acceptance of record, and proceeded at the same time to appoint Mr. Sherrard
sheriff to supply the vacancy.

In connection with this branch of the subject, two points are presented :
First, was there a board of county commissioners to which Jones could tender
his resignation ? We think not. As the board had no power to fill a vacancy in
their own body, Mr. Spicer was not a member, and if there was no board to re-
ceive the resignation, there was certainly no board to make the appointment of
Sherrard. Secondly, can the board, if full, accept the resignation of the sheriff ?
This board of commissioners is a creature of the statute, and has specially dele-
gated powers, and no more. It is not specified to what power a sheriff shall
resign, and the presumption would be that the resignation should be to the
power that made him, and not the power which might have filled his vacancy.
This presents at least a doubtful question. If these conclusions be correct, there
existed legal grounds why the governor might have withheld a commission.

Then, presuming that the appointment was made in accordance with law, we
deem the refusal of the governor to grant a commission to be the subject of
judicial and not legislative investigation. And the departments of government



278 Kansas State Historical Society.

being separate and distinct — the executive, judicial, and legislative — neither
department should interfere with the operations of the other.

Your committee deem it unnecessary to go further into the facts of the case,
and are disposed to settle it on legal principles : they therefore recommend that
the bill do not pass.

But while your committee have arrived at this conclusion, they cannot sustain
the reasons assigned by the governor for his action in the premises. The charac-
ter and qualifications of an appointee are questions to be determined by the ap-
pointing power: and the granting a commission, being a mere ministerial act,
leaves no discretion with the governor, if the appointment has been legal. Now,
we are willing to recognize the power of the chief executive to instruct the terri-
torial governor to withhold the exercise of a di;ty enjoined on him by the law;
and the granting of a commission to the several officers of the territory being im-
perative on the governor, under the organic act, we deem that he has no discre-
tion left to him.

We would, however, recommend that there be additional legislation upon the
subject of filling vacancies in certain offices of the territory.

All of which is respectfully submitted. R. R. REES, Chairman.

[C. J. 1857, apx, p. 289.]

PETITION OF W. T. SHERRARD TO JUDGE LECOMPTE.

Territory of Kansas, County of Leavenworth.

To the Hon. Samuel D. Lecompte, Judge of the First District Court for
the First Judicial District of the Territory of Kansas:

Your petitioner, William T. Sherrard, of Douglas county, Kansas Terri-
tory, respectfully represents unto your honor, that heretofore, to-wit, on the
IGth of December, A. D. 1856, the resignation of Samuel J. Jones, late sheriff
of Douglas county, and territory aforesaid, having been tendered to and ac-
cepted by the board of county commissioners of Douglas county, Kansas terri-
tory, said board at their last meeting, to wit, on the 16th of December, A. D.
1856, proceeded then, and in Lecompton, their place of meeting, to appoint a
successor (as provided by the statutes of Kansas Territory, chapter 150, and
page 713) to ihe office of sheriff of said county of Douglas, and did appoint to
till the vacancy caused by the resignation of Samuel J. Jones your petitioner,
William T. Sherrard, which appointment, being duly certified as the law di-
rects by the clerk of said board of county commissioners, a copy of which cer-
tificate is herewith filed, and pray to be made a part of this petition, was sent
to John W. Geary, the governor of said territory, as provided further by said
statutes of Kansas Territory. But notwithstanding this, and further, that be-
ing often requested to make out the commission of your petitioner, as the afore-
said law requires, he still neglects and refuses so to do, for reasons unknown to
your petitioner. And therefore he prays that your honorable court may issue
the writ of mandamus, directed to said John W. Geary, governor of Kansas,
compelling him to make out said commission; and praying further, such other
and further such relief as your honor may deem meet for the case. And as
in duty bound, etc. Leavenw^orth city, Leavenworth county, K. T., January 2,
A. D. 1S57. WILLIAM T. SHERRARD.

Subscribed and sworn to before me, this 2d day of January, A D. 1857.

WILLIAM E. MURPHY, J. P.

