11 Or. 389 | Or. | 1884
By tlie Court,
Two questions are submitted in this case. The first and principal one is, whether, when, under section 8 of article 5 of the constitution of Oregon, the duties of the office of governor devolve upon the secretary of state, he has a right to the salary of the office. Second. If this question be answered in the affirmative, whether he shall continue to perform the duties of the office for the remainder of the term of the outgoing governor, or shall he perform those duties only so long as he shall continue to be secretary of state.
“ In case of the removal of the governor from office, or
If the office of governor continue after the governor ceases to hold the office, under this section;, if the office be not vacant, but shall be lawfully filled by one acting therein directly as the agent of the state, and not in the character of deputy of a governor incumbent, it would seem difficult to distinguish such a person from a governor of right and in fact.
Counsel for the respondent claims that in the contingency provided for in said section 8, the duties of the office of governor become annexed to-the office of secretary of state, and are discharged as duties incident to the latter office. In other words, that the duties of the office, but not the office itself, devolve upon the secretary of state.
This position seems to require: First. Either that the office of governor should continue vacant during the time the secretary discharges its duties, and that such duties be in some way performed by the secretary of state, as such, consistently with a condition of vacancy; or, Second. That the office be filled and yet he who fills it be in nowise governor, but continue to be merely secretary of state.
In the first place, it is not shown how an office can be vacant and yet there be a person, not the deputy, or locum tenens, of another, empowered by law to discharge the duties of the office and- who does in fact discharge them. It is not explained how, in such a case, the duties can be separated from the office, so that he who discharges them does
It is the function of a public officer to discharge public duties. Such duties constitute his office. Hence, given, a public office and one who, duly empowered, discharges its duties, and we have an incumbent in that office. Such is the case here. The secretary of state, by force of the function cast upon him, beeomes governor, and consequently entitled to the salary appertaining to the office.
Nor does the language of the section, grammatically considered, bear the interpretation counsel has'put upon it. Leaving out the co-ordinate clauses following the first clause, and the sentence reads: “In case of the removal of the governor from office, the same shall devolve on the secretary of state;” that is, the office shall devolve. So, taken with each of the succeeding clauses, the word “ same ” stands for “ office.”
The constitution of the United States, providing for the contingency of a vacancy in the office of president, is nearly the same with the provision of our state constitution providing for a vacancy in the office of governor. The only difference, conceivably material, is, that the constitution of the United States has the words, “powers and duties,” where the constitution of Oregon has only the word “ duties.” But it is conceived that duties necessarily imply powers, and that, in legal effect, the language of the two constitutions is the same. (See United States v. Bassett, 2 Sto., 404.) Of this provision of the constitution of the United States, in Merriam v. Clinch, 6 Blatch., 9, [1867,] Mr. Justice Blatchford said: “Three times since the adoption of the constitution, the president has died, and, under the provision referred to, the powers and duties of the office of
The case of The People ex rel. Church v. Hopkins, 35 N. Y., 74, is much in point. In 1859, a law was passed in New York establishing the office of superintendent of insurance. The superintendent was to be appointed by the governor, for the term of three years, with authority to appoint clerks, one of whom was to be designated his deputy, and to “possess' the powers and perform the duties attached by law to the office of principal, during a vacancy in such office, and during the. absence and inability of his principal.” The superintendent resigned his office, the duties of which thereupon devolved upon the deputy. The deputy claimed the salary of a superintendent during the time he discharged the duties of the office, and it was held that he was entitled to such salary. The court, by Grover, J., supported the conclusion reached, by references which are especially pertinent in this case: “ But there are precedents which, though not judicial, I regard as entitled to be considered as decisive of^the question under consideration. In the constitution of the state, adopted in 1822, will be found the following provision: ‘ In case of the impeachment of the governor, or his removal from office, death, resignation, or absence from the state, the powers and duties of the office shall devolve upon the lieutenant governor for the residue of the term, or until the governor, absent or impeached, shall return or be acquitted.’ (Const., 1822, art. 3, sec. 6.) On the 11th
The principle on which the second question is to be decided, namely, whether the appellant shall cease to be governor when he ceases to be secretary of state, seems to be this: If an office be appendant, as the expression is in 1 Leon., 321, to another office, the determination of the first office will determine the second. This is the case where a person holding any office is ex officio entitled to some other office. For instance, in City of Portland v. Denny, 5 Or., 160, the recorder of the city of Portland was ex offieio a justice of the peace. In that case, the office of justice of the peace
This question, therefore, must also be answered in favor of the appellant, and judgment be entered accordingly.
Judgment reversed.