( ' 1 :
c. ' THEORECOX STATESMAN; THURSDAY. JANUARY, 22, 1020, . r
I " I .1- I- HUM! . ., . . (
I "' rf
ijer of the governor' term or only J Justice Bennett expressly bases hi
s portion ui iu reuiamuer, i conclusion upon Chad wick t Ear-
It seems to me the holding of the (hart and says that, were it ,' tn...
court in the Chadwick case, that the! the Chadwick case, he ouli come
Wee or governor uevoiveu. upon in to a different conclusion. An analv-
sccretary or state ior me lull term sis of the opinion written by Mr
of the outgoing governor, carryinp, Justice Johns will show that the
with it an me ttunouies oi mat or- case of Chad wick v. Karhart is tak
flcetn the hands or him who had re-Ieii as the Pole foundation an th..n
tlgned. Including the duration of the upon it as such foundation is laid the
term, wa necessary to that decision, whole urgmnent ior the conclusion
god Indeed was the very foundation filially reached. This is equivalent
upon wnicn me decision was based, to saying that because, and only be
That beini? true, it follows ' that cause, of wisat was decided in Chad
wt must ao hold in this case unless wick t. Earhart it is now here de-
ve are reauy io overrule me tna.1- ciueo. mat Ben W. Olcott is entitled
wick decision and disturb again what to serve a? governor until the ex
vat owe settled thereby, because pi ration of the term for which
rar own individual Judgments or James Withycombe was elected If
the individual judgment of the ir.a- this Is a correct statement then it is
jorlty of us dirfers from the Judg- accurate also to say that a majority
meat of the preceding tribunal. This of the court would not hold that a
I m not wining io ao. governor could be elected In No-
How can anything In relation to vember, 1720. were it not for th
these great constitutional matter, decision rendered in the Chaduicb
te settled. If one court does not fol- lease.
Jow the precedent or another? flow ir the case of Chadwfck v. Earhart
ran we expect other courts In the I lad never leen brought and if the
utnre to iouow our decisions ir questions necessarily decided in thai
wt. ourselves refuse to follow the case were now for the first time pre-
decitioAS of those who have gone eented K would, for reasons which
before. If overthrow the deci- to me appear to be not only per-
sionln the - Chad wick case because suasive but also convincing, construe
tome of us now believe that the con- Article V. section 8 of the cinatim-
I. . 1 .J V V. aaj. -1 . A I J ' . .
suiauou ihuuiu uaic ircim uinrieni-1 nun atiierenuy in son re resnects
iy construes, mere is noimnr set- irom me interpretation enre-eH in
un wuiiiit uvmiuuini. i uBuwic. t, tarnart; T.tit since
The next court; cominr aner us i nadwick y. Earhart was nrmtemterf
will find two decisions of this court to a final decision In this court I
In direct ccnflict. One a unanimous
decision by a full court, holding di-
thlnk that under the rule of stare
decisis this court oueht to be bound
rectly that the secretary of state by that decision to whatever extent.
i , t ,v n 1 .... m if I 1 m . .
noias w me niuir uriiu ui lue rnv-i uui no lunner man. it was nece.
rrnor ana our oeciston oy a dividedlsary for the court to go In order to
court to me contrary, vvhlch de-1 dispose of the controversy there pre
cision would the succeeding court be (tented.
bound to iouow, or w,uia it Dei we can all aree that the doc-
lound to follow either? The whole 1 trine of stare decisis Is a firmlr es-
taestion will be thrown Into chaos tablished rule and that li is pecul
iad no one, tinder such conditions, iarly' applicable to controversies in
would know who would be really volving the construction of any glv-
fovernor., in section o; me state constitution.
tJnce tne cinaavricic case was de-I J'ut we cannot all aeree thai, the
tided I think ft has been universally doctrine of stare decisis applies here.
accepted as settling tne question. That we may see if possible, whether
As shown; In the opinion of Mr. this doctrine is properly annlicable
Justice Johns, the different codifierslto the case In hand let us ask: What
wf our laws-rail of (hem learned I Is this rule of stare decisis? When
lawyers since that time, have eia- can we say that the doctrine is ap-
rodied In tvery codification a noteiplicable? And is this case whirh is
to this section of the constitution. I now presented to us for decision
announcing mat ine secretary under properly governed by the rule? As
luch conditions holds over during the writer views the facts, the sit
the entire term. No lawyer could I nation presented in Chadwkk t. Ear
open his code to the constitution I hart Is essentially differed from the
without having it staring him in the I situation presented (here. As the
face. It has stood thus for 35 years. I writer reads the records, it was not
The decision of the- Cnadwick case necessary for the court to decide in
1st part of the early history of the Chadwick v. Earhart and the court
-state. Since that decision, young men did not decide that the secretary of
have grown old. -Children navel slate could hold the office of eov
been born end married and died. An ernor! under the provisions of Art i-
frons his dissenting opinion as follows:
"Howeveri aa the question of
preference between the widow and
the orphan children was not before
the court in that case ireferrins
to a prior adjudication; and there
is much r.iound for distinction be
tween tht priority of the mother
and father on the on? hand and
those Of ihe widow and children
upon the other, we ihum. accord -j
Ing to recognized piinclpleii,
I Mime that the court only intended
to pa upon the question that
was really presented In ttie ca.se
for decision, and that its lanquage
is limited to that quel Ion."
