Honey v. Graham

Walker, J.

A majority of the court have arrived at ', an opinion in this case which I am authorized to express.. To this, however, may be added by my brother Me Ado o his own reasons for the opinion.

The 1st Section of the 4th Article of the Constitution creates the office of State Treasurer, and makes it a branch or subordinate department to the executive, oven which the Governor is chief. The 7th Section of the same article implies an authority in the Governor over the- different branches of the executive department. He is authorized at any time to require information in writing from any of the chiefs of this department concerning the business of their offices.

It may be somewhat difficult to determine the precise boundary line of this authority, or how far the Governor is himself officially responsible for the safe and efficient management of the several branches of this department.

The action of the Governor in the case at bar is not without precedent. Ohio, Mississippi and Louisiana, -have furnished similar cases. The -late Chief Justice of ■the United States, when occupying the executive office of Ohio, upon information duly brought to his notice, seized ■the treasury department and ejected a defaulting officer.

But mere precedent, to acquire the force of law, must in the first place rest upon the sound principles of law and reason ; it must be acquiesced in and uncontradicted by paramount authority.

No doubt is entertained of the authority of the Governor to appoint a Treasurer of the State when a vacancy -exists in that office. The inquiry then to which we may -.■safely confine this opinion is, was there a vacancy in the office of State Treasurer on the twenty-seventh of May, 1872?

What information we have on this subject aside from the other evidence found izz the record, is contained in the Governor’s proclamation of that date. To this State paper we must look for information as to the motive, reason and facts to sustain the judgment of the District Court.

Taking the proclamation of the Governor as true, aside from the legal conclusion that a vacancy existed in the office, do the facts justify such a conclusion?

The Governor declares in his proclamation, that George •W. Honey, late Treasurer of State, had absented himself from the limits of the State—not on public business, and "without leave of absence — leaving no bonded or responsible clerk, but leaving a man acting as such who, when called on to give the bond required by law, was unable to do so. These are the facts stated in the proclamation, from which a vacancy was inferred, and the .appellee appointed to fill the vacancy.

'The proclamation contains no charge of malfeasance, "misfeasance, fraud, or peculation against the appellant. A zealous effort, however, seems -to have since been made "to establish these charges against him. If true, they •could in nowise justify the Governor in depriving the ; appellant of his office by forcible ejectment therefrom.

The 16th Section of the 1st Article of the Constitution •reads thus: “Ho citizen of this State shall be deprived -of life, liberty, property, or privileges, outlawed, exiled, -or in any manner disfranchised, except by due course of the law of the land.”

The right to hold and exercise the functions of an office to which the individual may have been duly elected, may be regarded both as property and privilege, and therefore the incumbent can only be deprived of his office " in the manner pointed out in the above quoted section of the Constitution. It may be safely admitted that more than one case might occur where the Governor would be ■authorized in assuming that an office was vacant; but no case can occur under our Constitution wherein the Governor would be authorized to adjudge an office forfeited.

Judgment belongs to the judiciary. A charge of forfeiture can only be made out on proof—proof sufficient to ■satisfy twelve unprejudiced minds.

To forfeit his right to an office, the incumbent must have done something sufficient in law to deprive him of the office; and the Constitution and laws secure to the person so accused the right of traverse—the right of trial— and no power on earth can lawfully deprive ham of these rights.

But it has been assumed on the argument of this' ease, that a great emergency existed requiring the removal' of George W. Honey from the office of State Treasurer,, and that the Governor, as in duty bound,, promptly met" the emergency.

Under a system of laws so well devised as ours, it is-", safe to assume that no such emergency can arise or cast: itself upon the Governor as would authorize him in assuming power and functions which do not constitutionally belong to him.

In our opinion, the argument does the executive great" injustice. The reason for his action is doubtless candidly stated in his proclamation, and there is here no assumption of any power to declare a forfeiture of the office.

There is no fact stated other than that, from which it must be inferred that the Governor acted upon the theory alone, that the appellant had voluntarily abandoned the-office; and the majority of this court concurring in this, opinion in nowise hold the executive responsible for any assumption of power on his part such as is assumed byappellee’ s counsel.

The power of the Governor to fill a vacancy, when one-exists, is not disputed. The power to create a vacancy is denied by every authority, except where the office is filled by the Governor’s choice of am incumbent without concurrence of the Senate or election by the people, and the term of office is undefined by law. In such case the incumbent holds at the pleasure of the executive, and may be at any time removed from the office. (Keenan v. Perry, 24 Texas, 253; Hill v. State, 1 Ala., 599; Bowman v. Slifer, 25 Penn. S., 29; 13 Peters, 259; Lowe v. Commonwealth, 3 Met., 213; Page v. Hardin, 8 B. Monroe, 648; Brown v. Grover, 6 Bush, 1; Cummings v. Clark, 15 Vermont, 653; Johnson v. Wilson, 2 N. H., 202; People v. Fields, 2 Scammon, 79.)

The argument in this case by appellee’s counsel goes even beyond an assumption that the Governor may adjudicate a-question of forfeiture; it claims that the adjudication is final, and from it no appeal can be taken.

