The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1873-10-23
Decision OF the supreme oOurl IN the
case Of treasurer Honey.


AIsIiAs OctoDer II, 1915.
George ". Honey Y. B. Graham-From
Travis county. A majority Of the court
have arrived st an opinion in this case.
which l am authorized to express-to this,
however, may be added, by my Bro. Meade,
his own reasons for the opinion.
The first section of the fourth act OF the
Constitution creates the office of State
Treasurer, and makes it branch or subOr-
dinate department to the executive, over
which the Governor IS chief. The seventh
section of the same article implies, an au-
thority in the Governor, over the different
branches, Of the executive department.
He is authorized at any time to require in
formation in writing, from any of the chiefs
of this department, concerning the business
of their Offices.
1t may be somewhat difficult to determine
the precise boundary line of this authority,
or how far the Governor is himself official
" responsible for the safe and efficient
management of the several branches of this
department.
The action of the Governor, in the case
at bar, is not without precedent-0hio Mis-
sissippi and Louisiana have furnished SINH
lar cases. The late Chief Justice of the
United States when occupying the executive
OlAiNG Vi Univ AltDn July
brought to his notice, seized the treasury de
partment and elected a defaulting officer;
but mere precedent, to acquire the force of
law, must in the first place rest upon the
sound principles of law and reason, it must
be acquiesced in, and uncontradicted by
paramount authority.
No doubt is entertained of the authority
of the Governor to appoint Treasurer of
State when a vacancy exists in that Office.
The inquiry then, to which we may safely
confne this opinion is, was there vacancy
in the office of State Treasurer on the
twenty-seventh of May, 1922
What information we have on this sub
ject aside from the other evidence found in
the Record, is contained in the Governors
proclamation of that date-to this State
paper we must look for information as to the
motive, reason and facts, to sustain the
Judgment of the District Court Taking
the proclamation of the Governor as true
aside from the legal conclusion, that va
cancy existed in the Office, do the facts JUS
fifty such a conclusionl The Governor de-
clares in his proclamation that George W..
Honey, late Treasurer of State, had alb
sented himself from the limits of the State,
not on public business, and without leave of
absence, leaving no bonded or responsible
clerk, but leaving a man, acting as such,
who, when called on to give the bond re-
quired by law, was unable to do so. These
are the facts stated in the proclamation from
which a vacancy was inferred, and the APP
pellee appointed to fill the vacancy.
The proclamation contains no charge of
malfeasance, misfeasance, fraud or pecula-
ton against the appellant. A jealous effort,
however, seems to have since been made to
establish these charges against him. II
true, they could in no wise justify the Gov
ernor in depriving the appellant of his office
by forcible ejectment therefrom.
The sixteenth section of the first article
of the Constitution reads thus: ''No citizen
of this State shall be deprived of life, lib
erty, property or privileges, outlawed, ex-
lied or in any manner DISTINGUISHED, except
by due course of the law of tho land"
The right to hold and exercise the func
tons of an Office to which the individual
may have been duly elected or appointed,
may be regarded both as property and priv
ilege, and, therefore, the incumbent car
only be deprived of his Office in the manner
pointed out in the above quoted section o
the Constitution. 1t may be safely admitted
that more than one case might occur whert
the Governor would be authorized in as
Stunning that an Office was vacant; but NJ
case can occur under our Constitution
wherein the Governor would be authorized
to adjudge an office forfeited.
Judgment belongs to the judiciary.
charge of forfeiture can only be made GU
on proof-proof sufficient to satisfy twelv
unprejudiced minds.
To forfeit his right to an Office the incuu
bent must have done something sufficient
law to deprive him of the office; and th
Constitution and laws secure to the peTso
so accused the right to traverse, the right @
trial, and no power on earth can lawful
deprive him of these rights.
But it has been assumed in the argumeu
of this case, that great emergency existed
requiring the, removal of George w. Hone
from the Office of State Treasurer, and tina
the Governor as in duty bound, prompt
met the emergency. Under a system {
I laws so well devised as ours, it is safe {
assume that no such emergency can arise Z
cast itself upon the Governor, as would al
thorize him in assuming powers and funt
tions which do not cOnstitutionally belOn
to him. In our opinion, the argument doc
the Executive great injustice. The reaso
for his action is doubtless candidly state
in his proclamation; and there is here n
assumption of any power to declare FOL
fixture of the office. There Is no fact Sta
ted other than that from which it must b
Inferred that the Governor acted upon til
theory alone that the appellant had voluI
tarily abandoned the Office; and the major
ity of this court concurring in this opinion
in no wise hold the Executive responsible
for any assumption of power on his par
such as is assumed by appellee's counsel.
The power of the Governor to ill VI
j.
The power to create vacancy is denied
every authority, except where the Office
filled by the Governors choice of an incun
I bent, without concurrence of the Senate {
( election by the people, and the term
office is underlined by law. In such case I'll
!, incumbent holds at the pleasure Of the Fl
ecutive, and may be at any time remove
I from the Office. CKeenan v. Perry,
Texas, 253; Hill V. State Ala, 800; Bow
! man v Slifer, % Penn. S. 20; 10 Peter
5 2jS; Lowe V. Commonwealth, Metcal
!; 213; Page V. Hardin, s B. MOuroe, 04l
! Brown v. Grover, Bush, 1 Cummings
Clark, Is VT, 653; Johnson v. Wilson,
4 n. II. 202; Peoplev Field, 2 Scammon, 70
The argument in this case, by appellee
. counsel, goes even beyond an assumptiC
; that the Governor may adjudicate que
? ton of forfeiturel 1t claims that the adjud
Z cation is final, and from it no appeal can
T taken. 1t is said by counsel: ''The Cove
J nor had cause to believe that the Treasur
y had not only absented himself from Il
J.. State without leave, for an indefinite perio,
= and that the person left in charge of Il
? Treasury had never qualified or executed
: bond, but that both the Treasurer and Il
person claiming to act as his chief clerk la
Z been guilty of gross malfeasance, misus
o and nOnusor. Shall the Governor calm
. fold his arms, witness daily unlawful ex
, cution Of so important a trust, when he b
power to fill vacancy and is required
!. take care that the laws be faithfully exec
/. ted, simply because the Treasurer is lab
n to Indictment and impeachment Suppo
[. the Governor had preferred charges again
him (as was done), no trial could be had
= the first term, and if convicted at the ncl
: he has the right of appeal, which wou
r necessarily delay the case for twelve mont
or more.