in the historic case of Ogden v,
Sanders 12 Wheat. 212. 332. it was
contended that the opinion rendered
in the prior case of Sturges v. Crown
'.nshield 4, Wheat. 122 was controll
ing: but this contention was an-
answered by Chief Justk-e Marshall
who in the course of his .lustly cele
brated opinion wrote as follows:
"But that decision (Sturges v.
Crowninshleld ) is not supposed to
be a precedent for Ogdcn v. Saun
ders, because the two cases differ
from Ipach other in a material
fact; and it is a peneral rule, ex
pressly recognized by the court in
Sturges v. Crowninshield. that the
positive authority of a decision is
co-existence only with the facta
, on which it is made."
Remembering that "it is not every
remark in a Judicial opinion that
amounts to a judicial decision." that
"general expressions in every opinion
are to be taken in connection with
the case in which those expressions
are used," that the opinion in a "for
mer case must be construed with ref
erence to the particular facts in that
case." that "we must, according to
recognized principles assume that the
court only intended to pass upon the
question that was really presented
In the case for decison, and that its
language Is limited to that question,"
and mat "the positive authority of
decision Is co-extensive only with the
facts on which it is made,' and with
these fundamental rules constantly
in ralnd, let us now narrate the ma
terial facU presented in ChadwicK
vs. Earhart and then let us state the
facta presented in the instant con
troversy and after so doing, let us
then compare the two situations and
ascertain if we can whether the doc
trine of state decisis can be invoked
by the defendant. ,
L. F. Grover was elected governor
at the June 1S74 election for the full
term of four years; and at the same
time Stephen F. Chadwick was elect
ed secretary of state for a like terra.
i The constitution has always provided
entire renefatlon. has massed awar. I rle V. section ft of th rnnetitntir.n
Ithmneii t- -ovi.i. Kion ir i I that the returns of every election for
tare ihcld their biennial sessions, elections. In the opinion uf the writ- 8vernor shall be sealed up and di-
They have not even submitted aa er an analysia of .the facts in Chad- recled to the pear of the house
amendment changing the constitu- wick - r. Earhart. when made and of representatives who shall open and
tion as thus construed. For many comoared with -the facts nrientH Publish them in the presence of both
years now the people have had tht there, will show plainly that the two
opportunity to change their own con-situations are essentially different
stitutlon by the Initiative. No change and that the doctrine of stare de-
Sn this regard baa been made or evenlcisls has no application whatever to
nffomri- i . Ilh nivurl -n mram V
Hay we not assume fairly, that
houses of the legislative, assembly;
and in 1878. as now. the law also
provided that the term of office of
the governor ceases when his suc
cessor, having been declared elected
by the legislative assembly as pro-
Exnressed In nlain ' Enelish the """'J.."
the people and Oie legislature, hare doctrine of stare decisis means: To T,r?J. V- olT. Si.
the unexpired term of the said L.
F. Grover .
The language already quoted
makes it plain that Earhart conceded
that Chadwick was entitled to the
salary of governor from February 1.
1877, to and Including September 9-
1878, but that he denied and was
only contesting the right of Chad
wick to draw the governor's pay for
September 10th and lltb, two days,
on the ground that the right of Chad
wick to perform the duties of gov
ernor ended with the end of his term
as secretary of state. If. however,
we assume for the purposes of the
discussion that the pay for those
two days was not the only point in
controversy, yet all will no doubt ad
mit that it was the main point pre
sented for decision, for we find the
parties saying in their agreed' state
ment of facts that "Mr. Earhart ob
jects to the salary being paid from
the 9th day of September, 1878, to
the 11th day of September. 1878
two days on the ground that Mr.
Chadwick was not secretary of state
arter" September 9th.
