4 Wyo. 98 | Wyo. | 1893
This is a petition for the writ of habeas corpus, and for a discharge of the petitioner from imprisonment.
It appears from the pleadings that petitioner is restrained of his liberty in the penitentiary at or near Laramie, by virtue of a mittimus issuing from the district court of the First Ju
1st. The non-observánee of certain statutory provisions as to giving and publishing notice of the application for the pardon.
3d. That Amos W. Barber was not acting Governor of Wyoming at the time of granting said pardon.
To the first defense there is a demurrer. The statutory provisions referred to were enacted in 1869, and have been in force since, appearing in Sections 3367 to 3370 inclusive of the Bevised Statutes of Wyoming. Under the territorial government, they were never understood as limiting or imposing any restrictions upon the authority of the Governor to grant pardons. It is conceded that if such were their effect, they would have been invalid as repugnant to the Organic Act of •the Territory, and the subsequent legislation of Congress affecting the territorial government vesting the pardoning power in the Governor. These provisions were directory to applicants for pardons and those moving in their behalf, prescribing a method by which they could procure a hearing before the Governor. But the Governor might give them a hearing without such preliminary procedure, or might grant a pardon upon his own knowledge and upon his own motion, without any application or any hearing.
But it is contended that .these same statutes should have a
We are not prepared to say that the continuance in force by our State constitution of the statutes of the Territory as the statutes of the State, or their re-cn-actment in general terms by the State legislature, will give them a force different from or greater than they had in the Territory, and make them in effect different laws from those in force in the Territory when it became a State. If this be a doubtful question, we have to aid us the uniform construction and practice of the executive department up to the present time, giving to these statutes the same effect they had under the territorial regime and no more. We would not overthrow this executive construction and practice without satisfactory reasons. These statutes were continuously acted upon as valid by the executive department of the territorial government, which could be done only by considering them as regulating the method of procedure by petitioners to bring their applications before the Governor in a manner to entitle them to be heard, and not as limiting the authority or discretion of the Governor when he saw fit to exercise it on different grounds. Why should a different construction be adopted now?
The constitutional provision under which it is claimed that these statutory provisions should have an enlarged effect, including the authority of the Governor in their scope, is found in Article IY at Section 5:
“The Governor shall have power to remit fines and forfeitures, to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment; but the legislature may by law regulate the manner in which the remissions of fines, pardons, commutations and reprieves may be applied for.” The last clause is the one relied on. But it is quite apparent that it does not regulate the action or limit the authority or jurisdiction of the Governor. He does not apply for the remission of fines, or for pardons, or for commutations, or for reprieves. The applica*105 tions are made to him — not by him. The Governor has complete jurisdiction to grant pardons except in cases of treason and impeachment. The inquiry by a court in a habeas corpus proceeding is merely as to the jurisdiction of the Governor. We cannot inquire whether the pardoning power has been exercised judiciously, or whether the proceedings preliminary to the granting of the pardon were irregular, if any such were necessary. In re Endymoin, 8 How. Pr., 478. Decisions in Indiana (State v. Dunning, 9 Indiana, 20; 16 Indiana, 497), apparently to the contrary, are made under a constitutional provision materially different from ours. The demurrer to the first defense is sustained.
2. In regard to the second defense, it is suggested by one of the amici curiae, that this court should avoid, if possible, expressing an opinion as to who was entitled to act as Governor on December 28th, 1892, when the pardon was issued.
