dissenting.— In monarchical governments the king and lords are the masters and the mass of the people are the servants. There the law recognizes different degrees of social and political standing, the superior holding his high position and privileges above and independent of the people, and responsible alone to his superiors, while the king and nobles are considered the source and fountain of all power, rights and immunities ; they hold their positions as a species of estates, to be exercised for their own benefit and at their will. But in republican governments like ours the rule is supposed to be changed. Here the people are regarded by the law as the sovereigns and source of all political power and authority, and the various offices nothing more than a delegated authority to perform certain duties for the interest of the whole, while the officer is emphatically the agent or servant of the people to perform such duties and services as they may have seen fit to intrust to his execution.
The office belongs to the people, and when they designate a particular person to fill that office and perform the duties enjoined, there is no transfer of the office by the people, but rather a transfer of his services by the incumbent to the people—his time and talents, so far as may be necessary to a full and faithful performance of every duty imposed, are no longer his, but the property of those in whose service he has voluntarily engaged. He is responsible to the people, who have a right to demand and *20know that he has faithfully discharged all the duties intrusted to his performance, and who have reserved to themselves the right and power, whenever their servants fail to perform the duties enjoined, to employ others who will do their bidding. And in the case of public officers the people demand of the party selected for an important trust, as a prerequisite to his assuming the duties of an office, the additional guarantee of a solemn oath that he will faithfully and impartially discharge all the duties incumbent on the position he seeks, and in many cases the further security of a penal bond against temptations to dishonesty and corruption.
Under such circumstances the party who seeks and accepts an important position and trust from the people, and then intentionally disregards his oath and neglects the interests and trusts confided to his care, proves himself devoid of conscience, unworthy of the trust reposed in him, and forfeits all claim he may have had to the position received from the people. He thereby commits a gross fraud upon the rights of the people which should of itself cancel and annul all authority conferred by virtue of any office he had falsely promised to fill.
Again, when a party accepts a public office and qualifies therein, he enters into a solemn contract, whereby, for a valuable consideration, usually in the form of a salary, he contracts and binds himself to perform certain duties (Parsons on Contracts, Vol. 1, p. 123); and if he fails to comply with the terms of his contract, or if he places himself in a position which renders a performance impossible, he thereby forfeits all rights he may have had under that contract, which, by his own acts, he has canceled. In such a case a public officer may be presumed to have resigned or vacated his office (Angel & Ames on Corp., 465), and the electing or appointing power may proceed to fill the vacancy without any judicial or other *21investigation. (Dillon on Municipal Corp., 201.) This author announces, without qualification, as a general rule, that an office may be vacated by a constructive resignation by abandonment, and refers to Wilcox on Corporations as announcing the same doctrine. (See also 21 Ind., 522.)
Under these authorities it is clear that an officer may vacate his office by abandoning the duties of his office, without any intention of abandoning the office or the emoluments thereof. If he should prostitute his authority and the funds or property in his hands, which were entrusted to him solely for the public good, exclusively to his own use and benefit, and refuse to perform any and all duties pertaining to his office, he would as effectually have abandoned the duties of his office as if his resignation had been tendered and accepted.
But an office may be vacated by a constructive abandonment, when an officer accepts another incompatible office, or enlists in the army, or if he should embark on a voyage to the Indian Ocean, or, in short, when he voluntarily puts it out of his power to perform its duties, even without any intent or purpose of abandonment. And to me it appears a most fallacious argument to contend that an office cannot be abandoned without an intent, when every duty of that office is intentionally abandoned, and every obligation resting upon the office is totally disregarded.
In the case at bar I am unable to discover the necessity for a critical discussion of the word abandonment in order to a just determination of the questions before the court.
On the twenty-seventh day of May, 1872, the Governor, by proclamation, declared the office of State Treasurer vacant, and appointed B. Graham to that office. And now the only question presented by the record to be de*22cided by this court is, was the office of State Treasurer vacant on the issuance of that proclamation ?
