the right, and was under duty, to continue in discharge of the powers of the office until his successor should be declared elected and qualified. It admitted that said Goff and Fleming were candidates for governor, each claiming to have received the highest number of votes; but whether either received a majority of legal votes, or both an equal number, neither said Carr nor he could possibly know, as the returns of the election were sealed and transmitted to the Secretary of State, to be disposed of as directed by section 3, article 7, of the Constitution; that under the Constitution said returns cannot be published, declared or made known except as by it provided; that in fact they had never been published and made known; that there is no law whereby they can be legally published except as set forth in said section 3, and therefore aby averment of the petition that either Goff or Fleming had received a majority, or been elected, or did not receive an equal number of votes, is beyond the possibility of the petitioner's knowledge, and therefore untrue.

It averred that neither Goff nor Fleming, nor anyone else, had been declared elected, and therefore it was untrue that either a failure to qualify, or any disability, or any condition of facts whatever, had occurred concerning the governor that entitled Carr to act.

the contest between Fleming and Goff, and all returns and papers relating to it were referred to the committee.

It appears, also, that on January 4, 1889, an order was made by the Circuit Court of Kanawha, suspending the certificate of the commissioners of that county as to the election for governor. A resolution was passed extending the time for taking depositions in the contest until day of May, 1889.

Plaintiff, Carr, demurred to the return of said Wilson. The case was fully argued and submitted to the decision of the court.

President Carr based his claim to the office of governor on section 16, art. 7 of the Consti tution, which reads as follows:

"In case of the death, conviction on impeachment, failure to qualify, resignation or other disability of the governor, the president of the senate shall act as governor until the vacancy is filled, or the disability removed."

Governor Wilson denies the application of that provision to the present circumstances; and, though his term of four years as governor has expired, he claims to hold over until his successor shall be declared elected and qualified, under section 6, art. 4 of the Constitution, which reads as follows:

"All officers elected or appointed under this Constitution may, unless in cases herein otherwise provided for, be removed from office for official misconduct, incompetence, neglect of duty or gross immorality, in such manner as may be prescribed by general laws, and unless 80 removed they shall continue to discharge the duties of their respective offices until their succes

It averred that Wilson had been elected, in October, 1884, governor for four years, beginning March 4, 1885, and that he was eligible to be so elected, and was declared elected and served as such governor for such term-and is still in the office performing its duties, his successor not having been declared elected and qualified, within the meaning, intent and re-sors are elected, or appointed, and qualified." quirement of the Constitution.

It averred that said Goff and Fleming were candidates for governor at the election on the Tuesday after the first Monday in November, 1888, for the term commencing March 4, 1889, and both, and no other person, claimed to have been elected.

It also averred that said Fleming instituted proceedings contesting the election of said Goff before the Legislature in Joint Assembly at its session commencing the second Wednesday in January, 1899; that the petition and notice of contest of Fleming, and the counter petition and notice of Goff, were presented, received and entered on the journals of both Houses of the Legislature, and also in the Joint Assembly, and that the necessary steps were taken by the Joint Assembly and the Houses for the trial of the contest.

Copies of the journals are filed with the return. It appears therefrom that the Joint Assembly adopted a resolution referring to said contest, and suspending the declaration of the result as to governor until the decision of said contest; and that it was the opinion and decision of said assembly that the mere reading of the returns already opened (those from a few counties had been opened) should not be construed to give either Goff or Fleming any claim or right to the office, and that all the returns should be referred, without reading any of them, not yet opened, to the joint committee provided by law relating to contests for the office of governor and be considered as if none of said returns had been read. Such a committee was appointed to examine and report on

Carr contends that while it is true under section 6, art. 4, that officers hold over beyond their term until their successors are qualified, yet that that section itself says, "unless in cases herein otherwise provided for," and that if we turn to section 16, art. 7, it is therein otherwise provided for, namely: that "In case of the death, conviction on impeachment, failure to qualify, resignation, or other disability of the governor, the president of the senate shall act as governor."

Wilson maintained that the words "unless in cases herein otherwise provided for," apply only to removals of officers, and not to the clause providing for holding over, as if it read "All officers may be removed in such manner as may be prescribed by general laws, unless in cases herein otherwise provided for;" or as if the clause as to officers holding over were in another section.

It is said that as to removals it was necessary to insert those words, because this section gives the Legislature power to provide as to the manner of effecting removals from office; whereas, section 9 of article 4 provides for the impeachment of all state officers, and their trial and removal by the senate; and the insertion of those words as to removals avoids any inconsistency. Their location, not at the opening of the section, but after the word " "may," which is a part of the verb "removed," and their absence from the clause relating to officers continuing in office, would seem, grammatically speaking, to confine them to the clause relating to removals. To annex them also to the other clause we should have to transport them to it

But I regard this matter not material; for if As above stated, had General Goff or anyone they were not used at all, the general rule that else been declared elected, and failed to qualremovals should be made as might be pre-ify, there would be a failure to qualify within scribed by the Legislature would yield as to, or rather not apply to, those officers who can be removed only by process of impeachment; for the Legislature could not as to them prescribe another mode of removal.

laration of the result as to governor, until the decision of the contest between General Goff and Judge Fleming.