The court would gladly refrain from expressing such opinion if it were possible to decide this ease without doing so; but the defense have raised the point and it is unavoidable that it be decided. No authorities are presented to the effect that it should not be decided, and it is safe to say that none can be found. The authorities principally relied upon by the defense in this case are two habeas corpus cases from South Carolina, arising upon pardons, one of which was issued by Wade Hampton after his assumption of the office of Governor of that State following his election to that office in 1876. Ex parte Norris, 8 Richardson (S. C.), 408; Ex parte Smith, Id., 495. In both of these cases the rights of the contending claimants to the office of Governor were discussed at great length and decided without a question as to the propriety of this course. Such cases are numerous. Each department of the government is under the necessity of deciding for itself, when necessary to do so in the discharge of its own duties, any questions which may arise as to the personnel of the other departments. It is necessary for the purposes of this case, in determining the validity of the pardon of petitioner, to determine whether Amos W. Barber was entitled to perform the duties and exercise the powers of the office of
It is claimed by the defense that he was not so entitled at that time, but that John E. Osborne was.
Francis E. Warren was elected the first Governor of the State of Wyoming for a term ending on the first Monday in January, 1895. By provisions in Article XXI of the constitution, entitled “Schedule,” his term began prior to the first Monday in January, 1891. In December, 1890, and after the commencement of his term, he resigned. Amos W. Barber, Secretary of State, thereupon became acting Governor. Const., Art. IY, Sec. 6. The constitution does not provide for filling a vacancy in the office of Governor for the unexpired term by election, as it does for filling a vacancy in the office of justice of the supreme court. It is, however, no doubt within the constitutional power of the legislature to make such a provision by law. The first legislature of the State of Wyoming enacted several statutes bearing upon this subject. These statutes, together with such constitutional provisions as affect the same subject, must be construed together, as laws in pari materia, the constitutional provisions controlling in case of any conflict between them and any of the enactments of the legislature.
Governor Osborne was elected on November 8th, 1892, to fill the vacancy in the office of Governor occasioned by .the resignation of Francis E. Warren. If his election was “at a general election,” then the constitution fixes the time when he should enter upon the duties of his office, at the first Monday in January, 1893. He actually took the oath of office and assumed to enter upon the discharge of the duties thereof on December 2d, 1892. It is claimed by the defense that he has been Governor of the State from that time, and that Amos W. Barber ceased to be acting Governor at that time. The constitution provides, Art. VI, Sec. 17, that: “All general elections for State and county officers, for members of the House of Bepresentatives and the Senate of the State of Wyoming and Bepresentatives to the Congress of the United States, shall be held on the Tuesday next following the first Monday
The election held on the 8th day of November, 1892, at which John E. Osborne was elected Governor of the State of Wyoming was one of the elections called in Sec. 17 of Art. YI of the State constitution, general elections to be held on the Tuesday next following the first Monday in November of each even year. It was one of the elections designated by the act of the legislature approved December 24, 1890, as the general election for county officers. It was one of the elections designated by the act approved January 10,1891, as a general election at which county and precinct officers should be elected, and State officers elected to fill vacancies occurring by operation of law or the constitution of the State. The same act provides for the election of all State officers at the general election in 1894 and every four years thereafter, these being the periods when the regular terms of such officers will expire. The election held on November 8, 1892, was one of the elections specified in the act approved January 21, 1891, as a general election at -which should be elected, among others, all State and district executive and judicial officers which are made elective by law whenever there is a vacancy in any State or district executive or judicial offices. Still it is contended that the election of Governor Osborne was not, within the meaning of the constitution and the statutes, "at a general election;” that as to the office of Governor, the election was special; that vacancies in office for unexpired terms must necessarily be filled at special elections, and conversely that the election of an officer at a general election is necessarily for a full term. Such is not the idea of the constitution in providing that "if a vacancy occur in the office of a justice of the supreme court the Governor shall appoint a person to huid the office until the'election and qualification of a person to fill the unexpired term occasioned by such vacancy, which election shall take place at the next succeeding general election.” Const., Art. Y, Sec. 4. Such is not the idea of these statutes in providing, in accordance with the constitutional idea and policy, for filling vacancies for unexpired terms at
