The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1873-10-23


enee to the law; he IS the sworn defender
Of the Constitution, on which life, liberty,
property aud the pursuit Of happiness de-
pend.
Believing as we do, that tho Governor
acted upon the facts stated in his proclama-
ton, in view Of the authority vested in him
by the seventh section Of the fourth article
Of the Constitution, how does his action az
feet this easel He has neither adjudieated
nor assumed to adjudicate any question Of
forfeiture, but he has acted upon state of
facts, which, when duly and impartially
considered, If they do not fully justify his
action, certainly goes a great ways in that
direction, IN moralpoint Of view.
On the twenty-seventh Of May, 1912, he
finds the State Treasurer to be absent in a
distant State, without leave from public
authority; not sent for the transaction Of
any public business; with him the principal
members OF his family. the intended period
of his absence unknown; the community
rife with rumors, however false they may
have been, of fraud and peculation in the
Treasury; the chief clerk in charge Of the
Treasury without an official bond: the
amount of money and property in the
Treasury largely in excess of the penalty of
the Treasurer's bond. These were facts
calculated to alarm, and no doubt they did
alarm the Executive, and especially con
sidering his own constitutional RESPONSE
bility over this department, that there was
really nothing in these facts to have alarmed
the Governor, could not in tho nature of
things be known to him at the time.
Looking at the conduct of the Executive
merely in a moral point of view, his conduct
is not such as might not be expected in a
prompt, vigilant and faithful public ser
want
But that he mistook the facts, at least so
far as they relate to an abandonment Of the
office, and was thereby led to an undue ex-
ercise of power in appointing the appellee,
we have no doubt.
And now we come to discuss the only
question of real Importance involved in this
case: The authorities already referred to
distinctly and Enthusiastically lay down the
rule that there can be no abandonment of
Office without the intention to abandon it.
The very word itself implies active volition
1t involves voluntary act; this volun-
tary act might be proven, if it existed, but
1t has not been proven in this case. No
part of the evidence is strong enough to
raise the presumption that the appellant,
in his own mind, ever intended to abandon
his Office.
In the case of Page V. Hardin, 8, B.
Monroe, the law is so clearly stated in the
opinion of the Chief Justice, and the case
is so strongly analogous to the one at bar,
that it would seem we ought to have but
little trouble in deciding this case.
''Hardin had been elected Secretary oil
State, the law required him to reside at the
capital, which he persistently refused to do
the Governor declared the Office vacant, ano
appointed Kincaid to fill it. Hardin sued
out mandamis against Page to compel tn,
payment of his salary, and this question
came before the courts The Chief Justict
says in his opinion, Acknowledging thu
respect which we sincerely feel for TIT
opinions and character of the Governor
whose acts are now brought In question
as well as that which is due from this de
partment to the official acts of every Gov
ernor, We are bound to inquire whether tn
vacancy assumed, either actually existed b.
virtue of the facts alleged IL the executive
declaration and Judgment, or was producet
either by that act or the net Of appointing
a successor to fill it. Concedin,
without deciding that an Office may be mad
vacant by abandonment, and that Their
may be such evidence of it as to authoriz
| the OONCfuOT TO COQSlueI tile ONCE vacant
and to fill it by new appointment; still
unless he can, by his own will or Judgment
put an end to the rights of an officer or t
his continuance in the office, the concession
would have no plausible support in law o
reason, except upon tho ground that Their
should be unequivocal evidence Of the yo
untary rejection or resignation of th
office"
No such evidence existed in that case, nc
is it found in the case at bar.
1 readily conceive that right may
forfeited or lost by nonusor or misuso
though the party continue to assert it, br
J the determination of the question, whethC
it be lost or not, is not question for exc
utive determination-ther must first be
Judgment of motion before the executiV
can fill the vacancy.
We therefore come to the conclusion thi
the Judgment of the District Court is err
neouS, and that George W. Honey is e.
titled to the Office of State Treasurer, an
such IS the judgment Of the Court.
WALKER.