1, R. C. Bishop, clerk of the board of county commissioners in and for the
county of Douglas, and territory of Kansas, do certify that William T. Sherrard



Governor Geari/'s Administration. 279



wae appointed sheriff of the aforesaid county on the 16th day of December,
A. D. 1856, by the board of county commissioners, and that his election was
certified to the governor of said territory.

Witness my hand and the seal of said court annexed, the 30th day of De-
cember, A. D. 1856. [Seal.] R. C. BISHOP, Clerk.

[C. J., 1857, Apx.]

United States of America, Territory of Kansas, set.
The above petition, being submitted to me, and the petitioner being heard
by counsel, upon consideration mandamus is refused upon defects in the alle-
gations of the bill, and of the certificate of the clerk of the county commission-
ers of Douglas county, but motion being made for leave to amend the said bill,
leave was granted until Tuesday, the 13th day of January next.
Done this 6th day of January, 1857.

S. D. LECOMPTB, Judge First District Court, etc.
[C. J. 1857, Apx., p. 291.]

Territory of Kansas, Douglas County, set.

To the Hon. Samuel D. Lecompte, Judge of the First District Court for
the E'irst Judicial District of the Territory of Kansas:

The petition of William T. Sherrard, of Douglas county, Kansas Territory,
most respectfully represents unto your honor, that whereas, heretofore, to wit,
on the 6th day of January, A. D. 1857, he presented unto your honor, through
his counsel, an original petition for the issuance of the writ of mandamus, to
be directed to John W. Geary, governor of Kansas Territory, for the purpose of
compelling him, the said Geary, to issue and make out the commission of
your petitioner as sheriff of Douglas county, Kansas Territory, in accordance
with the provision of the organic act of Congress organizing the territories
of Kansas and Nebraska, founding his said original petition on the ground
that he, your petitioner, was, on the 16th of December, A. D. 1856, legally ap-
pointed by the board of county commissioners of Douglas county, Kansas Ter-
ritory, as the sheriff of Douglas county, Kansas Territory, as provided for by
the statutes of thc: said territory of Kansas; but which petition, on being filed
in the office of the district clerk for the first judicial district of the territory of
Kansas, and afterwards by counsel presented to your honor, was refused by
your honor, on the 6th of January, A. D. 1857, for the reason that defects ex-
isted in the allegations of the bill, and of the certificate of the clerk of the
county commissioners of Douglas county; on which motion was made for leave
to amend the said bill, which leave was granted until the 15th of January, A.D.
1857:

Now, therefore, your petitioner, William T. Sherrard, of Douglas county,
Kansas Territory, by way of amended or supplemental petition to the one
above referred to, most respectfully represents unto your honor, that hereto-
fore, to wit, on the 29th day of August, A. D. 1855, one Samuel J. Jones was by
the legislature of the territory of Kansas elected and appointed to the office of
sheriff of Douglas county, Kansas territory (as will appear by reference to
the journals of said legislature), and was duly commissioned as provided by
law, the original commission of whom is hereto appended, and prayed to be
made a part of this amendatory or supplemental petition, and marked
"Exhibit A," that he was qualified or sworn as sheriff of said county, as will
appear by said commission, and that he gave such bond as was required, as
Avill appear by reference to the records of the court of county comissioners



280 Kansas State Historical Society.

of Douglas county. He further represents, that said Jones prosecuted the
discharge of his duties as sheriff of said county of Douglas until some time in
the month of December, A. D. 1856. Your petitioner further represents, that
during the said month of December, A. D. 1856, said Jones tendered his res-
ignation to the board of county commissioners of Douglas county, and that
said resignation was duly received, as will appear by the record of said board
of county commissioners of Douglas county.

Your petitioner further charges, that at the last regular meeting of said
board of county commissioners, to wit, on the 16th of December, A. D. 1856, an
election was held by said board for the appointment of a sheriff, to fill the
vacancy occasioned by the resignation of said Jones, as above mentioned, and
that, at that election above named, your petitioner was legally and duly ap-
pointed, as provided for by the statute laws of Kansas Territory, to which
reference is hereby made, which appointment will appear by the records of
said board of county commissioners, a certified copy or transcript of which is
herewith presented, and marked "Exhibit B."

