State ex rel. Crittenden v. Walker
| Decision Date | 30 April 1883 |
| Citation | 78 Mo. 139 |
| Parties | THE STATE ex rel. CRITTENDEN, Governor, v. WALKER, State Auditor. |
| Court | Missouri Supreme Court |
Mandamus.
PEREMPTORY WRIT AWARDED.
L. C. Krauthoff for relator.
D. H. McIntyre, Attorney General, for respondent.
This is a proceeding by mandamus to compel the State Auditor to audit the account of relator and draw a warrant for the salary of relator as Governor of the State for the month of May, 1882. The respondent, by leave of court, waived the issue of an alternative writ and filed a demurrer to the petition treating it as the alternative writ.
The effect of the demurrer is to admit the facts averred in the petition, but to deny their sufficiency to entitle relator to the relief prayed for. The facts admitted are substantially as follows, viz: That relator was absent from the State in the city of New York, from the 17th to the 27th of May, 1882; that relator was in said city, during said time, for the purpose of performing a duty imposed upon him by the constitution and laws of the State, namely, to inspect and examine certain securities deposited in the National Bank of Commerce of New York City, which bank had been duly selected as a depository of the bonds required to be deposited for the safe keeping of the public moneys of the State; and also in the performance of duties arising out of a certain action pending between Ralston and others and the said relator and other officers of the State, involving large and important interests to said State; that during the said absence of relator, Robert A. Campbell, lieutenant-governor, appeared at the executive office on the 25th day of May, 1882, and assumed the discharge of the duties of the office of governor, and continued in the discharge thereof until the 27th day of May, 1882, when relator returned to Jefferson City; that respondent refused to draw a warrant for the salary of relator for the period during which the said lieutenant-governor assumed the discharge of the duties of the said office.
The question presented, therefore, is, Can the governor who absents himself from the State for the purpose of performing duties imposed upon him by the constitution and laws of the State, be deprived of his salary during such absence. The attorney general, in an argument characterized for its plausibility and ingenuity, insists that he can, and basis his argument on the following section of the constitution: “In case of the death, conviction or 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 residue of the term, or until the disability shall be removed, shall devolve upon the lieutenant-governor.” It is insisted that by virtue of this section, in case of the absence of the governor from the State for any purpose or for any period of time, however short, that pro tempore he ceases to be governor, and all executive functions, as well as the emoluments of the office, devolve upon the lieutenant-governor.
We are of the opinion that the construction contended for is too narrow, is not warranted by the section. Treating conviction or impeachment either as meaning conviction on impeachment, conviction of any crime as well as impeachment, it will be perceived that there are five specified causes, upon the happening of any one of which, the duties and powers, as well as the salary of governor, devolve upon the lieutenant-governor. It will be observed that four of these causes, viz., death, conviction on impeachment, failure to qualify and resignation, are of such a nature as absolutely to create a vacancy in the office; and all of the four are of such a character that no one of them can occur without its being a matter of such public notoriety as to be known throughout the State in twenty-four hours after the death, impeachment, failure to qualify or resignation occurs, thus not leaving in doubt or to conjecture the right of the lieutenant-governor to assume at once the performance of the duties and powers of the gubernatorial office and to receive the emoluments thereof.
In view of the fact that the death, impeachment, failure to qualify or resignation of the governor involves necessarily a vacancy in the office, and the further fact that whenever any one of the above events...
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State ex rel. Hanlon v. City of Maplewood
... ... Sec. 6919, R. S. 1929; ... U. S. Constitution, Article II, Sec. 1; Missouri ... Constitution, Art. V, Section 16; State ex rel ... Crittenden v. Walker, 78 Mo. 139, 144; Chadwick v ... Barnhardt, 11 Ore. 389, 4 P. 1180, 1181; Fitzpatrick ... v. McAllister, 121 Okla. 83, 248 P. 569, ... ...
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State ex rel. v. City of Maplewood, 24041.
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