But before considering that question it may be proper to notice the position taken by counsel, that the Governor, by that proclamation, attempted to create a vacancy by the removal of a legally constituted officer, who was then filling the office, and justly entitled to the position to which.he had been elected by the voice of the people. In answer, it may be said that it is not claimed by any one that the Governor has the power of removal, and no such claim could be maintained under the authority of the Constitution and laws of the State. The only authority given to the Governor in that particular is found in Section 7, Article 4, of the Constitution, which says: “If a vacancy occurs in any of the executive offices, by death, resignation, or removal, or from any other cause, during the recess of.- the Legislature, the Governor shall have power, by appointment, to fill such vacancy, which appointment shall continue in force until the succeeding session of the Legislature.”
There is no pretense of the power to remove, nor any foundation for one, and I shall therefore treat that question as settled.
There is another question preliminary to the main one, which requires a passing notice. It is claimed on the one side, that as the Governor has the power to fill vacancies, he also has the power of adjudging when a vacancy exists; and as the Governor has the determination of that question, his judgment must be final, and that there is no power in the courts to review or revise that determination; while on the other hand it is contended that the Governor has no power to act until the question of vacancy has been in a manner judicially determined. Both of these positions are fully considered, and their fallacy exposed in Page v. Hardin, 8 B. Monroe, 669, and the true rule *23is there established, which accords to the Governor, primarily, the power to determine the question of vacancy in deciding in regard to his own action, and that whenever, in his opinion, a vacancy exists, he, of necessity, must have the power to fill that vacancy, but Ms acts in that particular are the legitimate subjects of judicial investigation.
There is no law to measure the amount or character of evidence the Governor must have before acting, and none to govern or control his discretion in the matter, other than the revisory powers of the courts.
And again, it is claimed that no other evidences of a vacancy can legally be shown in this case than that specified in the Governor’s proclamation. But that position cannot be tenable, for the reason that the Governor is not required to issue a proclamation, or give any evidences or cause for Ms actions. He acts upon his own judgment, and cases may readily be supposed where it would be unsafe and impolitic for him to give any excuse or reason for his acts. I am decidedly of the opinion, that if no one of the facts stated in the proclamation were true, and yet if upon a judicial investigation it should be ascertained that from any cause a vacancy actually did exist, still the action of the Governor should be sustained by the courts.
The Constitution says, that when a vacancy occurs he shall have the ‘power to appoint. Then the only power of the courts extends to the inquiry in regard to a vacancy, and it is wholly immaterial how that vacancy occurred, or whether the Governor knew it at the time of making the appointment or not; but if there was a vacancy at the time of the appointment by the Governor from any cause, his acts in that particular should be sustained. The main inquiry, therefore, presents itself, was the office of State Treasurer vacant on the twenty-seventh of May, *24when the Governor assumed to make the appointment? And in order to ■ a proper understanding of the whole question it is necessary to consider what are. the duties and responsibilities of the State Treasurer under the Con- . stitution and laws of the State.
By the terms of the Constitution it is made his duty to receive and take charge of all public money paid into the treasury; to countersign all warrants. drawn by the Comptroller of Public Accounts; to pay off the public creditors upon the warrants of the Comptroller, and to perform all such duties as may be prescribed by law. And the statute further requires that he shall keep a true and methodical account of all receipts and disbursements ; • shall exhibit to the ■ Governor or Legislature an exact statement of the affairs of the treasury whenever required, and shall at stated periods have a complete settlement with the Comptroller of all moneys received and paid out; he shall procure a strong iron safe or safes in which shall be deposited all moneys or dues received by him on account of the State. These are some of the important duties of the State Treasurer which he has bound himself by oath and bond faithfully and impartially to perform, and a neglect of any one of which would subject him to impeachment or removal, and in the strict and faithful performance of which every citizen of the State is directly interested, since without a treasury honestly and faithfully guarded and impartially administered, the government itself could not exist, the laws could not be executed, and society would be thrown into a state of chaos, so that no one would be secure in life, liberty or. property.
It should also be understood that these trusts, so vital to the interests of the people, and so necessary to the existence of the government, are conferred upon the Treasurer because of the confidence reposed in his personal *25■ability, integrity and faithfulness, and they have a right 'to demand that whenever there is an official duty to be performed, it shall, excepting under extraordinary circumstances, be promptly executed under the immediate ■personal supervision of the person upon whom they have "bestowed their confidence.