Your petitioner further charges, that the clerk of said board ol county com-
missioners, in accordance with the duty prescribed by the laws of the ter-
ritory of Kansas, made out and transmitted to John W. Geary, governor of
Kansas Territory, a certificate of the appointment of your petitioner to the
ojiice of sheriff of Douglas county. A certificate or affidavit of the making out
and transmitting to said Governor Geary the certificate of the appointment
of your petitioner to said office of sheriff is hereto appended, and marked
"Exhibit A," and is included in the transcripts of said record.

Your petitioner further represents, that for the space of several days he
awaited the pleasure of said Governor Geary to make out his commission as
sheriff, but that he neglects so to do, and that after so awaiting for several
days, he applied personally to said Governor Geary for his commission, as
above referred to; but that, notwithstanding your petitioner often requested,
both verbally and by letter, said Governor Geary to issue his said commission,
he neglected and refused so to do, contrary to the duty marked out for him by
the law of Congress organizing the territories of Kansas and Nebraska, and
defining the powers and duties of the executives of said territories; and your
petitioner further charges, that said Governor Geary still neglects and refuses
to make out your petitioner's commission, contrary to his bounden and sworn
duty. And he therefore prays, having no other relief, that the writ of man-
damus may issue from your honorable court, directed to said John W. Geary,
governor of Kansas Territory, commanding him to appear and answer to your
honoiable court why a peremptory mandamus shall not issue; commanding
him, the said Governor Geary, to make out said commission; and he further
prays, that judgment may be rendered against said Governor Geary for
damages accruing to your petitioner on account of said governor's refusing to
make out said commission, and for suh other relief as to your honor may
seem just and meet. And as in duty bound shall ever pray, etc.

WILLIAM T. SHERRARD.

Sworn to and subscribed before me, this 12th day of January, 1857.
JAMES R. WHITEHEAD, Clerk.

By W. L. KUYKENDALL, D. C.



Governor Geary's Administration. 281

Exhibit A.

United States of America, Territory of Kansas.
The Governor of the Territory of Kansas, to all whom these presents shall come,
greeting:

Know ye, that the legislative assembly of the territory of Kansas, having in
joint session elected Samuel J. Jones to the office of sheriff in and for the county
of Douglas, for and during the term prescribed by law:

Now, therefore, I, Daniel Woodson, acting governor of the territory of Kan-
sas, by virtue of the authority in me vested by law, and reposing a special trust
and confidence in the integrity, ability and diligence of the said Samuel J. Jones,
do hereby commission him to the office aforesaid, for and during the term afore-
said.

In testimony whereof, I have hereunto subscribed my hand, and caused to be
affixed the seal of the territory aforesaid. Done at the Shawnee manual labor
school, this 27th day of August, A. D. 1855. [Seal]

DANIEL WOODSON, Acting Governor.

United States of America, Territory of Kansas.

I, Samuel J. Jones, do solemnly swear upon the holy evangelists of Almighty
God, that I will support the constitution of the United States, and that I will
support and sustain the provisions of an act entitled "x\n act to organize the
territories of Nebraska and Kansas," and the provisions of the law of the United
States commonly known as the fugitive-slave law, and faithfully and impartially,
and to the best of my ability, demean myself in the charge of my duties in the
office of sheriff. So help me God. SAMUEL J. JONES.

Sworn to and subscribed before me, this 3d day of September, A. D. 1855.
DANIEL WOODSON, Secretary Kansas Territory.

Exhibit B.

Monday, December 15, 1856. — No board being present, Hon. John P. Wood
adjourned the court until the 16th instant.

December 16, 1856. — The board met pursuant to adjournment. Present : Hon.
John P. Wood and J. M. Spicer. The board was organized by proclamation of
the sheriff at the court-house door. The board received the resignation of
Samuel J. Jones, sheriff of Douglas county, to take effect this day. The board
appointed William T. Sherrard to the office of sheriff of Douglas county, in
place of Samuel J. Jones, resigned.

I, R. C. Bishop, clerk of the board of county commissioners in and for the
county of Douglas, territory of Kansas, do certify, that the above is a true tran-
script of the docket of the board of county commissioners sitting in and for the
county of Douglas and territory of Kansas, on the 15th and 16th of December,
1856, relative to the appointment of William T. Sherrard to the office of sheriff.

