(concurring).
The suggestion of error filed by the attorney-general’s office again presses the point that the Governor’s absence from the state was of such a temporary nature that it did not constitute an absence in the sense of the Constitution, causing a vacancy in the office.
It is also again urged that the last clause of section 131 of the Constitution is applicable in the case, and that the question of whether there was a vacancy when the Governor was in another state for a few hours should have been submitted to the judges of the supreme court for decision. This clause provides- that ‘ ‘ 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,” it is to be submitted to the supreme judges.
I adhere to the views expressed in the main opinion; and that when the Governor is out of the state for any length of time I think a vacancy in the office then and there occurs, and it is immaterial as to what length of time he may have been out of the state, or what distance he had gone beyond the borders of the state. He might be in an adjoining state at a ball game or on a visit to Europe, or he may be away for several hours or several months. In either event there is a vacancy in the office according to the language of the Constitution, section 131, which provides:
“When the Governor shall be absent from the state, *161. . . the lieutenant governor shall discharge the duties of said office until the Governor be able to resume his duties.”
He is not Governor when out of the state, so far as being able to act. It would be violating the language and spirit of this constitutional provision, and would also be venturesome on the part of this court, to hold or attempt to prescribe the length of time the Governor must be out of the state, or the distance he must be away from the state before a vacancy occurs, which empowers the lieutenant to act. It would not be safe to adopt any rule^ except that, when the Governor is beyond the borders of the state, this fact, automatically causes a vacancy in his office, and the lieutenant governor, who is made a substitute for the Governor in his absence, with the powers and duties of the Governor, shall exercise the functions of that office.
■ It was never intended the full functioning of the Governor’s office should be suspended for one minute on account of the Governor’s absence, or for any of the other reasons named in the Constitution, such as protracted illness, incapacitating the Governor 'from performing the duties of his office. It was intended by the makers of the Constitution that the lieutenant governor, who must have the same qualifications of the Governor, should take the shoes of the Governor, and discharge the duties and powers of the office in his stead, and as his lieutenant in his absence from the state, or when he is unable to serve.
I must again disagree with counsel for the state in the argument that the question of whether there is a vacancy in the office of the Governor on account of any of the reasons named in section 131 should be submitted to the supreme court judges, because the agreed facts in the instant case show the Governor was out of the state at the time the lieutenant governor issued the pardon.
If there was a controversy of fact as to whether he was out of the state at the time, “or as to whether any *162one of the disabilities mentioned in this section exists or shall have ended” such as disability from protracted illness, then it is probably true such question might be submitted for determination by the supreme court judges. But no such question is in this case.
I can easily imagine a controversy arising, wherein the Governor might claim that he was not out of the state, and the lieutenant governor might claim that the Governor was out of the state, or it might be claimed and disputed that the Governor was unable to act because of protracted illness, or that he had recovered from illness. If such a controversy arose, then the latter part of section 131 could probably be invoked. But that is not the case before us.