45 P. 243 | Nev. | 1896
Lead Opinion
The facts sufficiently appear in the opinion. At the general election held in the month of November, 1894, John E. Jones was elected governor of the state and Reinhold Sadler was elected lieutenant-governor. Governor Jones died on the 10th day of April, 1896. Thereafter the relator assumed the duties of the gubernatorial office, and, before the institution of this proceeding, demanded of defendant, as controller, a warrant upon the treasurer for the amount of his salary as the acting governor from the 11th day of April, 1896, to the 30th day of the same month. Defendant declined to draw the warrant as requested, although there is an unexpended balance in the treasury appropriated for the payment of the salary of the governor.
The provision of the constitution bearing upon the subject is as follows: "In case of the impeachment of the governor, or his removal from office, death, inability to discharge the duties of the said office, 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 disability shall cease." * * *
It is claimed, on the part of respondent, that, when the contingency above mentioned arises, by which the powers and duties of the office of governor devolve upon the lieutenant-governor, no change occurs in the position of that officer. He remains lieutenant-governor, exercising the powers and duties of the governor, but not entitled to the salary attached to the office.
An analogous question was considered in the case ofChurch v. Hopkins,
Again at page 80: "In case of a vacancy in the office, all its powers and duties at once devolve upon the deputy. There remains no other vested with any of its functions. The deputy at once becomes acting superintendent, and his acts are, to all intents and purposes, those of superintendent. *220 He is entitled to the emoluments of the office, the same as though appointed thereto by the governor, etc., as provided by statute. The duties and responsibilities are the same. His acts thereafter are regarded as those of superintendent, and not those of deputy. He is entitled to the salary of the former and not to that of the latter office. The statute precludes the idea that the same person can hold both offices. This would be my conclusion in the absence of any precedents sustaining it. 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. III, sec. 6.) On the 11th of February, 1828, the office of governor became vacant by the death of De Witt Clinton, the then incumbent of the office, and its powers and duties, under the above provision of the constitution, devolved upon Nathaniel Pitcher, then lieutenant-governor. The question arose whether he was to be regarded, in the exercise of the powers and performance of the duties so vested in him, as acting governor, or in the performance of the contingent duties of lieutenant-governor, and as a consequence, whether he was entitled to the salary of the former office, or the compensation given to the lieutenant-governor for his services as such. It was held by William L. Marcy, then comptroller, that he was to be regarded as the acting governor, and entitled to the salary given by law to that officer. The same questions, under the same provision, again arose in 1829, upon the resignation of the office of governor by Martin Van Buren, and the powers and duties of the office devolving upon Enos T. Throop, then lieutenant-governor, and were decided in the same way by Silas Wright, then comptroller. It will be seen that these questions were identical with that in the present case. We surely shall not go far astray in following the precedents established by these able jurists, wise statesmen and rigid economists." *221 Merriam v. Clinch, 6 Blatch. 5, was a contest for the emoluments of the office of collector of the customs at the port of New York between the administrator of the estate of Preston King, the late collector, and Mr. Clinch, a special deputy, appointed by Mr. King. The twenty-second section of the act of congress of March 2, 1799, authorizes the collector to appoint a special deputy upon whom, in case of the death of the collector, the duties and authorities of the office of collector shall devolve, and for whose conduct the estate of the deceased collector shall be answerable. The analogy between the provision of the constitution of the United States upon the devolution of the powers of the presidential office and a similar provision in the twenty-second section of the statute providing for the devolution of the powers and authorities of the collector upon the deputy was noticed. The court said: "The constitution of the United States (art. II, sec. 6) provides that `in case of the removal of the president from office, or of his death, resignation or inability to discharge the powers and duties of the said office, the same shall devolve upon the vice-president.' The provision, in this section of the constitution, that the powers and duties of the office of president shall devolve upon the vice-president, is identical, in legal effect, with the provision, in the twenty-second section of the act of 1799, that the authorities and duties vested in the collector shall devolve on his deputy. 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 president have devolved upon the vice-president. All branches of the government have, under such circumstances, recognized the vice-president as holding the office of president, as authorized to assume its title, and as entitled to its emoluments."
In Chadwick v. Earhart,
In the statute of March 21, 1891, fixing the salaries of state officers (Stats. 1891, p. 104), the pay of the lieutenant-governor when acting as governor is fixed at $8 per day. From the fact that the legislature appropriated the sum of $1,000 only for this purpose, I am of opinion that this was intended for compensation when the governor was temporarily absent from the state, and not for the purpose of fixing the compensation when the duties of the office devolve upon the lieutenant-governor upon the death of the governor. *223
Relator, as acting governor, is entitled to the salary attached to the office of governor.
Let the writ issue.
