministerial duty, but it was his duty to see that preliminary work proper to be done had been performed; and that the District Court had not power under the Constitution to compel an officer of the executive department of the government to perform an official duty, and that whereas under the former Constitution the supreme executive power was vested in the Chief Magistrate, under that then in force it was vested in the entire body of the magistry composing the executive department, with the powers of each separately defined.

The remaining one of the particular cases cited in behalf of defendant, Dane vs. Derby, 54 Me., 95, S. C., 89 Am. Dec., 722, does not involve the question of a mandamus against a Stare officer, and need not be noticed, and of the Texas case, the only one requiring comment, it is necessary to say merely that in Florida the “supreme executive power is vested in a Chief Magistrate, who shall be styled the Governor of Florida,” sec. 1, Art. IV of the Constitution; and that two of the judges dissented from the conclusion reached by the other three.

It is not within the possibilities of any one opinion to review ail the authorities referred to in the note to Dane vs. Derby, in the 89th volume of the American Decisions. This court long ago decided the question, and in doing so and in adhering consistently in past years to that decision, it has followed in the footsteps of Marshall and his associates, and others who have rested their conclusion upon the ground that ours is “a government of laws and not of men,” and that where there is no right to exercise discretion in the premises any officer less than a Governor, acting as such, (as in State ex rel. vs.

Drew, 17 Fla., 67, and cases therein cited,) is not exempt from this process of tlie law; and upon this theory it was held in Marbury vs. Madison, 1 Cranch, 137, that the Secretary of State would be the subject of a mandamus to compel him to deliver a commission which had been signed and sealed, and upon the same principle peremptory writs of mandamus have been awarded against other Secretaries of departments of the general government. Kendall vs. United States, 12 Peters, 524; United States vs. Schurz, 102 U. S., 378. See also Butterworth vs. Hoe, 112 U. S., 50. In Com. ex rel. Butler vs. Hartranft, 77 Penn.

St., 154, the Supreme Court deplored the limitation, referred to above, upon its former jurisdiction as a result which deprived the people of one of the forms of remedy essential to the interests of a republic; and we feel assured that it will not be denied that the history and practical utility of the writ in Florida entitles it to the highest consideration for effectually securing the -performance of public official duty and establishing public right.

It is the character of the duty, and not the nature of the office, which must, as long as the law is regarded, always control a court in deciding whether or not it will award a peremptory mandamus against an officer of the character of the respondent, Marbury vs. Madison, supra; Redfield vs. Windom, 137 U. S., 636, Boynton vs. Blaine, 139 U. S., 306; and this would be a late day for the Supreme Court of Florida to depart from this ride. 2nd.

It appears that on the fourth day of August last the Governor issued an address to the people of Florida, announcing as his judgment and conclusion that the action of the joint assembly of the Legislature taken on the 26th of May last, at which Mr. Call received the votes of fourteen Senators and of thirty-seven Representatives, and Mr. Mays received the vote of one Representatative, and at which the President of the joint assembly announced that Mr.

Call having rceived a majority of all the votes of the joint assembly, a majority of all the members elected to both houses being present and voting, was duly elected United States Senator for the term beginning March 4, 1891, was not an election of Mr. Call, and the reason, as is shown by the return before us, is that a majority or quorum of the Senate was not present at, and did not participate in such election. In this paper the Governor also announced that he could not ‘ ‘ in the discharge of his duty” certify that Mr.

Call was elected, and gives a full statement of the grounds upon which his conclusions are based. On the 22nd day of September the Governor prepared and signed the appointment of Mr. Davidson set out iu the preceding statement of the case before us, and it will be observed that this appointment recites that a term of office of United States Senator held by Mr.

Call had expired on the third day of March last during a recess of the Legislature, and that thereby a vacancy happened in such office, and that no Senator had been chosen by the Legislative to fill such vacancy, and that the Legislature was not in session, but, on the contrary, a recess thereof existed at the time, and upon these premises so recited, the Governor by virtue of the authority vested in him by the Constitution of the United States appoints Mr. Davidson to be United States Senator from Florida until the next meeting of the Legislature.

The election mentioned is set up by respondent as a bar to the allowance of a peremptory writ. He says that by virtue of this action of the joint assembly on the 26th day of May, Mr. Call was duly and constitutionally elected United States Senator, and that consequently no vacancy existed when the Governor made the alleged appointment, the vacancy occurring on ex-pirationof Mr. Call’s previous term having been filled by such election. The respondent also supplements this defense with the statement that Mr.

Call applied to and obtained from him, as Secretary of State, 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.

The Constitution of the United States provides: That the Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, and (after directing how they shall be classified as to length of terms) ordains that if vacancies happen by resignation or otherwise during the recess of the Legislature of any State, the Executive thereof may make temporary appointment until the next meeting of the Legislature, which shall then fill such vacancies, sec. 3, Art.

I; and that the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof, but Congress may at any time by law make or alter such regulations, except as to the place of choosing Senators, sec. 4, Art. 1; and that each house shall be the judge of the elections, returns and qualifications of its own members, sec. 5, Art. I.