Whether that action was right or wrong, this court has no jurisdiction to even indicate. The Legislature is the sole tribunal to take action in that matter. We possess no power, directly or indirectly, to review or revise that action. The whole matter, both the function of passing on the returns from the counties, and that of deciding, on the law and the evi dence, the contest between Goff and Fleming, has been taken in charge, under the mandate of the Constitution, by the Legislature; it is waiting for the evidence to be taken by the parties and has merely continued the case for trial. This court could not, directly or indirectly. oust the Legislature of its jurisdiction, and, assuming superior wisdom and power, arrogate to itself the function of saying that either was lawfully elected. To do so would be usurpation of unwarranted authority by this court.

Therefore this court has held that, for want of declaration of his election, General Goff could not have a mandamus to compel Governor Wilson to admit him, and because he had no declaration of election, the only commission to complete his title.

If, then, President Carr were to base his claim on a failure of General Goff, or anyone else, to qualify, the question would arise, How could anyone qualify until after he had been declared elected? How could there be a failure to qualify until there was some one in a condition to qualify?

not one who was a mere candidate, one not declared elected, but one who, but for some disability attaching to him, could act as governor.

Before the president of the senate can act there must be a person whose duties and powers he assumes, in whose shoes he stands. He can exercise no functions but those of the man whose position he takes. The one for whose disability he becomes acting governor must be, not an incomplete governor, so far as the votes of the people and the authority selected to declare his election are concerned. They must have done all they were required by the Constitution to do to make him governor. If any thing essential to be done by them to complete his title be wanting, he is only partly governor, not fully so, not entitled to enter into the office.

The Constitution is not, in section 16 of article 7, making provision for the discharge of the duties of one who under no circumstances is entitled or ready to perform such duties himself.

The president of the senate acts on the death of the governor, or on the conviction or impeachment of the governor, or on the failure of the governor to qualify, or on the resignation of the governor, or other disability of the gov ernor. He must be, in any or all those occasions calling on the president of the senate to act, one who in law can be deemed a governor. But as yet no one has been declared governor. Such declaration is, under the cases cited from New York and our decision in Goff v. Wilson, ante, indispensable to give anyone title as governor; and none of the candidates having been declared elected, no one of them is such govern

the president of the senate can be called on to assume functions in his stead, which functions such governor could not himself assume, because of such disability.

The only provisions as to qualification of officers are in section 7, chap. 10, Code 1887, requir-or, under that section of the Constitution, that ing that officers shall take the oath within sixty days after they have "been duly declared elected," with the proviso as to executive officers that they shall do so "on or before the 4th of March next after they are declared elected, or before they exercise the duties of their respect ive offices."

Again; I do not think the non-declaration of the result of the election is a disability of the governor such as is meant by the Constitution, These provisions do not contemplate or pro- It is simply nonaction, or incomplete action, vide for any officer taking the oath before he by the agencies of the law assigned to vest the is declared elected. Thus, if the president of title in the candidate. It is not like insanity, the senate demand the office on account of a conviction of the officer for crime, continued failure to qualify by the elected governor, the absence or other disability connected with the answer is: There has been no failure to qual-person of the governor. Death, conviction on ify, legally speaking, because no one has as yet become entitled to qualify. How can there be a failure to qualify when no one has been called upon to do so? The words "failure to qualify" mean failure to qualify as required by law, such as would forfeit the office. But the statute has not demanded this qualification un-struction seems confirmed by the after language til after the declaration of election.

But the distinguished counsel for President Carr says that the failure of the Legislature to declare either Goff or Fleming, or anyone elected, creates a vacancy or "disability of the governor;" and under the Constitution, for that cause, the president of the senate comes in. This is the ground, chiefly, if not solely, relied on by him.

Now the language is: "In case of the death, conviction on impeachment, failure to qualify, resignation or other disability of the governor, the president of the senate shall act as governor until the vacancy is filled or the disability is removed." It says "disability of the governor." But it must be by reason of the disablity of,

impeachment, failure to qualify or resignation would produce vacancy; and it would seem that language or "other disability" meant something of a different character from those cases named-something attaching to the person of the governor and disabling him; and this con

of the section providing that "The president of the senate shall act as governor until the vacancy is filled or the disabicity is removed," thus using the words vacancy and disability as meaning different things-"vacancy" referring to death, conviction, failing to qualify and resignation, but "disability" referring to something relating to the person, and for the time being disabling him, notwithstanding the use of the word "other."