The instant case presents an en
tirely different state of facts. Ben
W. Olcott was re-elected secretary of
state at the 1916 election and bis
term of four years as such officer
will expire on the first Monday In
January. 1921. James Withycombe
was re-elected governor at the No
vember, 1918, election, and if be had
lived to complete his term of four
years bis Incumbency would not end
until 1923. But James Withycombe
died on March 3. 1919. and since that
time Ben W. Olcott has been dis
charging the duties of governor.
Having stated the essential facts
involved In the two cases let us now
compare them and ascertain whether
the doctrine of stare decisis has any
application. In the Chadwick cas-
there was an unexpired term and it
was referred to by the parties in
their agreed statement of facts as the
'remainder" of G rover's term; and
naturally the court, when passing up
on the case used the langnage of the
parties and referred to the only un
expired term then being considered
as the "remainder" of the term. In
the instant case there is also an un
expired term and therefore a "re
mainder." but the "remainder" in
one case is essentially different from
the "remainder" in the other ca&.
Grover served through the first elec
tion occurring after his inauguration.
but Withycombe did not. The "re
malnder"vjn the Chadwick case cov
ered a period embracing only one
election, the "remainder" in the in
stant case covers a period embracing
two elections. During the "remain
der" mentioned in the Chadwick case
an election occurred and at that elec
tion a governor was elected. In the
Chadwick case the question as to
whether, a governor could be elected
was not and could not have been de
cided, because a governor was in
truth elected. In the Instant case no
governor has yet been elected and
the very question In dispute and. the
only question to be decided is wheth
er a governor can be elected. The
been satlsnea iwwn me constitution stand by orecedents. and not -to Al-
as it was considered in the Chad- turb settled points; a point once de
wick case? i cided ought to stand as settled and
Jt is true that our system of fill- should not be disturbed. In other
' In r our office la generally by elec- ords. stated In general terms, but
tion rather than by,( appointment, i subject to the limitations yet to be
Hut when the eecretary of Mate takes noticed, whatever points were nec
tfis office cf governor he takes it inlessarv to bo decided in r-hadwicir v.
some sense by election. The people. Earhart in order to reach the filial
when they elect a secretary of state, conclusion there expressed should be
know that in case of the death or considered as settled and ought not
resignation or mo governor, n win 1 to be disturbed.
U . 1 1 1 A - , A 1 . 0 I
w, q.-- .v- -i-i i- v. m..i A Tn rue of tar decisis Is not a
iwple knew uJ pte4 th t ubAe(1 llmAu
uia.1 ne wonta Dconic oTtrrnor ior
the entire - remainder of the gover
nor's temt- When they elect a sec
retary of state they jmay fairly be
presumed o have elected him for
that purpose and with these things
in' view; and we may. assume that he
Is their choice to fitl that position in
cue of the death or resignation of
the governor. i
I - Of course if there is no vacancy
It the office of governor Is already
filled, by an incumber t who has th
right to hold the office lor the en
tire term for which Governor Withy-
flee. Prior to 1908. the law pro
vided that the term of office of sec
retary of state, state treasurer and
state printer "shall cease on the first
day of the regular session of the leg
islative assembly next following the
general election on which the terms
oi their successors snail begin.
neadys Co?e p. 711: section 34 41
L.O.L. Prior to 1885. the biennial
sessions of the legislative assembly
began on the second Monday in Sep
tember in the even numbered years.
but commencing with 1885 the ses
sions bave begun on the second Mon
In Hough v. Pot -I day in January in the odd numbered
ter 51 Or., 318. 410. 9a Pac. 732, years. The legislative assembly of
88 fac. 1083. this court said: 1x76 elected L.. F. Grover United
"It is well settled that no case States senator; and on February 1.
can bo deemed & precedent bind- 1877, Grover resigned as governor-so
4ngr upon the court unless the that' he could assume the duties of
point in question was there pre-1 United States senator. W.W.Thayer
sented or considered " I was eleeted governor at the June
The following terse statement ap-l 178 election, and at the same time
pears in Johnson v. Bailey, 1 7 Colo.
59, ,28 Pac. 81:
"it is not every remark In a
judicial opinion that amounts to a
Judicial decision."
See also:- People tex'rel. v. State
combs was elected then there is no 1 Board of Tax Commissioners 174 X
governor now to be elected, and tha
petition of. the relator must be de
nied, t
I cannot see any escape from tlis
result
Tlj Justice-Harris
Harris, J. (Dissenting.) The re-
Y 417. 67 N. E. 69, 105 Am. St.
