dissenting.
This ease was submitted to this court on a demurrer to the answer of the defendant. The question involved in that answer related entirely to the citizenship of the defendant, and upon the demurrer being sustained, the defendant had the right to amend his answer if he so desired. Sec. 146 of the Code provides, “If the demurrer be sustained, the adverse parly may amend, if the defect can be remedied, by way of amendment, with or without costs, as the court in its discretion shall direct.” The answer was clearly amendable, and the right to amend in such cases has always, so far as I am aware, been sustained. When I prepared my opinion in May last, I supposed that leave to amend would be given if desired, and therefore expressly say in that opinion that I had not examined the question as to the succession in case Boyd was removed. The question of the succession seemed to be of considerable importance, and as the court at the outset had made the order permitting the relator to institute the action so far condi*765tional, that it would permit the lieutenant governor to intervene if he saw fit to do so, it was but reasonable to suppose that in case the defendant was found not entitled to hold the office, the case would be set down for argumentas to the proper person to succeed him, and that no conclusion would be reached until after such argument. When the majority opinion was filed, however, it appeared that my associates did not so understand the case, but proceeded to decide that the relator was entitled to the office.
The matter required time for proper examination, and as the principal question, viz., the citizenship of the defendant must be determined by. the supreme court of the United States, I have deferred filing my views upon the questions indicated until that great tribunal had determined the main question, which it has now done in a manner creditable to the court. All questions relating to citizenship were authoritatively settled by that opinion, and need not be noticed here.
I think the majority of the court erred in holding that the relator had a right to continue in office.
Sec. 1, art. 5, of the constitution provides “That the the executive department shall consist of a governor, lieutenant governor, secretary of state, auditor of public accounts, treasurer, superintendent of public instruction, attorney general, and commissioner of public lands and buildings, who shall each hold his office for the term of two years from the first Thursday and (after) the first Tuesday in January next after his election, and until his successor is elected and qualified; Provided, however, That the first election of said officers shall be held on the Tuesday succeeding the first Monday in November, 1876, and each succeeding election shall be held at the same relative time in each even year thereafter. The governor, secretary of state, auditor of public accounts, and treasurer shall reside at the seat of government during their terms of office, and keep the public records, books, and papers there, and shall perform such duties as may be required by law.”
*766Sec. 2 provides “ That no person shall be eligible to the office of governor or lieutenant governor who shall not have attained the age of thirty years, and been for two years next preceding his election a citizen of the United States and of this state. None of the officers of the executive department shall be eligible to any other state office during the period for which they shall have been elected.”
We are told in the majority opinion: “The inquiry is not whether he (Boyd) received a plurality of votes, but did ho have the qualifications to be elected ? * * * Elected, as used in the constitution, means the choosing of a person eligible to be chosen.” This language, if I understand it correctly, means that the voters of the state may every one cast their votes for an individual for the office of governor, and the person so chosen may take the oath and give the bond required by law and enter upon the duties of the office, yet the incumbent may set himself up as judge, jury, and beneficiary in the case, and for some alleged cause refuse to surrender the office to the person lawfully chosen by the electors of the state. He may not only do this, but fill his apartments with armed men to assert his alleged rights in the premises in defiance of the will of the people, and thus bring reproach upon republican institutions. If the governor whose term has expired may still continue in office after the expiration of his term when another has been elected to succeed him, and keep the person elected out of the office, then every other officer in the state may do the same. If this is established as sound law, it will be found to be far-reaching in its scope. If it is a proper rule to apply in the construction of a state constitution, it will*be found equally applicable when applied to the constitution of the United States, and thus become settled law that the incumbent in an office may retain the same, notwithstanding another has been chosen to fill the place and has qualified and accepted the position. It is a startling doctrine. There are times in the history *767of the nation and state when, from a conjunction of circumstances, such a rule might be used to defeat the popular will, if not create anarchy and the destruction of free government. At common law, in many cases, an office was regarded as in the nature of a freehold, and hence that there was an implied right to hold over, unless it was otherwise provided. (Rex v. Doncaster, 2 Ld. Raymond, 1564; Foot v. Prowse, 1 Str., 625.) In this country, however, a public office is not considered as a freehold, and as against the public, the officer has no property in the office. Officers are elected or appointed for definite terms, and to guard against lapses — periods when there would be no officer to discharge the duties, and thereby the public suffer —there is a provision that the officer shall hold until his successor is elected and qualified. The provision is for the benefit of the public, not the officer. It is merely a lengthening out of the term to the commencement of that of the new incumbent. Then the term of the officer comes to an end. Another has been chosen in his place. If that person is disqualified, the law points out a plain and adequate remedy at the suit of the state conducted by the proper law officer, where the incumbent can be heard and his rights determined. A private citizen, not himself making any claim to an office by election or appointment, cannot institute proceedings in quo warranto against an officer, and an incumbent whose term has expired and is succeeded by another, is as to that office a mere private citizen and cannot maintain the action. It is very evident to my mind that the relator in this case has no right to act as such relator, and that he had no right to hold over his term. The only safety in a republican form of government is to carry out the will of the people. When there is a desire or determination to defeat that, pretexts — many of them specious and plausible — are never wanting, but it is the duty of every court as well as every patriot to frown upon all attempts to defeat the popular choice as declared through the ballot-box.
