Olcott v. Hoff

181 P. 466, 92 Or. 462, 1919 Ore. LEXIS 128

• Court: Oregon Supreme Court
• Decided: June 10, 1919
• Status: Published

Opinions

JOHNS, J.

Under our form of government all power, both state and federal, is vested in the legislative, executive and judicial departments. Each is separate and distinct from the other. In the affairs of state the governor is the chief executive and all other officers in that branch are more or less subordinate to his position. The office of secretary of state is next in importance. Article III, Section 1, of the Constitution provides:

“The powers of the government shall be divided into three separate departments — the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this constitution expressly provided.”

Sections 1 and 8 of Article V follow:

“The chief executive power of the state shall be vested in a governor, who shall hold his office for the term of four years; and no person shall be eligible to such office more than eight in any period of twelve years.

“In case of the'removal of the governor from office, or of his death, resignation or inability to discharge the duties of the office, the same shall devolve on the secretary of state; and in case of the removal from office, death, resignation or inability, both of the governor and secretary of state, the president of the senate shall act as governor, until the disability be removed, or a governor be elected.”

The latter article also defines the qualifications of governor and the manner of his election, specifies who are ineligible for the office and names his special powers and duties.

1. In addition to such obligations and responsibilities, it is a matter of common knowledge that the governor is a member of numerous boards before which important business of all state institutions is daily transacted and by which large amounts of bonds are issued and certified for state purposes. This court knows as a matter of law that Mr. Olcott’s term of office as secretary of state expires on January- 3, 1921, and that if his right to the office of governor or to discharge the duties of that office ends with his term of secretary of state, another governor must be elected at the next general election. These are all matters of general public interest and importance, not personal to Mr. Olcott, and until such time as they are decided will seriously affect and unsettle the administration of the affairs of state. For such reasons, we think it is not only our province but our duty in this kind of a case in a measure to disregard and overlook any of the apparent forms or technicalities which have been suggested, and decide such public questions as are not inconsistent with our judicial duties.

2. Whether Mr. Olcott is governor in fact and holds the office as such for the unexpired term of the late Governor Withycombe, or whether he shall discharge the duties of that office for the remainder of his term as secretary of state, depends upon the legal construction which should be placed upon Article V, Section 8, of the Constitution, above quoted.

As stated by Mr. Justice McBride in State v. Finch, 54 Or. 482 (103 Pac. 505), our Constitution is largely copied from that of Indiana, which was adopted by that state in 1851 and which provides:

“In case of the removal of the governor from office or of his death, resignation or inability to discharge the duties of the office, the same shall devolve on the lieutenant governor.”

By substituting the words “secretary of state” for “lieutenant-governor” that section of the Indiana organic law is,made identical with the corresponding section of our own Constitution. Counsel have not cited, and we have not been able to find any decision of the State of Indiana construing that section of its Constitution.

The Federal Constitution, Article II, Section 1, provides:

“In case of the removal of the president from office, or of his death, resignation or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president.”

It will be noted that by inserting the words “powers and” between the words “the” and “duties” and substituting the title “vice-president” for “secretary of state” our own Constitution is made identical with, the federal. In so far as we are advised, this particular section of the Federal Constitution has never been construed by any court, yet upon the death of the President no one has ever claimed that the Vice-president became Acting President only, or that he would not succeed to the office of president itself for the remainder of the unexpired term for which the President was elected.

We have examined the Constitutions of every state in the Union, and none of them are identical with our own, the closest resemblance being found in the Indiana and Federal Constitutions as above noted.

Under their respective Constitutions, in the event of the death of the governor, the powers and duties of that office devolve upon the lieutenant-governor in the following states:

Alabama

California

Colorado

Connecticut

Delaware

Idaho

Illinois

Indiana

Iowa

Kentucky

Louisiana

Massachusetts

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

New Mexico

New York

North Carolina

North Dakota

Ohio

Oklahoma

Pennsylvania

Rhode Island

South Dakota

Texas

Vermont

Virginia

Washington

Wisconsin

and under like condition such duties devolve upon the President or Speaker of the Senate in the following named states:

Arkansas

Florida

Georgia

Kansas

Maine

Maryland

New Hampshire

New Jersey

Tennessee

West Virginia.

It is only in Oregon, Arizona, Utah and Wyoming that in the event of the governor’s death the secretary of state succeeds to his office or performs his duties. Excluding Oregon, the Constitutions of Alabama, Delaware, New Mexico, Oklahoma, South Carolina and Virginia only, expressly provide that upon the death of the governor the office of governor itself, shall devolve upon his designated successor; and we have not been cited to, or able to find any decision by the courts of either of those states construing that particular section of their respective Constitutions.