Rep. 674, 63 L R. A. 884. 895:
MAdams v. Bailey 169 Ind. 518. 82
N..EV 1057, 124 Am. St. Rep. 240;
13 L. R. A. (N. S.) 1003. 1009. In
Cohens v. Virginia 6 Wheat. 264,
399. Chief Justice Marshall used the
following language which has been
text writeri and jurists
"It is a maxim, not to be dis
regarded, that general expressions,
in every opinion, are to be taken
in connection with the case in
which those expressions are used
If they go beyond the case, they
latortendsthr legal voter, fedly quoted with approval by
of Oregon have the right to elect a
governor at the regular biennial
election to be held in November
1920; while it Is argued, in behalf
of the defendant, that Ben W. Ol
cott who is now occupying the of
fice of governor is entitled to con
tinue to perform the duties .of gov
ernor until January 1923. The ques
tion for decision has received the
careful Consideration of all the mem
bers of the court, but with the re
salt, however, that all do not reach
the same conclusion. A majority of
the court are of the opinion that th
segal voters of the state cannot
choose a governor until the biennial
election occurring in 1922 and that
Ben W. Olcott can occupy the office
of governor until January 1923. not
withstanding the fact that his term
R. P. Earhart was elected secretary
of state. - The legislative session
which was held in 1878 convened on
the 9th day of September. The
speaker of the house of representa
tives having published the returns
of the election for governor in the
presence of both houses of the legis
lative assembly, W. W. Thayer took
the oath of office on September 11
187.8. Thus It is seen that the term
for which Grover was elected gov
ernor began In" September 1874 and
ended on September 11. 187S; and
it is likewise seen that the term for
which Chadwick was elected secre
tary of state began in September
1874 and ended on September 9
1878, and Earhart's term as secre
tary of state began simultaneously
with the ending of Chadwick's term
as secretary of state. Chadwick per
formed the duties of secretary of
as secretary of state will expire on
ths first Monday In January 1921 Mich. 96. 101. the court used
and In spite of the fact that a Teg-1 following apropos language:
lata riiirlnar his entire term as such
may be respected, but ought not officer ana in addition to performing
to control the judgment in a sub-1 th. Hntu. of that office he also dis-
sequeni suit, wnen me very poim chargei the duties of governor from
as preseniea ior aecibiun. mil February 1. 1877. the date of Grov
reason of this maxim is obvious. reiirnation until Sentember 11
ine question actually Deiore mc 187g tne date of Thayer's inaugura
court is mvesugaiea wun care. Uon as governor. Chadwick de
and considered in its full extent, manded of Earhart as secretary of
Other principles Whiah may ser'.e I stat a warrsnt for 12. 420.75 cover
to Illustrate It. are considered in lng the gaiary 0f governor for the
meir reiauon to ine case aeciuea. n-rlnd commencing February 1. 1877
hut their possible bearing on all and ending September 11, 1878.
Upon the refusal of Earhart to issue
the warrant, Chadwick hegan a pro
ceeding for the purpose of compell
ment does not solve the problem,
then the question must be deter
mined by general legal principles
governing vacancies In elective of
fices. Article V section 8 of the constitu
tion reads as follows:
"in case of the removal of the
governor from of rice, or or his
death, resignation, or inability to
discharge the duties or the office
the same shall devolve on the sec
retary or state; and in case of the
removal from office, death, resig
nation, or inability, both of the
governor and secretary of state,
the president of the senate shall
act as governor, until the disability
be removed, or a governor be
elected."
Article XV section 1 provides that:
"All officers, except members of
the legislative assembly, shall hoiU
their of rice until their successors
are elected and qualified."
Under the terras of these sections
of the constitution Ben W. Olcott can
hold the (office of governor until a
governor is elected and has quail-,
fled; but these sections do not tell
us when that governor, who is to be
elected, can be elected; nor does any
other section of the constitution con
tain language which alone and In ex
press terms tells us that the gov
ernor, who is to be elected, shall be
elected In 1920 or in 1922.
It is contended however in behalf
of defendant that Article V, section
8, takes the office of governor out of
the general rule which regulates oth
er offices, and that the office of gov
ernor is an exception to the general
rule. The argument is that there
never had been a vacancy in the of
fice of- governor. This argument pro
ceeds on the theory that when the
people elected Ben W Olcott as sec
retary of state they also at the same
time elected him governor and that
therefore when James Withycombe
died and Ben W. Olcott assumed the
office of governor he became an
elected rather than an appointed gov
ernor; and that Oicott's accession to
the governorship was contemporane
ous with Withycombe's decession, so
that there was not in fact any va
cancy In the ofrice of governor. This
argument that Ben W. Olcott Is an
elected governor is answered by oth
er sections of the constitution. Arti
cle V, Section 1. of the constitution
provides that the governor shall bold
his office for the term of four years
and that "no person shall be eligible
to such office more than eight years
In any period of 12 years"; but it is
also provided in Article II. Section
12, that "in all cases in which it Is
provided than an ofrice shall not be
filled by the same person more than
a certain number of years continu
ously, an appointment pro tempore
shall not be reckoned a part of that
time." The mere reading of these
provisions of the contsltution makes
it plain that Ben W. Olcott is now
serving under an appointment within
the meaning of Article II, section 12,
and that the time so served is not to
be counted as a part of the eight
years period mentioned in Article V,
Section 1. The constitution appoints
the secretary of stats as the person
of secretary of state, then regard-1
less of whatever the rule may be
in the othtr jurisdictions we are
controlled by precedents in this state
holding that a vacancy In an elec
tive ofi'ice, In the absence of an or
ganic or statutory law to the con
trary., causes the oftice io reveit to
the people, the source from whence
It came, again to be filled by them
This branch of the case need net !.
