Montgomery v. Cleveland

98 So. 111, 134 Miss. 132, 32 A.L.R. 1151, 1923 Miss. LEXIS 231

• Court: Mississippi Supreme Court
• Decided: November 5, 1923
• Docket: No. 23643
• Status: Published

Opinions

Ethridge, J.,

delivered the opinion of the court.

This is an appeal from a judgment in habeas corpus discharging the appellee, Walter Cleveland, from the state penitentiary; said discharge being based upon a pardon issued by the Lieutenant Governor of the state. The case comes here on an agreed statement of facts, which is as follows:

“That the relator on the 11th day of November, 1922, was a convict in the Mississippi state penitentiary, and that he had properly had published and filed in the office of the Governor of the state a petition praying that he be granted a pardon for the offense of which he had been convicted, and that on the 11th day of November, 1922, ■that said petition for pardon filed and with publication properly proved was on file in the office of the Governor of the state of Mississippi.

“It is further agreed that on the 11th day of November, 1922, that the Governor of Mississippi, Hon. Lee M. Russell, left the city of Jackson, about twelve-thirty a. m. for Memphis, Tenn., and was out of the State of Mississippi from about six o’clock a. m. November 11, 1922, until about twelve o’clock noon November 11,1922.

“It is further agreed that the Governor of Mississippi, Hon. Lee M. Russell, had not requested the Lieutenant Governor, Hon. H. H. Casteel, to act as Governor during his absence from the State. It is further agreed that at ten-thirty o’clock a. m. the Governor of Mississippi was absent from the state, being temporarily in the state of Tennessee, spending a part of the day. It is further agreed that while the Governor was absent from the State, during the hours set out, that the Lieutenant Governor of Mississippi, Hon. H. H. Casteel, issued a pardon to relator in all respects proper in form, attested by the secretary of state of Mississippi, and having affixed thereto the great seal of the state of Mississippi. It is further agreed that the said pardon so issued by the Lieutenant Governor at the hour of ten-thirty a. m. on November 11th, while the Governor, Lee M. Russell, was beyond the bounds of the state of Mississippi and in the state of Tennessee, was delivered to Hon. Woods C. Eastland, attorney for the relator, who was authorized by the above-named convict to act for him and receive, said pardon, and said pardon was delivered about the same time, and while the Governor was still out of the state, to Hon. J. J. Coman, secretary of th£ state penitentiary, with the request that he forthwith release the relator.

“It is further agreed that notwithstanding the pardon issued by the Lieutenant Governor under the circumstances above set out that the superintendent of the state penitentiary refuses to recognize said pardon as authority on his part to release the relator, and that, notwithstanding the said pardon issued by the Lieutenant Governor, the relator is still held in custody by the defendant in this action. It is agreed that this case be submitted- to the chancellor upon the facts above stated as constituting the true facts.”

Two questions are presented for consideration on this appeal: First, was the Lieutenant Governor at the time of the issuing of the pardon, authorized ¡to act as Gov-emorl Second, if so, did he have the power to grant a pardon? The pertinent sections of the Constitution which control this decision are sections 116, 124, 128, and 131, which read as follows:

“Sec. 116. The chief executive power of this state shall be vested in a Governor, who shall hold his office for four years, and who shall be ineligible as his immediate successor in office.”

“Sec. 124. In all criminal and penal eases, excepting those of treason and impeachment, the Governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the legislature, and by and with the consent of the Senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with consent of the Senate, but may respite the sentence until the end of the next session of the legislature; but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, 'setting forth therein the reasons why such pardon should be granted.”

“Sec.' 128. There shall be a Lieutenant Governor, who shall be elected at the same time, in the same manner, and for the same term, and who shall possess the same qualifications as required of the Governor.”

