By the Court,
Belknap, J.:
At the general election held in the month of November, 1894, John E. Jones was elected governor of the state and Reinhold Sadler was elected lieutenant-governor. Governor Jones died on the 10th day of April, 1896. Thereafter the relator assumed- the duties of the gubernatorial office, and, before the institution of this proceeding, demanded of defendant, as controller, a warrant upon the treasurer for the amount of his salary as the acting governor from the 11th day of April, 1896, to the 30th day of the same month. Defendant declined to draw the warrant as requested, although there is an unexpended balance in the treasury appropriated for the payment of the salary of the governor.
The provision of the constitution bearing upon the subject is as follows: “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.” * * *
It is claimed, on the part of respondent, that, when the contingency above mentioned arises, by which the powers and duties of the office of governor devolve upon the lieutenant-governor, no change occurs in the position of that officer. He remains lieutenant-governor, exercising the powers and duties of the governor, but not entitled to the salary attached to the office.
An analogous question was considered in the case of
Church
v.
Hopkins,
55 N. Y. 74. The laws of the state of New York require the superintendent of the insurance department to appoint a deputy from among his clerks, who shall possess the powers and perform the duties attached by law to the office of superintendent, during a vacancy in the office. Relator had been appointed such deputy. His principal had resigned, and the powers and duties of the office had devolved
upon him under, the statute. He sought to compel the controller to issue a warrant for the salary allowed by the statute to the superintendent. The court determined that he was entitled to it. In its opinion the court said: “The statute confers, in the case of a vacancy, upon the deputy all the powers and imposes upon him all the duties of the office of the superintendent during its continuance. In short it makes him to all intents and purposes acting superintendent for that time during which there is no other superintendent. The act contemplates that there shall at all times be a person clothed with all the powers and subject to all the duties of superintendent, * * * and that there also shall be a clerk, designated as deputy, possessing the powers and subject to the duties of the office during the absence and inability of the principal to perform them. *
*
* This provision is carefully made to avoid inconvenience to the public for want of a person so authorized. Upon a vacancy all the powers of the superintendent are given to the deputy, and he is to perform all the duties. Among these powers and duties is the designation of a clerk as his deputy, to the end that there may be no failure of a person to discharge the duties by the absence or inability of the acting superintendent to discharge them. This acting superintendent is as liable to be unable to discharge the duties of the office from absence or inability as one appointed thereto by the governor, and there is the same necessity for providing for such a contingency in case of the former as in that of the latter. Such provision is made in the case of the former by conferring upon him the powers and imposing upon him the duties of the superintendent. This language clearly includes the power of designating a clerk to act as his deputy, etc. This power, being included in the language and clearly necessary for the practical discharge of the duties of the office, we must assume that it was the intention of the legislature to confer it upon the acting superintendent during a vacancy.”
Again at page 80: “In ease of a vacancy in the office, all its powers and duties at once devolve upon the deputy. There remains no other vested with any of its functions. The deputy at once becomes acting superintendent, and his acts are, to all intents and purposes, those of superintendent.
He is entitled to the emoluments of the office, the same as though appointed thereto by the governor, etc., as provided by statute. The duties and responsibilities are the same. His acts thereafter are regarded as those of superintendent, and not those of deputy. He is entitled to the salary of the former and not to that of the latter office. The statute precludes the idea that the same person can hold both offices. This would be my conclusion in the absence of any precedents sustaining it. But there are precedents which, though not judicial, I regard as entitled to be considered as decisive of the question under consideration. In the constitution of the state, adopted in 1822, will be found the following provision: ‘In case of the impeachment of the governor, or his removal from office, death, 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.’ (Const. 1822, art. Ill, sec. 6.) On the 11th of February, 1828, the office of governor became vacant by the death of De Witt Clinton, the then incumbent of the office, and its powers and duties, under the above provision of the constitution, devolved upon Nathaniel Pitcher, then lieutenant-governor. The question arose whether he was to be regarded, in the exercise of the powers and performance of the duties so vested in him, as acting governor, or in the performance of the contingent duties of lieutenant-governor, and as a consequence, whether he was entitled to the salary of the former office, or the compensation given to the lieutenant-governor for his services as such. It was held by William L. Marcy, then ■ comptroller, that he was to be regarded as the acting governor, and entitled to the salary given by law to that officer. The same questions, under the same provision, again arose in 1829, upon the resignation of the office of governor by Martin Van Burén, and the powers and duties of the office devolving upon Enos T. Throop, then lieutenant-governor, and were decided in the same way by Silas Wright, then comptroller. It will be seen that these questions were identical with that in the present case. We surely shall not go far astray in following the precedents established by these able jurists, wise statesmen and rigid economists.”