elaborated further, for It is fully
discussed In the precedents relied
upon in State ex rel. v. Kellaher 30
Or. 53S. 177 Pac. 944.
The principle that the death, res
ignation or removal of an elected of
ficer leave a vacancy and that such
vacancy, in the absence of express
legislation to the contrary, shall be
filled by the legal voters at the very
next regular election, if there be suf
ficient time, has been recognized and
and invariably followed and applied
during an unbroken period . of 49
years, beginning with State ex rel.
v. Johns. 3 Or. 533, decided in 1870.
and ending with the recent case of
State ex rel. v. Kellaher 90 Or. ZZi.
177 Tac. 914. In State ex rel. v.
Johns a county judge was elected in
June, 18C6 for a terra of lour years.
He qualified in July 1866 but died
in September of that year. The rov-
riior appointed a person to fill the
ffice. but at the June 163 election.
not tne June is0 election, a anc
estor was elected. In Baker v.
Payne 22 Or. 335. 29 Pac. 787. the
legislative assembly of 1H91 created
the ofrice of attorney general and
provided that an attorney general
shall be elected" at the. general
election held in Jure 1894 for theno governor has yet been elected.
question as to whether or not Chad- j to fill the office of governor-In the
wick couia nave neia through two event tne latter ornce Decomes
other cases is seldom completely
investigated."
In Larzelere v. Starkweather 3S
the
nlar biennial election will be hell
throughout the state in November
120. I dissent from the conclu
sion reached by a majority of my
associates: for I am of the opinion
that under the constitution of this
state the people have a right to
elect a governor at the next election.
Although I expressed my views unon!
the subject at some length in Ol-
ott v. Hofr. 181 Pac. 466: yet I
think that lbs arguments advanced
In the instant nroceedin warrant a
re-statement of some of the fac'i
tsrrated in Olcott v. Hoft and jus-
t'fv an amplification) of some phases
of the subject there considered.
It Is argued that the question to
oe decided In this case was deter
mined in the c&pi of Chadwick v.
Earhart. 11 Or. 389, anl that ,on
Ing Earhart to issue a warrant for
the full amount demanded. The
parties submitted the case to the
court upon an agreed statement oi
mind. It is prepared with reference facts; and. among other things, the
to such facts, and when considered parties agreed as follows
In the preparation of an opin
ion the facts of the case are in I
in connection therewith, will gen
erally be found satisfactory. When,
however, an attempt is made to
pick out particular parts or sen
tences, ar.d apply them indiscniu
inatelv in other cases, nothing but
confusion and disaster will be
likely to follow. In other words.
the nnlninn and uec:sion oi a
rouft must be read and examined
as a whole in the light of th!
facts uron which it was bastd
Tlwv ara the foundation of the en
tire structure which cannot with
safety be used without reference
to them.'
This principle was Invoked by Mr.
eauently the doctrine of stare de-1 Justice Bennett when dissenting
flsls is applicable. The case of Chad-1 from the majority opinion in the re-
wick v.' Earhart occupies an Import- cent case of rWilcox v. warren Con-
ant place In this controversy. Mr. i ruction Company; for we quote
Mr. Earhart objects to the sal
ary being paid from the 9th day of
September. 1878. to" the 11th day
of September. 1878 two days
on the ground that Mr. Chadwick
was not secretary of state after
Mr. Earhart was sworn in on the
9th day of September 1878, though
Mr. Chadwick acted as governor
or until and Including the 11th day
of September, 1878."
We also find in the agreed state
ment of facts the following:
"That on the first of February.