In witness whereof, I hereunto sign my hand, and affix seal of the aforesaid
coul-t, at Lecompton, the 11th day of January, A. D. 1857. [Seal.]

R. C. BISHOP, Clerk.

I also certify that I certified the appointment of William T. Sherrard, as
sheriff of the aforesaid county, and directed it to John W. Geary, governor of
Kansas Territory. R. C. BISHOP, Clerk.

—18



282 Kansas State Historical Society.

United States of America, Territory of Kansas, set.

The within application, submitted to me in vacation, is refused, not consider-
ing that I have any power in vacation to issue the writ. All other points are un-
decided. S. D. LECOMPTE, Judge First District Court.

[C. J. 1857, Apx., p. 292.]



REPORT OF COMMITTEE.

The committee on judiciary and criminal jurisprudence, to whom was referred
house bill No. 14, entitled "x\n act to declare valid the official acts of W. T. Sher-
rard, and to make valid his appointment to the office of sheriff of Douglas county,"
having had the same under consideration, beg leave to make the following report :

Your committee deem it proper that they should briefly refer to the reasons
which prompted the introduction of the bill on which we are called to report.

By a certified transcript from the office of clerk of the county court, which
has been inspected by us, we find that on the 16th day of December, 1856,
Samuel J. Jones resigned the office of sheriff of Douglas county, Kansas Terri-
tory, and that Wm. T. Sherrard was duly appointed in his place ; and it also
appears by other evidence that he, some days thereafter, applied to the governor
for his commission, and was refused.

In the deliberate opinion of your committee, it was the duty of the governor
to have issued the commission when evidence of the appointment was presented
to him, and that his refusal so to do was a gi-oss violation of law, and an unwar-
rantable assumption of power.

Your committee would be slow to make such a charge against the chief execu-
tive officer of the territory were they not fully satisfied of its truth, and if the
assumption of power on his part was not at war with not only the organic act and
the laws of the territory, but in fact with the fundamental principles of our gov-
ernment, and might prove subversive of the liberties of the people.

We hold that the duty of the governor was purely ministerial in its character,
and would refer to the several sections regulating the subject.

The twenty-fifth section of the organic act declares " that all township, district
and county officers, not herein otherwise provided for, shall be appointed or elected,
as the case may be, in such manner as shall be provided for by the governor and
legislative assembly of the territory of Kansas " ; and the twentieth section of the
same act provides that the governor '• shall commission all officers who shall be
appointed to office by the laws of the said territory, and shall take care that the
laws be faithfully executed." From these two sections, it will be observed that
the organic act empowered the legislative assembly to provide for the appointment
of sheriffs, and that it is the duty of the governor to commission them.

In obedience to the command of the law, the legislative assembly at its last
session provided that " if any vacancy happens in the office of sheriff, such
vacancy should be filled by appointment by the tribunal transacting county
business, for the unexpired term " (see Statutes Kansas Territory, ch. 150, sec.
7), and the first section of the same chapter declares that the sheriff "shall be
commissioned by the governor."

No objection has been urged by the governor to the power of the tribunal
transacting county business to make such an appointment, nor do we think that
any could be successfvilly urged against it ; but the refusal seems to be based
upon the ground that the governor has the right to determine the propriety
thereof, from which we totally dissent. The language of the law is imperative.
It declares that he shall commission all officers who may be appointed to office



Governor Geary's Administration. 283

under the laws of the territory. Here, then, is a clear and unequivocal declara-
tion of law as to the duty of the governor, and there need be no resort to legal
deductions to define and establish the same ; but even if we were left to such
a mode to arrive at the correct rule, we fully believe we would be sustained in
declaring his functions purely ministerial, and that he should have issued the
commission ; for the well-received rule of law is, that the functions of an execu-
tive officer are in the main ministerial, and that if he have the judicial power of
determining, it must have been specifically defined.

We deny that the law gives him any such right, and assert that the power of
appointment in this instance was vested in the county court.

