Futrell v. Oldham

• Decision Date: 24 March 1913
• Citation: 155 S.W. 502,107 Ark. 386
• Parties: FUTRELL v. OLDHAM
• Court: Arkansas Supreme Court

155 S.W. 502

107 Ark. 386

FUTRELL v. OLDHAM

Supreme Court of Arkansas

March 24, 1913

Appeal from Pulaski Circuit Court, Second Division. Guy Fulk, Judge reversed.

Judgment reversed and cause remanded.

Elmer J. Lundy, W. C. Rodgers, Miles & Wade and Moore, Smith & Moore, for appellant.

The Constitution devolves the duties, powers and emoluments of the office of Governor upon the President of the Senate, and not the office itself. The office in case of vacancy devolves not upon the person of the President of the Senate, but upon that office, and therefore upon whatever individual holds it rightfully for the time being. When appellee's term as President of the Senate, ended and appellant was elected to that office and qualified, he became entitled to exercise the powers and perform the duties of Governor until an election was held and the vacancy filled. Constitution, art. 6, § 12, art. 5, § 17; art. 6, § 14; Ib. 13; 32 A. 155; 81 P. 871; 75 N.W. 211; 47 P. 450; 45 Id. 1050.

Charles A. Walls, Frank Pace and Rose, Hemingway, Cantrell & Loughborough, for appellee.

The words, "President of the Senate," are used as descriptive of the person designated to exercise the powers etc., of the office of Governor for the remainder of the term or until an election is held. Constitution, art. 6, § 12. The words used are descripti personale. 9 Wheat. 188; 7 Me. 489; 11 Ore. 389; 45 P. 243; 42 A. 155.

As to when an office is vacant see 13 So. 705; 32 Fla. 138; 49 So 1032; 162 Ala. 117; 121 S.W. 64; 71 A. 122; 77 N.J.L. 68. "Vacancy," as used, simply means that while there is an incumbent lawfully discharging the duties of the office, the tenure of that incumbent is not until the next regular election, but is subject to be terminated by the special election which he is required to call. Supra.

OPINION

MCCULLOCH, C. J.

The present litigation involves a construction of the following provisions of the Constitution of this State.

"Each house, at the beginning of every regular session of the General Assembly, and whenever a vacancy may occur, shall elect from its members a presiding officer to be styled, respectively, the President of the Senate, and the Speaker of the House of Representatives; and, whenever, at the close of any session, it may appear that the term of the member elected President of the Senate will expire before the next regular session, the Senate shall elect another president from those members whose terms of office continue over, and who shall qualify and remain President of the Senate until his successor may be elected and qualified; and who, in the case of a vacancy in the office of Governor, shall perform the duties and exercise the powers of Governor, as elsewhere herein provided." Section 17, article 5.

"In the case of the death, conviction on impeachment, failure to qualify, resignation, absence from the State or other disability of the Governor, the powers, duties and emoluments of the office for the remainder of the term, or until the disability be removed, or a Governor elected and qualified, shall devolve upon and accrue to the President of the Senate." Section 12, article 6.

The first of the above-quoted sections is found in the article devoted to the legislative department of the State Government and the other to the executive department.

Other related sections read as follows:

"If, during the vacancy of the office of Governor, the President of the Senate shall be impeached, removed from office, refuse to qualify, resign, die or be absent from the State, the Speaker of the House of Representative shall in like manner administer the government." Section 13, article 6.

"Whenever the office of Governor shall have become vacant by death, resignation, removal from office or otherwise, provided, such vacancy shall not happen within twelve months next before the expiration of the term of office for which the late Governor shall have been elected, the President of the Senate or Speaker of the House of Representatives, as the case may be, exercising the powers of Governor for the time being, shall immediately cause an election to be held to fill such vacancy giving by proclamation sixty days' previous notice thereof * * *." Section 14, article 6.

