Fitzpatrick v. McAlister

• Decision Date: 28 June 1926
• Docket Number: 17513.
• Citation: Fitzpatrick v. McAlister, 248 P. 569, 121 Okla. 83, 1926 OK 584 (Okla. 1926)
• Parties: FITZPATRICK v. McALISTER, Secretary of State Election Board, et al.
• Court: Oklahoma Supreme Court

248 P. 569

121 Okla. 83, 1926 OK 584

FITZPATRICK v. McALISTER, Secretary of StateElection Board, et al.

No. 17513.

Supreme Court of Oklahoma

June 28, 1926

Syllabus by the Court.

Article 6 of the Constitution defines the executive department of the state, and names certain officers who shall be vested with executive powers.

Section 2 of said article is as follows: "The supreme executive power" of the estate "shall be vested in a chief magistrate, who shall be styled 'the Governor * * * of Oklahoma."'

Section 4 of said article contains the following provision, to wit "The Governor, secretary of state, state auditor, and state treasurer shall not be eligible immediately to succeed themselves."

Sections 15and16 are in pari materia to the extent that they relate to and form part of, the entire purpose and scheme provided for in article 6, and to such extent only.They are independent of each other to the extent that they deal with and provide for, the distinctly different conditions which each does provide for.

Said section 15 provides for such vacancies only as may be caused by the elected Governor's temporary absence from his office, and where, though absent from his office, he still retains his right to the office, still possesses his right upon his return to assume the duties and exercise the powers of his office, and further provides that, during such vacancy, if the Lieutenant Governor becomes incapable of performing the duties of the office, then the President of the Senate may act as Governor, and, in case of his disability, the Speaker of the House may act as Governor during such vacancy, thus making complete and adequate provisions for taking care of the peculiar contingency and condition which it seeks to provide for, viz. vacancies occasioned by a temporary absence or inability of the Governor, where the Governor still has the right to return to his office and assume its duties, and to this extent section 15 is independent of section 16.

Const art. 6, § 16, is as follows: "In case of impeachment of the Governor, or of his death, failure to qualify, resignation, removal from the state, or inability to discharge the powers and duties of the office, the said office, with its compensation, shall devolve upon the Lieutenant Governor for the residue of the term or until the disability shall be removed."

Thus section 16 makes provision for a wholly different contingency and condition to that provided for in section 15.Section 16 provides for occasions where the individual rights of the elected Governor, as distinguished from the public rights, have been terminated, where his rights to return to the office and assume its powers have been foreclosed, and, in order to protect the right of the public to a continuation of the functions of government, in such case, section 16 provides that the office of Governor, with its compensation, shall devolve upon the Lieutenant Governor for the residue of the term, thus making complete and adequate provision for the particular contingency and condition which it seeks to provide for, and to this extent section 16 is independent of section 15.

Const. art. 6, § 16, creates no vacancy, contemplates no vacancy, mentions no vacancy.It simply makes provision for an uninterrupted functioning of the office of chief executive with a duly commissioned officer at the head of such department thereby avoiding a vacancy.

When the elected Governor becomes impeached, as is the condition presented here, the office of Governor automatically devolves upon another.The person on whom such office devolves necessarily fills such office, exercising all the powers, discharging all the duties, and enjoying all the emoluments, compensation, honor and prestige which pertain to such office.The person who thus fills the office of chief magistrate is styled "the Governor of Oklahoma."He is the Governor for the simple reason that he governs.He governs officially for the reason that section 16 expressly vests him with authority to do so.Therefore he is the official Governor, and, being the official Governor, he is rendered ineligible to succeed himself by the inhibition contained in section 4, art. 6, of the Constitution.

Additional Syllabus by Editorial Staff.

"Devolve" means to roll or tumble down upon, or descend, to be transmitted by course of events, or by operation of law, to transfer from one person to another (citing Words and Phrases, First and Second Series, "Devolve").

Appeal from District Court, Oklahoma County; William H. Zwick, Judge.

Suit by Kirby Fitzpatrick against W. C. McAlister, Secretary of the State Election Board, and others for injunction.From a judgment for defendants, plaintiff appeals.Reversed, with directions.

Branson, V. C.J., and Nicholson, C.J., dissenting.