Merriam
v. Clinch, 6 Blatch. 5, was a contest for the emoluments of the office of collector of the customs at the port of New York between the administrator of the estate of Preston King, the late collector, and Mr. Clinch, a special deputy, appointed by Mr. King. The twenty-second section of the act of congress of March 2, 1799, authorizes the collector to-appoint a special deputy upon whom, in case of the death of the collector, the duties and authorities of the office of collector shall devolve, and for whose conduct the estate of the deceased collector shall be answerable.
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By the Court,
Belknap, J.:
At the general election held in the month of November, 1894, John E. Jones was elected governor of the state and Reinhold Sadler was elected lieutenant-governor. Governor Jones died on the 10th day of April, 1896. Thereafter the relator assumed- the duties of the gubernatorial office, and, before the institution of this proceeding, demanded of defendant, as controller, a warrant upon the treasurer for the amount of his salary as the acting governor from the 11th day of April, 1896, to the 30th day of the same month. Defendant declined to draw the warrant as requested, although there is an unexpended balance in the treasury appropriated for the payment of the salary of the governor.
The provision of the constitution bearing upon the subject is as follows: “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.” * * *
It is claimed, on the part of respondent, that, when the contingency above mentioned arises, by which the powers and duties of the office of governor devolve upon the lieutenant-governor, no change occurs in the position of that officer. He remains lieutenant-governor, exercising the powers and duties of the governor, but not entitled to the salary attached to the office.
An analogous question was considered in the case of
Church
v.
Hopkins,
55 N. Y. 74. The laws of the state of New York require the superintendent of the insurance department to appoint a deputy from among his clerks, who shall possess the powers and perform the duties attached by law to the office of superintendent, during a vacancy in the office. Relator had been appointed such deputy. His principal had resigned, and the powers and duties of the office had devolved
upon him under, the statute. He sought to compel the controller to issue a warrant for the salary allowed by the statute to the superintendent. The court determined that he was entitled to it. In its opinion the court said: “The statute confers, in the case of a vacancy, upon the deputy all the powers and imposes upon him all the duties of the office of the superintendent during its continuance. In short it makes him to all intents and purposes acting superintendent for that time during which there is no other superintendent. The act contemplates that there shall at all times be a person clothed with all the powers and subject to all the duties of superintendent, * * * and that there also shall be a clerk, designated as deputy, possessing the powers and subject to the duties of the office during the absence and inability of the principal to perform them. *
*
* This provision is carefully made to avoid inconvenience to the public for want of a person so authorized. Upon a vacancy all the powers of the superintendent are given to the deputy, and he is to perform all the duties. Among these powers and duties is the designation of a clerk as his deputy, to the end that there may be no failure of a person to discharge the duties by the absence or inability of the acting superintendent to discharge them. This acting superintendent is as liable to be unable to discharge the duties of the office from absence or inability as one appointed thereto by the governor, and there is the same necessity for providing for such a contingency in case of the former as in that of the latter. Such provision is made in the case of the former by conferring upon him the powers and imposing upon him the duties of the superintendent. This language clearly includes the power of designating a clerk to act as his deputy, etc. This power, being included in the language and clearly necessary for the practical discharge of the duties of the office, we must assume that it was the intention of the legislature to confer it upon the acting superintendent during a vacancy.”
Again at page 80: “In ease of a vacancy in the office, all its powers and duties at once devolve upon the deputy. There remains no other vested with any of its functions. The deputy at once becomes acting superintendent, and his acts are, to all intents and purposes, those of superintendent.