“Sec. 131. When the office of Governor shall become vacant, by death or otherwise, the Lieutenant Governor shall possess the powers and discharge the duties of said office. When the Governor shall be absent from the state, or unable, from protracted illness,-to perform-the duties of the office, the Lieutenant Governor shall discharge the duties of said office until the Governor be able to resume his duties; but if, from disability or otherwise, the Lieutenant Governor shall be incapable of performing said duties, or if he be absent from the state, the president of the Senate pro- tempore shall act in his stead; but if there be no such president, or if he be disqualified by like disability, or be absent from the state, then the speaker of the House of Eepresentatives shall assume the office of Governor and perform said duties; and in case of the inability of the foregoing officers to discharge the duties of Governor, the secretary of state shall convene the Senate to elect a president pro tempore. The officer discharging the duties of Governor shall receive compensation as such. Should a doubt arise 'as to whether a vacancy has occurred in the office of Governor, or as to whether any one of the disabilities mentioned in this section exists or shall have ended, then the secretary of state shall submit the question in doubt to the judges of the supreme court, who, or a majority of whom, shall investigate and determine said question, and shall furnish to said secretary of state an opinion, in writing, determining the question submitted to them, which opinion, when rendered as aforesaid, shall be final and conclusive.”

The determination of the first question turns upon the meaning of the words “when the Governor .shall be absent from the state,” in section 131 of the Constitution. It is insisted by the appellant that the word “absent” is used in such sense as would make it an effective absence and that it does not apply to a mere temporary absence as in the present case of less than a day, or in any case of a short period of time when the Governor had not called the Lieutenant Governor to act in his stead and cites and relies upon State v. Lahiff, 146 Wis. 490, 131 N. W. 824, Ann. Cas. 1912C, 350; Mayor v. Moran, 46 , 9 N. W. 252; Watkins v. Mooney, 114 Ky. 646, 71 S. W. 622; People v. Parker, 3 Neb. 409, 19 Am. Rep. 634; State ex rel. Crittenden v. Walker, 78 Mo. 139; and State v. Graham, 26 La. 568, 21 Am. Rep. 551.

Most of these cases deal with the word “absence” as used in a statute applying in cases where the mayor of a city or municipality is absent, that the duties of his office will be performed by the named officer mentioned in such statute. In the case of People v. Parker, 3 Neb. 409, 19 Am. Rep. 634, the question at issue was not decided, the case turning upon another point, but the writer of that opinion, while reserving the question here involved, said:

“Upon the first proposition my own mind is not clear. I can say, however, when the question was first presented to me, I was strongly inclined to the opinion insisted upon for the respondent, that, so soon as the Governor sets his foot beyond the limits of our state, the officer next in succession therein, may at once assume all the authority, and exercise all or any of the duties pertaining to the executive department of government. But when I reflect upon the possible consequences of such a construction of the Constitution, upon the disgraceful tricks, strifes and exhibitions, which might be entailed upon the people of the state, of which our present attitude presents a sad and humiliating commentary, I am induced to hesitate and cast about me for a more salutary rule, one which,, while it will insure the efficient administration of the affairs of state during a brief temporary absence of the executive, will at the same time protect this department of the government against unnecessary and ill-advised intrusion.”

This utterance is, of course, not authority. In the case of State ex rel. Crittenden v. Walker, 78 Mo. 139, the Missouri court held that the temporary absence of the Governor from the state in the discharge of duties imposed upon him by the law does not of itself autherize the Lieutenant Governor to assume the functions of the Governor’s office during his absence. The section of the Constitution of that state under consideration there provided:

“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 disabilities shall be removed, shall devolve upon the Lieutenant Governor.”

In that case the Governor was absent for several days and the court reached the conclusion that the Lieutenant Governor v was not entitled to the salary of the office during that period; the Governor being absent on business imposed' upon him by the law of the state during said time.

The case of State v. Graham, 26 La. 568, 21 Am. Rep. 551, was also a suit involving the right of the Governor to the salary of the office during.a period of time when he was absent from the state, and during which time the Lieutenant Governor had drawn the salary and the state authorities refused to issue the Governor his salary; the Constitution of that state providing:

“In case of impeachment of the Governor, his removal from office, death, refusal or inability to qualify or 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 'Governor, absent or impeached, shall return or be acquitted or the disability removed.” Art. 53.