The only decision -of this court on the subject was rendered in the ease of Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180), which is vigorously assailed by counsel here, who claim that it was largely dictum, is not the law and should be overruled. That case was decided at the October term, 1884, and it appears from the brief of the respondent B. P. Earhart, who was then the secretary of state, that:

“The statement of facts contained in the stipulation which is the basis of this action may be briefly stated by submitting the questions. In the event of the resignation of the governor of Oregon does the secretary of state become the governor by operation of law, and is he entitled to the salary provided by law for that office? # # A. nice question is raised by the stipulation, but it is of no importance in ascertaining whether appellant is entitled to the salary in question, that is, was the appellant the governor during the two days after the qualification of the respondent and before the qualification • of Governor Thayer? And further, as the secretary of state is governor or acting governor, as the case may be, the office or duties thereof devolved on the respondent during that time. And we maintain that the title to each office terminated with the expiration of the four years after his qualification.”

Among other things, it was stipulated that:

“Mr. Earhart objects to the salary being paid from the 9th day of September, 1878, to the 11th day of September, 1878 — two days — on the ground that Mr. Chadwick was not secretary of state after Mr. Earhart was sworn in on the 9th day of September,-1878, though Mr. Chadwick acted as governor until and including the 11th day of September, 1878.”

The attorney for Mr. Chadwick, the appellant, made the following contention in his brief:

“In the event of the happening of any one -of the above contingencies the office of governor devolves upon the secretary of state.. The language in reference to the duties of secretary of state in this'event is the same as that defining the office of President when the Vice President succeeds to the same, except the word ‘powers’ is omitted.

“The office of governor is distinctive. It cannot merge into another. It cannot be vacant any more than can be the President’s office. The appointments under a constitution cannot be broken, whether they are made by an election or otherwise. The office is always filled. The incumbent is an incident to the office. Whether the incumbent is at the time secretary of state, he is the governor, and as much as if his appointment had been made by an election. The office devolves on him. The means used to fill the office of governor are absolute, and while they may be different according to contingencies, the one act of filling the office makes the incumbent .governor. It is the office, not the man. Under a constitution there can be no such thing as an ‘acting officer.’ That is one that appears to be what he is not. No more than a clerk of a department could discharge the duties of President.

“There can be but one construction of the constitution in reference to this matter, and that is that the office shall devolve on the secretary of state. Duties are subordinate to the office and a part of it, and when the office devolves on the secretary of state, duties follow — prescribed, or to be prescribed, by legislative enactment: 1 Kent Com. 279.”

' It was on such stipulation of facts and the briefs of respective counsel that the decision was rendered, wherein this court through Mr. Chief Justice Waldo said:

“Two questions are submitted in this case. The first and principal one is, whether, when, under section 8 of Article V of the constitution of Oregon, the duties of the office of governor devolve upon the secretary of state, he has a right to the salary of the office. Second. If this question be answered in the affirmative, whether he shall continue to perform the duties of the office for the remainder of the term of the outgoing governor, or shall he perform those duties only so long as he shall continue to be secretary of state. * *

“Counsel for the respondent claims that in the contingency provided for in said section 8, the duties of the office of governor become annexed to the office of secretary of state, and are discharged as duties incident to the latter office. In other words, that the duties of the office, but not the office itself, devolve upon the secretary of state.

“This position seems to require: First. Either that the office of governor should continue vacant during the time the secretary discharges its duties, and that such duties be in some way performed by the secretary of state, as such, consistently with a condition of vacancy; 'or, Second. That the office be filled and yet he who fills it be in nowise governor, but continue to be merely secretary of state.

“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 the function of a public officer to discharge public duties. Such duties constitute his office. Hence, given, a public office and one who, duly empowered, discharges its duties, and we have an incumbent in that office. Such is the case here. The secretary of state, by force of the function cast upon him, becomes governor, and consequently entitled to the salary appertaining to the office.

“Nor does the language of the section, grammatically considered, bear the interpretation counsel has put upon it. Leaving out the co-ordinate clauses following the first clause, and the sentence reads: ‘In case of the removal of the governor from office, the same shall devolve on the secretary of state’; that is, the office shall devolve. So, taken with each of the succeeding clauses, the word ‘same’ stands for ‘office.’ ”

As to the second question, the opinion holds that the individual

“ * # answering the description at the time the contingency arises designates him as the person who is to enter and fill the office, and when, as thus designated, he enters into the office, he holds it in his natural, and not in his official capacity. This seems to be the principle which applies when the office of governor devolves on the secretary of state on the happening of any of the events specified in the constitution. * * Now, as two offices may remain distinct, which are not incompatible though the officer is the same person, it would seem that the same principle should govern the holding of the office of governor by the secretary of state.

