I concur in the result reached by the majority. As I read the opinion, it holds, in substance, that the legislature of the state of Washington cannot legally assemble in extraordinary session next Monday because Governor Martin crossed from Idaho into Washington in an airplane eight minutes before Lieutenant-Governor Meyers arrived at the office of the secretary of state in Olympia. I think the decision can, and should, be rested upon a more substantial legal ground.
The constitution regulated the succession in the following manner:
"In case of the removal, resignation, death, or disability of the governor, the duties of the office shall devolve upon the lieutenant-governor, and in case of a vacancy in both the offices of governor and lieutenant-governor, the duties of governor shall devolve upon the secretary of state, who shall act as governor until the disability be removed or a governor be elected." Const., Art. III, § 10.
In 1890, the legislature passed an act two sections of which appear in Remington's Revised Statutes, as follows:
"In case the governor absents himself from the state, he shall, prior to such departure from the state, notify the lieutenant-governor of such proposed absence, and during such absence of the governor from the state, the *Page 507 lieutenant-governor shall perform all the duties of the governor." Rem. Rev. Stat., § 10985 [P.C. § 6656].
"Every provision in the laws of this state in relation to the powers and duties of the governor, and in relation to acts and duties to be performed by others towards him, extends to the person performing for the time being the duties of the governor." Rem. Rev. Stat., § 10986 [P.C. § 6655].
It may be noted in passing that, if this legislation was constitutional when enacted and is not superseded by the 6th amendment to the constitution, it effectually answers the contention so much stressed on the oral argument that the governor retains his powers when absent from the state. But with that matter we are not now immediately concerned.
Suppose that, at any time during the twenty years between 1890 and the adoption of the 6th amendment to § 10 of Art. III of the constitution in 1910, both the then governor and lieutenant-governor had contemporaneously absented themselves from the state, who then would have been legally qualified to perform the governor's duties? The answer must be, no one, unless the words in § 10, Art. III of the constitution, "disability" and "vacancy," be construed to cover absence from the state. If so construed, and I think that is the proper construction, the secretary of state would have been qualified, but if he had also left, the ship of state would have been wholly without legally qualified executive direction.
It was no doubt a realization of this danger which induced the legislature of 1909 to enact chapter 181, Laws of 1909, p. 642, submitting an amendment to § 10 of Art. III which was adopted by the vote of the people in November, 1910. The amendment reads as follows:
"In case of the removal, resignation, death or disability of the governor, the duties of the office shall devolve upon the lieutenant-governor; and in case of *Page 508 a vacancy in both the offices of governor and lieutenant-governor, the duties of the governor shall devolve upon the secretary of state. In addition to the line of succession to the office and duties of governor as hereinabove indicated, if the necessity shall arise, in order to fill the vacancy in the office of governor, the following state officers shall succeed to the duties of governor, and in the order named, viz.: Treasurer, auditor, attorney general, superintendent of public instruction and commissioner of public lands. In case of the death, disability, failure or refusal of the person regularly elected to the office of governor to qualify at the time provided by law, the duties of the office shall devolve upon the person regularly elected to and qualified for the office of lieutenant-governor who shall act as governor until the disability be removed, or a governor be elected; and in case of the death, disability, failure or refusal of both the governor and the lieutenant-governor elect to qualify, the duties of the governor shall devolve upon the secretary of state; and in addition to the line of succession to the office and duties of governor as hereinabove indicated, if there shall be the failure or refusal of any officer named above to qualify, and if the necessity shall arise by reason thereof, then in that event in order to fill the vacancy in the office of governor, the following state officers shall succeed to the duties of governor in the order named, viz.: Treasurer, auditor, attorney general, superintendent of public instruction and commissioner of public lands. Any person succeeding to the office of governor as inthis section provided, shall perform the duties of such officeuntil the disability be removed, or a governor be elected andqualified; and if a vacancy occur more than thirty days before the next general election occurring within two years after the commencement of the term, a person shall be elected at such election to fill the office of governor for the remainder of the unexpired term." (Italics mine.)