There is perhaps no officer in the State in whom so ■’■much confidence is necessarily reposed as the Treasurer ■of the State, who from the nature of his office and the duties imposed should if possible be ever present as a ■faithful sentinel to guard the treasury of the people and 'to see that it is not prostituted’ to individual uses or speculation. It is true that a large bond is required of the ’Treasurer as a security for the faithful performance of his duties, but that bond is very insignificant when compared with the amount of property and funds entrusted to his care, so that without the personal honesty and constant personal supervision and watchfulness of that officer the people have really no guarantee that their rights are not being sacrificed and their money squandered.
From these considerations, I am of the opinion that the ‘State Treasurer has no right under the law to abandon for ;a day or an hour the personal supervision of his entire -department, unless demanded by a consideration for the health of the body or mind. Ho considerations of private interest, speculation or pleasure should be regarded ;as forming any.excuse for neglecting any duty which he •owes to the public. The law authorizes the employment ■ of all necessary clerks and assistants to render his labors ■ comparatively light, but it demands his constant personal • supervision. He is authorized to employ one chief clerk, who, after giving bond and taking the oath, as prescribed by the Constitution, ‘: may sign the name of the Treasurer, whenever, by reason of sickness, unavoidable ab-v-sence, or other .cause, the Treasurer’s name may not be *26affixed by himself” (Paschal’s Digest, Article 5291), clearly indicating that sickness or unavoidable absence - only will excuse the failure of the personal supervision of the Treasurer.
There is one other question raised by the pleadings which should be noticed before making an inquiry into-the facts of this case. The Governor, by his proclamation, declared that the appellant had vacated the office of State Treasurer, and appointed another to fill the vacancy. B. Graham, the newly appointed Treasurer, in the absence of the appellant, got possession of the office, and was attempting to exercise the duties pertaining thereto, when this suit was brought. Graham was in possession, and appellant sued out the writ of mandamus to eject him. He therefore assumes the affirmative, and must establish, by satisfactory proof, a paramount right to the office, before he can claim from the courts a judgment in his favor; and he must show something more than his election and qualification, since that is not the issue to be decided ; the true issue being, not whether he had been elected, but whether he had not vacated the office after the election.
The law authorizes the Governor to appoint to fill a vacancy, and under that law the Governor has made the-appointment; and prima facie that appointment establishes the fact of the vacancy, and the legality of. the appointment, which should stand until the appellant shows,, by satisfactory evidence, that at the time of the appointment by the Governor, he had not vacated the office.
This question was ably considered in the case of Leal v. Jones, 19 Indiana, in which Justice Perkins, in delivering the opinion of the court, says:
“When it appears prima facie that acts have occurred subjecting an office to a judical declaration of being vacant, the authority to fill such vacancy, supposing the-*27office to be vacant, may proceed, before procuring a judicial declaration of the vacancy, to appoint or elect, according to the forms of law, a person to fill such office ;, * * * and if such appointed person finds the office in fact vacant, and can take possession unmolested by the former incumbent, he may do so; and so long as he remains in possession he will bean officer de facto; and. should the former incumbent never appear to contest his-right, he will be regarded as an officer de facto and dejure. But should the former incumbent appear, after possession has been taken against him, the burden of proceeding to oust the then actual incumbent will fall upon him.”
This case, I think, furnishes the correct rule by which the rights of the parties in this case are to be determined. The appellant must establish the fact that he had not vacated the office, or he should fail in this proceeding.
And now what are the facts of this case as shown by the • record, and by which appellant claims that he has established his right to the office of State Treasurer, and to * disprove the presumption, raised by the Governor’s appointment, of a vacancy %
On the twenty-third of April, 1872, George W. Honey, being then the State Treasurer, left the State for the city of New York, to be absent for an indefinite period, or at ' least for the period of six weeks—not on business connected with the interests of the treasury or the State, but on a trip of pleasure and private business. He left the treasury in the possession and under the control of J. H. Burns, a person without oath or bond as the law requires,. and who was really responsible to no one for any neglect of duty or misapplication of the funds or property be- - longing to the State. After Honey had been absent from the State for several weeks, the Governor, whose duty it is to see that the laws are faithfully executed, for reasons ■ *28•. satisfactory to himself, and which may be wholly immaterial in this case, demanded of Burns, who had been .'.acting as chief clerk, a bond for the faithful discharge of his duty as such, and on his failure to furnish such a " bond as the Governor was willing to approve, he was regarded by the Governor as an intruder in the treasury department, and the office of Treasurer was declared •vacant.