1877. the said Stephen F. Chad
wick being the secretary of state
as aforesaid duly qualified as gov
ernor of the State of Oregon and
thereafter discharged the duties of
said office of governor of the State
of Oregon during the remainder of
elections and until ISTS' lf Grover
had resigned on February 1, 1876,
instead of February 1, 1877, was not
Involved in the Chadwick case; the
court neither decided nor attempted
to decide, that question; and indeed,
any attempt to decide that question
would have been the purest obiter
dictum. Since then the question of
whether or not the people could elect
a governor "was not before the
court in the Chadwick case, is it not
manifest that the doctrine of stare
decisis has no application whatever
to the instant case, where the only
question for decision Is whether the
people can elect a governor? And
since the "remainder" spoken of In
the Chadwick case la so widely, so
materially and so inherently differ
ent from the instant case and since
in the Chadwich case the question
which the court was called upon to
decide was so utterly different from
the question now presented for de
cision, is it not clear that "we must."
again borrowing language used in
Wilcox vs. Warren Construction .Co..
"according to recognized principles,
assume that the court only intended
to pass upon the question that was
really presented In the case for dec!
sion. and that its language is limited
to that question?
If the legal voters are permitted to
elect a governor at the November,
1920. election, the person so elected
could not take the oath of office un
til the speaker of the house first
publishes the returns of the election
in the presence of the two houses of
me legislative assemoiy. a secre
tary of state will be elected in No
vember, 1920,- to succeed Ben W
Olcott as secretary of state, and the
person so elected will assume the du
ties of the ofrice on the first Monday
in January. 1921; but by virtue of
the ruling, in the Chadwick case Ben
W. Olcott would continue to occupy
the ofuce or governor not only until
the rirst Monday in January, 1921
but also until the legislative assem
bly convenes In 1921 and the speaker
of the house publishes the election
returns ana tne elected governor
takes the oath of ofrice. The Chad
wick case is authority for holding
that Ben W. Olcott is entitled to the
salary of governor so long as he dis
charges the duties of governor. The
Chadwick case is authority for hold
ing mat Ben W. Olcott is entitled to
occupy the ofrice of governor until
some person is elected and qualifies
for the ofrice. But the Chadwick
case doeB not decide when a governor
can be elected. In the Chadwick cas
a governor had in truth been elected
The election or a governor was an
accomplished fact. There was no oc
casion to decide or to attempt to de
cide whether a governor could be
elected. The most that can be said
for the Chadwick case is that it de
cided that Chadwick was entitled to
occupy the office of gdvernor until
Thayer, who had hcen-Jelected. was
sworn in and assumed-the duties of
the ofHce.
The single question here for deci
sion is whether the legal voters have
a right to elect a governor at the
next election. If the holding in the
Chadwick case does not', when meas
ured by the rules governing the doc
trine of stare decisis, decide that
question, then we must look to the
vacant by death or otherwise, while
vacancies in other offices are filled
by appointments made by the gov
ernor himself. The appointment of
the secretary of state as the person
to fill the ofrice of governor is auto
matic and is made by force of the
terms of the constitution.' but It is
none the less an appointment.
It is further argued that there has
been no vacancy in the office of gov
ernor. Matthew P. Deady, who was
president of the convention that pre
pared the very constitution which we
are now considering evidently eon
strued Article V. Section 8. to refer
to a vacancy In the office of governor
for In the code compiled by Deady
and Lane in; 1874 they gave to Art!
cle V. Section 8, a marginal heading
as follows: "In case of vacancy or
disability"; and it may be noted that
this same marginal heading appears
In every code that has been Issued
since that time. A vacancy in the
office of governor is filled by an ap
pointment and so too is a vacancy in
the office of secretary of state filled
by an appointment. In the one case
the appointment is by the constitu
tion; In the other case it is by the
governor. In the one case the per
son who Is to be appointed is
described by the constitution; In the
other" case the person is not de
scribed and the governor is permitted
to name whomsoever he chooses. In
the one case the appointment is made
instantly; In the other case some de
lay is unavoidably necessary and yet
in both instances the appointment is
mandatory for evtn here the gov
ernor fills a vacancy lv anpointmen
he "shall." not "may" till the va
cancy by appointment. Hut In tne
final ana.viij there hi; won an ap
pointment is both cases; and in both
elected governor can take the oath
o ouice ana assume the dales of
me position Tne case of Chximioir
Earhart does net attord snv fm.n.
daikra for the doctrine of stare de
cisis and the Instant case is not gov-
tmea oy me rule or stare decisis.