Concurrence Opinion
I concur in the judgment, but do not wish to be understood thereby as holding that, upon the death of the governor, the lieutenant-governor becomes governor in the full sense of the term. Justice BELKNAP'S opinion might possibly be so construed, but it seems to me that section 17 of article V of the constitution contemplates that, upon the governor's death, his office is to remain vacant. It reads: "If, during a vacancy of the office of governor, the lieutenant-governor shall be impeached, displaced, resign, die, or become incapable of performing the duties of the office, or be absent from the state, the president pro tempore of the senate shall act as governor until the vacancy be filled or the disability cease."
If, upon the death of the governor, the lieutenant-governor,ipso facto, and instantly, becomes governor, then there could never be a vacancy in the office of governor, the lieutenant-governor could never be impeached, displaced, etc., during such vacancy, and the conditions upon which the president pro tem. of the senate is to act as governor could never occur.
But, in the view I take, it is unnecessary to decide the point, and I simply suggest it by way of caution, for, however it may be, the powers of the office do undoubtedly devolve upon the lieutenant-governor in every sense except as expressly or impliedly limited by the constitution. As to everything else, he virtually becomes governor. He fills the office, not temporarily, as he would in case of the governor's absence from the state, but permanently, and he becomes, at least, permanent acting governor for the residue of the term. Whatever those constitutional limitations may be, there is none upon his right to draw the salary of governor, and, as there is not, and he has the power to do everything else that the governor can do, there seems no good reason why he cannot also draw the salary. In my judgment, there is but one serious question as to this view, and that is that, if he can draw the governor's salary when the governor's office is permanently vacant, as it is the same section of the constitution *224 that provides for both permanent and temporary vacancies, why can he not do the same in case of the governor's absence from the state, or his temporary disability to discharge the duties of the office? To this it may, however, be answered that possibly he could draw it, but, if not, that there is, in reason, a wide difference between a temporary vacancy and one that is permanent. In the one case there is another person still living entitled to the salary, and both cannot have it, while in the other there is not.
Another reason that may be offered for this conclusion is that it is a general principle of justice and right that, where one legally performs the duties of an office, he should be entitled to the emolments thereof. Admitting that there is some doubt, arising upon the language of the constitution, whether that instrument intended the relator to have the salary of the office under the circumstances existing here, this equitable principle, together with the construction that has been put upon substantially similar language where the vice-president has succeeded to the office of president, and where lieutenant-governors and other officers' have succeeded to the office of governor, by so many able statesmen and judges, would lead me to feel, in the absence of a clear declaration to the contrary, that the doubt should be resolved in his favor.
But it is said that, if the relator is only acting governor, then Stats. 1891, 104, which provide that, when so acting, he shall receive $8 per day, instead of the governor's salary, is applicable. At first blush, this seems to be the case, but I think a little closer examination will show that that statute was not intended to provide for such a contingency as now exists. As is perhaps the case everywhere, our governors have been in the habit of being absent from the state more or less, at which, times the lieutenant-governor, of course, becomes, for the few days of his absence, the acting governor. By Stats. 1881, 43 (Gen. Stats., sec. 3295), it was provided that "the lieutenant-governor, when acting as governor, in the absence or incapacity of the governor, shall receive $14 per day." By Stats. 1883, 41 (Gen. Stats. 1777), the lieutenant-governor was made ex officio adjutant-general and state *225 librarian, and it was provided that "for the services he shall render as such, and while acting as governor in the absence of the governor from the state, he shall receive an annual salary of $2,700." By Stats. 1891 these offices were again taken from him, and Stats. 1891, 104, above mentioned, was enacted, fixing his pay at $8 per day. From this statement it will be seen that when, by the act of 1881, he was to be paid a per diem, it was for "acting as governor during the absence or incapacity of the governor," both, presumably, temporary occasions, and when, in 1883, he was given a salary, it was for his ex officio services and for "acting as governor in the absence of the governor from the state," which, of course, would always be temporary. These acts are in pari materia with the act of 1891, and must all be construed together in arriving at what was intended by the latter. As the others were clearly intended for only temporary occasions, it is fair to presume the last was also. The same inference can be drawn from the language of the act of 1891. Though not, like the others, expressly limited to temporary occasions, it is only to those, the duration of which must naturally be uncertain until after the event, that a per diem payment is appropriate, while it would be absurd to so regulate the pay of a permanent officer. There is no other officer in the state who is paid by the day — no other who is not paid a yearly salary, and I cannot suppose it was the intention to make the permanent acting governor an exception.
Concurrence Opinion
I am of opinion that the relator is entitled to the salary provided for the governor, and therefore concur in the opinion that the writ prayed for should be granted. *226