“This question, therefore, must also be answered in favor of the appellant, and judgment be entered accordingly. ’ ’

We do not agree with the statement of counsel that other courts have refused “to accept the Chadwick case as sound law.” Upon that particular point, no United States court has ever construed the Federal Constitution and no state court has ever rendered any decision construing the same, or a similar provision of a state Constitution.

To support the argument that Mr. Olcott does not hold the office and is acting governor only, amicus curiae, counsel for defendant, cites and relies upon the following authorities: State v. Grant, 12 Wyo. 1 (73 Pac. 470, 2 Ann. Cas. 382); State v. Saddler, 23 Nev. 357 (47 Pac. 450); Clifford v. Heller, 63 N. J. Law, 105 (42 Atl. 155, 57 L. R. A. 312); People v. Budd, 114 Cal. 168 (45 Pac. 1060, 34 L. R. A. 46); People v. Cornforth, 34 Colo. 107 (81 Pac. 871); Opinion of the Justices, 70 Me. 570; State v. Stearns, 72 Minn. 200 (75 N. W. 210); State v. McBride, 29 Wash. 335 (70 Pac. 26); Futrell v. Oldham, 107 Ark. 386 (155 S. W. 502, Ann. Cas. 1915A, 571). Those decisions were rendered under the respective Constitutions of the different states, which provide as follows:

“If the governor be impeached, displaced, resign or die, or from mental or physical disease or otherwise, become incapable of performing the duties of his office or-be absent from the state, the secretary of state shall act as governor until the vacancy is filled or the disability removed”: Wyoming, Art. TV, § 6.

11 “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, Art. V, § 18. _ .

_ “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, Art. V, § 12.

“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, Art. V, § 16.

“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, Art. IY, § 13.

“Whenever the office of the governor shall become vacant by death, resignation, removal from office or otherwise, the president of the senate shall exercise the office of governor until another governor shall be duly qualified ’ ’: Maine, Art. V, § 14.

“The lieutenant governor shall be ex-officio president of the senate; and in case a vacancy shall occur, from any cause whatever, in the office of governor, he shall be governor during such vacancy”: Minnesota, Art. Y, § 6.

“In case of the removal, resignation, death or disability of the governor, the duties of the office shall devolve upon the lieutenant governor”: Washington, Art. Ill, '§ 10. y

“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 remainder of the term or until the disability be removed or a governor elected and qualified, shall devolve upon and accrue to the president of the senate”: Arkansas, Art. VI, §12.

It will be noted that in all of the sections quoted it is not the office, but the powers and duties of the office, which devolve upon his successor in the event of the death of the governor. The importance of that distinction is clearly pointed out by the recent decision of the Supreme Court of Arkansas in construing the Constitution of that state in the case of Futrell v. Old-ham, 107 Ark. 386 (155 S. W. 502, Ann. Cas. 1915A, 571), where the opinion says:

“If the framers of the constitution had intended to provide for the devolution of the office of governor, in case of vacancy by resignation or otherwise, upon the president of the senate, that intention could easily have been directly expressed in appropriate words. But they chose other terms which clearly observe the distinction between the course of succession of the-office itself and a mere' devolution of the duties and the emoluments of the office for the time being, and deliberately adopted the latter as the best means of having the government administered until the people themselves can elect a governor.”

That distinction was also made and emphasized by this court in the case of Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180).

W. H. Holmes, who submitted an amicus curiae brief in the instant case, was also one of counsel for the respondent Earhart in the Chadwick case and then contended that “the right of the appellant to the salary would depend on whether the title of the office of governor was vested in him or not”; that the title to that office was not vested in Chadwick and that his term as governor was special, “and the time cannot be extended by implication.” In his brief in the pending case he frankly says:

, “If the Chadwick case was correct law, it would seem the question has already been determined judicially and there would be nothing for the attorney general to do except to state that the question has been decided by the court of last resort in the state of Oregon and that the secretary of state would be justified in following the decision. Owing to the refusal of other courts in the land to accept the Chadwick case as sound law, and inasmuch as the secretary of state wants his rights and duties defined in regard to resigning his office as secretary of state, with the view of assuming the office of governor and appointing a person to the office which he proposes to resign, it is important that the -question now before the court be correctly decided..’ ’

Then, as now, he vigorously asserted that it was not the law and should be overruled.

