People ex rel. Parks v. Cornforth

• Decision Date: 03 July 1905
• Citation: People ex rel. Parks v. Cornforth, 81 P. 871, 34 Colo. 107 (Colo. 1905)
• Parties: PEOPLE ex rel. PARKS v. CORNFORTH.
• Court: Colorado Supreme Court

81 P. 871

34 Colo. 107

PEOPLE ex rel. PARKS v. CORNFORTH.

Supreme Court of Colorado

July 3, 1905

In bank.Quo warranto by the people, on the relation of Fred W Parks, against Arthur Cornforth, to determine the right of the respondent to hold the office of lieutenant governor.Judgment in favor of relator.

John M Waldron and Fred W. Parks, for relator.

N. C Miller, Atty. Gen., Horace G. Lunt, O. B. Willcox, and McAllister & Gandy, for respondent.

GUNTER J.

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 17, 1905, James H. Peobody, then governor for the term ending second Tuesday in January, 1907, resigned and Jesse F. McDonald, then lieutenant governor, qualified as governor, and since has acted as such.March 18, 1905, respondent, a senator for the term ending first Wednesday in December, 1906, and president pro tem. of the Senate, qualified as lieutenant governor, and since has acted as such.April 3d, at the close of the regular session of the Legislature, beginning January 4, 1905, relator was elected president pro tem. to succeed respondent.Respondent is still a senator.There is no controversy but that respondent, as president pro tem. at the time the powers and duties of governor, through the resignation of Gov. Peabody, devolved upon Lieut.Gov. McDonald, was entitled to perform the duties of lieutenant governor.The question is whether such right ended with the election of relator as president pro tem.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 may both expire before the termination of the residue of the gubernatorial term.

1.This question is determined by the construction of the following sections of our state Constitution:

'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.'Art. 4, § 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 shall perform the duties of the lieutenant governor, until the vacancy is filled or the disability removed.'Art. 4, § 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.'Art. 5, § 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 the 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.It thus appears that if the lieutenant governor fails to perform his duties for some temporary cause, as absence or sickness, the Constitution in terms provides that while such condition exists his duties shall be performed by the president pro tem.It is conceded by counsel for respondent that in such temporary contingency the president pro tem. does not become the lieutenant governor.The same language is used in devolving duties on the president pro tem. in the event the lieutenant governor is unable to perform his duties through those of the governor devolving upon him from some permanent cause as in this case, resignation of the governor.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 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 N. J. Law, 105, 42 A. 155, 57 L.R.A. 312.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.Voorhees 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 of the expiration of his term as state senator.The question was determined by the construction of the following provision of the New Jersey Constitution: '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: 'It 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.Foster 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.He is not governor de jure or de facto in the constitutional sense of that term.'On page 110 of 63 N. J. Law, page 157 of 42 A.(57 L.R.A. 312)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 exercise the powers of the governor; the president of the Senate performs the duties of the governor; the president of the Senate receives the emoluMents of that office. he is...