The Constitution of the United States has not elsewhere given to this court the power to pass upon the cpiestion of the legality of the election of a United States Senator, but by the last of the provisions quoted above it has expressly excluded from it the right to do so. The Constitution of the State has not attempted to confer any such power upon us, nor lias Congress, nor our own Legislature; nor is it to be imagined that any such attempt would be made. Whether Mr. Call was legally elected by the Legislature, is not for us to say.

Our predecessors, when asked in January, 1869, under the power given the Governor by the Constitution, to require their opinions “upon any point of law,’* whether the election of Mr.

Abijah Gilbert as Senator in 1868 was legal, replied in effect that the Senate of the United States was the exclusive judge of the elections, returns and qualifications of its own members, and whether an election of a Senator by a State Legislature was in conformity with such regulations as are prescribed by Congress, or whether, for want of strict conformity therewith, it was illegal and void, were questions which the court had no jurisdiction to decide. Advisory Opinion, 12 Fla., 686. That we have not jurisdiction to entertain the question of the legality or illegality of Mr.

Call’s election is palpable, and that anything we might decide about it, should we so far forget ourselves as to enter upon its consideration, would be inexcusable usurpation and of no effect whatsoever cannot be denied.

Whether the Legislature has in its action so far complied with the true intent and meaning of the statute of the United States governing such elections, or whether that statute, if it contemplates legal action in the absence of a quorum of either of the houses where the organic law makes a quorum essential to the transaction of business, is constitutional, are questions for the Senate alone to decide.

The question occurs to us, however, that admitting we cannot decide upon the legality of the election, is it not a sufficient answer to the application for this writ, that the joint assembly is shown to have done what it in fact did and as it was constituted, and to have announced through its presiding officer the same to be a legal election. It is we find, after the most careful consideration, impossible to pursue this course without usurping the functions of the Senate.

As shown above, the Executive of a State may, if a vacancy happens during the recess of the Legislature, make temporary appointments until the next meeting of the Legislature, which shall then fill the vacancy, and it is unquestionably the primary function of the Executive, subject solely to the judgment of the United States Senate, to decide when any such vacancy exists. The correctness of his decision, and the. legality of his action in making an appointment is a matter entirely beyond our jurisdiction.

Whether the Constitution gave' the Governor power after the adjournment of the Legislature to appoint, was a question which addressed itself primarily to the Governor, and however erroneous may be the conclusion which he has reached, he has in fact made a decision in favor of his power, and has proceeded to the extent indicated by this record, in making an appointment to fill what he holds to be a vacancy within the meaning of that clause of the Constitution which confers upon him the power of appointment.

AYe cannot close our eyes to this fact as an existing feature in the case before us any more than to the action of the Legislature or any other fact shown by the record. It cannot be said that as between the Governor and this court, it was not a matter for his decision.

AAre cannot hold, then, that the simple fact of the Legislature hawing taken the action set up constitutes a bar to the proceeding sought at our hands, without usurping the power to decide that this action, however illegal or ineffectual it may be held by the Senate, irrecluded any action by the Governor; or, in other words, deprived him of the power to act. To decide this question would be to do what the Constitution has devolved upon the Senate exclusively. It is a question as to the relative validity of legislative and executive action, of which we have no jurisdiction.

AArhat we cannot do, the Secretary of State cannot do, and for the same reason that the power has not been placed in him unless it is implied by the imposition upon him of the duty to seal and countersign this commission, if such duties have been j_ ut upon him is a question to be hereafter considered. He cannot, unless the power to do so is implied by the imposition of the stated duties, decide that the appointment of Mr. Davidson is illegal, or that it is so because the election of Mr.

Call was legal, and no vacancy existed, and consequently the Governor had no power to appoint. -The erroneous exercise of power by either the Governor or the Legislature confers no power on either the Secretary of State or us, and in our conduct we should leave the action of each, to be judged of by the Senate, and perform such duties as the Jaw has placed upon us, without assuming any responsibility not imposed upon us. Knowledge on our part of what may have been the decision of the Senate in any analogous case does not create power or jurisdiction in this court.

Unless there -is in the nature of the act of sealing and countersigning, the implied power of passing upon the legality of the Governor’s action, the Secretary has no more power to do so and refuse to attest the Governor’s act than he would have had to refuse Mr. Call a certified copy of the proceedings of the legislature, of whose records he is, under sec. 21, Art. IV of the Constitution, the keeper, had it been his judgment that the election by the legislature was illegal and void.

In certifying and giving such copy he 'performed a duty imposed upon him which in nowise involved or implied what his personal judgment of the validity of that election is, and the law does not give him any official judgment as Secretary of State in the premises. III. It is, however, contended in effect, that the right to have this writ issued is dependent upon the right of Mr. Davidson to the office of Senator; or in other words, the legal right of the Governor to make the appointment. In support of this contention counsel for respondent cites the case of the State ex rel. Clarke vs. Trenton, 49 N.

J., (Law), 349, which was an application by Clarke for a mandamus to compel-the Board of Health of the City of Trenton to admit him as a member of such board. It was a proceeding to put him in physical possession of an office. Clarke had been nominated by the President of the Council, who had assumed to act as Mayor when he understood the Mayor was absent from the city, and his nomination had been confirmed by the City Council, to succeed one Cloke whose term of four years had expired, but who under the law was authorized to hold until his successor should be appointed and qualify.