He is entitled to the emoluments of the office, the same as though appointed thereto by the governor, etc., as provided by statute. The duties and responsibilities are the same. His acts thereafter are regarded as those of superintendent, and not those of deputy. He is entitled to the salary of the former and not to that of the latter office. The statute precludes the idea that the same person can hold both offices. This would be my conclusion in the absence of any precedents sustaining it. But there are precedents which, though not judicial, I regard as entitled to be considered as decisive of the question under consideration. In the constitution of the state, adopted in 1822, will be found the following provision: ‘In case of the impeachment of the governor, or his removal from office, death, 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.’ (Const. 1822, art. Ill, sec. 6.) On the 11th of February, 1828, the office of governor became vacant by the death of De Witt Clinton, the then incumbent of the office, and its powers and duties, under the above provision of the constitution, devolved upon Nathaniel Pitcher, then lieutenant-governor. The question arose whether he was to be regarded, in the exercise of the powers and performance of the duties so vested in him, as acting governor, or in the performance of the contingent duties of lieutenant-governor, and as a consequence, whether he was entitled to the salary of the former office, or the compensation given to the lieutenant-governor for his services as such. It was held by William L. Marcy, then ■ comptroller, that he was to be regarded as the acting governor, and entitled to the salary given by law to that officer. The same questions, under the same provision, again arose in 1829, upon the resignation of the office of governor by Martin Van Burén, and the powers and duties of the office devolving upon Enos T. Throop, then lieutenant-governor, and were decided in the same way by Silas Wright, then comptroller. It will be seen that these questions were identical with that in the present case. We surely shall not go far astray in following the precedents established by these able jurists, wise statesmen and rigid economists.”
Merriam
v. Clinch, 6 Blatch. 5, was a contest for the emoluments of the office of collector of the customs at the port of New York between the administrator of the estate of Preston King, the late collector, and Mr. Clinch, a special deputy, appointed by Mr. King. The twenty-second section of the act of congress of March 2, 1799, authorizes the collector to-appoint a special deputy upon whom, in case of the death of the collector, the duties and authorities of the office of collector shall devolve, and for whose conduct the estate of the deceased collector shall be answerable. The analogy between the provision of the constitution of the United States upon the devolution of the powers of the presidential office and a similar provision in the twenty-second section of the statute providing for the devolution of the powers and authorities of the collector upon the deputy was noticed. • The court said: “The constitution pf the United States (art. II, sec. 6) provides that ‘ 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 upon the vice-president.’ The provision, in this section of the constitution, that the powers and duties of the office of president shall devolve upon the vice-president, is identical, in legal effect, with the provision’, in the twenty-second section of the act of 1799, that the authorities and duties vested .in the collector shall devolve on his deputy. Three times since the adoption of the constitution the president has died, and, under the provision referred to, the powers and duties of the office of president have devolved upon the vice-president. All branches of the government have, under such circumstances, recognized the vice-president as holding the office of president, as authorized to assume its title, and as entitled to its emoluments.”
In
Chadwick
v.
Earhart,
11 Or. 389, one of the questions was whether' under the constitution of Oregon the secretary of state, upon whom the duties of the office of governor devolve upon the death of the governor, had a right to the salary of the office. The constitution of Oregon 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;
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.” It was claimed that the duties of the office of governor became annexed to the office of secretary of state and were discharged as duties incident to the latter office. The same contention,
mutatis mutandis,
is made here. The court said: “This position seems to require: (1) Either that the office of governor should continue vacant during the time the secretary discharges its duties, and tha.t such duties be in some way performed by the secretary of state, as such, consistently with a condition of vacancy; or (2) 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 tenans,
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, became governor, and, consequently, entitled to the salary appertaining to the office.”
In the statute of March 21, 1891, fixing the salaries of state officers (Stats. 1891, p. 101), the pay of the lieutenant-governor when acting as governor is fixed at $8 per day. From the fact that the legislature appropriated the sum of $1,000 only for this purpose, I am of opinion that this was intended for compensation when the governor was temporarily absent from’ the state, and not for the purpose of fixing the compensation when the duties of the office devolve upon the lieutenant-governor upon the death of the governor.
Relator, as acting governor, is entitled to the salary-attached to the office of governor.
Let the writ issue.