Senators are elected for terms of four years, but they are divided into two classes so that the terms of approximately half of the Senators expire every two years. The Legislature convenes in regular session biennially on the second Monday in January. The defendant, W. K. Oldham, was elected to the Senate at the general election held in September, 1910, and at the beginning of the legislative session of 1913 he was elected President of the Senate, took the oath of office and served as such. On March 8, 1913, the Governor, Hon. Joe T. Robinson, resigned, and Mr. Oldham at once began to discharge the duties of the office of Governor. That session of the Legislature ended, by operation of law, on Thursday, March 13, 1913, and at that time the Senate, before adjournment, elected as president the plaintiff, J. M. Futrell, a Senator whose term of office continues over beyond the next regular session in 1915. Mr. Futrell took the oath of office as President of the Senate at the end of the session, and there at once arose a controversy between these two parties as to which of them is the one upon whom devolves the duties and emoluments of the office of Governor. Mr. Oldham declined to relinquish possession of the executive chamber, or to cease performance of the duties of the office of Governor, and this action was instituted against him by Mr. Futrell in the circuit court of Pulaski County to test the question of the rights and duties of the two parties with respect to the office of Governor. The action is based on a statute which provides that "whenever a person usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the State or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise." Kirby's Digest, section 7983.

The circuit court sustained a demurrer to the complaint. Plaintiff elected to stand upon his complaint without amending, and final judgment was rendered against him, and he appealed to this court.

The case turns on the question, whether, on the resignation of the Governor, the then incumbent of the office of President of the Senate succeeded to the vacated office, or whether merely as such President of the Senate the powers, duties and emoluments of the office of Governor devolved upon him while he remained president.

It is contended on behalf of the defendant that the words, "President of the Senate," in section 12, article 6, of the Constitution, are used as descriptive of the person designated to exercise the powers, perform the duties, and receive the emoluments of the office of Governor for the remainder of the term or until a Governor be elected, and that the office itself devolves on that person for and during the period named. The argument is, that as other language of the same section relating to vacancy in the office of Governor by reason of "death, conviction on impeachment, failure to qualify, resignation, absence from the State or other disability," was obviously used as descriptive of the person, it naturally follows that the words, "President of the Senate," were also used in that sense. The latter words were, however, used for the purpose of prescribing a course of devolution of the powers, duties and emoluments of the office of Governor in the emergency named, and were, therefore, intended in a different sense from the language used in the first part of the section. The obvious purpose for which the terms were employed indicates the different meanings intended. The language of the Constitution seems plain. It specifies that in the contingency named, "the powers, duties and emoluments of the office * * * shall devolve upon and accrue to the President of the Senate." The other quoted section provides that the President of the Senate, "in the case of a vacancy in the office of Governor, shall perform the duties and exercise the powers of Governor." Not that the President of the Senate shall succeed to the office of Governor; nor that the office itself shall devolve upon him, but merely that he shall exercise the powers and perform the duties of the office during the period of the vacancy, and that the emoluments of the office shall accrue to him during that time. That is to say, he acts as Governor and receives the emoluments of that office merely by virtue of his office as President of the Senate, and does not actually become Governor. The vacancy in the office continues until a Governor is elected by the people, either at a special election called for that purpose or at the next regular election, in the event that the vacancy occurs more than twelve months before the expiration of the term. That could not be so if the office was actually filled by the person who was then President of the Senate, for in that event there would be no vacancy, and other words would have been employed by the framers of the Constitution to convey the intended meaning. Language found in the other related sections of the Constitution fully confirms this view. Section 13, article 6, quoted above, provides for the devolution of the duties of Governor upon the Speaker of the House of Representatives. It speaks of a vacancy in the office of the Governor whilst the President of the Senate is performing the duties thereof, thus making it manifest that the vacancy is deemed to continue notwithstanding the accession of the President of the Senate. Again, it refers to the President of the Senate eo nomine after the vacancy has...