Cloke still held his seat on the board and was recognized by it as a member, and it was contended by the board, the defendant, that the President of the Council had no authority to make the nomination, as the Mayor was not, at the time it ivas made, really absent from the city, such absence being a contingency necessary to the President’s power, and the one which was as-, sumed by him to exist and authorize the action taken.

The court held that as it was not shown that the Mayor was not absent, there was no power in the President of the Council to nominate, or in the Council to recognize it, and that the nomination and confirmation were not proof of such absence, and that a mandamus ivould not issue.

It was held that as the charter of the city had not provided that any particular certificate of appointment should be evidence of title to the office, therefore the case differed from those where the law provides that the certificate of an election board shall be evidence of the result of an election; but if the charter had provided for issuing a commission evidencing a right to membership in the board, the contention that the nomination by an acting Mayor and confirmed by the Council would make out a conclusive title, on an application of this kind might be sustained.

It is true that mandamus will lie to compel the surrender of books, and papers, and buildings to one possessing certain prima facie evidence of title to the office, and this even though quo warranto may be pending to test the real title to the office; and the award of the writ of mandamus will have no effect upon the other proceeding, for mandamus is not the proper proceeding to determine the title to office as between contestants, and where the party seeking the latter writ has not muniments of title to the office which the law has made prima facie evidence, relief, even to the extent indicated above, will not be given if his right to the office is even doubtful.

High on Ex. Legal Rem., Secs. 70, 73, et seq.; State ex rel. O’Donnell vs. Dusman, 39 N. J., (Law), 677; State ex rel. Law vs. Saxon, 25 Fla., 792, 796.

It is however established by the overwhelming current of authority that where .an office is already filled by an actual incumbent, exercising the functions of the office de facto and under ■color of right, mandamus will not lie to compel the admission of another claimant, or to determine the disputed question of title, and for the reason that an adequate and specific remedy at law exists, which is quo warranto, High secs. 49, 67; and in the New Jersey case relied on by respondent it is admitted that the relief in such cases is usually sought by quo war ranto. See also State ex rel. v.

Gamble, 13 Fla., 9, 28; People vs. Mayor, 3 John. Cases, 79. The distinction between the New Jersey case and the one before us is unmistakable. There the claimant to an office was seeking to oust one holding possession of it, and obtain possession himself, not in the ordinary Avay. but by a remedy never available except under peculiar circumstances, not then existing, and when available not conclusive of the question of title to the office. Here there is no question of the right of possession to the office.

Besides our not having jurisdiction to try this question of title, neither of the parties Avho may claim the office of Senator under the election, or the appointment, is before us, and whatever we may decide, can in nowise affect the decision of the right to the office, by the only tribunal which lias any power or jurisdiction to decide that question. The contest before us is between the Governor as Governor, and the Secretary of State.

The Governor claiming that he has, as the “Executive” of the State, the right to appoint a Senator, has exercised that poiver to the extent of signing an appointment and placing it with the Secretary and requested him to' seal and countersign it. We have shown that the poAver to revieAv the legality of the Governor’s act is beyond our jurisdiction, as it is beyond that of the Secretary of State. In the case of the State ex rel. Bisbee v.

Board of County Canvassers, 17 Fla., 9, it was contended that this court had no jurisdiction to award the writ of mandamus to compel the Board of Canvassers to canvass the returns and declare the result as shown by the precinct returns, because the particular office as to which the relator sought the relief was that of Representative in the Congress of the United States. Replying to this objection, the court, after remarking that it was not pretended by the relator that the canvassing of the votes determines his right to this office, said : “ That must be determined by the House of Representatives.

But the relator says that the law of the State under which the election was held entitles him if he shall appear to have a majority of the votes according to the election returns, to a certificate of that fact.” The relator was seeking to lay the basis for getting a certificate of election by having the county canvassers canvass the precinct returns, and to transmit to the capital their own returns to be canvassed by the State board with other county returns. All he could get as even the remote result of his litigation was a certificate of his election.

The legality of that election could not be passed upon by the court, and this was the real substance of the board’s objection, but it was held to be no reason for refusing the writ.

The legality of the election could not be considered, but the evidence of the result of an election held under the laws of the State, and by its authority could be enforced, and this, although it is the Constitution of the United States, and not the State Constitution, which provides that “the House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature,” sec. 2, Art. 1; and that “the times, places and manner of holding elections for * * Representatives shall be prescribed in each State by the Legislature thereof, but Congress may at any time by law make or alter such regulations,” sec. 4, Art.

I. Again in State ex rel. Bisbee vs. Board of State Canvassers, 17 Fla., 29, where the relator wms seeking a canvass by the State board, it was objected that he did not show that he had the requisite age for a member of Congress, and the court replied: “ This proceeding seeks only to procure such certificate as the candidate voted for may be entitled to under the laws of this State, which certificate is a property Avhich the person obtaining the most votes is authorized by law to demand.

Upon this enquiry the right to take and hold the office is not in question, and a slight examination of the rules laid dowm in the books does not show that such a question has ever been entertained by the courts.

Whether the relator possesses all the qualifications necessary to entitle him to a seat in Congress can only be enquired into by the House in which he may jmesent a certificate of election.” Thus again the court does not permit its jurisdiction and the right of the relator in procuring the evidence of an actual election, to be defeated or interfered with by its inability to consider questions of the legality of such election.