The court of that state held that the absence referred to in the Constitution was not a temporary absence, and gave the word “absence” the meaning, as an effective absence or one prejudicial to the public welfare.

In our view of the case these decisions are strained constructions, and the courts were influenced by hardships, imagined or real, that would flow from adhering to the strict meaning of the word “absent.” In Words & Phrases, Second Series, vol. 1, p. 16, we find the following :

“Absent is the state of being away from a place; withdrawal from a place; not existing” — citing Carman’s Adm’r v. I. C. Railroad (Ky.), 92 S. W., 954, 956.

And in Words and Phrases, First Series, vol. 1, pp. 33 to 37, numerous cases defining the word “absence” are cited.

.The usual definition of the word is from Webster’s Dictionary, which defines it as:

“Absent is the state of being away from a place, withdrawal from a place. ’ ’

Black’s Law Dictionary defines “absent” as a state of being removed or away from one’s domicile or usual place of residence. In our view of the word, as used in our Constitution, it contemplated that whenever the Governor departed from the state the Lieutenant Governor would perform the duties of that office; that the Constitution contemplated having within the limits of the state at all times a person to exercise the powers and perform the duties of the Governor’s office to the ,end that the public welfare would never be jeopardized by not having some person present who could exercise these powers and duties. The sections of the Constitution above quoted show that the Constitution makers selected the Lieutenant Governor as the person who would exercise these powers ordinarily in the absence of the Governor. It further provided for this power to be exercised by other persons in case the Lieutenant Governor should also be absent or unable to perform the duties and exercise the powers of the office. The Lieutenant Governor is selected in the same way as the Governor and must possess the same qualifications as the Governor. He and the Governor are each elected by the people with the provisions of. the Constitution before them. It was assumed and we must presume that each would be qualified and be a proper person to exercise the powers and perform the duties and that each would have equally high and lofty motives and purposes in view in the performance of these functions.

A direct authority and one which to the minds of the majority of the court is satisfactory in its reasoning and conclusions is the case from Oklahoma styled In re Crump, 10 Okla. Cr. 133, 135 Pac. 428, 47 L. R. A. (N. S.) 1036, which was a case very much like the one before us. In that case the pardon was granted by the Lieutenant Governor acting as Governor in the absence of the Governor from the state. The Governor had gone to a point outside of the state, but within nine hours’ run of the state line and about twelve hours’ run from the State Capitol, and during this absence the pardon was granted by the Lieutenant Governor, and the pardon was delivered during the absence of the Governor. The case was a case of habeas corpus, and the respondent alleged that the purported pardon attached to the petition for habeas corpus was void because the Governor was qualified to act, and that the occasion contemplated by the Constitution for the Lieutenant Governor to act had not arisen; that the Governor had left the state to be temporarily absent for only one day, nor was he at said time in any way incapable, and that he had not removed from the state nor had he before leaving the state, nor at any time, requested the Lieutenant Governor to act in his place or stead; that the Governor had informed the chief clerk in his office as to his whereabouts, and gave the said clerk instructions that if any matter involving executive action should be presented he should immediately communicate with the said Governor, and that the said Governor returned to Oklahoma, being absent only nine hours and from the Capitol only twelve hours, and directed the authorities to disregard the said pardon issued by the Lieutenant Governor and to hold the petitioner, setting forth in his answer the proclamation revoking or attempting to revoke the pardon issued by the Lieutenant. Governor. In the opinion of the court (10 Okl. Cr. 152, 135 Pac. 436, 47 L. R. A. [N. S.] at page 1046) the court said:

“The functions of chief magistrate were created for the benefit of the state, and are local to it; and, as the constitutional functions of his office cannot be exercised out of the state, the effect of his absence from the state is to suspend his constitutional functions, and thereupon these functions devolve upon the Lieutenant Governor, and he becomes and is de jure, and de facto Governor until the absent Governor returns to the state. It is further provided by article 6, section 15, already quoted, that if, during a vacancy in the office of Governor, the Lieutenant Governor shall ‘be absent from the state, the president pro tempore of the Senate shall act as Governor until the disability shall cease, and, if the president pro tempore of the Senate be absent from the state, the speaker of the House of Representatives shall act as Governor until the disability shall cease. In all this there is a perfect consistency pervading both sections. The unequivocal language of the latter clause of section 16 is that, upon his removal from the state, said office shall devolve upon the Lieutenant Governor until the disability shall be removed, and the plain intention of the framers of the Constitution and the people in adopting it was to provide that, in his absence from the state for any purpose or for any period of time, however short, his constitutional functions shall devolve upon the Lieutenant Governor as acting Governor. Such absence from the state is an abdication for the time being of the constitutional functions of his office, and the effect of that absence is to suspend his constitutional functions. He does not cease to be Governor by Ms temporary absence from the state. His vested right of tenure in the term of office attaches to his person and is distinct from his executive functions; it goes with him; but the constitutional functions of his office belong to the public, and are confined to the state, and cannot be exercised out of the state; when he leaves the state, the constitutional functions of his office devolve pro tempore upon the Lieutenant Governor; and, when he returns to the state ipso facto, he resumes all of the powers, functions, and duties of his office, and the Lieutenant Governor theretofore administering the executive functions temporarily under the Constitution ceases to, be acting Governor.’ ”

We are of the opinion therefore, that whenever the Governor is beyond the confines of the state he is absent from the state, and he cannot perform the duties of his office during such absence, and the functions of the office are vested in thé Lieutenant Governor.

It' is contended by the appellant that the Lieutenant Governor could not grant pardons because, under section 131 of the Constitution, above set out, he only discharges the duties of the office, and that the granting of a pardon is not a duty of the office, but is the power as to which the Governor has a discretion, and may or may not grant in any case.

It is insisted that, when the Governor’s office becomes vacant by death or otherwise, the Lieutenant Governor then possesses the powers and discharges the duties of said office, but when the Governor’s office is not vacant, but he is merely absent from the state or unable on account of illness to perform the duties of the office, then the Lieutenant Governor shall discharge the duties of the office until the Governor be able to resume his duties and that the framers of the Constitution purposely omitted to confer upon the Lieutenant Governor the powers of the office in such contingency, and that the duties referred to in the Constitution are such as are of a mandatory character and must be performed at all events. While a pardon is a matter of grace, it is nevertheless the grace of the state,- and not the personal favor of the Governor. It is granted out of consideration of public policy, for the benefit of the public as well as of the individual, and is to be exercised as the act of the sovereign state, not of the individual caprice of the occupant of the executive office as an individual. He is supposed to act in accordance with sound principles and upon proper facts presented to him. Of course, he is the sole judge of .the sufficiency of the facts and of the propriety of granting the pardon, and no other department of the government has any control over his acts or discretion in such matters. Nevertheless he acts for the public. He dispenses the public mercy and grace; the efficacy of the pardon flows from the sovereign. The sovereign acts through the Governor, but it is none the less the act of the sovereign, and not the. personal act of the Governor. When the Governor is absent from the state, the Lieutenant Governor, if he is present and capable of acting, is the custodian of this mercy and grace. It is difficult to separate the words “powers” and “duties,” or to conceive of powers without duties, or duties without powers. When a proper application is presented to the Governor, he is under duty to consider it; he has power to consider it; and while no authority other than his judgment and conscience can determine whether it is proper to grant or refuse the pardon, still his duty is to act upon the matter, to bring his mind and conscience to bear upon it, and to reach a determination in reference thereto. After so doing, if the application is meritorious, he grants the pardon; if it is otherwise, he refuses it. The powers and the duties of the executive office are conferred for state or public purposes, and in many cases they are used interchangeably.