It would seem that Governor Osborne was elected at a general election and should assume the duties of his office, under the constitutional provision quoted, on the first Monday in January, succeeding his election, and that his attempt to do so on December 2d, 1892, was premature, and his attempted qualification on that day void. But waiving these views, or supposing them to be incorrect, and that the election of November 8, 1892, as to Governor, was not a general but a special election, and that the constitutional provision that all State and county officers elected at a general election shall enter upon their respective duties on the first Monday in January next following the date of their election or as soon thereafter as possible, does not apply, how would the question then stand? This is the view taken by the defense, and it leaves the decision of the controversy entirely dependent upon a construction of the act approved December 24, 1890, already quoted, known as the succession act. It must be borne in mind that this act, among other things, provides for the calling of an election in case of vacancy in the office of Governor “to fill the unexpired term, which election shall take place at the same time as the general election for county officers, and such election together with the returns and canvass thereof, shall be conducted in all respects as though it was an original election for Governor. When the State canvass
Much has been said about legislative construction of statutory law. It is also said that it is the business of legislatures, not to construe, but to make law. The object of the courts in construing legislative enactments is to ascertain from the language employed, the true intent and meaning of the legislature and to enforce it when ascertained. And all statutes in pari materia are to be considered together in ascertaining the legislative intent. In this way a legislative enactment upon any subject may be considered, in so far as it aids in arriving at the true meaning and intent of other statutes upon the same subject, as a legislative construction. There could not well.be a clearer or stronger legislative construction of existing law as to the duty of the State canvassing board to canvass the vote for Governor and declare the result than that contained in the language above quoted from the act of December 24, 1890. It is a clear declaration of the legislative understanding that there is a' State canvassing board, and that it is its duty to canvass the vote for Governor, and to declare the result. Is this legislative construction so clearly wrong that it must be overruled? The statute to be construed is part of Section 141 of Chapter 80 of the session laws of the Eleventh Legislative Assembly of Wyoming Territory, known as the election law: “Sec. 141. The Secretary, Auditor and Treasurer of the Territory, or any two of them, in the presence of the Governor shall proceed within thirty days after the election and sooner if all the returns be received, to canvass the votes given for delegate in Congress and all members of the Council and House of Representatives, and the Governor shall give a certificate of such election to the person having the highest number of votes for each office.” This is one of the laws of the Territory which is continued in force in the State of Wyoming, and it is not questioned that the Secretary, Auditor and Treasurer of the State constitute
If other provision had been made for the canvass of the returns from the different counties of the vote for State officers a different question would be presented. No such provision has been made. Our constitution and our laws contemplate and require an official canvass of the returns from the counties of the votes cast therein for State officers and an official declaration of the result. The appropriate agency for making such canvass and declaring the result thereof is provided in the State canvassing board. It is no strained construction of existing statutes to say that the clear intent of the legislature is to be carried into effect and that this board may do its appropriate work. People ex rel. Dean v. Co. Com., 6 Col., 209. The mode of procedure is prescribed in the statute.
It results from any view that we can take of this case, and whether the election of Governor Osborne was at a general or a special election his attempted assumption of the duties and powers of the office of Governor on December 2, 1892, before the canvass of the vote and declaration of the result by the State canvassing board, was premature and invalid. The case
Our law requires the State canvassing board to make the canvass within thirty days after the election, or sooner if all the returns be received. If the returns be not all received within thirty days from the election further time must be taken to procure them. On December 2nd, the thirty days had not elapsed. Neither had all the returns been received. The canvass of the returns from the county clerks had not been made nor the result declared in the manner provided by law nor in any manner. This canvass was completed on the 31st day of December, 1892.
The pardon of the petitioner issued by Amos W. Barber on the 28th day of December, 1892, was issued by him in the lawful exercise of his authority as acting Governor of the State of Wyoming, and is a valid pardon. It is ordered that the petitioner, James Moore, be discharged from custody by the
Honorable Gibson Clark, one of the justices of this court, having announced his disqualification in open court, the remaining justices of this court called in Honorable Jesse Knight, judge of the District Court of the Third Judicial District, under the constitutional provision, who sat with them in the hearing and determination of this proceeding.