CHADWICK v. EARHART, SECRETARY OF STATE.

Filed November 20, 1884.

SECRETARY OF STATE BECOMING Governor--SALARY AND DURATION OF TERM OF.--Under section 8 of article 5 of the constitution, upon the removal of the governor from office, or upon his death, resignation or inability to discharge the duties thereof, the secretary of state becomes governor, and, consequently, entitled to the salary appertaining to the office, and continues as such for the remainder of the term of the outgoing governor, although in the mean time he may cease to be secretary of state.

APPEAL from a judgment of the circuit court of Marion county. The opinion states the facts.

R. Williams, for the appellant.

Holmes & Hayden, for the respondent.

WALDO, C. J. Two questions are submitted in this case. The first and principal one is whether, when, under section 8 of article 5 of the constitution of Oregon, the duties of the office of governor devolve upon the secretary of state, he has a right to the salary of the office. Second. If this question be answered in the affirmative, whether he shall continue to perform the duties of the office for the remainder of the term of the outgoing governor, or shall he perform those duties only so long as he shall continue to be secretary of state.

"In case of the removal of the governor from office, or of his death, resignation, or inability to discharge the duties of the office, the same shall devolve on the secretary of state, and in case of the removal from office, death, resignation, 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:" Con. of Or., art. 5, sec. 8.

If the office of governor continue after the governor ceases to hold the office under this section; if the office be not vacant, but shall be lawfully filled by one acting therein directly as the agent of the state, and not in the character of deputy of a governor incumbent, it would seem difficult to distinguish such a person from a governor of right and in fact.

Counsel for the respondent claim that in the contingency provided for in said section 8, the duties of the office of governor become annexed to the office of secretary of state, and are discharged as duties incident to the latter office. In other words, that the duties of the office, but not the office itself, devolve upon the secretary of state.

This position seems to require, first, either that the office of governor should continue vacant during the time the secretary discharges its duties, and that such duties be in some way performed by the secretary of state, as such, consistently with a condition of vacancy, or, second, that the office be filled, and yet he who fills it be in nowise governor, but continue to be merely secretary of state. 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, em

powered 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 the function of a public officer to discharge public duties. Such duties constitute his office. Hence, given a public office, and one who, duly empowered, discharges its duties, and we have an incumbent in that office. Such is the case here. The secretary of state, by force of the function cast upon him, becomes governor, and consequently entitled to the salary appertaining to the office. Nor does the language of the section, grammatically considered, bear the interpretation counsel have put upon it. Leaving out the co-ordinate clauses following the first clause, and the sentence reads: "In case of the removal of the governor from office, the same shall devolve on the secretary of state." That is, the office shall devolve. So, taken with each of the succeeding clauses, the word "same" stands for office.

The constitution of the United States, providing for the contingency of a vacancy in the office of president, is nearly the same with the provision of our state constitution providing for a vacancy in the office of governor. The only difference, conceivably material, is, that the constitution of the United States has the words "powers and duties," where the constitution of Oregon has only the word "duties." But it is conceived that duties necessarily imply powers, and that, in legal effect, the language of the two constitutions is the same. See United States v. Bassett, 2 Sto., 404. Of this provision of the constitution of the United States, in Merriam v. Clinch, 6 Blatch., 9 (1867), Mr. Justice Blatchford said: "Three times since the adoption of the constitution, the president has died, and under the provision referred to, the powers and duties of the office of president have devolved on the vice president. All branches of the government have, under such circumstances, recognized the vice president as holding the office of president, as authorized to assume its title, and as entitled to its emoluments. The vice president holds the office of president until a successor to the deceased president comes to assume the office, at the expiration of the term for which the deceased president and the vice president were elected."

The case of the People ex rel. Church v. Hopkins, 35 N. Y., 74, is much in point. In 1859 a law was passed in New York, establishing the office of superintendent of insurance. The superintendent was to be appointed by the governor for the term of three years, with authority to appoint clerks, one of whom was to be designated his deputy, and to "possess the powers and perform the duties attached by law to the office of principal, during a vacancy in such office, and during the absence and inability of his principal." The superintendent resigned his office, the duties of which thereupon

devolved upon the deputy. The deputy claimed the salary of a superintendent during the time he discharged the duties of the office, and it was held that he was entitled to such salary. The court, by Grover, J., supported the conclusion reached by references, which are especially pertinent in this case: "But there are precedents, which, though not judicial, I regard as entitled to be considered as decisive of the question under consideration. In the constitution of the state, adopted in 1822, will be found the following provision: In case of the impeachment of the governor, or his removal from office, death, resignation, or absence from the state, the powers and duties of the office shall devolve upon the lieutenant-governor for the residue of the term, or until the governor, absent or impeached, shall return or be acquitted:' Court., 1822, art. 3, section. On the eleventh of February, 1828, the office of governor became vacant by the death of De Witt Clinton, the then incumbent of the office, and its powers and duties, under the above provision of the constitution, devolved upon Nathaniel Pitcher, then lieutenant governor. The question arose, whether he was to be regarded, in the exercise of the powers and performance of the duties so vested in him, as acting governor, or in the performance of the contingent duties of lieutenant governor; and, as a consequence, whether he was entitled to the salary of the former office, or the compensation given to the lieutenant governor for his services as such. It was held by William L. Marcy, then comptroller, that he was to be regarded as the acting governor, and entitled to the salary given by law to that officer. The same question, under the same provision, again arose in 1829, upon the resignation of the office of governor by Martin Van Buren, and the powers and duties of the office devolving upon Enos T. Throop, then lieutenant governor, and were decided the same way by Silas Wright, then comptroller. It will be seen that these questions were identical with that in the present case. We surely shall not go far astray in following the precedents established by these able jurists, wise statesmen and rigid economists."

