State v. McBride

• Decision Date: 07 August 1902
• Citation: State v. McBride, 70 P. 25, 29 Wash. 335 (Wash. 1902)
• Court: Washington Supreme Court
• Parties: STATE ex rel. MURPHY v. McBRIDE, Governor. STATE ex rel. HAGEMEYER v. SAME.

70 P. 25

29 Wash. 335

STATE ex rel. MURPHY v. McBRIDE, Governor.

STATE ex rel. HAGEMEYER v. SAME.

Supreme Court of Washington

August 7, 1902

Applications--one on the relation of John C. Murphy, and the other on the relation of W. A. Hagemeyer--for mandamus to Henry McBride governor.Denied.

Reavis C.J., and Anders, J., dissenting.

John E. Humphries, J. W. Robinson, and Phil Skillman, for relators.

W. B Stratton, E. W. Ross, and C. C. Dalton, for respondent.

Bo Sweeny, amicus curiae.

MOUNT J.

These two cases involve the same questions, and for that reason were consolidated at the argument and heard as one.They are applications for a writ of mandamus to respondent, requiring him to issue his proclamation for the election of a governor, a lieutenant governor, and three justices of the supreme court at the next general election.It appears from the petitions that Hon. John R. Rogers and Hon. Henry McBride were at the general election held in November, 1900 elected to the offices of governor and lieutenant governor, respectively, for the term of four years, beginning on the second Monday of January, 1901; that these officers duly qualified as such, and entered upon the discharge of their respective duties; that on December 26, 1901, the Honorable John R. Rogers died, and respondent thereupon took the oath of office, and is now acting governor; that there is a vacancy in the office of governor, and also in the office of lieutenant governor.It also appears that the legislature of 1901 passed an act increasing the number of judges of this court from five to seven; that appointments were made to fill the vacancies created by the act; that the terms of office of the two judges so appointed will expire on the second Monday of October, 1902; that the governor refuses to issue his proclamation for the election of a governor, lieutenant governor, and two supreme court justices at the next general election, to be held in November of this year.Respondent appeared and filed a demurrer to each of the petitions.