The words "shall continue to discharge the duties of their respective offices until their successors are elected and qualified," seem to fit this case, where the proceedings leading to the completion of the election are yet pending, but will end in the declaration of a result, when

the governor will come on to qualify; whilst | Legislature would elect, that election would the other section as to the president of the date and confer title only from the day of elec senate acting seems to provide for a different tion, and not relate back to the election in Noclass of cases; that is, where the election is com-vember, and thus prove that no person was then plete, but there is a vacancy caused by death elected. or other fact, or a disability preventing his action.

In Ex parte Larchorne, 18 Gratt. 93, the court, under similar provisions in the Virginia Constitution, held that the clause relating to the lieutenant-governor acting in case of death or other cause disabling the governor, did apply only to a case not provided for by the section authorizing officers to hold over.

Again; this position of President Carr assumes that somebody was elected governor in November last. His petition says either Fleming or Goff was elected. Quite likely this is 80. To succeed he must have somebody elected at that election, so that he may have some one whose place he is to take. But it does not appear that anybody was in fact elected.

The assertion of his petition that some one was elected, even if not denied in respondent's answer (but it is denied), could not be taken for true, for it asserts a fact which, legally speaking, cannot be yet known and is not susceptible of proof here.

There is no declaration of the result, and the returns have never been approved or published; their contents are yet sealed and sacred in the keeping of the Joint Assembly, awaiting publication. Can we or President Carr say whether or not they show an election? They may show a tie vote. Is it clear that we can presume, because an election was held, that some one was elected?

Thus, no contingency has arisen, no condition exists, such as to call upon the president of the senate to act as governor. The clause of the Constitution on which he rests is an exception to the general rule fixed by another clause declaring that all officers shall continue to discharge their duties until their successors are elected and qualified; and as he does not come within that exception he cannot act but under said general rule of section 6 of article 4 of the Constitution.

E. Willis Wilson has a right to continue to act as governor until his successor shall come in. We are in this cause called on by both sides to decide, not only whether Carr has title to admit him, but also whether Wilson has title to hold over; and as we see it, we are compelled to pass on Wilson's right to hold over; for it seems certain under these two provisions of the Constitution that if Carr has title to enter into the office, Wilson has no title to hold over. In deciding as to the right of the one, we inevitably decide as to the right of the other.

This case is unlike that of Goff v. Wilson, ante, for there it was a question only of Goff's title. If his title was imperfect by reason of the absence of a declaration of his election, he failed, whether Wilson had title to hold over or not; and we did not in that cause pass on Wilson's right. If Goff's title had been complete, surely Wilson's tenure was at an end; if Goff's title was imperfect he could not be admitted, though Wilson's claim to hold should be weak.

Mention has been made, though it does not seem to be urged, that under section 4 of article 7 of the Constitution, a governor is ineligible for the same office for the term succeeding that for which he was elected, and therefore Governor Wilson is not competent to hold over.

The Judge delivering the opinion in the Court of Appeals of New York in People v. Crissey, supra, says: "At this point it appears needful to determine who was lawfully the alderman of the seventh ward, entitled to occupy the seat for which Morrissey and Fleming contested. We cannot say that either was elected. It is argued that one must have been. That does I consider him holding over under his old not follow. A canvass in which all or a ma- term; it is a prolongation of that. His compejority of the inspectors concurred, or an invest-tency is tested by his eligibility for his old term. igation by a court of justice in which the vote actually and honestly cast was correctly counted, might have resulted in a tie. While that is not probable it is certainly possible. We cannot know. We have no legal evidence before us from which we can give the seat to either by virtue of the election."

As he was eligible for that, he can hold under his old term and its eligibility and qualification until his successor comes. He holds ex officio.

In Ex parte Lawhorne, 18 Gratt. 85, a pardon was issued by Governor Peirpoint to a convict after Peirpoint's term expired, and the keeper of the penitentiary refused to obey it for that reason. The case went to the Court of Appeals of Virginia. Its Constitution provided that "Judges and all other officers, whether elected or appointed, shall continue to discharge the duties of their respective offices, after their terms of service have expired, until their successors are qualified." Its Constitution also provided that "In case of the removal of the governor from office, or of his death, failure to qualify, resignation, removal from the State or inability to discharge the powers and duties of the office, the said office, with its compensation, shall devolve on the lieutenant-governor." There being no election of a governor-no qualification of one-the court held that Governor Peirpoint should continue in his office beyond his term, notwithstanding the latter provision; and held that he was capable of holding over though

the Virginia Constitution contained the same! For these reasons the demurrer to the return clause, as to ineligibility for a second term, as must be overruled, the peremptory writ of mandamus denied and the petition dismissed.

CONNECTICUT SUPREME COURT OF ERRORS.

For malice as an element, see Byam v. Collins, 2 connected with it. Knott v. Burwell, 96 N. C. 272. L. R. A. 129.

See also 6 L. R. A. 780; 16 L. R. A. 803; 46 L. R. A. 397.