32 W. Va. 419 | W. Va. | 1889
President Carr bases his claim for the office of Governor on section 16, art VII, of the constitution, which reads as follows:
“In case of the death, conviction on impeachment, failure to qualify, resignation, or other disability of the governor, the president of the’senate shall act as governor until the vacancy is filled or the disability removed.” Gov. Wilson denies the application of that provision to the present circumstances, and, though his term of four years as governor has expired, he claims to hold over until his successor shall be declared elected and qualified, under sec. 6, art. IV, of the constitution, which reads as follows : “All officers elected or appointed under this constitution may, unless in cases herein otherwise provided for, be removed from office for official misconduct, incompetence, neglect of duty, or gross immorality, in such manner as may be prescribed by general laws, and unless so removed they shall continue to discharge the duties of their respective offices until their successors are elected or appointed and qualified.”
Carr contends that, while it is true, that under section 6, art, IV, officers hold over beyond their_term, until their successors are qualified, yet that that section itself says : “unless in cases herein otherwise provided for;” and that, if we turn to said section 16, art. VII, i't is therein otherwise provided for, as follows: “That in case of the death, conviction on impeachment, failure to qualify, resignation, or other disability of the governor, the president of the senate shall act as governor.”
Wilson maintains, that the words, “unless in cases herein otherwise provided for,” apply only to removals of officers, not to the clause providing for holding over, as if it read, “all officers may be removed in such manner, as may be prescribed by general laws, unless in cases herein otherwise provided for,” or as if the clause as to officers holding over were in another section. It is said, that as to removal it was nec
And, as to the general rule that all officers shall hold over until their successors are qualified, that being a general rule would yield to a clause providing otherwise as to a particular officer, for instance, governor; as there would be as to that officer a provision applicable only to him, and as to him that particular provision would govern his particular case. Bish. Stat. Crimes, §§ 126, 390. Those words were inserted out of abundant caution and to give harmony to the face of the constitution. I do not think it material and so do not decide, whether those words relate to only one or both the sentences or clauses of said section 6. But, allow that they qualify both, it is plain, that it is a general rule in our constitution, that, “unless removed all officers shall continue to discharge the duties of their respective offices, until their successors are elected or appointed and qualified;” and the governor falls within the rule, unless some other provision takes him out of it as an exception to .that rule, in which case, to the extent such other provision might go, he would be out of that general rule.
How, the death, conviction or resignation of a governor is not suggested as existing as a ground for President Carr’s claim. If it be said, that, because of the fact, that no one has been declared elected, no one has legally taken the oath of office, and that there exists a “failure to qualify,” giving to the president of the senate for that regson under the words of the constitution a right to the office, the question arises : Has that contingency arisen within the true meaning of the constitution ? As above stated, had Gen. Goff or any one else been declared elected and had he failed to qualify, that would be a failure to qualify within the meaning of the constitution. But no one has been declared elected. The constitution says, that the returns for governor from the counties shall he sealed ancl sent to the Secretary of State, who shall deliver them to the Speaker of the House, by whom they shall be opened in the presence of both houses of the Legislature, and the person having the highest number of votes shall be declared elected. Can we dispense with
The court of appeals of New York in People v. North, 72 N. Y. 124, held, that where the act of the Legislature has provided in a town-charter, that the returns be laid before the council, and the person having the highest number of votes shall be declared duly elected, the declaration and certificate of the council “are necessary to complete the election of a ward-officer as well as a general officer of the city, and are indispensible to qualify the candidate to enter upon the duties of his office.” The same court in People v. Crissey, 91 N. Y. 616, held, that the Legislature may provide the manner,- in which the result of an election,shall be determined and declared; that the power to declare the result must be lodged somewhere; and that, where the mode of so doing is commanded, until it is obeyed, and such acts are done, the election is not complete, and the candidate not qualified to serve; and.the court held, that for want of such declaration the old officers held over. The constitution itself in this State requires this declaration by either the joint assembly or by the speaker in its presence. How do we know, legally speaking, for the purpose of qualification who is elected until such ascertainment? What do the certificates from the many counties show? They are secret, sealed and sacred under the constitution, and no one can answer the question until then. This court has held at this term, in Goff v. Wilson, supra, that for want of a declaration of his election Gen. Goff had no title and was not entitled to enter upon the duties of the office of governor. Tlié constitution divides the government into three great departments, legislative, executive and judicial, and forbids either to exercise thefunctious of another. It provides, that the returns of the election for governor shall go before the two houses of the legislature,' in order that their result may be declared. It provides, that a contest as to the governorship shall be tried by a joint assembly of those two houses. Their jurisdiction is exclusive in the exercise of this political function. The joint assembly has had these re