It is to be supposed that the legislature intended, in proposing this amendment, to cover every possible contingency. It will be noted that all of the amendment down to the sentence italicized is designed to *Page 509 make the succession plain. No longer should the state be left without someone legally qualified to perform the duties of governor, even if the governor, lieutenant-governor, and secretary of state are contemporaneously absent, for, as the amendment says, "If the necessity shall arise . . . in order to fill the vacancy in the office of governor," then the treasurer, auditor, attorney general, superintendent of public instruction, and commissioner of public lands, shall fill it in that order. Having thus provided for the filling of the vacancy, the amendment goes on to carefully provide the substitute's term of office in the following manner:
". . . Any person succeeding to the office of governor as in this section provided, shall perform the duties of such office until the disability be removed, or a governor be elected and qualified; . . ."
It was admitted by the relator, who ably argued his own case before us, and by the attorneys for the respondent also, and has been admitted by everyone whom I have heard discuss the matter, that Mrs. Reeves, the secretary of state, succeeded to the office of governor when the governor left the state. If that is so, she did so "as in this section provided," for there is no other law under which she could assume the office. The law then, when applied to the facts and realities of the situation, intended that Mrs. Belle Reeves "shall perform the duties" of the governor until his "disability be removed;" that is, until he returns to the state. I am aware that the validity of this theory of the law depends upon the construction to be given to the words "disability" and "vacancy." It is not a sound theory if disability does not include lack of power to act due to absence from the state.
Cases were cited on the oral argument wherein the word "disability" was not so construed, when used in statutes providing that judges might complete certain *Page 510 unfinished work of their brethren who were under disability. The authorities, however, are not unanimous on that question. But, however that may be, words used in statutes must be construed in the light of the statutory purpose and the end sought. If a judge leaves the state, ordinarily his work can await his return, but the state must have a qualified executive at all times. If the word "disability" is given the narrow construction contended for, then one need only read the first sentence of the amendment to realize that, unless absence from the state is a disability and creates a vacancy, Mrs. Reeves had no right whatever to assume the governor's duties; for, assuredly, neither Governor Martin nor Lieutenant-Governor Meyers was removed, or died, or resigned.
It must be remembered that there is no other constitutional provision or statute governing the matter. Mrs. Reeves got her right to act through the words "disability" or "vacancy" or not at all. By the same token, it must follow that, if the words receive the narrow construction, the law is in the same unfortunate condition that it was before the amendment was passed, in so far as providing a qualified person to attend to the duties of governor when both the governor and lieutenant-governor leave the state is concerned. None of the other state officers could assume the office in such a contingency.
I cannot escape the conviction that, when the legislature proposed this amendment, they intended to make it certain, as far as was humanly possible, that, if the people adopted it, the state should never be at a loss for some qualified person to perform the duties of the executive. I feel equally confident that the legislature did not intend that, if all the state officers left except the commissioner of public lands, the superintendent of public instruction could return and push *Page 511 him out of the governor's chair, to be in turn pushed out by the attorney general on his return, and he by the auditor, and the auditor by the treasurer. The amendment gives the person who succeeds to the duties of governor a term of office.
". . . Any person succeeding to the office of governor as in this section provided, shall perform the duties of such office until the disability is removed, or a governor be elected and qualified; . . ."
What disability? Plainly, the "disability of the governor," the only disability mentioned in the statute, the disability of the person to whose duties the incumbent succeeded.
The theory of the law which I have above set forth would completely carry out the purpose which I feel we must ascribe to the legislature when it proposed the amendment and to the people who voted for it. If the theory were adopted, upon the governor's return from an absence from the state, he would go to his office and take over his duties from any person who had lawfully succeeded him, just as a business executive takes over his duties after an absence, and thus make wholly unnecessary the somewhat fantastic conception that he in some way snatches his duties out of the air and begins their performance as he crosses the state line in an airplane at a level of some three or four thousand feet.
I agree that the writ should be denied, but I think the denial should be placed upon the ground that Lieutenant-Governor Meyers did not succeed to the office of governor when he returned to the state and had no authority whatever to issue the proclamation.