Tne governing facts in the Chadwick
case are materially different from
me controlling facts in the instant-
case. In the Chadwick ease thm n.i.
question for decision was whether
Chadwick whd had been elected sec
retary of state could hold the office
of governor during the brief period
of two days which intervened be
tween the end of his term as secret
uary of state and the inauguration
oi an elected governor. Here the
question is whether Ben W. Olcott.
whose term as secretary of state
will end on the first Monday in Jan
uary. 1921. can hold the ornce of
governor lor a period of two years "
after the end of his term as secre
tary of state. In spite of the fact
that there will be a regular biennial
election In November, 1920, as well
as one In November. 1922; there a
governor had In truth been elected,
while here no covernor has yet been
elected; there the only question
which was decided was that the sec
retary of state could hold the orflce
of governor until an elected gover
nor could be Inaugurated.' while
here It Is conceded that the secretary
of state can hold the ofrice of gov
ernor until an elected governor can
be inaugurated; there a governor,
was elected at the very first elec
tion occurring after the office of
governor became vacant, while here'
term of four years and "until his
successor is elected and qualified."
separate sectka of the act pro
vided that In case of a vacancy In
the office the governor "shall" ap
point a suitable person vho "shall"
hold Ihe office until the next gen
eral election when his successor shall
be elected and shall qualify. The
act also made it the duty of the rcv-
rnor to appoint some person as at
torney general as soon as the act
became effective; and accordingly
on May 21. 1891, the governor ap
pointed an attorney general. The
question involved was whether the
appointed attorney general held un
til the election of 1894 or whether
an attorney general could be elec
ted In 1892 to serve until 1894 at
which latter time an attorney gen
eral was to be elected for a term of
four years; and yet. notwithstand
ing the fact that there was ample
reason for holding that the legisla
ture intended that the appointed at
torney general should hold the of
Hce until ;94. the principle of the
right at the very next election to
fill a vacancy In an elective office
by an election was decreed to be to
thoroughly established that It was
held that an attorney general could
be elected ic 1892.
The principle was strictly fallowed
when the death of Frank W. Ben
son caused a vacancy in the office of
secretary of state. Frank W. Ben
son was elected secretary of state
at the 1910 election for a term of
four years; and he died in April.
1911. Td he lived and served
through hla full term he would have
occupied th- office through two elec
tion a. one in 1912 and another in
1114. After the death of Benson
the governor appointed Ben W. Ol
cott on April 17. 1911. The ap
pointee did not serve, as appointee
merely through the next ensuing elec
tion and until the second election,
but noon the contrary at the very
first election after the death oC Ben
son the people voted for a secretary
of state and selected Mr. Olcott and
then in 1916 he was reelected to
the office. Thus It Is seen that the
invariable practice, sanctioned and
enforced bv this court and followed
by the voters, has been to fill a
vacancy at the first election
The provision In the federal con
stitution relating to the president
and vice president do not furnish
any analogy to the provisions of our
state constitution relating to the
governor atd secretary of state. The
federal constitution provides that
tbe president and vice president shai
be elected "together' for "the term
of four years" and consequently up
on the death of the president the
rV IprecMit occupies the offkre
of president until the end of four
years and a president cannot be elec
ted before that tim as the presi
dent, when elected, must be elected
"together" with a vice president,
rovernor was not elected in 191
when Ren W. Olcott was ejected
secretary of state: nor was a gov
ernor elected In 19 1 when Ren W
Olcott wa reelected secretary of
state. If the governor ad the sec-
tetrv of state must be elected "to-
. uether" then the neonle had m right
cases the appointment is made to V I ,t. a secretary of stite !n 1912
a vacancy, for without a vacant
there would be no appointment, i
very fact of an appointment pre-suu
poses a vacancy. The circumsta
that the appointment was Inst a- u
eous does not alter tbe sltua iot
Frank W. Benson was elected tec.-.--
tary of state in 1910, but he died on
April 14. 1911. Ben W. Olcott was
appointed secretary of state on April
17, 1911, so that there was an actual
vacancy from April 14 until April
17. And in passing we may add that
Ben W. Olcott did not take the oath
of ofrice as governor until March 7.
1919. although James Witbycomlx
died on March 3. 1919. In ! -Ben
W. Olcott was elected secret a r
of state. At the very niloment when
the election was being held in lft M
r In 191C with 'the result that
W. Olcott has been holding the
' ' of sreretary of state merely
rr. an appointee since April 1911 and
o time been an elected offl
"wtcr the terms of the federal
coustitulion a president cannot . be
elected at all unless he is elected "to
gether" with a vice ores'dent. N
such language appears in our sUte
constitution.
