State ex rel. De Concini v. Garvey

• Decision Date: 21 June 1948
• Docket Number: 5123
• Citation: 195 P.2d 153,67 Ariz. 304
• Parties: STATE ex rel. DE CONCINI, Attorney General, v. GARVEY
• Court: Arizona Supreme Court

195 P.2d 153

67 Ariz. 304

STATE ex rel. DE CONCINI, Attorney General, v. GARVEY

No. 5123

Supreme Court of Arizona

June 21, 1948

Original proceeding in quo warranto by the State of Arizona on the relation of Evo De Concini, Attorney General of the State of Arizona, against Dan E. Garvey to determine whether the Secretary of State upon death of Governor became the Governor or was merely the acting Governor.

Judgment in accordance with opinion.

Evo De Concini, Atty. Gen., and Perry M. Ling, Chief Asst. Atty Gen., for plaintiff.

Morgan & Locklear, Stahl & Murphy, and Charles C. Bernstein, all of Phoenix, for defendant.

La Prade, Justice. Stanford, C. J., and Udall, J., concur.

OPINION

La Prade, Justice.

This is an action in quo warranto brought by the attorney general in the name of the state, upon his relation, against the Honorable Dan E. Garvey, who is now and at all times since the first Monday of January, 1947, has been the duly elected, qualified, and acting secretary of state. The complaint alleges that the Honorable Sidney P. Osborn, the duly elected and acting governor of Arizona, died on the 28th day of May, 1948. The relator then alleges that, upon the death of Governor Osborn, the respondent, as secretary of state, purportedly under and by virtue of article 5, section 6 of the constitution of the state of Arizona, unlawfully assumed the office of governor of the state of Arizona and has since unlawfully held and exercised the same. The relator further alleges that under and by virtue of said section of the constitution Dan E. Garvey did not in law or in fact become governor of Arizona upon the death of Governor Osborn, but by virtue of the section the powers and duties of the office of governor merely devolved upon Mr. Garvey as said secretary of state.

Respondent by his answer denies that he unlawfully assumed the office of governor of the state of Arizona and unlawfully holds and exercises the rights and duties of that office. He contends the facts to be that upon the death of Governor Osborn he by virtue of the constitutional provision above referred to succeeded to the duties, powers, emoluments, and rights of the office of governor, and lawfully holds such office by virtue of the constitutional provision. He further maintains that he was required to and did assume the duties, powers, and privileges of the office of governor for the remainder of Governor Osborn's term, and that the office became vested in him so that he is governor de jure and de facto.

The public business and tranquility demand a prompt judicial inquiry and final determination of the actions of the respondent in admittedly holding and exercising the office of governor. It is for this reason that we have exercised our original jurisdiction in the premises, as we did in Sullivan v. Moore, 49 Ariz. 51, 64 P.2d 809 and State v. Sullivan, 66 Ariz. 348, 188 P.2d 592, and have promptly determined the issues. Two questions are presented for determination: first, upon the death of Governor Osborn did the respondent become vested with the office of governor for the remainder of the term? second, if he did not become vested with the office of governor, is he entitled to the emoluments of the office by virtue of the fact that he must perform the duties thereof?

The first question can be answered only by reference to the pertinent constitutional and statutory provisions. Article 5, section 6, of the Arizona constitution provides:

"[Succession to governorship]. -- In case of the impeachment of the governor, or his removal from office, death, inability to discharge the duties of his office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the secretary of state until the disability ceases, or during the remainder of the term." (Emphasis supplied.)

The following section of the code, relating to the duties of secretary of state and his assistant, we consider to be pertinent and highly illuminating and informative in our search for a correct determination on the questions involved:

"Assistant secretary. -- The secretary shall appoint an assistant secretary of state, who, in the absence of the secretary of state, or when the secretary of state is acting governor, shall perform the duties of the secretary." (Emphasis supplied.) Section 4-204, A.C.A.1939.