This Court can not directly or indirectly oust the Legislature of its jurisdiction and assuming superior wisdom and power arrogate to itself the function of saying, that either of the contestants was lawfully elected. To do so would be usurpation of unwarranted authority by this Court. Therefore this Court held, that for want of declaration of his election Gen. Goff could not have a mandamus to compel Gov. Wilson to admit him. If then President Carr bases his claim on a failure of. Gen. Goff or any one else to qualify, the question arises: IIow can any one qualify, until after he has been declared elected? How can there be a failure to qualify, until there is some person in a condition to qualify ? The only provisions as to qualification of officers are in Code 1887, c. 10, s. 7, requiring, that officers shall take the oath within sixty days, after they have “been duly declared elected,” with the proviso as to the executive officers, that they shall do so “on or before the 4th of March next after they are declared elected, or before they exercise the duties of their respective offices.” These provisions do not contemplate or provide for any officer taking the oath before he is declared elected. Thus, if the president of the senate demand the office on account of a failure to qualify by the elected governor, the answer is “There has been no failure to qualify legally speaking, because no person has as yet become entitled- to qualify. How can there be a failure to qualify, when no person has been called upon to do so ? The words “failure to qualify” mean failure to qualify as required
But the distinguished counsel for President Carr says that the failure of the Legislature to declare either Goff or Fleming or any one elected creates a vacancy or “disability of the governor,” and under the constitution for that cause the president of the senate comes in. This is the ground chiefly, if not solely, relied on by him. blow the language is: “In case of the death, conviction on impeachment, failure to qualify, resignation or other disability of the governor, the president of the senate shall act as governor until the vacancy is filled or the disability is removed.” It says disability of “the governor,” But it must be by reason of the disability of, not one who was a mere candidate, — one not declared elected, — but of one who but for some disability attaching to him could act as governor. Before the president of the senate can act, there must be a person, whose duties, and powers he assumes; in whose shoes he stands. He can exercise no functions but those of the man whose position he takes. The person on account of whose disability he becomes acting governor, must be not an incompetent governor, so far as the votes of the people and the authority selected to declare his election are concerned. They must have done all they were required by the constitution to do to make him governor. If anything essential to be done by them to complete his title be wanting, he is only partly governor, not fully so, not entitled to enter into the office. The constitution is not, in section 16, art. VII, making provision for the discharge of the duties of one, who under no circumstances is entitled or ready to perform such duties himself. The president of the senate acts on the death of the governor, or on the conviction on impeachment of the governor, or on the failure of the governor to qualify, or .on the resignation of the governor, or other disability of the governor. There must be in any or all those occasions calling on the president of the senate to act one, who in law can be deemed a governor. But as yet no one has been declared governor. Such declaration is under the cases cited from Hew York and our decision in Goff v. Wilson indispensable to give any one title as governor, and, none of the candidates having been declared
Again, I do not think the non-declai’ation of the result of the election is a disability of the governor, such as is meant by the constitution. It is simply non-action or incomplete action by the agencies of the law assigned to vest the title in the candidate. It is not like insanity, conviction of the officer for crime, continued absence or other disability connected with the person of the governor. Death, conviction on impeachment, failure to qualify or resignation would produce a vacancy, and it would seem that the language “ or other disability ” means something of a different character from those cases named, — something attaching to the person of the governor and disabling him ; and this construction seems confirmed by the after language of the section providing that “ the president of the senate shall act as governor until the vacancy is filled or the disability is removed,”— thus using the words “ vacancy ” and “ disability ” as meaning different things; “ vacancy ” referring to death, conviction, failing to qualify, and resignation, but “ disability ” referring to something relating to the person, and for the time being disabling him,-notwithstanding the use of the word “ other.” The words, “ shall continue to discharge the duties of their respective offices until their successors are elected and qualified,” seem to fit this case, where the proceedings leading to the completion of the election are yet pending but will end in the declaration of a result, when the governor will come on to qualify, while the other section, as to the president of the senate acting, seems to provide for a different class of cases; that is, where the election is complete, but there is a vacancy caused by death or other fact, or a disability preventing his action. In Lawhorne’s Case, 18 Gratt. 93, the court under similar provisions in the Virginia constitution held, that the clause relating to the lieutenant-governor’s acting in case of death or other cause disabling the governor did apply only to a case not provided for by the section authorizing officers to hold over.
We are in this canse called on by both sides to decide, not only whether Carr has title to admit him, but also whether Wilson has title to hold over; and, as we see it, we are compelled to-pass on Wilson’s right to hold over; for it seems certain that under these two provisions of the consti-stitution, if Carr has title to enter into the office, Wilson has no title to continue to hold it. In deciding as to the right of thé one we necessarily decide as to the right of the other. This case is unlike that of Goff v. Wilson, for there it was a question only of Goff’s title. If his title was imperfect by reason of the absence of the declaration of his election, he failed, whether Wilson had title to hold over or not, and we did not in that cause pass on Wilson’s right. If Goff’s title had been complete, surely Wilson’s tenure was at an end; if Goff’s title was imperfect, he could not be admitted, though Wilson’s claim to hold should be weak.
Mention has been made, though it does not seem to be urged, that under section 4, art. Nil, of the constitution a governor is ineligible for the same office for the term succeeding that, for which he was elected, and therefore Gov. Wilson is not competent to hold over. I consider him holding over under his old term; it is a prolongation of that. His competency is tested by his eligibility for his old term. As he was eligible for that, he can hold under his old term,
Por these reasons the demurrer to the return must be overruled, the peremptory writ of mandamus be denied, and the petition dismissed.
Dismissed.