That there can be any reason -why the inability to en-quire into the legality of the appointment of a Senator should bar the power to award a mandamus to require the perfection of the evidence of the actual appointment of a Senator, when it does not do so where evidence of election as a member of the other branch of the National Legislature is concerned, or why in the one case it should be necessary to pass upon the legality of the appointment before the relief can be granted, and not on the legality of the election in the other, and this too, when the authority to appoint is to be found in the same

article of the same Constitution of the general government, is something which is not only beyond the comprehension of the court, but for which no explanation has even been attempted. The case of People ex rel. vs. Farquer, Secretary of State, 1 Breeze, 104, is also relied upon in behalf of respondent. A careful consideration of it will disclose that the commission of one as Paymaster-General, which it was sought to have the Secretary seal and countersign, had been signed by the Lieutenant-Governor after the return of the Governor to the State.

The Lieutenant-Governor had upon notice from the Governor that he would be absent from the State, as surned the duties of Governor, and although the Governor had returned and resumed the duties thereof, the Lieutenant-Governor was still claiming to. be the lawful executive of the State upon the theory that the Governor had by his absence from the State forfeited his office. It was held by the court that even assuming the Lieutenant-Governor to be the rightful Governor, the Constitution did not authorize him to make the appointment, as the office had never been filled or occupied.

In answer to this it was contended by the relator that the Secretary was still compelled to affix the seal and countersign it.

The court met this by relying-upon the language of the statute which was that 1 ‘ all commissions required by law to be issued by the Governor shall be countersigned by the Secretary of State,” and holding that the Secretary was “ only required to-countersign those commissions ‘required to be issued by law.’ ” This language was in effect held to vest a discretion in the Secretary of State, yet not without the court’s suggesting that if it was wrong on the point there was still ground for refusing the mandamus.

The marked distinction between this case and the one at bar is, that neither we nor the Secretary of State have the power to pass upon the Governor’s act. It is a question between him and the United States Senate. The Illinois court, by assuming that the Lieutenant-Governor was rightfully the executive, could as against' the relator applying for the relief, decide that the relator’s appointment was illegal, there being no other person occupying the office of Paymaster-General; State ex rel. Weeks vs.

Gamble, 13 Fla., 9, 21, 28; but we cannot say that the Governor’s act is illegal without usurping the jurisdiction of another tribunal. If it is the legal duty of the Secretary of State to seal and countersign the appointment of Mr. Davidson, we are entirely satisfied, both upon reason and authority, not only that the inability of the court to enquire into the legality of the appointment is not a reason for refusing the writ, but also that a decision upon the legality of the appointment is not necessary to an adjudication of the question of awarding the writ. 4th.

The foregoing- conclusions bring us to the question, whether or not under the law obtaining in this State it is the duty of the Secretary of State to affix the seal of State to this commission and countersign the same. The declaration of' the Constitution, sec. 12, Art. XVI, that “the present seal of the State shall be and remain the seal of the State of Florida,” implies that there is such a seal, as does the provision that ‘ ‘ the Secretary of State * * shall be the custodian of the Great Seal of the State,” sec. 21 Art. IV.

It is not denied that there is such a seal, nor that the respondent is the actual and legal custodian thereof. There can be no doubt that the purpose of a seal of State is to authenticate, or prove the genuineness of charters, grants and other public instruments emanating from the State. England, from whom we inherit governmental customs or law not j)eculiar to ourselves, first adopted a great seal in the eleventh century, and its general use for authenticating grants and charters and other public instruments became -established about the middle of the thirteenth century.

The United States and every State has a great seal, and the adoption of one by the government is for the purpose of authenticating its acts and securing public, recognition of the same as genuine. The public seal of a State proves itself, it is a matter of notoriety, and may be taken notice of as a part of the laws of nations acknowledged by all.

The public national seal of a kingdom or a sovereign State is by common consent and the usage of civilized communities, the highest evidence and the most solemn sanction of authenticity in relation to proceedings either diplomatic or judicial that is known in the intercourse of nations. Griswold vs. Pitcairn, 2 Conn., 85; Church vs. Hubbart, 2 Cr., 187; Santissima Trinidad, 7 Wh., 283; 2 Blackstone’s Com., 346-7; Story’s Conflict of Laws, sec. 643; Tomlin’ s Law Dict., Title: Great Seal of England. The Constitution of our own State, sec. 14, Art.

IV, has directed that ‘ ‘ all grants and commissions shall be in the name and under the authority of the State of Florida, sealed with the great seal of the State, signed by the Governor, and countersigned by the Secretary of State,” and our statue law lias made it the duty of the Secretary of State to “record all * * orders, messages and other official acts and proceedings of the Governor, and it is made the duty of the Governor before issuing any order, or other promulgation of any official act or proceeding (except military -orders) to deliver the same or a copy thereof to the Secretary of State to be recorded.