The reasons for my dissent given
ir Olcott v. "Hoff and assigned htre
nsv be summarised thus: ' If
- ck v. Farhart had never been
-: . and if Article V. section 8
v - constitution had never been
-.n-'oirlv considered by the court
1 w i'd SaVc the view that Ben V
and the only question to be decided
whether a governor ran be elec
ted: there the court, was not called
upon to decide when a governor
could be elected, while here that it -
the sole question for decision. Slnco
tbe Chadwick case does not -decide
or attempt to decide when a gover
nor can be elected, our investigation,
and decision of the question pre
sented here is unhampered and un
controlled by any prior adJudlca--
lon; and therefore we mnst firs".
look to the constitution Itself ani
see whether it tells us when the gov-
roor is to be elected. Upon tuni
ng to that Instrument we find that
Article V, eectkn4 tell s that ' the
grovernor shall be elected by the
qualified electors of the state at the
times and places of choosing mem
bers of the legislative assembly":
and upon further Investigation we
find that November. 1920. Is the
time when and the voting places
throughout tbe state are the places
where the qualified electors of the
state will choose members of the.
legislative assembly. The constitu
tion oi. net state Ir. expresj terras,
nor does it impliedly say. that a gov
ernor cannot be elected at the next,
election ; and therefore we must, on
that account, ascertain what the.
general rules of law are. The rule -In
this jurisdiction has always been
that when an elective office becomes
vacant the legal voters .have the
right In tbe absence of a statute to
the contrary, at the next election. It
there be sufficient time to make use
of the election machinery, to elect
some person to the office This rule
has been enforced by this court In
previous cases; and It has been ob
served bj the voters notaMy when
Ben W. Olcott was elected secretarr
of state to till a vacancy- caused br
the death of Frank W. Benson. Ap
plying the general rule which gov
ern elective ofrices we are then
brought to the conclusion that the
legal voters are entitled to elect j
governor in November. 1920.
For the reason which I expressed
In Olcott v. Hoff and for those given
herein I am unable to agree with
tbe conclusion reached by a major
ity of my associates.
Penson, J. concurs.
V.y Jasttce Harnett
Burnett. J.
1 concur In tbe argument of II r.
Justice Harris In his limitation of
Chadwick v. Earhart. and likewise
I concur in the result oi his opinion.
If the present sec. clary of State
Is now indeed the governor, he can
resign tbe latter office. Such a res
ignation would not affect the duties
l-nposec upon a governor, for there
would still be in offles the present
elected, qualified and acting secre
tary of state, who is charged by the
constitution with tbe pcrtormanee of
those duties until a governor shall
be elected. The secretary of state's
tenure of office as such Is the ut
most limit of his authority to dis
charge the duties of the governor's
ofrice. It is further limited by the
right of the people to choose their
rovernor at the first opportunity af
forded by a general election. The
secretary of state has no other or
additional hold on the gubernatorial
ofrice. It Is only because he is sec
retary that he can perform the du
ties of governor.
Election is the rule and appoint
ment Is the exception In filling va
cancies in constitutional offices. The
exception ought not to be expanded
by construction so as to narrow the
rule. For these reasons I am of the
opinion that the people are entitled
to elect a governor at the next gen
tral election and that the writ
should be ri.de peremptory.
the ofrice of secretary of state w i 'Vccl' rould discharge the duties of
cceupied and filled, by Ben W. t i ; '- o;'ice -jf rovernor only until the
cotl; and vet it Is accurate to s v jend ot his term as secretaty of state.
that Ben W. Olcott. when elect tl .bich will tccur on the first Men
in 1912. was elected to fill a va
cancy caused by the death of Fraat
Flor You can't believe everything
you hear.
Gertie No. but yon can repeat IL
Sydney Bulletin.
W. Benson. And so. too. it a ." -'
ernor is elected in 1920 he will !
elected to fill a vacancy ra'ised by
the death of James Wit'uyeomb in
exactly the same sense as in the cast
where Ben W. Olcott was elected
fill a vacancy In the office of sec
tetary of state.
As the writer reads and construe-i
the constitution the right of the v it
era to elect a governor is the wm"
and no different from the right of
the voters to elect a secretary of
fctate in the event a vacancy occur
In the latter ofrice "y death, resig
nation or otherwise. If. in this
constitution itself for an answer: I resoect. th- office of governor is
and if the language of that instru- subject to the unit rule a th office
AAA 1
tifcy n -January, i . l. an i mi p-t-ver
is selected secretary of state In
NVvmher 1920 would on the first
Mondav in January. 1921. assume
tbe duties of governor and discharge
them diirinz th? few days wnicn
would- Intctvene between tne rust
Vcntla-i In Jennarv and the l,y when
the speaker of the nouse publishes
the election returns for the office
or governor but since It wns decided
Jr. Chadwick v. Earhart that Chad
wick could hold th ofi'ice of gov
ernor until an elected governor could
he inaugurated It follows that Ben
W. Olcott can hold the office of gov
ernor not only until the flirt Mon
day In January. 1921. the dae when
terim s secretary or stte ev
plres. bu' a"'So until such time as zn
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