dissenting.
Respectfully, I dissent.
“... I, Wallace G. Wilkinson, Governor of the Commonwealth of Kentucky, hereby appoint myself, Wallace G. Wilkinson, 2723 Martinique Lane, Lexington, Kentucky 40505, as a member of the University of Kentucky Board of Trustees ..., for a term expiring June 30, 1997.” Executive Order 91-1215, Dec. 2, 1991.
We are confronted with a question of great public importance and constitutional magnitude, involving the foundations of power: is the power to appoint oneself inherent in the power of a public official to appoint, or must such power first be expressed or reasonably inferable from constitutional or statutory mandate?
Otherwise stated: is it a usurpation of governmental authority for a governmental official with the power of appointment, executive, legislative or judicial, to appoint himself to the position where nothing in the constitution nor any statute specifies that he has any such power of appointment?
The Majority Opinion has approached this subject matter by inferring such power to appoint exists simply because nothing in the constitution or any statute prohibits it. I suggest that the opposite is true: that power to appoint exists only where the constitution and statutes enacted pursuant to the constitution specify such power exists or such can be reasonably inferred from their language.
The Attorney General has presented substantial legal authority questioning the power of the Governor to appoint himself to the University of Kentucky Board of Trustees, including:
1) Three Kentucky cases wherein similar appointments by lesser appointing authorities have been held ultra vires: Meglemery v. Weissinger, 140 Ky. 353, 131 S.W. 40 (1910); Lemon v. Fiscal Court of Casey County, Ky., 291 S.W.2d 572 (1956); and Smith v. McDermott, 313 Ky. 184, 230 S.W.2d 636 (1950).
2) Citations to the general rule as related in legal treatises in point: 63A Am.Jur.2d, Public Officers and Employees, Sec. 100; and 67 C.J.S., Officers, Sec. 23 (“It is contrary to the policy of the law for an officer to use his official appointing power to place himself in office.”).
3) Citations to cases from five of our sister states wherein similar appointments were considered unlawful: Felker v. City of Monroe, 22 Ga.App. 301, 95 S.E. 1023 (1918); State ex rel. Smith v. Bowman, 184 Mo.App. 549, 170 S.W. 700 (1914); State v. McDaniel, 157 A.2d 463 (Del.1960); Bradley v. City Council of City of Greenville, 212 S.C. 389, 46 S.E.2d 291 (1948); and State v. Thompson, 193 Tenn. 395, 246 S.W.2d 59 (1952). As stated in the last *617case cited, State v. Thompson, 246 S.W.2d at 62:
“ ‘The common conscience of mankind revolts at the idea’ [of self-appointment and] ‘the public is entitled to have it strictly enforced against every public official’....”
State constitutions cannot, and do not, define every term they use to constitute and empower state government. The terms used are largely dependent on the common understanding of the “common conscience of mankind” (State v. Thompson, supra). There is at the least a strong argument justifying the trial court’s temporary injunction supporting the premise that there is no authority granted by the constitution to any public official, executive, legislative, or judicial, to appoint himself simply because there is a statute creating a position silent on whether his authority extends to appointing himself. In the words of Mr. Bumble in Oliver Twist, “If the law supposes that, ... ‘the law is an ass.’ ” The Governor’s decision to appoint himself to public office is unprecedented, and in my opinion the trial court exercised sound judgment in enjoining this appointment until the legitimacy of such act could be fully considered. The Majority Opinion states it is the responsibility of the trial court to maintain the status quo until this question can be decided. I agree. But the Majority’s analysis of what constitutes the status quo is seriously flawed. To my knowledge no Governor has ever presumed to appoint himself to the University of Kentucky Board of Trustees, or to any position remotely similar, until Wallace G. Wilkinson, in his position as Governor, undertook to appoint Wallace G. Wilkinson, in his position as a citizen of Kentucky, as a member of the Board. The question here is not whether one person can wear two hats, or indeed, can occupy two • different offices which do not seem to be necessarily incompatible. The question is much different, and much more important, than whether the duties of one office are incompatible with the duties of the other. The question is whether the grant of power to appoint in the constitution contemplates that a public official will arrogate unto himself another office to be enjoyed either during his term of office or after he leaves office, in circumstances where the statutory authority creating the position and directing the method by which it shall be filled does not specify that he can serve in the position, or that he may designate himself to occupy the position.
The province of a preliminary injunction is to preserve pendente lite the last actual non-contested status preceding controversy, and prevent irreparable loss caused by a change in this status. The trial court decided that the status quo here is the situation that existed at the time when Governor Wilkinson undertook to appoint Citizen Wilkinson a member of the Board of Trustees, and not the situation as it was changed by making the appointment. I agree. Further, I agree with the trial court that there is, at the least, sufficient doubt about the inherent power of the Governor to appoint himself to a position such as this, in the absence of specific statutory authority, to meet the requirement for the issue of a temporary injunction to maintain the status quo until this important public question can be fully considered and properly decided.
