Opinion
Application to the Supreme Court for writ of mandate to the governor of the state.
COUNSEL:
Denson & De Haven, for Petitioner.
W. W. Foote, and Garret W. McEnerney, for Respondent.
JUDGES: In Bank. Temple, J. McFarland, J., Van Fleet, J., Harrison, J., Beatty, C. J. and Henshaw, J. concurred. Garoutte, J., concurring.
OPINION
TEMPLE, Judge
This is an application for a writ of mandate to compel the governor to include in his proclamation for the coming election a call to fill the office of lieutenant-governor for the unexpired term of Spencer G. Millard, deceased. Respondent has filled the vacancy caused by the death of the lieutenant-governor by the appointment of William T. Jeter, who has duly qualified.
In this case both parties concede -- as indeed the exigencies of each require him to do -- that the vacancy caused by the death of Millard was one which the governor had the power to fill. If there can be question of the power of the governor in this respect, therefore, we have not considered it. And no question has been made, nor have we considered, whether a mandate will issue to compel the chief executive to perform an act which, if it be his duty to perform, is enjoined upon him by the constitution as the executive, nor whether he can be compelled to perform any public duty at the instance of one who has no vested right to have it performed nor any interest special to himself, or other than that which every citizen has in its performance; or, rather, we have not considered whether to issue the mandate asked for would trench upon the province of the executive.
The constitution provides (Const., sec. 3, art. IV) that members of the assembly shall be elected in 1880, and biennially thereafter. Section 2, article V, provides that the governor shall be elected "at the time and places of voting for members of assembly, and shall hold his office for four years from and after the first day of January subsequent to his election." Section 15, article V, is as follows:
" A lieutenant-governor shall be elected at the same time and places, and in the same manner, as the governor; and his term of office and his qualifications of eligibility shall also be the same. He shall be president of the senate, but shall have only a casting vote therein. If, during a vacancy of the office of governor, the lieutenant-governor shall be impeached, displaced, resign, die, or become incapable of performing the duties of his office, or be absent from the state, the president pro And in the following section it is provided that in case of the death, resignation, impeachment, absence from the state, or inability to act of the governor, "the powers and duties of his office shall devolve upon the lieutenant-governor for the residue of the term, or until the disability shall cease."
It will be seen that in case of a vacancy in the office of governor the vacancy is not to be filled, but the powers and duties devolve upon the lieutenant-governor, who does not cease to be lieutenant-governor. Under such circumstances, it would hardly be contended that, when the powers and duties of the governor devolve upon the lieutenant-governor, the latter thereby becomes governor and can appoint a lieutenant-governor. Nor do I think it could be contended that when the president pro tempore of the senate acts as governor he could appoint a person to fill the vacancy in the office of lieutenant-governor. If he could he would then appoint himself out of office, and it would be his duty to do so.
But it is conceded by the parties that upon the death of the lieutenant-governor, the governor may fill the vacancy by appointment. This is unmistakably within the language of section 8, article V, which reads as follows:
" When any office shall from any cause become vacant, and no mode is provided by the constitution and law for filling such vacancy, the governor shall have the power to fill such vacancy by granting a commission, which shall expire at the end of the next legislature, or at the next election by the people."
An office has become vacant, and there is no other mode provided by the constitution or laws to fill it. "The next election by the people" does not mean the next general election, or the next election held by the people, but it must mean that the appointee shall hold until someone has been elected to fill that office.
But there is nothing in this provision which indicates when this election shall be held, but only that until someone has been elected to fill the vacancy the appointee shall hold. This section does not direct that such election shall be at the next general election. It provides simply for filling vacancies by appointment, and that such appointees shall hold until the office is filled in the manner provided by law, but does not itself provide for such election, or direct when it shall be.
If, however, the phrase "the next election by [45 P. 1061] the people," is equivalent to the phrase "the next election," and we assume that it was intended thereby to indicate the election at which such vacancy would be filled, we would feel compelled to hold that the next election is that which the constitution has provided for filling that particular office, that is, the next gubernatorial election.
Many authorities may be cited in support of this proposition. In Matthews v. Shawnee Co ., 34 Kan. 606, the governor appointed a judge to fill a vacancy. The constitution provided for an appointment to fill the vacancy until the next regular election. Upon a contest the supreme court said: "The words 'regular election' do not necessarily mean general election, or township election, or any state, county, city, or district election. They simply mean the regular election prescribed by law for the election of the particular officer to be elected."
State v. Philips , 30 Fla. 579, involved a municipal office. The court said: "When it is declared that the city council shall fill vacancies until the next regular election, it means until the next regular election provided by the charter for electing the officer whose term has become vacant."
To the same effect are State v. Gardner , 3 S. Dak. 553; State v. Haydon, 1 Nev. 75; People v. Wilson , 72 N.C. 155; State v. Cobb, 2 Kan. 32; People v. Mathewson , 47 Cal. 442.
The effect of these decisions is that the term "next election" means the next election for a lieutenant-governor, and that the language used in section 8 cannot be understood as itself directing that at the next succeeding general election the vacancy shall be filled. Is an election at that time authorized by any law?