*768Sec. 16, art. 5, of the constitution provides, “In case of the death, impeachment, and notice thereof to the accused, failure to qualify, resignation, absence from the state, or other disability of the governor, the powers, duties, and emoluments of the office for the residue of the term, or until the disability shall be removed, shall devolve upon the lieutenant governor.” These provisions seem to cover every conceivable case. “In case of death, impeachment, and notice thereof to the accused, failure to qualify, resignation, absence from the state, or other disability of the governor, the lieutenant governor shall discharge the duties thereof.” In the majority opinion we are told in effect that none of these provisions entitle i he lieutenant governor to act. No cases are cited in support of this position, and áfter a pretty thorough search I-am unable to find a single case that sustains the rule contended for.
Webster defines lieutenant governor as “ an officer of state, being next in rank to the governor, and, in case of death or resignation of the latter, himself acting- as governor. A deputy governor.” (Am. Diet. [Ed. of 1881], 771.) The word “lieu” is derived from the latin word loans, and means place, room, stead. (Id.) In fact he is deputy governor. He is elected at the same time that the governor is elected and for the same term of office. The constitution, after enumerating a number of cases, among others when the governor fails to qualify, declares that the lieutenant governor shall fill the place. Now if a person elected governor fails to qualify and accept the office, he does not become governor by the election. He at the most is governor elect. In such case there is a failure on the part of the electors to obtain the person they have chosen. In effect the election fails; but does the preceding governor hold over? The constitution says, in effect, that he shall hold the office until his successor is elected and qualified. The successor in such case, however, has failed to qualify, and the case would seem to be very much stronger on behalf *769of the former incumbent than the case under consideration,, yet in such case it is conceded that the lieutenant governor would become the governor of the state, and the term of the former incumbent would cease on the first Thursday after the first Tuesday in January, 1891. In addition to this, the section of the constitution above quoted, after-enumerating the cases named, declares that in case of any other disability of the governor the lieutenant governor shall act as governor. In the majority opinion it is said, in effect, that these words do not mean what they say y that they do not mean any disability not previously designated. The reason why they fail to do so is not stated. From the reading of the section it is evident that the intention was to include all disabilities by reason of which the person elected should fail or cease to act as governor. That is the plain, natural import of the words, and no court is justified, either in law or reason, to adopt a forced construction. As well contend that the word “white” means “ black ” as that the word “ disability,” in the connection in which it is used in the section above quoted, does-not cover all disabilities. A forced and unnatural construction of language, either in a constitution, statute, contract, or other instrument, is liable to be fraught with wrong and injustice, and leaves uncertain what view may be taken by the court of any instrument or document, and hence tends to unsettle and render precarious the law upon the plainest proposition, and therefore that mode of construction is generally discarded by the courts. In addition to what has been said as to the right of the lieutenant governor to-succeed the governor, it will be noticed that there is no-provision in case of vacancy for electing a governor at the next general election after the vacancy occurs. Hence if" the position of the majority of the court is right, a man who-did not receive a single vote for the office may hold the-office of governor of the state for two years at least, and as much longer as possible; and thus government of the *770people by the people be defeated, and the first step taken to Mexicanize the government of the state.
There are other reasons which might be given; among others, the statement of the relator in one of his applications to this court to file his relation, that he had been forced by the defendant to abandon the office; in other words, that he had vacated the office under duress. This is an affirmative plea and is repeated in the answer of the defendant to this extent. It is charged that he abandoned the office, and the two together make it certain that this took place soon after the defendant took possession of the office. If the relator voluntarily vacated the office even for a moment, the tenure would thereby be severed and no after acts would heal the breach. If he was forced out under duress, the proof is on him to show such duress. The .plea, as I understand it, admits the breaking of the tenure, but pleads a legal excuse therefor. No such excuse appears in the record, and the breach of the tenure, in my view, stands admitted.
In any view of the case, therefore, the relator ceased to be governor of this state on January 7,1891, and since that time had no right to bring the action, or hold the office of governor.