The questions presented, though a matter of first impression in this state, are not novel. The question of the effect of the succession of an inferior officer to the duties and powers of the office of governor has been exhaustively treated by courts of last resort in many states. The prevailing view is that in such a case the inferior officer does not vacate his office and become governor de jure and de facto, but that the duties and powers of governor merely devolve on him and he retains his former office and becomes, practically speaking, ex officio governor. 24 Am.Jur., Governor, section 10. Under this view it is held that where the duties of the office of governor devolve on the president of the senate, he does not become governor, or cease to be a senator and president of the senate, and that on his resignation as senator he ceases to be entitled to act as governor. Clifford v. Heller, 63 N.J.L. 105, 42 A. 155, 57 L.R.A. 312. For convenience following each citation will appear the constitutional provision of the state whose decision is referred to.

"In case of the death, resignation, or removal from office of the governor, the powers, duties, and emoluments of the office shall devolve upon the president of the senate." New Jersey, article 5, par. 12, N.J.S.A.

And where such duties devolve on the lieutenant governor, an election of a lieutenant governor to fill the supposed vacancy is unauthorized. State v. Sadler, 23 Nev. 356, 47 P. 450; State v. McBride, 29 Wash. 335, 70 P. 25.

"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." Nevada, article 5, section 18.

"In case of the removal, resignation, death, or disability of the governor, the duties of the office shall devolve upon the lieutenant-governor." Washington, article 3, section 10.

Nor can the lieutenant governor in such an event appoint a successor to himself as lieutenant governor. People v. Budd, 114 Cal. 168, 45 P. 1060, 35 L.R.A. 46.

"In case of the impeachment of the Governor, or his removal from office, death, inability to discharge the powers and duties of his 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." California, article 5, section 16.

Likewise under this rule where a vacancy in the office of governor occurs, and the president pro tempore of the senate acts under a provision that he "shall be lieutenant governor" in such a case, he does not cease to be a senator, but retains his right to vote in that body. State v. Stearns, 72 Minn. 200, 75 N.W. 210.

"The lieutenant governor shall be ex officio president of the Senate; and in case a vacancy should occur, from any cause whatever, in the office of governor, he shall be governor during such vacancy." Minnesota, article 5, section 6, M.S.A.

And on the election of another as president pro tempore his right to act as lieutenant governor ceases. People v. Cornforth, 34 Colo. 107, 81 P. 871.

"In case of the death, impeachment, or conviction of felony or infamous misdemeanor, failure to qualify, resignation, absence from the state or other 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." Colorado, article 4, section 13.

And it has been held that where the powers, duties, and emoluments devolve on the lieutenant governor for the residue of the term there was no vacancy in either the office of governor or lieutenant governor that could be filled at a general election which intervened before the expiration of the term. State v. Mitchell, 97 Mont. 252, 34 P.2d 369.

"In case of the failure to qualify, the impeachment or conviction of felony or infamous crime of the governor, or his death, removal from office, resignation, absence from the state, or inability to discharge the powers and duties of his office, the powers, duties and emoluments of the office, for the residue of the term, or until the disability shall cease, shall devolve upon the lieutenant-governor." Montana, section 14, article 7.

A vacancy in the office of governor does not arise by the impeachment of the incumbent, his removal from office, or death in the sense that there is no one left with power to discharge the duties imposed upon the governor. State v. McBride, supra; State v. Mitchell, supra. In State ex rel. Martin v. Ekern, 1938, 228 Wis. 645, 280 N.W. 393, 399, it is said:

"When a vacancy, either permanent or temporary, occurs in the office of governor, the powers and duties of that office devolve upon the lieutenant governor for the residue of the term or until the governor, absent or impeached, shall have returned or the disability shall cease. It is clear that the lieutenant governor does not become governor. He remains lieutenant governor, upon whom devolves the powers and duties of governor. In such a contingency no vacancy occurs in the office of lieutenant governor. * * *."

To the same effect see Futrell v. Oldham, 107 Ark. 386, 155 S.W. 502, Ann.Cas.1915A, 571. The Arkansas...