Roger L. Stephens, Fred L. Hoyt, and Reuben M. Roddie, all of Oklahoma City, for plaintiff in error.

Geo. F. Short, Atty. Gen., and J. Berry King, Asst. Atty. Gen., for state election board and state board of affairs.

C. B. Stuart and J. D. Lydick, both of Oklahoma City, Jos. C. Stone, of Muskogee, N. A. Gibson, of Tulsa, Frank Dale, of Guthrie, John Barry, of El Reno, and J. H. Gordon, of McAlester, for defendant in error M. E. Trapp.

HARRISON J.

This proceeding was begun in the district court to test the eligibility of Mr. M. E. Trapp to succeed himself in the office of Governor.

Mr. Trapp had theretofore filed his application with the state election board as a candidate for nomination for Governor, and plaintiff sought to enjoin said board from certifying Mr. Trapp's name to the state board of affairs, and to enjoin the state board of affairs from having Mr. Trapp's name printed as a candidate for Governor on the official ballots to be voted at the forthcoming primary election to be held in August of this year.

The trial court denied the injunction, and plaintiff appealed.Plaintiff contends that, under the provisions of article 6 of the Constitution, Mr. Trapp is not eligible to the office of Governor.Defendants contend that he is eligible.The controversy arose out of the following facts, viz.:

At the November election, 1922, J. C. Walton was elected Governor, and defendantM. E. Trapp was elected Lieutenant Governor, and both went into office in January, 1923.In November, 1923, Mr. Walton was impeached and removed from office by the Senate sitting as a court of impeachment, and thereupon, by virtue of section 16, art. 6, of the Constitution, the office of Governor devolved upon the Lieutenant Governor, who was defendantMr. M. E. Trapp, who has occupied the office of Governor, and exercised the powers of Governor, from the date of said impeachment until the present date, and is now occupying such office with the powers thus conferred by said section 16, and is seeking the nomination for Governor, and to ultimately succeed himself to the office of Governor at the general election in November of this year.

Plaintiff in error contends that under section 16, art. 6, of the Constitution, the office of Governor devolved upon the Lieutenant Governor immediately upon the impeachment of Governor Walton, and that thereupon Lieutenant Governor Trapp became the Governor in fact and in law, and that, having held and filled the office of Governor, and exercised the powers of Governor, and enjoyed the emoluments of the office of Governor from the time said office devolved upon him until the present time, he is not now eligible to succeed himself to the office of Governor at the ensuing term because of the inhibition contained in section 4, art. 6, of the Constitution, which is as follows:

"The Governor, secretary of state, state auditor, and state treasurer shall not be eligible immediately to succeed themselves."On the other hand, it is contended by defendants in error that, upon the impeachment of Mr. Walton, there became a vacancy in the office of Governor, which has never been filled, but which has existed to the present time, and now exists, and that, though the powers, duties, and emoluments of the office of Governor devolved upon Lieutenant Governor Trapp upon the impeachment of Governor Walton, yet Mr. Trapp did not thereby become Governor in every sense of the word, but became merely Acting Governor during a vacancy, and that, not being Governor, but being merely "Acting Governor,"he is therefore not rendered ineligible by the inhibition contained in said section 4, art. 6.

Defendants in error further contend that, by harmonizing the provisions of sections 15and16 of said article 6, and construing the two sections together, it will be seen that no vacancy was caused in the office of Lieutenant Governor by the devolution of the office of Governor upon the Lieutenant Governor, and no vacancy now exists in the office of Lieutenant Governor, and that therefore Mr. Trapp is still Lieutenant Governor, but that a vacancy does exist in the office of Governor by reason of Governor Walton's impeachment and removal from office, and that Mr. Trapp's being merely "Acting Governor" during such vacancy does not fill such vacancy, and therefore the inhibition in said section 4, art. 6, does not apply to him; that said inhibition applies only to an "elected Governor," and does not apply to one upon whom the "office of Governor" has devolved by virtue of said section 16.

From the foregoing may be seen the respective positions of the parties to this controversy, and that the main question to be determined is whether, under the existing conditions, the inhibitive provision in said section 4 applies to Mr. Trapp.

The questions involved have all been briefed and orally argued by the parties hereto, and, in addition to the briefs and oral arguments of parties in the instant case(case No....