34 Colo. 107 | Colo. | 1905
delivered the opinion of the court.
Original proceeding in the nature of quo warranto. The information alleges that respondent usurps the office of lieutenant governor of this state, asks a judgment of ouster, and that the relator be declared entitled to discharge the duties and receive the emoluments of that office. The facts are: March
Relator insists that the duties in question are legally attached to the holder of the office of president pro tem. of the senate, and whenever the term of office of such president expires such duties pass to his successor in office.
Respondent contends that the holder of the office of president pro tem. at the time the lieutenant governor legally assumes the duties of governor, through a resignation of the governor, becomes legally invested with the title of lieutenant governor and empowered to discharge the duties and receive the emoluments thereof for the remainder of the term for which the governor and lieutenant governor were respectively.elected, and that this is true regardless of the fact that his term of office as such president pro tem. as well as senator ma.y both expire before the termination of the residue of the gubernatorial term.
“In case of the death, impeachment or conviction of felony or infamous misdemeanor, failure to qualify, resignation, absence from the state or disability of the governor, the powers, duties and emoluments of the office, for the residue of the term or until the disability be removed, shall devolve upon the lieutenant governor.” — Article IV, sec. 13.
“The lieutenant governor shall be president of the senate, and shall vote only when the senate is equally divided. 'In case of the absence, impeachment or disqualification from any cause of the lieutenant governor, or when he shall hold the office of governor, then the president pro tempore of the senate shall perform the duties of the lieutenant governor, until the vacancy is filled or the disability removed.” — • Article IV, sec. 14.
‘ ‘ The senate shall, at the beginning and close of each regular session, and at such other times as may be necessary, elect one of its members president pro tempore.” — Article IV, sec. 10.
These sections read together provide that the senate shall, at the beginning and close of each regular session, and at such other times as may be necessary, elect one of its members president pro tem. and that in case of the absence, impeachment, or disqualification from any cause of the lieutenant governor, or when the powers, duties and emoluments of the office of governor devolve upon the lieutenant governor* through death, impeachment or conviction of felony or infamous misdemeanor, failure to qualify, resignation, absence from the state, or disability of the governor, the president pro tem. shall perform the duties of lieutenant governor until the cause preventing .the- lieutenant governor from discharging his official duties is removed.
If the framers of our constitution had intended that the president pro tem. of the senate should become lieutenant governor de jure in the contingency under consideration they could easily have said so. They have not so provided; they have simply said that if for some permanent cause the lieutenant governor fails to discharge his official duties, that they shall be performed while such condition obtains by the president pro tem. of the senate as such.
The question under consideration was ruled in State v. Heller, 63 New Jersey Law 105; 42 Atlantic 155. Griggs, the governor of New Jersey, resigned before the expiration of his term. Vorhees, the then president of the state senate, qualified as his successor. Later, before the expiration of the time for which Griggs had been elected, Vorhees resigned as a member of the state senate. Immediately the speaker of the house qualified as governor, contending that the resignation of Vorhees as state senator terminated his right to officiate as governor. Vorhees claimed that having been the legal successor of Griggs as governor at the time of the resignation he thereby became the governor de jure for the remainder of the unexpired term of Griggs as governor, regardless
“In case of the * * * resignation * * * from office of the governor, the powers, duties and emoluments of the office shall devolve upon the president of the senate, and in case of his * * * resignation * * * then upon the speaker of the house of assembly, for the time being, until another governor shall be elected and qualified.”
The court in ruling said: “In my judgment the framers of the constitution meant simply what they said — that in case the governor resigned, the president of the senate, as such, should have the powers and perform the duties of the office. Poster M. Vorhees did not become governor upon the’ resignation of Governor Griggs. He still continued to be a senator and president of the senate. He could not resign the office of governor which he never held. When he resigned, and vacated the office of senator he ceased to be president of the senate and could no longer exercise the functions pertaining to the executive department. Therefore upon his resignation as senator the powers, duties and emoluments of the office devolved upon David O. Watkins, the speaker of the house of assembly. He is de jure the speaker of the house and of right as such speaker exercises the executive powers. Pie is not governor de jure or de facto in the constitutional sense of that term.”