The principle on which the second question is to be decided, namely, whether the appellant ceases to be governor when he ceases to be secretary of state, seems to be this: If an office be appendant, as the expression is in 1 Leon., 321, to another office, the determination of the first office will determine the second. This is the case where an officer holding any office is ex-officio entitled to some other office. For instance, in City of Portland v. Denny, 5 Or., 160, the recorder of the city of Portland was ex-officio a justice of the peace, but on the determination of his office of recorder, he would have ceased to be a justice of the peace. On the contrary, if the nomination or appointment to an office be by a descriptio personarum of one who on some contingency is to enter and fill another office, the description at the time the contingency arises, designates him as the person who is to enter and fill the office, and when thus designated he enters into the office, he holds it entirely independent of the

first office. This seems to be the principle which applies when the office of governor devolves on the secretary of state on the happening of any of the events specified in the constitution. That the president of the senate who holds under a similar title, ceases to be president when he becomes governor seems evident, for the two officers are incompatible at common law, and there is no constitutional implication that both offices shall be held together. It would follow, therefore, that the president of the senate would hold the office of governor, once incumbent, without reference to his office of president of the senate. Now, as two offices may remain distinct, though the officer is the same person, it would seem that the same principle as to the office of governor, should govern the holding of the office of governor by the secretary of state.

This question, therefore, must, also, be answered in favor of the appellant, and judgment be entered accordingly. Judgment reversed.

SUPREME COURT OF CALIFORNIA.

No. 8,446.

GRANGE v. GOUGH ET AL.

Department Two. Filed December 2, 1884.

FINDINGS--HOMESTEAD-RESIDENCE.-Finding that the defendants did not nor did either of them reside on the demanded premises at the time of filing their declaration of homestead held supported by the evidence.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendants a new trial.

John Wade, for the appellants.

E. F. Preston, for the respondent.

THE COURT. The court found that the demanded premises were neyer at any time the separate property of the defendant, Margaret Gough; and that the defendants did not nor did either of them reside on said premises at the time of filing their declaration of homestead. A homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as provided in title V of the civil code: C. C., 1,237.

We think the evidence, though conflicting, was sufficient to justify these findings.

Judgment and order affirmed.

No. 9,636.

OAKLAND BANK OF SAVINGS v. APPLEGARTH.

Department One. Filed December 2, 1884.

WHEN THE EVIDENCE IS CONFLICTING THE JUDGMENT OF THE LOWER COURT will not be disturbed.

TENDER -OBJECTIONS TO SUFFICIENCY OF-WAIVER.-Objections to the sufficiency of the amount tendered must be made at the time of tender, or the same are waived.

APPEAL from a judgment of the superior court for Merced county, entered in favor of the defendant and from an order denying the plaintiff a new trial. The opinion states the facts.

J. K. Law, for the appellant.

W. S. Goodfellow and E. Jackman, for the respondent.

MORRISON, C. J. The plaintiff brought this suit to foreclose a mortgage on lands situate in Stanislaus county, and judgment was rendered for the defendant, on the ground that the amount due on the mortgage debt was duly tendered before suit brought. The principal object in the case seemed to be the institution of a suit before the defendant could make a legal tender of the amount due, and there seems to have been such a small interval of time between the tender and the filing of the complaint, that it was scarcely appreciable. Why this anxiety to bring the suit before the defendant could make his tender is only to be accounted for by the fact that the plaintiff was desirous of collecting the percentage, provided for in the mortgage to cover legal expenses. This mortgage had been sent to the attorney of the plaintiff at Merced for foreclosure, before any steps looking toward a tender had been taken by the defendant, and the ascertainment of the fact that legal proceedings were about to be instituted, probably stimulated the defendant to action and prompted him to make the tender as speedily as possible. At all events, the testimony of the exact time when the tender was made. and that relating to the precise moment when the complaint was filed, was such as to raise a doubt which act was first in point of time. The court below found that the ten der was first in point of time, and we are not prepared to say that such conclusion was not warranted by the evidence. On a disputed fact of this character the court would hardly strain a point to reach a different conclusion, and we are satisfied with that arrived at by the court below.

The third finding is: "that, on the first day of September, A. D. 1882, at the hour of 2 p. m., and before the commencement of this action, defendant tendered to and offered to pay to plaintiff, the sum of six thousand three hundred and thirty-four dollars and fiftysix cents, in United States gold coin, in payment and satisfaction of said note and mortgage. That plaintiff did not make or specify any objection to said sum of six thousand three hundred and thirty-four dollars and fifty-six cents, or to the amount thereof, nor did plaintiff specify any other as the amount which it required, but then and there refused, and ever since has refused, to

No. 51-2.