■The statute creates the office of Chief Clerk of the Treasury, and provides that he shall give a bond in the sum of ■ twenty-five thousand dollars, and the Constitution requires that all officers of the State, before they enter upon ' the discharge of the duties of an office, shall take and sub- •-• scribe to the constitutional oath. In either of these require.ments had been regarded by the person who assumed to “act as chief clerk, and until he had done so he had no lei; gal authority to sign the Treasurer’s name or perform any of the duties of chief clerk.
It may be true that while he assumed to act as chief -clerk, and while he was recognized as such by the executive, he might be regarded a de facto officer; but so soon 4 as his failure to qualify became known, or his authority “to act was disputed by the executive, he could no longer .-.act in that capacity, and if he attempted to do so he was ¡liable to be treated as an intruder. Here, then, we have • some of the facts upon which the Governor acted in considering the office of Treasurer vacant. Honey had been .-.absent from the State for weeks, leaving Burns as acting chief clerk, who had failed to qualify in any particular, and without any known responsibility, in possession of the treasury containing near a million of dollars and other property of very great value, and without any legal au"ithority to receive or to pay out to the creditors of the t State one dollar.
These.facts alone, in my judgment, were sufficient to *29fully justify the Governor in considering that office vacant, and in the appointment of a proper person to take charge of the property of the people until the meeting of? the Legislature. It is not true that the Treasurer is responsible upon his bond for the malfeasance- or misfeas- - anee of his chief clerk, and especially if he exercises or- - dinary care in selecting a proper person for that position. (Sher. & Red. on Neg., 215), as the' doctrine of respon- - dent superior does not apply to such cases.
Upon the facts here noticed I am not willing to sanction-a decision' which will declare, in effect, that there is noprima facie evidence of an abandonment of the duties of" the office of Treasurer, and that the Governor had no au-thority to decide that there was a vacancy, or to make-the appointment. In my judgment the duties of the-Governor, and the heads of each of the executive departments, are such that neither can leave the State for any-' considerable length of time on business disconnected with-their offices, or the general interests of the State, and.without leaving a legally constituted officer to perform-, their duties, without abandoning their duties, and render- - ing their offices liable to be declared vacant. There aro too many vital interests depending upon the prompt daily performance of the duties of these offices to sanction any unnecessary relaxation or abandonment for private gain, or luxurious ease. I wish not to be understood as the • special defender of the Governor in the discharge of my official duty, but simply as announcing what I consider • a correct interpretation of the laws and the duties of" public officers.
I have hot noticed all of the reasons that may have - existed in the mind of the Governor for considering the office of State Treasurer vacant, but only such as in my judgment are sufficient to authorize the action of the executive, and which constitute a prima facie right in-t *30the appellee to the office he now fills. But the appellant has brought this suit, alleging these facts, and the legitimate presumptions arising therefrom, to be in fact untrue, and claims not to have abandoned the office or the duties thereof. But has he established by proof any •of these allegations, or succeeded in rebutting the presumptions raised by the facts as they originally existed ? Has he established the fact that he did not abandon his -duties as Treasurer of the State, and commit their whole performance to a person unqualified under the statute? Has he proven that, as Treasurer, he has safely kept the moneys of the State within the vaults of the treasury? Has he proven that his books have been truly and methodically kept? Has he promptly made his periodical . settlements with the Comptroller, or has he disproven, or attempted to disprove, the evidences of speculation in the public funds, either by himself or his confidential clerk ? I think he has totally failed in every particular,. . and left the contrary fully established by the proof of appellee. The large amount of uncanceled warrants found in the treasury, for which no explanation was attempted to be made, is to my mind quite conclusive, that they were there for speculation, or at least they raise -a sufficiently strong suspicion of that fact to require explanation. The deposit of nearly thirty thousand dollars in the banks, when creditors of the State could not get a ■dollar, is a fact not well comporting with a strict performance of official duties. It is but just to appellant to .■ say, that it is possible all these facts may be susceptible -of explanation in full harmony with an honest intent, but :as yet they are unexplained, and do not accord well with .a denial of the abandonment of the duties of the office.
Under the foregoing view of the law and the facts of this case, I think the judgment of the court should be .affirmed, and I can consent to none other judgment.