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State ex rel. De Concini v. Garvey

Supreme Court of Arizona

June 21, 1948

STATE ex rel. DE CONCINI, Attorney General,
v.
GARVEY

Original proceeding in quo warranto by the State of Arizona, on the relation of Evo De Concini, Attorney General of the State of Arizona, against Dan E. Garvey to determine whether the Secretary of State upon death of Governor became the Governor or was merely the acting Governor.

Judgment in accordance with opinion.

Evo De Concini, Atty. Gen., and Perry M. Ling, Chief Asst. Atty. Gen., for plaintiff.

Morgan & Locklear, Stahl & Murphy, and Charles C. Bernstein, all of Phoenix, for defendant.

La Prade, Justice. Stanford, C. J., and Udall, J., concur.

OPINION

La Prade, Justice.

[67 Ariz. 305] This is an action in quo warranto brought by the attorney general in the name of the state, upon his relation, against the Honorable Dan E. Garvey, who is now and at all times since the first Monday of January, 1947, has been the duly elected, qualified, and acting secretary of state. The complaint alleges that the Honorable Sidney P. Osborn, the duly elected and acting governor of Arizona, died on the 28th day of May, 1948. The relator then alleges that, upon the death of Governor Osborn, the respondent, as secretary of state, purportedly under and by virtue of article 5, section 6 of the constitution of the state of Arizona, unlawfully assumed the office of governor of the state of Arizona and has since unlawfully held and exercised the same. The relator further alleges that under and by virtue of said section of the constitution Dan E. Garvey did not in law or in fact become governor of Arizona upon the death of Governor Osborn, but by virtue of the section the powers and duties of the office of governor merely devolved upon Mr. Garvey as said secretary of state.

Respondent by his answer denies that he unlawfully assumed the office of governor of the state of Arizona and unlawfully holds and exercises the rights and duties of that office. He contends the facts to be that upon the death of Governor Osborn he by virtue of the constitutional provision above referred to succeeded to the duties, powers, emoluments, and rights of the office of governor, and lawfully holds such office by virtue of the constitutional provision. [67 Ariz. 306] He further maintains that he was required to and did assume the duties, powers, and privileges of the office of governor for the remainder of Governor Osborn's term, and that the office became vested in him so that he is governor de jure and de facto.

The public business and tranquility demand a prompt judicial inquiry and final determination of the actions of the respondent

Page 154

in admittedly holding and exercising the office of governor. It is for this reason that we have exercised our original jurisdiction in the premises, as we did in Sullivan v. Moore, 49 Ariz. 51, 64 P.2d 809 and State v. Sullivan, 66 Ariz. 348, 188 P.2d 592, and have promptly determined the issues. Two questions are presented for determination: first, upon the death of Governor Osborn did the respondent become vested with the office of governor for the remainder of the term? second, if he did not become vested with the office of governor, is he entitled to the emoluments of the office by virtue of the fact that he must perform the duties thereof?

The first question can be answered only by reference to the pertinent constitutional and statutory provisions. Article 5, section 6, of the Arizona constitution provides:

"[Succession to governorship]. -- In case of the impeachment of the governor, or his removal from office, death, inability to discharge the duties of his office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the secretary of state until the disability ceases, or during the remainder of the term." (Emphasis supplied.)

The following section of the code, relating to the duties of secretary of state and his assistant, we consider to be pertinent and highly illuminating and informative in our search for a correct determination on the questions involved:

"Assistant secretary. -- The secretary shall appoint an assistant secretary of state, who, in the absence of the secretary of state, or when the secretary of state is acting governor, shall perform the duties of the secretary." (Emphasis supplied.) Section 4-204, A.C.A.1939.

The questions presented, though a matter of first impression in this state, are not novel. The question of the effect of the succession of an inferior officer to the duties and powers of the office of governor has been exhaustively treated by courts of last resort in many states. The prevailing view is that in such a case the inferior officer does not vacate his office and become governor de jure and de facto, but that the duties and powers of governor merely devolve on him and he retains his former office and becomes, practically speaking, ex officio governor. 24 Am.Jur., Governor, section 10. Under this view it is held that where the duties of the office of governor devolve on the president of the senate, he does not become governor, or cease to be a senator and president of the senate, and that on his resignation as [67 Ariz. 307] senator he ceases ...


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