The constitution contains no provision for holding an election for filling this vacancy, and is silent as to whether the appointee shall hold for the residue of the term. And this is more noticeable because, as to some other officers, there are explicit directions upon the subject. In regard to justices of this court, and judges of the superior court, it is expressly provided that, in case of a vacancy, the appointee shall hold until the election and qualification of a successor. "Which election shall take place at the next general election." (Const., art. VI, secs. 3, 5.) In regard to railroad commissioners, the provision is that the appointee shall hold office for the residue of the unexpired term. The constitution is equally silent in regard to filling vacancies in other executive offices. A similar state of things existed under the constitution of 1849, and the legislature passed a law for filling such vacancies. (" An act concerning offices," April 28, 1851, Stats. 1851, p. 415.) This act did not provide for the election of a lieutenant-governor. Like the governor, he was required in case of resignation to resign to the legislature if that body was in session, if not in session to the secretary of state. Such is also the requirement of the present code. (Pol. Code, sec. 995.) Like the old statute, the present code contains no provision in regard to an election to fill a vacancy in the office of lieutenant-governor. As to other state officers, the provision is that they shall hold for the balance of the unexpired term.
There has never been in the laws a provision for an election to fill a vacancy occasioned by the death or resignation of a lieutenant-governor. Perhaps it was not supposed that such vacancy would ever be filled even by appointment. At all events, there is no law, either constitutional or statutory, for such an election.
In such case there can be no election. (People v. Weller , 11 Cal. 49; 70 Am. Dec. 754; People v. Mathewson, supra ; Kenfield v. Irwin , 52 Cal. 164.)
In State v. Haydon, supra, it was said: "We think no court or judge has gone so far as to hold that the people might hold an election, or vote for any particular officer, at a general election, unless some special provision was made for electing such officer for the particular term for which he is seeking to be elected, either in the constitution or some statutory enactment." This was also said in People v. Mathewson, supra. The efficacy of an election depends upon the law in pursuance of which it is held, and the fact that an office is elective does not of itself, without some law authorizing and regulating the election, render valid any attempted election.
The writ is therefore denied.
CONCUR
GAROUTTE
Garoutte, J., concurring. I concur in the judgment. The constitution provides that the powers and duties of the office of governor, in case of vacancy, shall devolve upon the lieutenant-governor for the residue of the term, or until the disability shall cease. The constitution further provides that, in case of a vacancy in both the office of governor and lieutenant-governor, the president pro tempore of the senate shall act as governor until the vacancy be filled. The constitution does not provide that the president pro tempore of the senate shall perform the duties of the office of lieutenant-governor in case a vacancy exists in that office. And this omission to so provide is, to my mind, an unintentional lapse on the part of the framers of the constitution. Such appears to be plain, when we consider that there is an express provision of that instrument casting upon the president pro tempore of the senate authority to perform the duties of the office of governor if there be no lieutenant-governor, taken in connection with the many other provisions of that instrument which all point to that conclusion. But no authority is found in the constitution vesting the president pro tempore of the senate with the duties of the lieutenant-governor when a vacancy occurs in that office, and hence any such question is foreclosed.
The foregoing conditions being present, a vacancy [45 P. 1062] occurred in the office of lieutenant-governor upon the death of the incumbent, and the governor had the power to fill such vacancy by virtue of section 8, article V, of the constitution. That section reads as follows: "When any office shall from any cause become vacant, and no mode is provided by the constitution and law for filling such vacancy, the governor shall have the power to fill such vacancy by granting a commission, which shall expire at the end of the next legislature or at the next election by the people." It follows that the result of this litigation in part rests upon the true construction of the words "the next election by the people." It is conceded by the present incumbent of the office, that the next election by the people since his appointment will be the coming presidential election to be held in November, but he claims the words should be construed to mean "the next election by the people at which a lieutenant-governor is regularly to be elected." If the framers of an instrument of the dignity and importance of a state constitution had intended such to be the law, it was easy for them to have said so, and they should have so declared in terms. And, in the absence of a declaration of that kind, I do not consider myself authorized to so interpret a phrase of that instrument, certainly not unless the intent of its authors to that effect is plainly apparent; and we look in vain for such intent. Upon a question of statutory construction it was said in Blythe v. Ayres , 96 Cal. 582: "We are not here to construct a statute, but to construe a statute. We can neither interpolate nor eliminate, and we are bound to assume that the legislature enacted the law as it now stands with a due comprehension of the meaning of words, and of the rules of statutory construction, and that they incorporated into the act all that was intended, and that they intended that effect should be given to all that was found therein." And that principle of construction applies with full force here. If any layman of ordinary intelligence, be he merchant, doctor, or mechanic, should have the question submitted to him as to the proper signification of the words here under consideration, to wit, the officer's commission shall expire "at the next election by the people," he would say without hesitation that the commission expired at the next general election. Such is the fair and legitimate construction of the language. There are some decisions of courts of other states which, in a measure, look in an opposite direction from the views here expressed. But these decisions are largely based upon provisions of law not identical with the one here involved. Many of those provisions use the term "regular election"; and, in such cases, stress by the court is laid upon the word "regular" as a most material element in arriving at the true construction of the language.
Notwithstanding the foregoing construction of the constitutional provision is favorable to the petitioner, still the relief he asks must be denied. For, though the appointee's commission expire at "the next election by the people," still, in the absence of some law authorizing the election of a lieutenant-governor at that time, no election can be held, and I find no such law. A provision of constitution or statute declaring a certain day upon which the commission of an officer shall expire, is in no sense a provision that an election shall be held upon that day to fill the office. Under these conditions the present appointee of the governor will hold until his successor is elected and qualified, regardless of the day upon which his commission may expire; and his successor can only be elected at a time fixed by law, which time will be at the regular state election in the year 1898.