On page 157 the court further said: “It [New Jersey constitution] declares that the powers, duties and emoluments of the office [governor] shall devolve on the president of the senate. It does not confer upon him the title of the office. The president of the senate exercises the powers of the' governor; the president of the senate performs the duties of the governor; the president of the senate re
The following cases are of service in construing the language under consideration, “then the president pro tempore shall perform the duties of the lieutenant governor,. until the vacancy is filled or the disability removed.” — Section 13, supra; Carr v. Wilson, 9 S. E. (W. Va.) 31, 33; Tieman v. Haw, 49 Iowa 315; State v. Byrne, 73 N. W. (Wis.) 321.
Such rulings upon similar provisions to some extent support the conclusion reached in State v. Heller, supra.
See also 14 A. & E. Enc. of Law (2d ed.), 1108. The principle of corporate law, which in effect declares that the right to hold a given corporate office is dependent upon a continued ownership of corporate stock — Oudin v. Conlan, 75 Pac. (Wash.) 798 — by analogy lends strength to the conclusion in State v. Heller.
We conclude that respondent did not become lieutenant governor de jure by the duties of govern- or devolving upon Lieutenant Governor McDonald through the resignation of Governor Peabody, and that by the election of relator as president pro tern. respondent, being no longer president pro tern., lost his right to perform the duties of lieutenant governor, and relator by such election became entitled to perform the duties of such office.
In Merriman v. Clinch, King, while holding the office of collector of customs, appointed Clinch as his deputy. King died, and Clinch, for some time thereafter under his appointment by King, and as authorized by the statute, performed the duties of the office of collector. The administrator of King sued to recover of Clinch the fees and salary of the office of collector of customs which had come into his hands as deputy collector after the- death of King and before his successor was appointed. The court held that the administrator had no claim upon the fees and salary of the office of collector accruing after the death of King.
In Church v. Hopkins, Miller, superintendent of the insurance department of the state of New York, resigned before the expiration of his term. Church had been appointed by Miller deputy superintendent, and was such at the time of his resignation. Church, under his appointment as deputy, and as authorized by statute, performed all the duties of superintendent. He sued to recover the salary as superintendent during the time he acted as such. The court held him entitled to recover.
In State ex rel. Chatterton v. Grant, Chatterton, secretary of state of Wyoming, became acting governor of that state on the death of the governor; he continued also to perform the duties of secretary of state; he sued to recover salary as secretary of state and governor; he was permitted to- recover.
In Chadwick v. Earhart, Grover resigned as governor before the expiration of his term of office; Chadwick, secretary of state 'for the same term, qual
3. 1 Mills’ Ann. Stats., sec. 1767, provides: ‘ ‘ Whenever by the impeachment of the governor, his removal from office, death or resignation, or absence
This statute, enacted shortly after the adoption of the constitution, respondent says should be availed of in construing sections of the constitution under consideraion, and if so availed of shows by the use of the words “duties and powers of lieutenant governor shall devolve upon the president of the senate pro tem.”, that it was the intention of the framers of the constitution that the president pro tem. should become de jure lieutenant governor. Such words are not so construed.
The constitution of Nevada provides that when a vacancy occurs in the office of governor through any one of certain contingencies “the powers and the duties of the office shall devolve upon the lieutenant governor for the residue of the term, or until the disability shall cease.”
In State v. Sadler, 23 Nevada 356, 47 Pac. 450, in construing this provision the court said: “If a vacancy occurs in the office of governor the powers and duties of the office devolve upon the lieutenant governor, but there is no vacancy created thereby in the office of lieutenant governor. The officer remains lieutenant governor, but invested with the powers and duties of governor.”
The provisions of the California constitution are identical in terms with those of Nevada, and in People
See also State v. McBride, 70 Pac. (Wash.) 26; State v. Stearns, 75 N. W. 211.
The statute does not, we think, enlarge the language of the constitution except as it provides for payment of the salary of the lieutenant governor to the president pro tem., but even if the language so used has the contended effect it would not control what appears to us to be the clear meaning of the terms used in the constitution.
4. It is contended that by certain acts officers of the executive department of the state government recognized respondent as lieutenant governor, and that this should have weight in construing the constitutional provisions in question. If there were the acts of recognition relied on in a doubtful question of con-. struction they should be considered, but not to control the plain terms of the constitution.
5. It is further contended that certain acts of the relator whereby it is said he impliedly recognized respondent as lieutenant governor should estop him from making the contention he here presses. No act of the relator could compel us to declare respondent lieutenant governor de jure when-under the. constitution he is not so.
Judgment will be entered enjoining respondent from performing the duties of lieutenant governor
Decision by the Court en banc.