State ex rel. Murphy v. McBride , 29 Wash. 335 ( 1902 )

The opinion of the court was delivered by

Mount, J.

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

The first question presented is, does .the death of the governor cause a vacancy in that office, which may be filled by an election for the unexpired term, and, if not, does the office of lieutenant governor become vacant when the incumbent assumes the duties of governor ? The provisions of the constitution relating to this question are as follows (§2, art. 3) :

“Governor, term of office. The supreme executive power of this state shall be vested in a governor, who shall hold his office for a term of four years, aud until his successor is elected and qualified.”

Section 3, art. 3, provides that the lieutenant governor shall hold his office for four years, and until his successor is elected and qualified.

«§10, [art. 3]. Vacancy in. In case of the removal, resignation, death or disability of the governor, the duties of the office shall devolve upon the lieutenant governor, and in case of a vacancy in both the offices of governor and lieutenant governor, the duties of governor shall devolve upon the secretary of state, who shall act as governor until the disability be removed or a governor be elected.”

This last section clearly provides (1) that upon the death of the governor the duties of the office shall devolve upon the lieutenant governor, and (2) in case of a vacancy in the offices of both governor and lieutenant governor the duties of governor devolve upon the secretary of state, who shall act until the disability be removed or a governor elected. This provision of the constitution of this : state is in effect the same as the provision of the constitution of the United States with reference to the succession of the vice-president to the office of president of the United States. Upon the death or disability of the president, it has uniformly been held that the vice-president holds the office of president until a successor to a deceased president comes to assume the office. Merriam v. Clinch, 6 Blatchf. 9. In that case it was said:

«It has never been supposed that, under the provision of the constitution, the vicerpresident, in acting as president, acted as the servant, or agent, or locum ternms, of the deceased president, or in any other1 capacity than as holding the office of president fully, for the time being, by virtue of express, authority emanating from the United States.”

In the case of Chadwick. v. Earhart, 11 Ore. 389 (1 Pac. 1180), where the court was considering a constitutional provision of the state of Oregon in almost the identical language of §10, supra, it was said:

“In the first place, it is not shown how an office can be vacant and yet there be a person, not the deputy, or locum tenens, of another, empowered by law to discharge the duties of the office, and who does in fact discharge them. It is not explained how, in such a case, the duties can be separated from the office, so that he who discharges them does not become an incumbent of the office. And, in the second place, how a person can fill the office of governor without being governor.”

It is a well settled rule that an office is not vacant so long as it is supplied, in the manner provided by the constitution or laws, with-an incumbent who is legally authorized to exercise the power and perform the duties which pertain to it. Mechem, Public Officers, §126; Throop1, Public Officers, § 131. The constitution having provided that in case of the death of the governor the duties of the office shall devolve upon the lieutenant governor, there is noi vacancy in the office of governor. It is not necessary to discuss the meaning of the provision “who shall act as governor until the disability be removed or a governor be elected,” because that provision, as used here, clearly refers only to the secretary of state, in case that officer should assume the duties of governor under the contingency named.

What is said above applies equally to the lieutenant governor. When the lieutenant governor, by virtue of his office and of the command of the constitution, assumed the duties of governor on the death of Governor Rogers, the office of lieutenant governor did not thereby become vacant, but the1 officer remained lieutenant governor, intrusted with the powers and duties of governor. People ex rel. Lynch v. Budd, 114 Cal. 168 (45 Pac. 1060, 34 L. R. A. 46); State ex rel. McMillan v. Sadler, 25 Nev. 131 (58 Pac. 284); People ex rel. Church v. Hopkins, 55 N. Y. 74; Robertson v. State ex rel. Smith, 109 Ind. 79 (10 N. E. 582, 643).

It is argued, however, that since it is made the duty of the lieutenant governor, under the constitution, to he presiding officer of the state senate (§16, art. 3), and as such to approve all bills passed by that body, he must, as governor, review and approve or reject bills which as lieutenant governor he has already approved. These duties are, no doubt, inconsistent; but this argument, we think, is fully met by another provision of the constitution, which provides at § 10, art. 2, in substance, that when the lieutenant governor shall • act as governor the senate shall choose a temporary president. The lieutenant governor, therefore, when the duties of governor devolve upon him, is relieved of the duties of presiding officer of the senate.

The legislature of 1901 passed the following act (Laws 1901, p. 345) :

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

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

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

Section 3 declares an emergency. After this act was passed, the governor, by authority thereof, made two appointments as provided therein. It is conceded in this case that the legislature may increase the number of judges of this court from five to seven; but it is argued (1) that when the increase is once made no decrease can be made, and (2) that the temporary increase made is in conflict with the constitutional term. We are, therefore, urged to hold that so much of the act as increased the number of judges of this court to seven may be allowed to stand, and the remainder be declared void, thereby making a permanent increase, instead of a temporary one. This reasoning, it seems .to us, must fail, because by the very terms of the act the increase of the number of judges from five to seven was temporary. This intention is clearly and definitely expressed as the single purpose of the act, so that if the temporary increase is void the whole act must fail. Cooley, Constitutional Limitations (6th ed.), p. 211.

The rule of law is well settled in this country that the legislative department, is not made a special agency for the exercise of specially defined legislative powers, but is intrusted with general authority tot make laws at discre^ tion, except where the constitution has imposed limits upon this legislative power. Cooley, Constitutional Limitations, pp.. 104, 201. In other words, the constitution of this state is a limitation upon the powers of the legislature, and not a grant of power. Hence, before an act of the legislature may bei declared unconstitutional, it must appear that the act is in conflict with some express provision of the constitution which prohibits the act or parts of the act complained of. Bearing this rule in mind, we consider the questions presented.

