State ex rel. Irvine v. Brooks

• Decision Date: 26 March 1906
• Citation: 84 P. 488,14 Wyo. 393
• Parties: STATE EX REL, IRVINE v. BROOKS, GOVERNOR
• Court: Wyoming Supreme Court

84 P. 488

14 Wyo. 393

STATE EX REL, IRVINE v. BROOKS, GOVERNOR

Supreme Court of Wyoming

March 26, 1906

Original proceeding in mandamus.

Heard on demurrer to petition and alternative writ. The facts are stated in the opinion.

Writ denied.

W. E Mullen, Attorney General, for the respondent. (In support of the demurrer.)

The jurisdiction of this court in mandamus as to all state officers, as declared by Section 3 of Article 5 of the Constitution, is limited to state officers other than the Governor, and even then to a control of merely ministerial duties. The courts are without jurisdiction to control executive or political duties of the Governor. (State v Burdick, 3 Wyo. 588.) The signing and delivery of the election certificate demanded by relator under the facts as averred in relator's petition, is not a ministerial duty nor any duty imposed by law upon defendant. (Flourney v Jeffersonville, 17 Ind. 169; State v. Nash, 66 Ohio St. 612; 2 Bouvier's L. Dict., 181.) It is to be presumed that the Board of Canvassers did their duty, and that the Governor did his duty in issuing a certificate for the unexpired term. (State ex rel. v. Barber et al., 4 Wyo. 68.) The acting Governor, who preceded the defendant in office, having given relator a certificate for the unexpired term only, the defendant was bound to exercise care and judgment in responding to the demand upon him for a second and different certificate. It was not a plain duty enjoined by law. Had he acceded to the demand, would he not have assumed judicial powers? (Sharpless v. Buckles (Kan.), 70 P. 886; Hawkins v. Governor, 1 Ark. 570.)

The signing and delivery of an election certificate is not a ministerial duty imposed by law upon the executive and it is not a duty subject to control by mandamus. (Hawkins v. Governor, 1 Ark., 570; State v. Drew (Gov.), 17 Fla. 67; Low v. Towns (Gov.), 8 Ga., 360; State v. Warmouth (Gov.), 22 La. Ann., 1; Dennett v. Petitioner, 32 Me. 508; Miles v. Bradford (Gov.), 22 Md. 170; The People v. Governor, 29 Mich. 320; State v. Governor, 25 N. J., 331; People v. Bissell, 19 Ill. 229; Mauran v. Smith, 8 R.I. 192; Rice v. Governor, 19 Minn. 103; 67 Tenn. (8 Baxt.), 490; State v. Stone, 120 Mo. 428; Hovey (Gov.) v. Shuch, 11 L. R. A., 763; 8 L. R. A., 188; 3 L. R. A., 58.)

Where the constitution provides that the three deparments of government shall be distinct and that neither shall interfere with the duties of the others, the action will not lie to compel the performance of a ministerial duty by the Governor. (State ex rel. v. Stone (Mo.), 23 L. R. A., 194; High Ex. Leg. Rem., Sec. 118; Wood on Mandamus, 123, 124; Merrill on Mandamus, Sec. 97.)

The certificate of election which relator demands, being in any event merely prima facie evidence of the right of the holder to hold, occupy, and exercise the powers of the office, and to receive the emoluments and profits thereof during the term therein specified, is merely an incident to the real issue presented by the writ. The action brought to compel the issuance and delivery of an election certificate is therefore, only a means of securing a judicial interpretation of the law affecting the tenure of relator's term of office, and as such presents a grave question for the consideration of the court. It is not the intention of counsel for defendant to impose on the patience of the court, by contending that the Legislature has power to either shorten, or extend, a term of office that is fixed by the organic law. That it cannot do so, is a principle too elementary and well settled to permit of discussion. The constitution is a limitation of power, and not a grant, and it is our contention that the framers of the constitution, in omitting to provide for the filling of unexpired terms of state officers, intended that the power should be exercised by the Legislature. While the Legislature, in making a provision for the filling of vacancies at general elections, has not expressly provided that the person elected to fill a vacancy shall hold the office for the unexpired term of the person who has vacated the same, yet our constitution and laws on the subject, being in parimateria, should be read and construed together, and when this is done it will be found that their undoubted policy and intention is in support of the doctrine, that a person elected to fill a vacancy in an office is entitled to hold the same only for the unexpired term of the prior incumbent. The office of State Treasurer is a constitutional office. The Treasurer is one of five state officers, which the constitution directs shall be elected at the time and places of choosing members of the Legislature, and all shall severally hold their office at the seat of the government for the term of four years. (Const., Secs. 3, 11, Art. IV.) The only express provision found in the constitution for filling a vacancy is that providing for a temporary succession in the office of Governor. (Const., Sec. 6, Art. IV.) And for the Governor to fill vacancies by appointment when no other mode is provided by the constitution, or law. (Const., Sec. 7, Art. IV.)