It is said by counsel, “The Governor had cause to believe that the Treasurer had- not only absented himself from the State, without leave, for an indefinite period, -and that the person left in charge of the Treasury had never qualified or executed a bond, but that both the Treasurer and the person claiming to act as his chief clerk had been guilty of gross malfeasance, misuser and nonuser. Shall the Governor calmly fold his arms, witness daily unlawful execution of so important a trust when he has power to fill a vacancy, and is required to take care that the laws be faithfully executed, simply because the '.Treasurer is liable to indictment and impeachment ? Sup■pose the Governor had preferred charges against him (as was the case), no trial could be had at the first term, and if convicted at the next, he has the right of appeal, which ’would necessarily delay the case for twelve months or more. It is no answer-to say that it is better the State ■ should suffer these inconveniences and delays than that -due course of the law of the land should not prevail.”

This argument is very bold—apparently very candid— >but in that it assumes that the Governor may in any case (deprive a citizen of his constitutional rights, it is not less •bold and candid than it is false and dangerous. The '“law’s delay and inconveniences” may now and then prejudice an individual, or the State may suffer thereby, Tint the argument in this case is simply revolutionary, and if reduced to its legitimate sequence, is the justification of the mob, it is the logic of revolution, it is the license dor illegal violence. The Governor never intended this; nothing in his proclamation convicts him of any such heresy. He has stated distinctly and unmistakably the-reasons which led to his action, and any presumption which would lead to a different motive or reasons than, those expressed would convict the Governor of insincerity to the people of the State, and found against him, in our-opinion, a most unjust charge.

Certainly it would be better that every dollar in the State treasury should be stolen, the vaults and safes-thrown into the river and the building reduced to ashes, than that the Governor should, in one jot or title, violate- or impede the due course of the law of the land. The Governor, as our chief magistrate, we look to for an example of obedience to the law; he is the sworn defender-of the Constitution on which life, liberty, property and the pursuit of happiness depend.

Believing, as we do, that the Governor acted upon the-facts stated in his proclamation, in view of the authority vested in him by the 7th Section of the 4th Article of the Constitution, how does his action affect this case ? He has neither adjudicated nor assumed to adjudicate any question of forfeiture, but he has acted upon a state of facts - which, when duly and impartially considered, if they do not fully justify his action, certainly go a great ways in-, that direction in a moral point of view.

On the twenty-seventh of May, 1872, he finds the State Treasurer to be absent in a distant State, without leave from public authority, not sent for the transaction of any public business; with him the principal members of his. family, the intended period of his absence unknown, the • community rife with rumors, however false they may have been, of fraud and peculation in the treasury; the chief clerk in charge of the treasury without an official bond, the amount of money and property in the-treasury-largely in excess of the Treasurer’s bond—these were facts calculated to alarm, and no doubt did alarm, the executive, and especially considering his own constitutional responsibility over this department. That there was really nothing in these facts to have alarmed the Governor, could not, in the nature of things, be known to-him at the time.

Looking at the conduct of the executive merely in a moral point of view, his conduct is not such as might not' be expected in a prompt, vigilant and faithful public servant. But that he mistook the facts, at least so far as-they relate, to an abandoment of the office, and was thereby led to an undue exercise of power in appointing the appellee, we have no doubt.

And now we come to discuss the only question of real importance involved in this case. The authorities already referred to distinctly and unmistakably lay down the rule that there can be no abandonment of office without the intention to abandon it. (State v. Pritchard, Law Register, August number, p. 514, decided by Supreme Court of New Jersey.) The very word itself implies active volition; it involves a voluntary act. This voluntary act might bé proven, if it existed; but it has not been proven in this case. Ho part of the evidence is strong enough to raise the presumption that the appellant, in his own mind, ever intended to abandon his office. In the case of Page v. Hardin, 8 B. Monroe, the’ law is so clearly stated in the opinion of the Chief Justice, and the case is so strongly analogous to the one at bar, that it would seem we ought to have but little trouble in deciding this case.

Hardin had been elected Secretary of State. The law required him to reside at the capital, which he persistently refused to do. The Governor declared.the office vacant, and appointed Kinkaid to fill it. Hardin sued out a mandamus against Page, to compel the payment of his salary, and thus the question.came before the courts. The Chief Justice, says in his opinion: .

“Acknowledging the respect which we sincerely feel for the opinions and character of the Governor, whose acts are now brought in question, as well as that which is due from this department to the official acts of every Governor, we are bound to inquire whether the vacancy assumed either actually existed by. virtue of the facts alleged in the executive declaration and judgment, or was produced either by that act or the act of appointing a successor to fill .it. * * * Conceding, without deciding, that an office may be made vacant by abandonment, and that there may be such evidence of it as to -authorize the Governor to consider the office vacant, and to fill it by a new appointment, still, unless he can by his own will'or judgment put an end to the rights of an •officer, or to his continuance in the office, the concession would have no plausible support in law or reason, except upon the ground that there should be unequivocal evi-dence of the voluntary rejection or resignation of the office.”

No such evidence existed in that-case, nor is it found in the case at bar..

I readily conceive that a right may be forfeited or lost by a nonuser or misuser, though the party continue to .assert it; but the determination of the question, whether it be lost or not, is not a question for executive determination ; there must first be a judgment of amotion before the executive can fill the vacancy.

We therefore come to the conclusion, that the judgment •of the District Court is erroneous, and that George W. Honey is entitled to the office of State Treasurer; and .•such is the judgment of this court, reversing the judgment of the District Court.

Reversed and rendered.