1008 STATKEX REL. DUDLEY V. LYON. [191 STATE EX REL. DDLEY V. LYON. 4-4074 Opinion delivered December 16, 1935. STATE—ACT1NG GOVERNOR.—In absence of the Governor and the Lieutenant Governor from the State, the President of the Senate is authorized to act as Governor, under Const. Amendment, No. 6, § 5. Appeal from Mississippi Circuit Court, Chickasawba District ; affirmed. Joe C. Barrett, for appellant. Robert W. Wilson, for appellee. BAKER, J. On Apri1.18, 1935, the appellee was appointed notary public in and for Craighead County, Arkansas. At the time of her appointment, the Honorable J. M. Futrell, Governor of Arkansas, and the Honorable Lee Cazort, Lieutenant Governor of Arkansas, were both absent from the State. Senator W. F. Norrell, President pro tempore of the Senate, acting as Governor, made this appointment. Thereafter, this suit was instituted by the Honorable Denver L. Dudley, as prosecuting attorney of the Second Judicial Circuit, asking that the appellee be ousted from the office of notary public, and that the commission so issued to her be declared null and void. To this complaint a demurrer was filed by the respondent. The demurrer was sustained, and, the State refusing to plead further, judgment was accordingly entered. This appeal is from that judgment. The appointment of respondent here is a mere incident. The real contest is a matter that will be settled by our determination of the question of the validity of the appointment of this notary public.
ARK.] STATE EX REL. DUDLEY V. LYON. 1009 • The real matter in issue is whether Senator W. F. Norrell, Who was President of the Senate at the tithe it adjourned, or the Hon. Harve Thorn, who was Speaker of the House upon the adjournment of that body, shall be the chief executive • officer, or shall act as Governor, in the event of the absence from the State, death, or other disability of the Governor and Lieutenant-Governor -to exercise the functions of that office. In the briefs furnished us upon • this 'question, we 'have history and much erudition supplying in logical and• highly argumentative form a great deal of information and entertainment. To us, at the present day, the position of Lieutenant-. Governor is a comparatively new office. It was not known under the Constitution of 1.874 until Amendment No. 6 was adopted in 1914. This athendment was proposed by the Legislature of 1913 and was numbered as Constitutional Amendment No. 16 at the time it was proposed, and now appears on page 1527 of the Acts of 1913 as a joint resolution of the House and Senate. Without attempting an elaborate discussion of the question here involved, let it be said that § 5 of said Amendment No. 6, adopted in 1914, is as follows :• • "If during a vacancy -of the office of Governor, the Lieutenant-Governor shall be imPeached, displaced, resign, die, Or become incapable of perfOrming the duties Of his office or be absent from the State, the President of the Senate shall act as Governor Until the vacancybe filled or the disability shall cease ; • and if the 'President of the Senate for any of the above causes shall become incapable of perforthing the duties pertaining to the - office of" Governor, the Speaker Of the Assembly shall act as Governor until the vacancy be filled or the disability shall -Cease." We think that section is the key to the difficulty, and really operates as a solution of the problem here presented. There is little room for interpretation or construction. The section mentions the Lieutenant-GoVernor and provides that if he should . be impeached, displaced, -re-
1010 STATE EX REL. DUDLEY V. LYON. [191 sign, -die; or become incapable of performing the duties of his office, or be absent from the State, the President of the Senate shall act as Governor- until the vacancy be filled or the disability shall cease. Two different officials are mentioned. The one is the Lieutenant-Governor, the other the President of the Senate. The use of these terms in the one paragraph certainly must refer to the President of the Senate as contradistinguiShed from the Lieutenant-Governor, who is also President of the Senate. The Constitution therefore recognizes the President of the Senate, prescribes his duties and sets forth the manner and occasion upon which he may perform the duties or functions of office, just as § 4 of the same amendment' sets forth and prescribes the duties of the Lieutenant-Governor, and determines the tittles and occasions -upon. which he may exercise or discharge such duties. It seems that, the objection made in :this caSe, that Senator W. F. Norrell may not act; because .it is urged he is President pro tempore, and that because he is So designated as President pro tempore, this court may not hold that he is qualified to act in succession to avoid a vacancy in office, without amending by judicial interpretation the Constitution, .by adding, in § 5, after the word "President," in the line • that speaks of the President of the Senate, the two words, "pro tempore." This contention must The regarded as wholly without merit. Such argument is another Instance thoroughlT illustrative of the trite proverb, ' putting the cart before the horse." The words, or exp .ression "Oro tempore," as frequently used in -referring to the President of the Senate, are words of description only, no doubt brought into use solely to distinguish the President of the Senate from the Lieutenant-Governor, who. is frequently referred to, particularly during legislative sessions as "President of the Senate." While it may not be said that there is a mistake in referring to the President of the Senate as "President
ARK.] 1011 pro tempore," the designation is used not improperly as a matter of convenience, though extreme accuracy might require the Lieutenant-Governor to be designated always as the Lieutenant-Governor and the other as the President of the Senate. In other words, the Constitution does not 'recognize the office of President pro tem-pore of the Senate. The descriptive "pro tempore" is surplusage, no more necessary than. some other adjective that might indicate some particular characteristic, in relation to . the .office. Aside from an analysis of this particular section of the amendment, we have been cited to no act of the Legislature, designating the' particular p'osition as "President pro tempore," but it may be said that if the position may be so characterized in obedience to statutory mandate that it.. could' refer to no other position than that mentioned in § 5 of said Amendment No. 0, the President of the Senate. . • Therefore, since. Senator W. F. Norrell was and is PreSident of the Senate, and the GoVernor and Lieu-tenant-Governor were both absent from the State, he was • hext in line of succession With the full power • and authority to act as .Governor, during that interval, And until the disabilities of the Governor and Lieutenant-Governor ceased. • It follows that the trial court . was correct, and the judgment is affirmed. .
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.