Montana Attorney General Opinion 15-361

Opinion No. 361 Governol' - Vancancy in Office of Govel'llor - Lieutenant Governor, No Vancancy Upon Succession to Office of Governor HliJLD: Upon the reSignation of the (lo\'ernor the powers, duties and emol- umen ts of the office devolve upon the Licutenant Governol' who discharges such duties in his original capacity. '1'here is no \'ancancy in the office of Lieutenant Governor. October 16, 1033, You have submitted the following 246 OPIXIOXS OF THE ATTOHXEY GEXERAL question for my opinion: "Will you kindly advise whether the vacancy now existing in the office of Lieuten- ant Governor should be filled at the general election to be held in 1934?" On the 13th day of March. the Hon- OI'able .T. E. Erickson resigned as Gov- ernor of the State of Montana, and thereupon the powers, duties and emol- nments of the office de,'olved upon the Lieutenant Governor. the Honorable J!'rank H. Cooney for the residue of the term, in accordance with Section 14, Article VII of the Constitution. which rends: "In case of the faihll'e to qualify, the impeachment or con- viction of felony or infamous crime of the governor, or his death, remo,'nl from office. resignation, ahsence from the state. or inability to discharge tIll' powers and duties of his office, the powers, duties and emoluments of the office, for the residue of the term. or until the disability shall cease, shall de,'o!\'e upon the lieutena nt-govel'llor." Wihile your question assumes that a vancancy now exists in the office of Lieutenant Go,'ernor. it will he neces- sary to determine first whether a va- cancy in fnct does exist in that office. If no vacancy exists, the question of an appointment or an election to fill a vacancy does not arise. 'l'his ques- tion does not appear to have been pre- sented at any time to our Supreme Court for its ruling thereon. A number of other courts in states having" simi- lar constitutional provisions have had occasion to pass upon it. An examin- ation of these cases compels the con- clusion that the Lieutenant Go'-ernol' discharges the duties of Governor in his original capacity and that there is no vacancy in the office of Lieutenant Governor. This conclusion must be reached regardless of whether the Lieutenant Governor is invested with the title to the office of GO\'ernor or only with the powers, duties and emol- uments of the office. In an early California case, PeOI)le ". Budd, 114 Cal. 168, 45 Pac. 1060, 34 IJ. R. A. 46, where the court was re- quired to interpret a similar consti- tutional provision, it was said: "It "ill be seen that in case of a vacancv in the office of governor the vacanc)' is not to be filled, but the powers and duties devolve upon the lieutenant g,?vernor, who does not cease to be lieutenant governor. Under .snch cir- cumstance;; it would hardly be con- tended that when the powers and du- ties of -the go,'ernor devolve upon the lieutenant govenor the latter thereb~' hecomes go'-ernor, 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 n person to fill the vacanc~' in the of- f!ice of Iieutennnt governor. If he could, he would then appoint himself out of office, and it would be his duty to do so." It may be interesting to note in pnss- ing (although the question is elimin- ate(l by our holding) ,that the Cali- fornia Court, in interpreting Sectio'n R. Article V of that State's Constitil- tion, which is almost identical to otir f-1ection 514, R. C. 111. 1!l:!1. (which relllls: "'Vhen an~' officl' beeonlPs ,·acant. and no mode is provided by law for filling such vacancy, the gov- el'llor must fill such vacancy by grant- ing a commission, to expire at the end of the next legislative assemhly or at the next election by the people.") heW that the phrase "the next election by the people" means the next election which the Constitution has provided fOI' filling that pnrticular office. A number of cases are cited in support of the conclusion which the court rCflched. See also State v. Smith, H5 :\[ont. 523, no Pac. 750. It may be observed further, in passing, .that ex- cept for the statute quoted ahm'e. W'.' find no other provision for filling II VHe-ancy in the office of Lieutenant Goyernor or for an election for that purpose. In the absence of some law Huthorizing the election of a Lieuten- ant GO\-ernor, we doubt if nn election can be held. See dissenting opinion People v. Budd, supra. In Nevnda, where the constitutional lH'o,-ision is almost the same as ours, it was held in State v. Sadler, 47 Pac. 450: "The gubernatorial succession rs covered by the foregoing provisions. If a yacancy occurs in the office of go,'- ('mol', the powers and duties of the of- fice devolye upon the lieutenant gOY- ernor, but there is no vacancy cl'Cated thereby in the office of lieutenant gov- ernor. The officer remains lieutenant go,'ernor, but invested with the pow- ers and duties of governor." OPD;IOX~ OF THE ATTOHXEY GEXERAJ. 247 Tn Colorado the constitutional pro\'i- i"ion is practically identical with ours. The court. in People v. Cornforth. 