The question before the trial court was one of balancing the equities, between the relatively slight damage to Citizen Wilkinson from denying him this position of power, prestige, and perquisites until the legal issues can be determined, and the potential public injury resulting from creating, before the issue can be finally decided, a precedent for self-appointment to desirable offices. Where the issue is the power of self-appointment, whether the position is desirable for the money it pays, or because it presents an opportunity to make money, or simply because of the power, prestige and perquisites that go with the position, generates no apparent reason for making a distinction.
It is fair to take judicial notice that Governor Wilkinson’s appointment of Citizen Wilkinson to the University of Kentucky Board of Trustees has already disrupted the political process. Governor Wilkinson’s *618successor deemed it necessary to devote a substantial portion of his “State of the Commonwealth” address to the General Assembly in January, 1992, to the subject of total replacement of the Board of Trustees at all state universities and complete revision of the appointment method, and legislation to address the subject has already been introduced and presently under consideration by the General Assembly. In these circumstances it is difficult to understand that my brethren found the trial court abused its discretion in believing there was no public interest to protect in enjoining this appointment to the Board until its constitutionality and statutory legality could be finally determined. Already, our decision here, publicly announced on December 9, 1991, affirming the decision of the Court of Appeals to vacate the trial court’s temporary injunction in this case, has caused irreparable damage in terms of waste of public resources to deal with it, all at public expense, far outweighing any injury to Citizen Wilkinson which would have been generated by a contrary result.
The Majority has acknowledged that the responsibility of the Court of Appeals in reviewing the decision of the trial court to grant the temporary injunction was not to interfere with the trial court’s decision unless it was an abuse of discretion. Merely because we are now authorized by CR 65.09 to “entertain” review of a Court of Appeals’ decision on a CR 65.07 motion, does not change the inherent nature of this review. When CR 65.09 speaks to “extraordinary cause,” just as when CR 65.07 speaks to the Court of Appeals’ authority to review, we are not free to exercise our independent judgment with regard to whether the trial court should have granted a temporary injunction; we are to change the result only when the trial court has abused its discretion. Certainly, this is not the case in present circumstances.
This is a declaratory judgment authorized by the Declaratory Judgment Act, KRS 418.040, et seq. A host of cases hold that the rights and duties of state, as well as county and municipal officers, may be determined in a declaratory judgment action. See Ky.Digest, Anno., Vol. 15, p. 372. KRS 418.045 specifies that “[a]ny person ... whose rights are affected by statute, municipal ordinance or other government regulation,” which surely includes Executive Order 91-1215, may bring such an action. The Majority Opinion has wandered far afield in comments suggesting that the temporary injunction was inappropriate because “the Attorney General has no personal right of any kind” to vindicate. It is the Attorney General’s responsibility to file suit to vindicate public rights, as attorney for the people of the State of Kentucky. The rights of the people, as the body politic, are identical to the personal rights of a private individual, and enjoy at least the same, if not more, standing to seek a declaratory judgment, and to seek injunctive protection against injury. Under KRS 415.050, the Attorney General may proceed directly against a usurper. Under KRS 15.020, the Attorney General is the state’s chief law officer and may “exercise all common law duties and authority pertaining to the office of the Attorney General under the common law.” It is the personal right of the people as the body politic and not any personal right of the person holding the office of Attorney General that is being represented here. It is unreasonable to suggest that because the person with the official responsibility to seek protection on the people’s behalf has no personal stake in the outcome, there is no right of redress and no right to injunctive relief against the Governor’s usurpation of power, if such has occurred.
Nor should we be impressed because there is a statute, KRS 164.150, specifying that a person shall not “be held to be a public officer by reason of his membership on the Board.” A member of the University of Kentucky Board of Trustees is a public officer in the sense that he is appointed by the Governor to the governing body of a public corporation to exercise power for the benefit of the public. KRS 164.160 specifies that the “board of trustees shall be a body corporate, under the name of board of trustees of the University of Kentucky, with the usual corporate pow*619ers.... ” On repeated occasion we have held the University of Kentucky is a state agency, an arm of state government, and surely the persons appointed to its governing board occupy a public office in any common understanding of the term. The General Assembly cannot deprive a public official of his status as such simply by declaring something is a fact when it is not a fact. In addressing a similar problem in Fannin v. Williams, Ky., 655 S.W.2d 480, 484 (1983), we stated: “We cannot sell the people of Kentucky a mule and call it a horse, even if we believe the public needs a mule.”
The Kentucky cases cited by the Attorney General supra, denying the power of self-appointment to county and local officials in situations similar to present circumstances, specify that it is inconsistent with the powers of the office for the appointing authorities to appoint themselves to positions on governing boards. The Majority Opinion discards these cases on grounds that they involve “appointments made by lesser authorities with powers that are limited by either the Constitution or the statutes.” Neither the constitution nor the statutes had any express limitation on the appointing authorities in the three Kentucky cases cited by the Attorney General, and I question whether there is sound reason to apply a different principle here.
There is more than enough here to justify the trial court’s decision to issue a temporary injunction. Neither the Court of Appeals nor this Court should have set it aside.