1. The constitution provides (§ 2, art 4) :

“The supreme court shall consist of five judges, a majority of whom shall be necessary to form a quorum and pronounce a decision. . . . The legislature may increase the number of judges of the supreme court from time to time, and may provide for separate departments of said court.”

. The evident meaning of the first provision is that this court shall never be decreased below five judges. The second provision gives express authority for an increase of the number of judges. There is no express provision for a decrease in the number after the increase has been made unless it be found in the phrase “from time to time.” If it be conceded, as argued by relators, that the words “from time to time” mean that the legislature may at one time malee one increase, and at another time another increase, these words add nothing to the declaration that “the legislature may increase the number of judges of the supreme court,” because without the words “from time to time” that authority rests in the legislature by reason of the-fact that no; limitation is placed upon the number to which the court may be. increased. We must therefore look for some, meaning in the words “from time to time,” or conclude that they were used without purpose. These words are defined by lexicographers to mean “occasionally.” The word “occasionally” is defined to mean: “As occasion demands or requires; as convenience rer quires; accidentally, or on some special occasion.” But whatever may be the technical meaning of the words, they certainly cannot be held to mean that the legislature may not decrease the number of judges after the increase thereof. If, therefore, the legislature has power to increase the number of judges as occasion or convenience requires, and there is no restriction upon a decrease, except below five, it follows that a decrease may be had to this minimum when necessity or occasion requires, of which necessity or occasion the legislature is the exclusive judge. Again, the fact that the constitution has placed a minimum limit and permitted an increase in the number of judges is a strong inference that the increased number may be reduced to the minimum. Furthermore, the legislative and the executive branches of the state government have placed this construction upon their powers^ and, where these co-ordinate branches have construed a constitutional provision and acted upon it, great weight will be given thereto. State ex rel. Dustin v. Rusk, 15 Wash. 403 (46 Pac. 387).

2. Does the act conflict with the provision relating to the teams fixed by the coiastitution ? Section 3, art. 4, of the constitution, provides:

“The judges of the supreme court shall be elected by the qualified electors of the state at large, at the general state election, at the times and places at which state officers are elected, unless some other time be provided by the legislature. . . . After the fii’st election the terms of judges elected shall be six years from and after the second Monday in January next succeeding their election. If a vacancy occur in the office of a judge of the supreme court, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall take place at the next succeeding general election, and the judge so elected shall hold the office for the remainder of the unexpired term.”

The term fixed by this provision is six years, and ap>plies only to judges elected. This term begins on the second Monday in January next succeeding an election, and cannot be changed, by the legislature. Meeham, Public Officers, § 387; Throop, Public Officers, §311; State ex rel. Dyer v. Twichell, 4 Wash. 715 (31 Pac. 19). The vacancy here referred to is evidently intended to apply to a vacancy which shall continue beyond an election and for the remainder of the unexpired term. The unexpired term referred to is the remainder of the six-year term. The clear intention of this section of the constitution is (1) to require that the judges of this court shall be elected whenever there is an election at which they may be elected; (2) that the terms of judges elected shall be six years; and (3) that appointive judges shall not serve for a longer time than the next succeeding general election and the qualification of a successor. There is no limitation, either express or implied, upon the legislature to mate appointive terms extend to an election. The limitation is that, where a vacancy occurs which extends beyond an election, then an appointee shall hold until the next succeeding general election, and until the qualification of a judge to fill the vacancy. It cannot be said that all vacancies which occur in the membership of this court may be filled by an appointee from the time of the appointment to the next succeeding general election, because a vacancy may occur after the election of a successor to one of the elected judges, and before the expiration of his term,where no election intervenes, which vacancy could be filled by appointment only until the expiration of the term. State ex rel. Babcock v. Black, 22 Minn. 336. Por example, the regular elective term of Judge Reavis expires on the second Monday of January, 1903. His successor will be elected regularly in Hovember of this year. Ho other general election will be held until Hovember, 1904. If Judge Reavis should resign on the day following the election in November next, and the governor should appoint a person to fill the vacancy occurring by reason of such resignation, if certainly cannot be held that such an appointee may hold office until the next succeeding election, two years hence, and thus deprive the regularly elected judge from taking office on the second Monday in January next succeeding his election. The term of an appointive judge, therefore, is not fixed, except that it cannot extend beyond an election and the qualification of his successor, or to the end of the term. When the term of judges elected was fixed at six years, it was intended thereby to distinguish elected judges from appointed judges, and to fix the terms of elected judges for a definite time, and to limit the terms of appointed judges to the next election. Within that limit the legislative power is complete. It may provide for a term of any length of time up to the succeeding general election. This term is appointive. But if a vacancy is created which extends beyond an election, the provisions of the constitution apply, and the legislature has no authority to change or modify the “terms” therein contained. The act in question does not attempt to change or modify the terms of judges elected. It undertakes to create a vacancy and to terminate the vacancy, at a fixed time before an election can take place, and before an elective term may begin ; and this, we hold, may be done, because there is no fixed constitutional appointive term. It is certainly not necessary that a general act be passed, increasing the number of judges for an indefinite time, and that subsequently another act be passed, decreasing this number. What may be done by a legislative body indirectly may be done directly. The act in question is not in conflict with any constitutional term, and in so far as it increased the number of judges of this court temporarily, was not in conflict with any provision of the constitution.

Thei writs prayed for will be denied.

Fullerton, Hadley, Dunbar, and White, JJ., concur.