81 Pac. 871, 34 Colo. 107, the case where Govenor Peabody resigned and the duties of the office devolved upon Lieutenant GO\'ernor McDonald. held the president pro tern .. of the Senate could not discharge the duties of Lieu- tenant Governor after his term as Sen- ator expired and another elected in his 1)lace as president pro tern .. as such. discharged the duties of Lieutenant Governor. Tn State v. Heller, 63 N. J. Law, 105, 42 Atl. 151l. 57 L.R.A. 312, where GOY- ernor Griggs resigned and the presi- dent of the Senate Vorhees qualified as his successor but afterwards and hefore .the expiration of the term fol' which Griggs was elected, resigned as Senator and thereupon Watkins, the ~peaker of the House, qualified as Governor, it was held that the powers, duties and emoluments of the office of Goyernor devolved upon the lattel' as he was the de jure Speaker of the House, amI of right as such speaker exercises the executive powers; that Vorhees, upon the resignation of Griggs, continued to be Senator and president of the Senate and that when he resigned and vacated the office of SenatOl;, he ceased to he president of the Senatc and could no longer exer- eil')e the functions pertaining to the executive department. In Arka)lSaS, where the court had under consideration similar constitu- tional provisions, the question was whether on the reSignation of the GO\'- ernor, the then incumbent of the of- 'fice of president of the Senate suc- ceeded to the vacanted office, 01' whether merely as sueh president of the Senate the powers, duties and pmoluments of the office of Govel'llor de\'ol\'ed upon him while he remained l}resident. '1'he court in l!utrell y. Oldham, 155 S. W. 502, said: "The re- sult of our construction of the Con- stitution is that the duties of the office of Governor during a yacancy in that office, devolve upon the incumbent of the office of president of the Senate, lind that a' change in the incumbency of that office works a change in the performance of the duties of the of- fice of Governor. When another pres- ident of the Senate is elected, during a vacancy in the office of Governor. the duties of the latter office devolve upon him from the time of his election and qualification as president." In the State of Washington, where the constitutional pro\'ision was prac- ically the same as ours, it was held ilf State Y. ~fcBride, 70 Pac. 25, that upon. the death of GO\'ernor Rogers. the Lieutenant Governor assumed the duties of Governor. that office of Lieu- tenant Governor did not thereby he- come \'acant and that McBride re- mained Lieutenant Governor, intrust- ed with the powers and duties of Gov- ernor. In Orcgon, in Olcott v. Hoff, 181 Pac. 44{l. the court held that the Sec- retary of State Olcott, who succeeded GoYe1'11or 'VUhycombe, upon the lat- ter's death, was not only entitled to hold both offices but also had the right to draw pay for both. The court sus- tained an earlier case, Chadwick Y. FAlrhart, 11 Ore. 389, 4 Pac. 1180, where it was further held that after the term of Secretary of State had ex- pit'ed he continued to hold the office of GO\'ernor for two days before the new Governor qualified and was en- titled to such pay. This ruling, how- m'er, was based upon the peculiar wording of the Constitution, which the court construed as vesting the title to the office in the individual who was the Secretary of State when the Gov- ernor died. In other words, the in- dividual having been im'ested w~th the title of the office could not be di- vested of such title even though his term as Secretary of State had ex- pired but in Oregon, in both the cases cited, it was held that the Secretary of State, during his term as such, con- tinued to be Secretary of State, as well as Governor. The constitution of Oregon as constrned hy the court i" 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 P.resident of the United States. The Vice-President upon the death of .the President, holds the office of president until a suc(.-es- SOl' to de(.-eased President comes to assume the office. (Merriam v. Clinch, (.i Blatchf. 5, Fed. Cas. No. 9460.) In another Washington case (State \'. Grant, 73 Pac. 470), it was also held that where the Secretary of State 'sue- 248 OPIXIOXS OF THE ATTORXEY GENERAL ceeded the Governor upon the latter's death, the office of Governor and Sec- retary of State were not inconsistent and that the Secretary of State was entitled to recieve the salaries of both. The conclusion we ha \'e reached is the same as stated by the text-writer in 50 C .. T. p. 132, Section 197: "Under cQn- stitutional provisions to the effect that, on the death of the gO\'ernor, the powers and duties of such office shall devolve on the lieutenant governor, on the death of the governor and the dev- olution of his duties on the lieutenant governor, the latter performs the du- ties of governor in his original cap- acity, and there is no vacancy in the office of lieutenant governor." Section 511 R. C. M. 1921 specifies in what manner an office becomes va- cant before the expiration of the term of the incumbent. None of the happen- ings as specified in said section have occurred to cause a vacancy in the of- fice of Lieutenant Governor, and, as we have concluded, the office does not hecome vacant upon the powers, duties and emoluments of the office of Gov- ernor devolving upon him upon the resignation of the Governor. Note: See State ex reI. Damey v. :\iitchell, 97 Mont. 252.