Sec. 2, p. 933, McClellan’s Digest. We see from the provision of our own Constitution last quoted that the purpose of its framers, and the people who adopted it, was that all commissions issued by the State should be sealed with the great seal of State, signed by the Governor and countersigned by the Secretary of State. That it is under this section, the official duty of the officers named to sign and countersign, and the duty of the Secretary of State, who, by another

section of the same article, is made the custodian of the seal, and whose countersigning is an attending testimony of the authorized use of such seal, to seal all commissions emanating from the State is the only

interpretation of the organic law that would not violate common reason. What is a commission in the sense in which it is here used? It is written authority or letters patent issued or granted by the government to a person appointed to an office, or conferring public authority or jurisdiction upon him. Bouvier, Tomlin, and Abbott’s Law Dictionaries : “Commission; United States vs. Reyburn, 6 Peters, 352. The commission is not the appointment itself, but it is tlie evidence of the appointment. Jeter vs. State, 1 McCord, 233.

Where the appointment is evidenced by no act bnt the commission the two says Judge Marshall, in Marbury vs. Madison, supra, seem inseparable, it being impossible to show an appointment otherwise than by proving the existence-of the commission, which though not necessarily the appointment, is the conclusive evidence of it.

The President’s signature, says he, is the warrant for affixing the great seal to the commission, and it attests the verity of the President’s signature; and that in all cases of letters patent certain solemnities are required by law as evidence of the validity of the instrument, and that in cases of commissions the sign manual of the President and the seal of the United States are these solemnities. In the United States vs.

Le Baron, 19 How., 73, it was held that when a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete; that Congress might provide, as it had done in that case, that certain acts should be done by the appointee before he should enter upon the possession of the office under his appointment.

That such acts became conditions precedent to the complete investiture of the office, but they ■were to be performed by the appointee, not by the executive; that all the executive could do to invest the person with his office has been completed when the commission has been signed and sealed; and when the person has performed the required conditions his title to enter on the possession of the office is also complete.

Judge Wescott speaking for the Justices of this court under date of October 28th, 1875, said : ‘ ‘ When the commission of a Justice of the Peace is signed and sealed, all that is necessary to his investiture of the •office is complete. Under the practice in this State, all the conditions as to taking oaths, etc., are complied with before the commission issues. To him, upon the signing and sealing the commission, belongs the office. Advisory Opinion, 15 Fla., 735, 738-9. See also People vs. Murray, 70 N. Y., 521; Mechem on Public Officers,

section 114. In Conger vs. Gilmer, 32 Cal., 75, it was held that an appointment to office by a Board of Supervisors was not complete until the appointee had received the certificate of the same under the seal of the Board signed by the proper officers, but the rule was different in cases of election by the people; and in State vs. Cornell, 21 Ind., 516, that where the title to an office is derived solely by executive appointment the commission of the executive is the only legal evidence of such title. See also People vs. Whitman 10 Cal., 38. There can be no doubt that the word “commissions,” as used in the above

section of our constitution at least includes appointments to office. The provision in the constitution of the United States, that the Executive of any State may under the circumstances therein specified “ make temporary appointments” of Senators, carries with it the power to issue written evidence of any such appointment, and not only this, but it also implies the duty to do so. It imports that the executive authority of the State shall execute such evidence of the authority of the appointee as cun be presented to the Senate of the United States and be passed upon by that body.

Such credentials must, in the very nature of things, to serve these ends, be written, and cannot be in parol. In the case of People vs. Murray, supra, the. view of the court is that there cannot be an appointment to office by parol or word of mouth, unless it was permitted by the terms conferring the power, and we are satisfied that none other than a written appointment is practicable, or is within the meaning of the words of the constitution.

The way in which things have for a long series of years been done by those legally authorized and required to do them is a safe index to the intention of the lawmakers as to how it was intended they should be done; and an examination of the proceedings of the Senate shows in each of the numerous cases we have been able to find that the “credentials” of the appointee were presented to the Senate, and in every instance but one the entry is that they were also read before the appointee was seated and the oath of office was administered to him, the excepted case being one where the Senate was not organized when the credentials were presented.

See Case of Niles, Senate Journal, December 21, 1835, p. 43; Case of Atherton, Cong. Globe, December 1, 1845, p. 1; Case of Whyte, Cong. Globe, July 14, 1868, p. 4024, and the Case of Key, Cong. Record, December 6, 1875, p. 165. . Any written appointment of a person to an office by the Governor of this State is a commission, and the exin-ess fiat of the constitution is that all commissions issued under the authority of the State shall be signed by the Governor, and sealed with the great seal of State, and countersigned by the Secretary of State.

The purpose of the Constitution is that the warrant of all persons professing to represent the authority of the State shall be in the form indicated, and none other. The authority to appoint to an office, or to delegate the exercise of the State’s power, contemplates conformity to this

section of the Constitution, in making the appointment; and this

section makes it the duty of the officers named whenever the power of appointing is exercised, to see that the commission or written evidence of the appointment is signed and authenticated as therein directed.

It is contended that this provision of the State Constitution is not applicable to the case at bar, for the reason that the power to appoint is not found in, or conferred by, the State Constitution or any law of the State; or, as it is otherwise put, because it is found in, or “conferred solely by, the Constitution of the United States, the supreme law of the land.” Counsel for respondent, while conceding that under the Federal Constitution, the time, place and manner of holding elections for Senator and Representatives are to be prescribed by the State legislatures, subject to the paramount right of Congress to make or alter such regulations, except as to the place of choosing Senators, yet says : “But Congress has no right to prescribe, nor has the State any right to prescribe the time or manner or mode of certifying the appointment of the Governor of Senators to fill vacancies.

