Critchlow v. Monson, Secretary of State , 102 Utah 378 ( 1942 )

I concur in the results and in much that is said in the opinion. Some of the grounds of the opinion are unnecessary to sustain it. As to them I do not care to make a commitment. My best approach is to call attention to the parts of that part of the reasoning in the opinion with which I do not agree, coupling such remarks with what I think are the correct bases.

I think viewed in the light of the purposes of the provision it was not intended to prevent a man who was not a career soldier from at one and the same time holding a state office and going to the defense of his country in time of war as an officer in the United States Army.

The provision was designed for the purpose of preventing any likelihood or possibility of a person exercising functions as an officer of the Federal Government incompatible with the functions of the State Government or which might intrude on the rights or supposed rights of the states. In that sense it was intended to prevent a divided allegiance by one person serving two governments. All the war powers are given to the Federal Government. It wages war for the states as a single nation under the title of the United States. There is no possibility of conflict or incompatibility. If there were such possibility I should say the provision would apply even though the state officer was in a situation where he would be required to accept a commission as an active officer of the United States Army because our constitutional fathers might have said in such case: "Unfortunate though it is that you must lose your position with the State, because of the call of your country, it is better that you have no connection with the State office you are occupying." It is because I do not believe that there is any reasonable possibility of incompatibility that I think the decision correct.

I think the basis for the decision is expressed in the words of the opinion reading as follows:

"We have already held that ordered military service by an officer of the State who is not a career soldier, in time of war, whether his service be that of a private or a commissioned officer, was never intended by the constitutional convention to be prohibited."

I therefore see no occasion for basing the decision on any construction of § 27, Art. VIII of our Constitution, and I do not concur in that part of the opinion. Nor do I see any relevancy in the quotation from the case of Arver v. United States set out in the opinion. It seems to meet an argument that conscription of citizens for military service was against the 13th Amendment of the Constitution of the United States. Nor do I see the relevancy of Art. XV of our Constitution; nor of 54-1-1, R.S.U. 1933; nor of § 10, Art. IV of the Constitution of Utah. The Constitution of Utah may place conditions and limitations on the right to hold a state office. There is nothing — not even the Federal Constitution which could prevent our Constitution from disqualifying any state officer from holding any Federal office — civil or military. The point is that § 23, Art. VII of our Constitution was not intended to require one responding to an order to assume an office in the United States Army to forfeit his state office. And that is all there is to the question. The fact that the Federal conscription of citizens of the United States is not involuntary servitude under the 13th Amendment of the Federal Constitution nor that the fact that Art. XV of our Constitution provides for a state militia and describes its constituency nor that "not even judges are ex empt from state militia service" (§ 23 of Art. VII of our Constitution does not deal with the contemporaneous holding of two state offices — whether military or civil) nor that § 10, Art. IV of our Constitution and Art. VI of the Constitution of the United States require an oath by State judicial and executive officers to support and defend the Constitution of the United States, have much to do with the question at hand. In spite of all these provisions it may lie within the power of the people of this state through their constitution or through legislative enactment to prohibit an officer of the United States Army even compelled to go into federal service during an emergency from continuing an encumbency in a state office. If the implication from § 10, Art. IV of our Constitution or from Art. VI of the Constitution of the United States is that the State cannot prohibit persons appointed or ordered into services of the United States as military officers for an emergency from contemporaneous encumbency in state offices, then perhaps it cannot prevent them from such encumbency when they support the Federal Constitution by responding for a call to fill a Federal civil office connected with the war effort. The only comfort I can draw from these citations is that they tend to be persuasive of the proposition that the framers of our Constitution, in view of the other provisions of our Constitution and those of the Federal Constitution mentioned, did not intend § 23 of Art. VII to apply to compulsory officer service in the Army of the United States for the period of an emergency. If the opinion cites them for any other purpose, I cannot subscribe. The opinion seems to imply that since Mr. Justice Pratt took the judicial oath of office to support the Constitution of the United States (which oath is required by the Federal and State Constitutions) § 23 of Art. VII of our Constitution could not be made to apply to him; that we could not constitutionally prevent a Federal military officer from holding a state office at the same time. Whether it could or not need not be decided. Suffice it to say that § 23, Art. VII was not intended to prevent such dual holding.

Nor do I concur in the implication that McCoy v. Board ofSupervisors of Los Angeles County, 18 Cal. 2d 193, 114 P.2d 569, is a correctly reasoned case under the language of our Constitution. That case founded its decision on the theory that there was a severance from the State office but that the legislature had given the officer called to military duty a preferred right to fill the vacancy or regain his office after his period of duty with the army had ceased. Under that reasoning I think there would be a vacancy in the office to which Mr. Justice Pratt was elected and it would be required to be filled as provided in § 10 of Art. VII, and not otherwise. The legislature could not pass an act permiting a vacancy to be filled by the former encumbent returning and demanding or requesting it. Chap. 105, Laws of Utah 1941, neither aided § 23, Art. VII nor affected § 10, Art. VII. As a legislative enactment it would not enlarge the intendment of the Constitution. What it really accomplished was to put its State officers who were called into the Army on a leave of absence status if they requested it. It recognized that it would be impossible in most cases to perform the duties of both the State and Federal office. Unless the encumbent of the State office could place himself on a leave of absence status from the office his functional absence might itself be construed to be an abandonment in fact. Abandonment by a failure to perform the duties of an office is not the type of forfeiture or abandonment which the cases have held took place automatically when a state officer accepted an office under the government of the United States. It also resulted impliedly from Chap. 105, Laws of Utah 1941 that the State would not pay the officer his salary while he occupied an office in the armed forces even though he still occupies the State office, although that result may have followed without Chap. 105 from the mere fact that it would have been impossible to function in the two offices.

I see no necessity of bolstering up the conclusions of the opinion by drawing in a discussion of § 27, Art. VIII of our Constitution which deals with a gubernatorial extension of the 90 day leave from the State permitted by the section. I think a discussion of what constitutes an "extreme necessity" should be posponed to a time when that question is raised. I am not prepared to say that there could not be a wholesale hegira of State officers into Federal service outside of the State under the aegis of such interpretations of that provision.

I agree that the Constitution is silent as to the right of the Governor to appoint an officer pro tem during the leave of absence of the encumbent. While I have no reason to disagree with the intimation seemingly contained in the opinion that the legislature has power under the Constitution to grant the governor the right to appoint during a leave of absence permitted by Chap. 105, Laws of Utah 1941, a justice pro tem, there is no occasion for deciding such question at this time. Certainly we are under obligation to give the legislature the benefit of every reasonable doubt in resolving the question of constitutionality. This principle applies where the case is argued and submitted. Where the question is not even before us, we should be doubly careful not to conclude that such power was withheld by the constitution.

I see no necessity to discuss the question of what constitutes "disqualification" nor how absence due to disqualification can be filled. It suffices to say that the absence of Mr. Justice Pratt has not caused a vacancy as meant under § 10, Art. VII. The question of whether, by taking leave, Mr. Justice Pratt has disqualified himself as meant by § 27, Art. VIII of the Constitution may be reserved. I am not prepared to concur or dissent in that part of the opinion.