While there is no direct authority in this state for the view we have taken, yet this court had under consideration the question in Brady v. Howe, 50 Miss. 607, which case arose in the year 1874; the present constitutional provision being enacted or promulgated in 1869. In that case, during the absence of the Governor, the Lieutenant Governor reappointed one Simmons as chancellor, when a vacancy arose, due to the expiration of his term of office. Simmons accepted and qualified, and took ,a leave of absence, and did not return to the state for several weeks. The Governor returned to the state and appointed, another person, one Campbell, as chancellor. The' chancellor had power to appoint a clerk of his court, and each of the appointees undertook to exercise the power and appoint a clerk, and a proceeding was instituted by the district attorney against the clerk who was appointed by Campbell, Governor Ames’ appointee. The chancellor appointed by Governor Ames obtained possession and was exercising the functions of the office, and while the court held that neither appointment was valid so far as the chancellor was concerned, but the chancellor being in office and exercising the function thereof was a de facto officer, and that his act in appointing the clerk as such was valid. In discussing the question, the court stated that, if the Governor had the power to appoint when present, the Lieutenant Governor would have the power when he was absent. At page 620, the court said:

'-‘The seventeenth section of the fifth article is to the effect ‘that when the office of Governor shall become vacant by death or otherwise, the Lieutenant Governor shall possess the powers and discharge the duties of said office.’ . . . ‘When the Governor shall be absent from the state . . . the Lieutenant Governor shall discharge the duties of said office . . . until the Governor be able to resume his duties.’ In the first-named contingency, the office is absolutely devolved upon the Lieutenant Governor. In the second, the duties of the office are temporarily to be performed by the Lieutenant Govern- or. There is nothing in the language, or in the reason for the provision, which would confer part of the duties only upon him. The words are 'duties of the office;’ that is, all of them. If there had been an enumeration of some of them, that would have excluded all others. If, therefore, the Governor could have legally made the appointment, in his absence from the state, the Lieutenant Governor could have done so. ”

The only thing in this decision that prevents it from being absolutely in point is the fact that neither the Governor nor the Lieutenant Governor had the right to make the appointment because of the requirement of the Constitution as it then existed that the office be filled by the Governor by and with the advice and consent of the Senate, and inasmuch as the Senate had not consented to the appointment that it was invalid, and neither the Govern- or nor the Lieutenant Governor had the right to make the appointment. It was clearly the opinion of the judges then composing this court that the Lieutenapt Governor, in the absence of the Governor, was possessed of all the functions of the office. The Oklahoma court in the case above cited reached the same conclusion, and the opinion in that case is an able one and seems to me an unanswerable exposition of the principles here involved.

In the case note appended to the case of In re Crump, 47 L. R. A. (N. S.), at page 1037, the editor of that series says:

"Thus, while there appears to be little authority upon the point here raised, thé decision in Be Grump seems to be correct, under general principles, in holding that, under a Constitution providing that, among other disabilities named, in case of the removal of the Governor from the state, the office of Governor, with its compensation, shall devolve upon the Lieutenant Governor for the residue of the term, or until the disability shall be removed, an unconditional pardon granted to one' convicted of crime and imprisoned therefor, being granted by the Lieutenant Governor at a time when the Govern- or is temporarily absent from the state, is valid and effectual. ’ ’

In the view which we reach, the Lieutenant Governor at the time of the granting of the pardon was a de jure occupant of the Governor’s office possessed of the powers and duties thereof, and it is unnecessary to discuss whether the doctrine of de facto officer would render the pardon valid, if he were acting without authority of law, but under claim of right, and in the actual possession of the office. Something was 'said in the argument that, under the concluding clause of section 131 of the^ state Constitution:

“Should a doubt arise as to whether a vacancy has occurred in the office of Governor, or as to whether any one of the disabilities mentioned in this section exists or shall have ended, then the secretary of state shall submit the question in doubt to the judges of the' supreme court, who, or a majority of whom, shall investigate and determine said question, and shall furnish to said secretary of state an opinion, in writing, determining the question submitted to them, which opinion, when rendered as aforesaid, shall be final and conclusive,”— and that the Lieutenant Governor could not exercise the powers because the question was not so submitted and decided. It is unnecessary to discuss the meaning of this part of the section, because the agreed statement of facts shows that the Governor, was absent, and the question was not in doubt at any time so far as this record shows.

It follows that the judgment of the court below was correct, and it is accordingly affirmed.

Affirmed.