Section 20, Art. XXI, the "Schedule," provided that state officers elected at the first election were to hold their offices for the full term next ensuing such election in addition to the period intervening between the date of their qualification and the commencement of such full term, and Section 5 of Art. VI under "Elections," after providing that general elections should occur in each even numbered year, requires all state and county officers elected at such general election, to enter upon their respective duties on the first Monday in January next following the date of their election, or as soon thereafter as may be possible. Now, having provided for four year terms for state officers in the first instance, with specific provision that the terms of all state officers elected at the first election should be for the full term next ensuing after such first election, in addition to the period intervening between the date of their qualification and the commencement of such full term, and further providing that such state officers should assume their duties on a specific date after such election, we think the intention of the constitution to be plain, and that the conclusion logically follows, that all state officers should be elected at a uniform time, and hold for a uniform period as a class, and that when a vacancy shall occur, such vacancy should be considered in the term and not a vacancy in the office. (Burks v. Huston, 77 Va. 4; Jameson v. Hudson, 82 Va. 279.)

If the Legislature saw fit to provide for the filling of vacancies at special elections it would have the unquestioned power to do so, leaving no power in the Governor to fill vacancies by appointment. (In re Moore, 4 Wyo. 106; State ex rel. Grant, 12 Wyo. 17.)

But it may be said that the statute is silent as to whether a person elected to fill a vacancy in the middle of a term, holds for the unexpired portion of the term, which would be two years, or for the full constitutional term of four years. We grant that the statute has not expressly so provided, but Sections 198 and 199 R. S. enacted at the first session of the State Legislature provide that in the year 1894 and at the general election held every four years thereafter there shall be elected a Governor, Secretary of State, Auditor, Treasurer and Superintendent of Public Instruction; for the election of state officers at general elections to fill vacancies, and also to fill vacancies occurring in the office of the Justice of the Supreme Court. These sections, far from being in conflict with the constitution, are really in perfect harmony with its provisions, with reference to the terms of state officers, for the reason that they provide for a continuation of the four year terms, that were filled by persons elected in 1890 at the first election held after the adoption of the constitution. The time for electing state officers, including a State Treasurer, will, under the terms of Section 198, supra, occur in the year 1906, and the person elected State Treasurer in that year will, if the statute is good and valid, be elected to occupy and hold the office for the constitutional four year term. Thus by a fair and reasonable inference the Legislature has provided that persons elected in the middle of a term to fill vacancies in state offices hold only for the unexpired portion of the term.

The decisions to be found on the question as to the tenure of the term of persons elected to fill vacancies, that is whether for the unexpired portion of the term, or for the full constitutional term, are based on constitutional provisions and statutes differing in so many respects that it seems almost impossible to reconcile them. The cases decided in favor of the extreme rule, namely, that the incumbent holds for a full term, we believe will be found to be based on the proposition that the Legislature is without power to shorten or extend the term of an office which has been fixed by the constitution, unless the constitution has either by express provision or fair implication delegated the power to the Legislature to provide for the filling of unexpired terms of office by election. We admit that numerous decisions of this kind may be found, which would seem, unless carefully examined and distinguished, to fix the weight of authority in support of the contention of relator. One of the strongest cases and one most frequently cited in support of the doctrine that a person elected to fill a vacancy should be entitled to hold for the full constitutional term, comes from Virginia, Ex Parte Meredith, 33 Gratt, 119, decided in 1880. The opinion cites with approval many of the earlier cases that...