State Ex Rel. Meyers v. Reeves

This is an original application in this court for a peremptory writ of mandamus requiring the secretary of state to affix the seal to, and file and publish, a proclamation of the lieutenant-governor (alleged acting governor of the state) calling the legislature into extraordinary session. The record, consisting of the application and supporting affidavit for writ of mandate and return and answer to order to *Page 504 show cause why the application should not be granted, discloses the following facts: On April 14, 1938, Clarence D. Martin, the duly elected and qualified governor of the state of Washington, left the state of Washington, to which he returned April 20, 1938, at 7:52 o'clock a.m., and from which he has not since departed. On April 14, 1938, Victor A. Meyers, the duly elected and qualified lieutenant-governor of the state of Washington, was absent from the state of Washington and remained absent therefrom until April 19, 1938. On the date of his return to this state, the relator signed, as "Acting Governor of the state of Washington," a paper (at the end of which is the signature of a notary public "In and for the state of Washington residing in Seattle") calling for the convening of the legislature in extraordinary session at Olympia on April 25, 1938, at ten o'clock a.m. The relator called at the office of the secretary of state in Olympia April 19, 1938, at 5:10 o'clock p.m., which was after office hours, and found the office closed, whereupon he returned to Seattle. At eight o'clock a.m. the following day, April 20, 1938, when relator called at the office of the secretary of state, his request that the great seal of the state be affixed to the above-described purported proclamation and that his proclamation be filed and published was refused, for the reason that the governor, Clarence D. Martin, returned to the state of Washington eight minutes prior to the relator's call on the secretary of state, and the governor had, by long-distance telephone from Spokane, promptly advised the secretary of state of his return. Relator contends that, as the governor may, on extraordinary occasions, convene the legislature by proclamation (Art. III, § 7), the lieutenant-governor may do likewise when the governor is absent from the *Page 505 state, in view of the constitutional provision (Art. III, § 10, as amended by amendment 6) that the duties of the office of governor shall devolve upon the lieutenant-governor in case of the removal, resignation, death, or disability of the governor. [1] The relator called at the office of the secretary of state eight a.m. April 20, 1938, to promulgate, to issue, a proclamation convening the legislature in extraordinary session. His purpose was to have the secretary of state authenticate officially, to attest the truth of his writing dated April 19, 1938. When that record was presented at the office of the secretary of state, the duly elected and qualified governor, Clarence D. Martin, was not disabled nor was he absent from the state. The relator was not then the acting governor, hence the secretary of state could not be required to certify as true that which she knew was untrue. Until attested by the secretary of state, there could be no promulgation of the call for an extraordinary session of the legislature. The signature and seal of the notary public could not be substituted for the attestation of the secretary of state. The purported proclamation dated April 19, 1938, until authenticated, was of no force or effect. Analogous thereto is an acknowledged but undelivered conveyance of property. When, on April 20, 1938, relator requested the secretary of state to attest the truth of his proclamation, the duly elected and qualified governor was within the state, which precluded, as stated above, the attestation the relator sought. The application for a peremptory writ of mandate is denied. HOLCOMB and BLAKE, JJ., concur. *Page 506