In the exercise of his appointing power the Governor of a State under the Constitution of the United States is exempted from any interference or control by any authority, legislative or judical, Federal or State. It is purely political;” and upon this theory he asserts the entire Federal legislation is based, it regulating the manner of certifying an election, but saying nothing as to certifying an appointment.

The Governor of a State in appointing a Senator, exercises an executive function of the State, and it is none the less so because the power is conferred by the Constitution of the United States upon “the executive.” The authority is conferred upon the executive power of the State, and not upon any functionary or creature of the Federal government, and is inherent in that power, however it may be constituted by the State, and whether it be lodged in one Governor or an Executive Council of three or more, or otherwise.

The purpose of the provision is to preserve the perpetual representation of the State in the Senate, and an appointment made by the Governor of Florida is the exercise of State authority, and none the less so because the State derives it from the Federal Constitution. He does it as the executive and officer of a State, and not as an officer of the United States.

The legislature of a State in electing a Senator acts for an 1 represents the State, and does so as the legislature of the State, and in the exercise of the State’s right to be represented in the Senate or government of the United States by Senators thus chosen. That it is the duty of the legislature to elect, a duty not only to the State, but also to the general government in view of the nature of our government, cannot be denied, but the duty does not change the character of the body and make it a Federal legislature.

The grant to Congress of power to alter and make regulations as to the elections of Representatives and Senators was founded on the possibilty that the State legislatures, agencies of the State might be remiss in the premises.

The authority given to the State executive to appoint is not, except as to the mode of appointment, a limitation upon the State’s power to choose its Senator, but was to preserve and execute that power and secure representation to the State through the action of its own executive under certain contingencies, and by the two processes the power of the State to choose its Senators at all times and under all circumstances preserved. Mr.

Madison, in speaking of the selection of Senators bjr State legislatures, said: “It is recommended by the double advantage of favoring a select appointment and of giving to the State governments such an agency in the formation of the Federal gov ernment as must secure the authority of the former and may form a convenient link between the two sys- . terns.” And as to the equal numbers of Senators allowed each State, he observes that it “is at once a constitutional recognition of the portion of the sovereignty remaining in the individual States for preserving that residuary sovereignty.

So far as the equality sought to be no less acceptable to the large than to the small States,-since they are not less solicitous to guard by every possible expedient against any improper consolidation of the States-into one simple republic.” The Federalist, No. 62, pp. 346-7. In the absence of legislation by Congress providing the form in which the appointment of a Senator shall be authenticated, it is unnecessary to discuss the power of Congress to legislate upon the subject. If it has not such power, its deprivation of it is no reason why the State cannot exercise it.

The Senate has as much power to enquire into the legality of the appointment of a Senator by the executive power of a State, as into that of the election of one by a Legislature. If it has not, any appointee can take his seat-in the Senate upon the assumption that the Governor has appointed him and given him evidence of the appointment satisfactory t-o executive discretion. In all cases of any alleged executive appointment a primary question for the Senate is : Has the executive authority of the State made an appointment ?

Its validity as an executive appointment cannot be investigated until it is satisfactorily shown that there has been an appointment in fact by the executive. Under the Constitution and laws of the United # States and of this State there is no known mode of evidencing or proving that an appointment of a United States Senator, or any other officer, has been made by the executive of this State, except, or unless and until, a commission has been duly signed, sealed and countersigned in accordance with the above quoted provision of our organic law, sec. 14, Art. IV, Constitution.

It is true that it is the duty of the Secretary, under a statute referred to above, to record all commissions, like any other executive act, but this duty does not arise, nor can it be legally performed until the commission has been signed, sealed and countersigned, as is clearly established by the eases Marbury vs. Madison, and United States vs.

LeBaron, supra, and implied in the advisory opinion of October 28th, 1875, for until then it is not complete, and even if the incomplete commission should be permitted to-remain in the Secretary’s office, no certified copy of it would be effectual to prove the appointment, for until complete, it is not legal evidence of the title to the office. The law does not contemplate that it shall remain in the office, but that it shall be recorded as soon as complete, and be delivered to the appointee, as the evidence of his title.

When complete it is the appointee’s property, and its surrender to him may be compelled by mandamus brought on his relation. Marbury vs. Madison, supra. In the absence of any 'provision in the Constitution or statutes of the United States, when a Governor of this State wishes to appoint a Senator the only legal way of evidencing Ms act so as to command the recognition of it by the United States Senate as his official act, is to comply with the formula which the people of the State have in our Constitution declared to be the proper form for exercising the executive power of appointing to office.

Any appointment of a Senator not thus signed, sealed and countersigned is not authenticated in the manner which our organic*, law, the only law regulating the subject, provides, and is not entitled to recognition by the Senate of the United States as a commission or appointment a.s United States Senator from the State of Florida, or its executive authority acting for the State.

Assuming that Congress has the authority to prescribe how such an appointment should be authenticated, until it does so the only reasonable conclusion is, that this executive act of the State government shall be evidenced in the manner provided by State law in such cases, and the only appointments or commissions of Senators extended upon the proceedings of Congress within our reach, appear to have been signed by the Governor, sealed with the great seal of State, and attested or countersigned by the Secretaiy of State.