Much stress is laid upon the fact that E. P. Boise was a member of the constitutional convention and that as" circuit judge he sustained the demurrer to the complaint in the Chadwick case. "We have a very high regard and a profound respect for his judicial learning and ability, but his decision was rendered under the old practice and upon an agreed statement of facts, with a view of prosecuting an appeal and obtaining an early decision in the appellate court. Outside of the fact that Judge Boise sustained the demurrer, there is no written evidence in this or the Circuit Court as to what may have been his personal opinion or reason for sustaining the demurrer. The fact-remains that the Chadwick case was decided by this court in October, 1884; that the opinion of the then judges of this court, William P. Lord, W. W. Thayer and J. P. Waldo, Chief Justice, was unanimous and" that for more than thirty-four years it has never been questioned in this court.

Counsel now attack the grammatical construction given to that section of the Constitution in the opinion, contending that the word “same” as used therein refers to the word “duties” and not to “office,” and that it should be construed to mean that in case of the removal of the governor or of his death, resignation or inability to discharge the duties of his office, the duties of the office, and not the office itself should devolve upon the secretary of state. That question was squarely decided in the Chadwick case and its decision was necessary to the opinion. It was there contended that Chadwick knew of the terms and provisions of that section of the Constitution when he was elected and qualified as secretary of state; that because he was secretary of state he might be called upon to perform the duties of the office of governor and for such reason he was not entitled to receive any compensation for his Services in that capacity, and that even though he performed the duties of governor he should receive only his salary as secretary of state. In deciding that point the court held that the word “same” relates to and qualifies the word “office” and in legal effect that the section should read:

“In case of the removal of the governor from office or of his death, resignation or inability to discharge the duties of the office, the office itself shall devolve upon the secretary of state.”

Article II, Section 7, of the organic law of Oregon adopted in 1845, provides that:

“The governor shall continue in office two years, and until his successor is duly elected and qualified; and in case of the office becoming vacant by death, resignation or otherwise, the secretary shall exercise the duties of the office until the vacancy be filled by election.”

Volume 9 of United States Statutes at Large, page 824, Act Aug. 14, 1848, c. 177, Section 3, establishing the territory of Oregon, provides:

“And in case of death, removal, resignation or absence of the governor from the territory, the secretary shall be, and he is hereby authorized * * to perform all the powers and duties of the governor, during such vacancy or absence, or until another governor shall duly be appointed and qualified to fill such vacancy.”

Oúr present Constitution was adopted on November 9, 1857, and its framers must have known of such terms and provisions of the organic law and territorial statutes, both of which specify that in the event of the death of the governor the secretary of state shall exercise and perform the duties of that office; that under the organic law he should perform those duties “until the vacancy be filled by election,” and that under the territorial statute he should perform those duties ‘ ‘ during such vacancy or absence, or until another governor shall duly be appointed and qualified to fill such vacancy.” Yet with such knowlédge it .is significant that the Constitution which they adopted provides that:

“In case of the removal of the governor from office, or of his death, resignation or inability to discharge the duties of the office, the same shall devolve on the secretary of state.”

They did not select either, but drafted and adopted another section, using language of their own, with a different meaning. That section further says:

“In case of the removal from office, death, resignation or inability, both of the governor and the secretary of state, the president of the senate shall act as governor until the disability be removed or a governor elected.”

And it is contended that because in such a case “the President of the Senate shall act as governor,” it must follow that the section should be construed to tnean that upon the death of the governor the secretary of state should “act as governor.” We do not think that it will bear that construction. It specifically says that:

“In case of the removal of the governor from office, or of his death, resignation or inability to discharge the duties of the office, the same shall devolve on the secretary of state”

—and that in the event of the death or disability of both the governor and the secretary of state the president of the senate shall act as governor. It does not say that the secretary of state shall act as governor, although it says that the president of the senate shall “act as governor.” If it had been the intent of the framers of the Constitution that the secretary of state should “act as governor,” it would have been an easy matter to say so and to apply the same language to the secretary of state that it did to the president of the senate.

3. Upon the question of stare decisis> the Supreme Court of Washington in In re City of Seattle, 62 Wash. 218 (113 Pac. 762), says:

“The rule of stare decisis is peculiarly applicable to the construction of the constitution. The interpretation of that document should not be made dependent upon every change in the personnel of the court. When one of its clauses has been construed, that construction should not be set aside except for the most cogent reasons. Certainty in the law is of the first importance.”

