(dissenting).
I am unable to agree with the majority of the court that the Governor was absent from the state in the sense of the Constitution. In my judgment, the absence referred to in section 131 of the Constitution means such an absence from the state as will effectually prevent the Governor from exercising the powers and duties of his office. In other words, it must be an effective absence. The only authority referred to in the majority opinion which tends to sustain the contrary view is In re Crump, 10 Okl. Cr. 133, 135 Pac. 428, 47 L. R. A. (N. S.) 1036, the reasoning of which, although specious, appears to me to be unsound. On the other hand, State v. Graham, 26 La. 568, 21 Am. Rep. 551; State ex rel. Crittenden v. Walker, 78 Mo. 139; People v. Parker, 3 Neb. 409, 19 Am. Rep. 634; Watkins v. Mooney, 114 Ky. 646, 73 S. W. 622; Mayor v. Moran, 46 Mich. 213, 9 N. W. 252; State v. Lahiff, 146 Wis. 490, 131 N. W. 824, Ann. Cas. 1912C, 350—are directly in point, and the reasoning especially of the Louisiana, Missouri, and Kentucky courts in the cases referred to is remarkably lucid and logical, and, in my judgment, sound. The majority opinion quotes from some of these cases at length. Those quotations sustain this dissent.
There was involved in the Louisiana Case, State v. Graham, supra, the question whether the Governor of that state was absent within the meaning of its Constitution, the duties and powers of the office of Governor thereby devolving upon the Lieutenant Governor. In discussing the question the court said:
‘ ‘ The relator avers that his salary as Governor of the state was due him for the periods from the 6th to the 19th of May, 1871, and from the 26th of June to the 17th of July, 1871; that he drew his warrant therefor on the auditor of public accounts on the 22d of September, *1561871; that payment of this warrant was refused on the grounds that the relator was absent from the state during’ said periods and that the duties and prerogatives of Governor devolved on the Lieutenant Gov rnor, to whom the salary of Governor for said periods had been paid. There was judgment in favor of the relator and the defendant appealed. The question to be decided is: Does the absence of the Governor from the state for a few hours or a few days create a vacancy in this office, and authorize the assumption of the duties,' prerogatives and emoluments thereof, by the Lieutenant Governor, during said absence? The constitutional provisions on the subject are contained in articles 53 and 54 of the Constitution. Article 53 says: ‘In case of impeachment of the Governor, his removal from office, death, refusal or inability to qualify or to discharge the powers and duties of his office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the Lieutenant Governor, for the residue of the term, or until the Governor, absent or impeached, shall return or be acquitted, or the disability removed,’ etc. Article 54 declares that the officer discharging the duties of Governor during his administration shall receive the compensation to which the Governor would have been entitled. It is evident, if the Lieutenant Governor be authorized to. exercise the functions of the Governor during any temporary absence of the Governor from the state, he may also, whenever the Governor is unable to attend-to the duties of his office on account of sickness — in case ‘of inability to discharge the powers and duties of his office. ’ We do not believe this t - be the meaning intended by the framers of the Constitution. The inability to discharge the duties of the office as well as the absence from the state, spoken of in the article, are such as would affect injuriously the public interest. The mere absence, at Pass Christian, within a few hours’ run of the capital, could not, by any possibility, affect the public interest.”
*157And what the supreme court of Nebraska said in part in People v. Parker, supra, seems especially appropriate to the facts here, which is in this language:
“But when I reflect upon the possible consequences of such a construction [that of the majority opinion in this case] of the Constitution, upon the disgraceful tricks, strifes, and exhibitions which might be entailed upon the people of the state, of which our present attitude presents a sad and humiliating commentary, I am induced to hesitate and cast about me for a more salutary rule, one which, while it will insure the efficient administration of the affairs of the state during a brief temporary absence of the executive, will at the same time protect this department of the government against unnecessary and ill-advised intrusion. ’ ’
The last clause of section 131 of the Constitution is in thisilanguage:
‘ ‘ Should a doubt arise as to whether a vacancy has occurred in the office of Governor, or as to whether any one of the disabilities mentioned in this section exists or shall have ended, then the secretary of state shall submit the question in doubt to the judges of the supreme court, who, or a majority of whom, shall investigate and determine said question, and shall furnish to said secretary of state an opinion, in writing, determining the question submitted to them, which opinion, when rendered as aforesaid, shall be final and conclusive.”