We scarcely need refer to the opinion of the highest court of the land to sus-
tain us in asserting that a commission is simply an evidence of appointment, and
that the act of issuing it is purely ministerial.

Your committee feel called upon to express their surprise at the singular com-
munication which has been presented to the house by the governor, in which he
gives his reasons for refusing the commission in question, and can but look on
it as a gross assault upon the character of a citizen of our territory.

In that communication, the right of this house to call upon the governor for
the reasons of his refusal to issue the commission is distinctly denied ; but still
he proceeds to furnish the reasons, if such they could properly be styled, by
which he was governed. After denying the right of the house to call upon him,
we hold that every assertion of that communication was gratuitous and utterly
uncalled for.

Among other things in that communication to which your committee deem it
necessary to refer, is the statement substantially made, that he was instructed
by the source whence he derived his appointment, to exercise a discretion as to
whom he would or would not commission to office.

Your committee are slow to believe that the chief magistrate of this great
republic, with a world-wide renown for its proud and lofty position among the
nations of the earth, should have ever attempted to delegate to a territorial
governor a power he himself never possessed.

The absence of all evidence tending to show that the tribunal transacting
county business have ever attempted to revoke or rescind their appointment is
of itself satisfactory evidence to your committee that they have seen no reason
to change their opinion of its propriety, notwithstanding the intimations of the
message.

Your committee, for their guidance, have had handed to them a written state-
ment, under oath, of Wm. T. Sherrard, defending himself against charges made
against him by his excellency in the communication before alluded to, which
statement is hereto annexed, and your committee request that it may be made a
part of this report.

In conclusion, your committee, believing that nothing but a wholesome check
would be placed upon the executive authority by the passage of this act, report
it back to the house, with a recommendation to that effect, so that the laws may
be enforced according to the act of Congress and of the legislative assembly.

[H. J., Jan. 23, 1857, p. 76.] D. J. JOHNSON, Chairman.

Wednesday, January 21, 1857.

To the Judiciary Committee of the House of Representatives of Kansas Ter-
ritory:

Gentlemen — In reply to the special message of his excellency John W. Gteary
relative to my appointment to the office of sheriff of Douglas county, permit me
to submit the following statement for your consideration:



284 Kansas State Historical Society.

On the 16th day of December last, I was appointed, in accordance with the
laws of the territory, sheriff of Douglas county, by the tribunal transacting
county business.

On the 18th day of December, I called at the executive office, and inquired of
the governor if the appointment had been certified to him by the clerk of the
county tribunal. He replied that it had. I then respectfully requested that he
would cause the commission to be made out as soon as possible ; adding at
the same time, as a reason for the request, that I had understood that there were
many writs which ought to be served at once, and that there was at that time no
officer in the county to execute them.

The governor appeared not to appreciate the force of these reasons, and even
betrayed some excitement at the suggestions I had made. In the course of a
rather warm conversation that ensued, he said, "Before I make this appoint-
ment, I wish to know whether you expect to act inimicably to me, or not?" I
expressed my surprise at the question, and said that it seemed to me to imply
that he desired to impose conditions on me before he discharged a duty required
of him by the law; if such was the meaning, 1 had only to say that, in executing
the office to which I had been appointed, I should endeavor to be guided only by
my oath and my duty, and whilst I did this, should certainly pay no regard to
him, his wishes, or opinions.

The conversation continued for some time longer, and at the close of it he said
that the commission should be made out between that time and the next day.
Some days after, having heard nothing in the meanwhile from the governor, I
wrote him a formal note demanding my commission, and informing him that, in
case of refusal, I should be constrained to use legal means to compel him to
issue it.

Before sending it, however, I learned from R. H. Bennett that, in an inter-
view he had had with the governor, he had been informed by him that he ( the
governor ) had understood that I was about to apply for a mandamus ; that this
was unnecessary, as he had never intended to refuse to issue the commission,
and that he would have kept his promise but for the absence of the secretary of
the territory ; adding that, as soon as the secretary returned, the commission
should be made out. Hearing this, I delayed sending the letter until the 29th,
when ( the secretary having returned on the 26th ) I mailed it, merely adding
postscript, saying that I should, without further delay, pursue the course I had