The first question presented is, does the death of the governor cause a vacancy in that office, which may be filled by an election for the unexpired term, and, if not, does the office of lieutenant governor become vacant when the incumbent assumes the duties of governor?The provisions of the constitution relating to this question are as follows: Section 2, art. 3: 'Governor, Term of Office.The supreme executive power of this state shall be vested in a governor, who shall hold his office for a term of four years, and until his successor is elected and qualified.'Section 3, art. 3, provides that the lieutenant governor shall hold his office for four years, and until his successor is elected and qualified.Section 10, art. 3: 'Vacancy in.In case of the removal, resignation, death or disability of the governor, the duties of the office shall devolve upon the lieutenant governor, and in case of a vacancy in both the offices of governor and lieutenant governor, the duties of governor shall devolve upon the secretary of state, who shall act as governor until the disability be removed or a governor be elected.'This last section clearly provides (1) that upon the death of the governor the duties of the office shall devolve upon the lieutenant governor; and (2) in case of a vacancy in the offices of both governor and lieutenant governor the duties of governor devolve upon the secretary of state, who shall act until the disability be removed or a governor elected.This provision of the constitution of this state is in effect the same as the provision of the constitution of the United States with reference to the succession of the vice president to the office of president of the United States.Upon the death or disability of the president, it has uniformly been held that the vice president holds the office of president until a successor to a deceased president comes to assume the office.Merriam v. Clinch, 6 Blatchf. 9, F. Cas. No. 9,460.In that case it was said: 'It has never been supposed that, under the provision of the constitution, the vice president, in acting as president, acted as the servant or agent or locum tenens of the deceased president or in any other capacity than as holding the office of president fully, for the time being, by virtue of express authority emanating from the United States.'In the case of Chadwick v. Earhart,11 Or. 389, 4 P. 1180, where the court was considering a constitutional provision of the state of Oregon in almost the identical language of section 10, supra, it was said: 'In the first place, it is not shown how an office can be vacant, and yet there be a person, not the deputy or locum tenens of another, empowered by law to discharge the duties of the office, and who does in fact discharge them.It is not explained how in such a case the duties can be separated from the office, so that he who discharges them does not become an incumbent of the office, and, in the second place, how a person can fill the office of governor without being governor.'It is a well-settled rule that an office is not vacant so long as it is supplied, in the manner provided by the constitution or laws, with an incumbent who is legally authorized to exercise the power and perform the duties which pertain to it.Mechem, Pub. Off. § 125;Throop, Pub. Off. § 431.The constitution having provided that in case of the death of the governor the duties of the office shall devolve upon the lieutenant governor, there is no vacancy in the office of governor.It is not necessary to discuss the meaning of the provision, 'who shall act as governor until the disability be removed or a governor be elected,' because that provision, as used here, clearly refers only to the secretary of state, in case that officer should assume the duties of governor under the contingency named.What is said above applies equally to the lieutenant governor.When the lieutenant governor, by virtue of his office and of the command of the constitution, assumed the duties of governor on the death of Gov. Rogers, the office of lieutenant governor did not thereby become vacant, but the officer remained lieutenant governor, intrusted with the powers and duties of governor.People v. Budd,114 Cal. 168, 45 P. 1060, 34 L. R. A. 46;State v. Sadler,23 Nev. 356, 47 P. 450;People v. Hopkins,55 N.Y. 74;Robertson v. State,109 Ind. 79, 10 N.E. 582, 643.It is argued, however, that since it is made the duty of the lieutenant governor, under the constitution, to be presiding officer of the state senate (section 16, art. 3), and as such to approve all bills passed by that body, he must, as governor, review and approve or reject bills which as lieutenant governor he has already approved.These duties are, no doubt, inconsistent; but this argument, we think, is fully met by another provision of the constitution, which provides, at section 10, art. 2, in substance, that when the lieutenant governor shall act as governor the senate shall choose a temporary president.The lieutenant governor, therefore, when the duties of governor devolve upon him, is relieved of the duties of presiding officer of the senate.

The legislature of 1901 passed the following act:

'An act increasing the number of judges of the supreme court of the state of Washington, and declaring an emergency.

'Section 1.The supreme court of the state of Washington, from and after the passage of this act, up and to the first Tuesday, after the first Monday in October, 1902, shall consist of seven judges: provided, that after the first Tuesday after the first Monday in October, 1902, said supreme court shall consist only of five judges.

'Sec. 2.The governor is hereby authorized to appoint one from each of the dominant political parties the two additional judges provided for by section 1 of this act, which appointees shall hold office until the first Tuesday after the first Monday in October, 1902, and no longer, and each of the said judges shall receive a salary of four thousand dollars per annum.'

Laws 1901, p. 345.

Section 3 declares an emergency.After this act was passed, the governor, by authority thereof, made two appointments as provided therein.It is conceded in this case that the legislature may increase the number of judges of this court from five to seven; but it is argued (1) that when the increase is once made no decrease can be made, and (2) that the temporary increase made is in conflict with the constitutional term.We are therefore urged to hold that so much of the act as increased the number of judges of this court to seven may be allowed to stand, and the remainder be declared void, thereby making a permanent increase, instead of a temporary one.This reasoning, it seems to us, must fail, because by the very terms of the act the increase of the number of judges from five to seven was temporary.This intention is clearly and definitely expressed as the single purpose of the act, so that if the temporary increase is void the whole act must fail.Cooley, Const. Lim.(6th Ed.) p 211.The rule of law is well settled in this country that the legislative department is not made a special agency for the exercise of specially defined legislative powers, but is intrusted with general authority to make laws at discretion, except where the constitution has imposed limits upon this legislative power.Cooley, Const.Lim. pp. 104, 201.In other words, the constitution of this state is a limitation upon the powers of the legislature, and not a grant of power.Hence, before an act of the legislature may be declared unconstitutional, it must appear that the act is in conflict with some express provision of the constitution which prohibits the act or parts of the act complained of....