By this provision of the Constitution, in my judgment, a remedy is provided for the Very character of controversy between the Governor and Lieutenant Governor as has arisen in this case. The framers of our Constitution foresaw the probability of just such a conflict' of authority and provided a remedy therefor. And that remedy is simply this: That whenever a controversy shall, arise between the Governor and Lieutenant Governor as to who shall exercise the functions of the office of Governor, *158it is the duty of the secretary of state, when such a controversy is- brought to his attention, to submit the question to the judges of the supreme court for decision, whose decision shall be final and conclusive, and until such decision is made the duties and powers of the office go with the one who is in charge thereof assuming to act as Governor, whether he be the Governor or Lieutenant Governor. It is inconceivable that the makers of our Constitution left this question open to be determined by parol testimony. If the majority opinion in this case be sound, then it may often be a question, to be determined by the testimony of witnesses, as to who is Governor, or rather who is entitled to act as such, which amounts to the same thing. The records and memorials kept by the state will count for nothing. Take, for illustration, this condition of affairs: The Governor accepts *an invitation from a friend to play golf on a golf course on the line betwe'en Mississippi and Alabama, partly in this state and partly in that. The game is going on for a half day; several are engaged in it; it is quite an occasion; there are many visitors. In the progress of the game the Governor is in Mississippi when he hits the ball one time, and in Alabama when he hits it the next time, and so forth and so on, resulting in his being in and out of Mississippi maybe dozens of time before the game is over. According to the majority opinion, every time he crosses the state line into Alabama he loses his office for the time being, and the Lieutenant Governor is Governor, and when he crosses the line back into this state he is Governor again, and the Lieutenant Governor is down and out. In other words, now he is and now he ain’t, and now he is and now he ain’t, and so on as long as the game goes on. And during the time the Lieutenant Governor has heard of the game, and thereupon rushes to the capital of the state, and seizes the Governor’s office and the great seal of the state, issues par*159dons to criminals, one after another, and appoints circuit judges, and chancellors and supreme court judges to fill vacancies. And then the question arises in the courts which ones, if any, of these pretended official acts are legal. The Lieutenant Governor, while acting as Governor, has had a time-keeper, who has kept the record of when the various official acts were performed. They testify. And the witnesses at the golf game are brought in and put upon the stand, and necessarily, although they were watching the Governor closely while engaged in the game, there is great conflict as to whether he was in Mississippi or in Alabama at the various times in question. Is it believable that the wise men of our Constitution failed to provide against this condition of affairs —such absurd, ridiculous results. I am glad to say-1 do not believe any such thing.
The Governor was in Memphis when this pardon was granted by the Lieutenant Governor, only a few miles from the state line* in'telephone call from his office, only seven hotfrs’ run by railroad from the capital, and was there only about six hours; he could have been called back at any time he was needed; he had not called upon the Lieutenant Governor to take his place during his brief absence; the public interest was not jeopardized. I say the Lieutenant Governor had no right to take his place, unless requested so to do by the Governor, or until the situation became so grave as to cause the secretary of state to submit the question to the judges of the supreme court, as provided by the provision of the Constitution above quoted, and they had decided that the Governor was absent from the state in the sense intended by the Constitution.
Cook, J., joins me in this dissent. *160[98 So. 543].On Suggestion oe Error.
Per Curiam:- — We adhere to the views herein expressed in our former opinion, from which it follows that the suggestion of error must be overruled.
Overruled.