In re Moore

• Decision Date: 17 January 1893
• Parties: IN RE MOORE
• Court: Wyoming Supreme Court

31 P. 980

4 Wyo. 98

IN RE MOORE

Supreme Court of Wyoming

January 17, 1893

Petition in habeas corpus filed December 31, 1893.

PETITION of James Moore for writ of habeas corpus, who claimed to be entitled to a discharge from the penitentiary by reason of a pardon granted him by the Secretary of State as acting Governor.

The return of the warden of the penitentiary denied the validity of the pardon, alleging that the same was issued without any previous notice to the county and prosecuting attorney, and that no notice of such application had been published as required by law; and further that at the time the pardon was granted, the Secretary of State was not the then acting Governor for the reason that at a special election held on November 8, 1892, in pursuance of law and the proclamation of the Secretary of State, at the time acting Governor, one John E. Osborne was duly elected to fill the vacancy in the office of Governor, caused by the resignation of Francis E. Warren and that prior to the date of the pardon the said John E Osborne, having ascertained from the canvass of the county canvassing boards, made by the respective canvassing boards in each county, that he had received a majority of all the votes cast for Governor at such election, did take the oath of office as Governor of the State, and did thereupon enter upon the discharge of the duties thereof, and that he was Governor at the time of the pardon.

It was agreed at the hearing, that the said John E. Osborne, who had been elected Governor at the election held as aforesaid, took the oath of office on the 2d day of December, 1892; and, on that date, did present the same for filing in the office of Secretary of State, which officer refused to receive the same; and on that date, as far as he could legally, did enter upon and assume and discharge the duties of the office of Governor; and thereafter, so far as he could legally did discharge the duties of that office.

Francis E. Warren, who had been regularly elected as Governor, at the first election held under the constitution for a term ending on the first Monday of January, 1895, having resigned the office in consequence of his election as United States Senator, Amos W. Barber, as Secretary of State, became acting Governor by virtue of Sec. 6, Art. IV, of the constitution which provides that in such case, the Secretary of State shall act as Governor until the vacancy is filled; and in pursuance of an act of the legislature an election to fill such vacancy for the unexpired term, was called to be held at the time of the regular election for State and county officers, to be held November 8, 1892. At this election John E. Osborne was elected to fill such vacancy. The canvass of the votes cast for that office was not concluded by the State canvassing board until December 31, 1892. Until the first Monday of January, 1893, Amos W. Barber, as Secretary of State, claimed to be acting Governor, and assumed to perform the duties as such; and on December 28, 1892, issued the pardon in question.

It was further contended in support of the right of Governor Osborne to assume the duties of Governor at the time he did that there was no provision made by law for an official canvass of the votes cast for the office of Governor, and no official declaration of the result was necessary. The only statute with reference to a State canvassing board is referred to in the opinion, and the other material facts, constitutional and statutory provisions, affecting the matters in issue, are also fully stated in the opinion.

Walter R. Stoll and F. H. Harvey, for petitioner.

Van Orsdel & Esteb, for respondent.

Const., Art. 4, Secs. 1, 6; Art. 6, Sec. 17; Laws 1891, pp. 237, 392, 237, 393; Laws 1890, pp. 115, 157, 185, 178; Ex parte Norris, 8 S.C. 471; Ex parte Smith, 8 S.C. 511.

C. N. Potter, as amicus curiae, on behalf of the petition, argued and contended: The Governor was elected at a general election and should not enter upon the duties of his office until the first Monday of January following. (Const., Art. VI, Sec. 17.) The policy of the law requires a declaration of the result. (Const., Art. IV, Sec. 3; State ex rel. Morris v. Bulkley, 61 Conn. 287; Bowler v. Eisenhood, 12 L. R. A., 709, S. Dak.; People ex rel. Conliss v. North, N.Y. 124; People ex rel. Woods v. Crissey, 91 N.Y. 625; Browdie v. Campbell, 71 Cal. 20.) The courts should give a liberal construction to the election statutes to carry out the policy of the law. The election was general. No special election is provided for the office of Governor (6 Colo. 209). If it was not a general election then the succession act will not permit the newly elected Governor to take his office until the result has been declared.

A. C. Campbell, as amicus curiae, in opposition to the petition, argued and contended that inasmuch as neither of the persons claiming to have been Governor were parties to this proceeding the case should be determined without passing upon the question as to who was Governor during the month of December, 1892. The pardon is invalid, not having been procured in the manner provided by law. (Const., Art. IV, Sec. 5; Rev. Stat. of Wyo. Secs. 3367-8.) The constitution lodges the pardoning power in the executive and legislative department, and not absolutely with the executive. Neither the executive or the judiciary can exercise any authority or power except as is clearly granted by the constitution. (Cooley on Const. Lim., 137, and note; Field v. People, 3 Ills., 79.) A Governor is as much bound by the law as any individual (Hartranft, appeal, 27 Am. Rep., 678; Floy's Acceptances, 7 Wall). When the legislature has enacted a law by which a pardon can be issued the law must be complied with or the pardon will be invalid. (9 Ind. 20; 16 Ind. 497.) The newly elected Governor having received a majority of the votes cast had a right to qualify at any time after having been elected.

CONAWAY, JUSTICE. Honorable Gibson Clark, announced his disqualification in open court, Honorable Jesse Knight judge sat with them in the hearing and determination of this proceeding. GROESBECK, C. J., and KNIGHT, Dist. J., concur.

OPINION

CONAWAY, JUSTICE.

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 Judicial District for Laramie County, upon his conviction therein of the crime of grand larceny, and that his term of imprisonment has not expired. He claims by his petition that such restrain is illegal, because on December 28th, 1892, Amos W. Barber, Secretary of State and acting Governor of the State of Wyoming, granted unto petitioner and executed in due form of law a full and complete pardon for said crime of grand larceny. The return to the writ admits the issuing by said Amos W. Barber of a pretended pardon, but denies that it is a full and complete pardon for said crime of grand larceny. The return to the writ admits the issuing by said Amos W. Barber of a pretended pardon, but denies that it is a full and complete pardon of the crime of which the petitioner had been convicted and for which he is serving sentence, upon two grounds:

1st. The non-observance of certain statutory provisions as to giving and publishing notice of the application for the pardon.

2d. 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 Revised 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 different and greater effect under our State constitution than they had under the legislation of Congress when we were in the territorial condition.

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-enactment 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...