We have been unable to find anything that suggests any other possible way of evidencing the executive act than that provided by the provision of our own organic law, nor is there in the Constitution of the United States anything that prevents the State from regulating the evidence of this official act, at least until Congress shall act in the premises. The Governor, as the representative of the State, and her chief executive power, whose duty it is to see that the laws are enforced, is seeking to have

an act done by him as her chief magistrate, authenticated in the only manner that it can be done to command recognition of it as done by him, and in our judgment he is, as her representative, entitled to have it done, unless there is in the nature of the act required of the Secretary of State something involving the exercise of official discretion.

It is in our judgment clearly the official duty of the Secretary to affix the seal of the State to the appointment, and to countersign or attest the same as evidencing the official act of the executive authority of the State in appointing a Senator in the Congress of the United States, and this duty is one involving no official discretion or judgment on his part. . It the case of the State ex rel. Bienvenu vs. Wrotnowski, Secretary of State, 17 La.

Ann., 156, a mandamus was sought to require the Secretary of State of Louisana to affix the seal of State and countersign a commission signed by the Governor appointing the relator sheriff of the Parish of Orleans.

The Secretary replied that the Governor was attempting to issue the commission without warrant or authority of law, and in direct violation of the Constitution and laws of the State; that the office of sheriff was then held by another person under a commission which would not expire until the next regular election for the office in question; and that the Governor had no authority .to supercede the incumbent sheriff.

The statutes of Louisiana enacted that there should be a public seal for authenticating the acts of the government, and that the Secretary of State, who, as in Florida, was a constitutional officer, should be its keeper and affix it to all official acts, the laWs alone excepted. The Governor was vested with the appointing power in certain cases, but it was not shown or pretended in the opinion that he had legally exercised it in the case. “ The Secretary of State,” said the court, is not to suspend his action to enquire why and wherefore any appointment by the Governor is made.

His duty is plain; he is not directed, but ordered by law, to perform it. When commissions from the Governor need authentication, lie shall affix his official signature and the public seal of State, for these are official acts. Whatever improvidence or illegality there may be in the issuing of commissions, that concerns him not.

His authenticating any official act can never compromit him; for he has no discretion to exercise regarding it. * * * Were this right of supervision, which is almost equivalent to a veto power, in the Secretary of State, as it is seriously contended it is, it would, indeed, produce startling consequences.

The Secretary of State could paralize at will constitutional appointments made by the executive. * * * The Secretary of State cannot go behind commissions officially presented to him for authentication. * * * When two commissions duly authenticated for the same office are extant,and it becomes necessary to determine which of the two appointees is legally entitled to the office, that issue, presented in a proper manner and at a proper time, can be entertained; * but the courts will not inquisitively seek to know upon what evidence the executive acted in the performance of a constitutional duty, at all events in advance of the consummation of an official act.” The distinction between the above case and that of State ex rel. vs.

Farquer, supra, is clear. There is no language in the Constitution of the United States or in our own which can be construed to give the Secretary any discretion or judgment as to whether the G-overnor’s action in-appointing a Senator is legal. The duty devolved upon the Secretary of State in the case before us is merely to authenticate the commission signed and presented to him by the admitted rightful •executive of the State. It is purely ministerial, and involves no exercise of discretion. . There is from the very nature of the duty no place in it for the exercise of j uclgment.

It involves nothing but affixing the seal and signing officially. It is entirely impossible for anyone to infer, from, or to find implied in, the simple duty of authenticating this evidence of an appointment of an office known to exist, and which, under certain circumstances, the executive of the State has authority to fill, the further duty or the power to question the legality of the exercise of the authority to appoint. If such duty or power of enquiry exists at all, then it covers every question as to the legality of the appointment that can be made.

It extends not only to the question of whether or not there is a vacancy, but also to the appointee’s qualifications as to age, residence or citizenship.

If it exists at all, then the power conferred by the Constitution of the United States rpon the executive of a State to appoint a Senator is not subject simply to the exclusive jurisdiction of the Senate as to the election or appointment and qualifications of its members, but to another jurisdiction, which is the judgment of the Secretary of State, and has the power to deny to the Governor the right of the constitutional evidence that he has even made an appointment.

If this power obtains in the case of an appointment of a Senator, it, arising as it must and alone can from the mere duty to authenticate a commission, exists also in the case of every justice of the peace, county commissioner, or other county officer, and of every State officer of whom under any contingency the Governor may have the power to make an appointment. In so far as the existence of the power is concerned, there is no possible distinction in the several cases. To say that it would not be exercised, is no answer, but is an assumption of the existence of the power.

Knowledge as to when, or by whom the power, if its exercise is recognized, will be used or renounced, is not a subject for our consideration. In authenticating the executive appointment of a Senator, the Secretary of State in nowise commits himself to the legality of such act. The Governor is not responsible to the Secretary, nor the Secretary for him. If the act is illegal, the authentication of the Secretary is the .evidence of its consummation; it prooves what the Governor has done, but it does not involve the Secretary in responsibility for it.