In Cooley’s Constitutional Limitations (7 ed.), page 83, it is said:

“Precedents, therefore,' become important, and counsel are allowed and expected to call the attention of the court to them, not as concluding controversies, but as guides to the judicial mind. Chancellor Kent says: ‘A solemn decision upon appoint of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness and the community has a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would therefore be extremely inconvenient to the public if precedents were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of propérty. When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review, and never by the same court, except for very urgent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law. ’ ”

This rule of construction has been adopted and followed by a long line of decisions of this court, commencing with the case of State v. Clark, 9 Or. 470, and ending with the case of Multnomah County v. United States Fidelity & Guaranty Co., 92 Or. 146 (180 Pac. 104), decided April 22, 1919. The rule is well stated by Mr. Justice Burnett in his dissenting opinion in Kalich v. Knapp, 73 Or. 587 (145 Pac. 27, Ann. Cas. 1916E, 1051), thus:

“Another doctrine equally well settled is that of stare decisis, to the effect that, when a decision has once been rendered,' it amounts to an authoritative construction of the law, and should not be disregarded or overturned, except for very cogent reasons showing beyond question that on principle it was wrongly decided. The principle is that laws are largely conventional rules of action, and it is more important that the rule be settled as a guiding precept to the public than that by the action of the courts the law should be made to fluctuate like tbe tides.” (Citing authorities.)

Article II, Section 10, of the Constitution provides that:

“ * * Nor shall any person hold more than one lucrative office at the same time, except as in this constitution expressly permitted.”

It is contended that under Article III, Section 1, supra, and the section just quoted no one individual can receive the emoluments and hold the offices of governor and secretary of state at the same time, but it will be noted that each of such sections contains the clause, “except as in this Constitution expressly permitted,” and that the offices of governor and secretary of state are both executive or administrative, and not legislative or judicial. All of the Constitution was adopted at the same time and its various provisions must be construed as a whole, and when Article II, Section 10, and Article III, Section 1, are considered with Article Y, Section 8, they are not in conflict. The devolving of the office of governor, at the death of that official, upon the secretary of state is one of the exceptions contemplated by the framers of the Constitution, provided for by Article II, Section 10, and Article III, Section 1. The word ‘£ devolve ’ ’ has a legal meaning and is well defined by Bouvier thus: “To pass from a person dying to a person living.”

Regardless of the question as to whether the Chadwick case is sustained by the weight of authority, the fact remains that since its decision in October, 1884, many legislatures have come and gone; that the people have directly or indirectly had the power to amend the Constitution; that for more than thirty-four years it has been the law of the state and that it was decided by eminent justices of this court and is sustained by such reasoning and authority as clearly to bring it within the rule of stare decisis and make it binding on this court.

Mr. Olcott is governor in fact and has the right and title to the office itself, with the accompanying right and authority to perform the duties and receive the emoluments of the office. As to whether he could resign as secretary of state, and as governor appoint another to that position and still continue to hold the office of governor, we do not feel legally justified in going beyond anything said in this opinion. That is less a public and more a personal question for Mr. Olcott.

But we do hold that upon the death of the late Governor Withycombe, by reason of the fact that Mr. Olcott was then secretary of state he automatically became governor, and when he took the oath as such the office of governor and the title to that office were thrust upon him by the terms and provisions of Article Y, Section 8, of the Constitution, and that under the authority of Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180), he became and is now governor in fact and is entitled to hold tha.t office, perform all of its duties and receive its emoluments for the full period of the unexpired term to which the late Governor Withycombe was elected. This decision is based upon the express terms and provisions of our state Constitution which was adopted by a direct vote of the people and which within itself, in case of the removal of the governor from office, or of his death, etc., provides how and by whom the office of governor shall be filled; and for such reason it is not in conflict with the recent opinion of the majority of this court in State ex rel. v. Kellaher, 90 Or. 538 (177 Pac, 944). In that kind of a ease there is a vacancy and the law provides for an appointment to fill the same and states by whom the appointment shall be made. In the instant case, however, when the people elected Mr. Olcott secretary of state, by the very terms of the Constitution they elected him to become governor upon the death of Governor Withyeombe. There was no vacancy in that office, as the people, speaking through the Constitution, have made their own selection.

The court sincerely thanks distinguished counsel for their able and instructive briefs as amid curiae on the respective sides and assures them that the same are duly appreciated.

Let the writ issue as prayed for in the petition.

Writ Allowed.

Mr. Justice Bean concurs.