The Secretary’s certificate to the transcript of the legislative proceedings furnished Mr. Call is official evidence of what those proceedings in fact were, and nothing more, and in nowise implies any opinion of his as to the regularity or legality of such proceedings, and the same is true, no less nor any more, of his authentication of the executive act in question. Nor does the appointment, though duly authenticated, have any effect upon the legality of Mr. Call’s election, or towards creating any vacancy which does not otherwise exist.

If an award of the writ would have any such effect, we would, and upon the plainest principles should, refuse to award it, and for the reason that Mr. Call is not before the court, nor is Mr. Davidson, and mandamus is not the remedy for settling a conflict for an office, even where the right to decide such a contest is in the court, which is not the case here. People vs. Farquer, supra; People vs. Mayor et al. of New York, 3 Johns. Cases, 79; State ex rel. Vienne vs. Hyams, 12 La. Ann., 719, cited in I7 La. Ann., 163. 5th.

It is also contended that neither the State nor the Governor has any such interest in relation to the sj)ecific act sought to be enforced as authorizes or justies the institution of this suit. It is entirely clear from the authorities, Marbury vs. Madison, United States vs. Le Baron, and Advisory Opinion, supra, and what has been announced in preceding- portions of this opinion, that the executive or governmental duty of completing a commission is not consummated until it has been sealed and countersigned.

Even admitting that when a commission has been signed and delivered by the Grover nor to the Secretary of State, the appointee named therein, who may have previously taken the oath and given bond or done anything- necessary to justify Mm in entering into the office upon the perfection of the commission, has such a private interest therein as gives- him a status to require through the instrumentality of this writ the sealing and countersigning, or admitting that the executive power of revoking his action has passed as soon as a commission so signed has been delivered to the ¡Secretary, or even as soon as it has been signed with the intention of such delivery, these positions and concessions, if proper, are in no way inconsistent with, nor do they affect, the interest of the public in the appointment and commissioning of public officers, nor do they remove the fact that the Governor is charged with the “ care that the laws be faithfully administered,” sec. 6, Art.

IY, Constitution. The commissioning of a public officer is not at any stage of its progress a mere matter of private interest. The entire public are directly interested in the consummation of his appointment in order that he may perform the duties of his office, which dirties and the necessity of the performance thereof to the public, account not only for the appointment, but for the creation of the office itself.

Of this interest of the public in having office filled, and commissions sealed and countersigned, or completed, so that the title of the office shall vest in, and the performance of its duties become incumbent upon, the appointees, the Governor is the constitutionally designated representative or trustee of the people, and as such he has the right, and it is his duty to take such measures as will secure the benefits of the same to the people. The duty of commissioning officers cannot in reason, nor without great detriment to the public, -be transferred to inchoate appointees.

If it is thus transferred, and the the Secretary of State shall refuse to authenticate appointments' which the Governor may deem it his duty to make, the filling of offices will depend, not upon official duty, but on the financial ability- and the disposition of appointees to litigate. It will remit to the private citizen, and impose upon private resources, a public duty which the Supreme Court of the United States and our own court tells us is not performed until the commission is complete.

The Governor in presenting the petition for this writ has acted in his official capacity and in behalf of the State, and not in behalf of any private interest. In Kentucky vs. Dennison, 24 How., 66, 97, it is said: “In the case of Madraso vs. The Governor of Georgia, 1 Pet., 110, it was decided, that in a case where the chief magistrate of a State is sued, not by Ms name as an individual, but by Ms style of office, and the claim made upon him is entirely in his official character, the State itself may be consider a party on the record.

This was a case where the State was the defendant; the practice, where it is plaintiff, has been frequently adopted of suing in the name of the Governor in behalf of the State, and was indeed the form originally used, and always recognized as the suit of the State.” It is the settled law, that where writs of mandamus issue, as they may, uponthe relation of a private' citizen, to compel the performance of a public duty, the interest in which is common to the whole community, the State is the real plaintiff. State ex rel. Scott vs. Board of County Commissioners, 17 Fla., 707; Hamilton vs. State ex rel.

Bates, 3 Ind., 452; County of Pike vs. State ex rel. Metz, 11 Ill., 202; City of Ottawa vs. People ex rel. Caton, 48 Ill., 233; People ex rel. Case vs. Collins, 19 Wend., 56; People ex rel. Stephens vs. Halsey, 37 N. Y., 344; State ex rel. Rice vs. County Judge, 7 Iowa (Clarke) 186, 202. The Special interest of the pi’ivate relator is important only where the matter is one solely of private right. Whether wé hold the State or the Governor, as the chief executive, to be the real plaintiff in this case, we have no doubt of the power or duty of the Governor to act. State ex rel. Mahan vs. Dubuclet, 22 La.

Ann., 602. 6th. That there is no other adequate remedy, is clear from the fact that the commission must be complete before it can be recorded, or a copy of the original can be evidence of the appointment. “In the case of commissions, the law orders the Secretary of State to record them. When, therefore, they are signed and sealed, the order for their being recorded is given.” Marbury vs. Madison, 1 Cr., 161. Until signed, sealed and countersigned, there is no legal evidence of an appointment of which a certified copy can be made. 7th.

Upon the case made by the pleadings, our conclusion is; that the peremptory writ should be awarded but, in view of the character of the parties, we will suspend until Monday next any formal order in the premises, further than one adjudging the return of the respondent insufficient and sustaining the demurrer thereto.