OPINIONS RELATING TO MISCELLANEOUS MATTERS

263

the assistants to do and perform such acts as the county attorney is authorized to
do as independent officers, it seems strange they did not say so, especially in view
of Section 304, Code of 1897, that authorizes the appointment of a substitute for
the county attorney in case of sickness or disability, that in part is as follows:
"* * * and while acting under said appointment, he shall have all the authority
and be subject to all responsibility herein conferred upon county attorneys * *
The deputies appointed under Sectio❑ 304 of the Code of 1897 are given all the
authority and responsibility of the county attorney.
The county attorney is an officer in whom official discretion and powers of the
office are vested, and may when authorized by law perform the functions of his
office through the services of assistants acting under his direction and supervision,
but he cannot delegate to them where such assistants are not by law given the
authority, the power to perform his official duties independent of any control or
direction by him, and in accordance with their own individual judgment and discretion. An assistant is one who stands by and aids or helps another in the performance of the latter's duties, and unless there is a clear expression in the statute
to the contrary, it will be presumed that the legislature intended that public duties,
which require the exercise of discretion, should he performed by the public officers
themselves and not by their assistants. (Lowcr vs. State, 184 N. W. 174 (Neb.) ;
Commonwealth vs. Smith, 141 Mass. 135, 6 N. E. 89; 18 C. J. 1346.)
It is of the highest importance to the public that this discretionary power vested
in the county attorney should be carefully exercised, and that the responsibility
should rest upon the officer to whom it is confided. (McCarroll. vs. State, 133 Pac.
260 (Okla.).) It is directly contrary to public policy to allow any general delegation of a prosecutor's powers, and unless it clearly appears that the legislature intended to make the assistant county attorney an independent official and clothe him
with power to act in his own name, he cannot exercise the discretionary powers
lodged in the county attorney.
It is quite clear that the legislature did not make the assistant county attorney
an independent officer and clothe him with the power to act in his own name. At
best lie is a mere agent of the county attorney, and as such must perform official
acts in the name of his principal.
It is therefore the opinion of this department that the recommendation provided
for in Section 5718-a18, Supplement of 1913, should he signed by the county attorney.
GOVERNOR. Temporary absence from state—authority of Lieutenant Governor
to act. Constitution provision discussed. Held—Governor may determine necessity for calling upon Lieutenant Governor to act.
August 23, 1923.
Governor of Iowa: You have called to the attention of this department the fact
that your physicians have advised that your health is such as to demand an extended
vacation on your part. That during such time you should abstain from the performance of all official duties. In the advice of your physicians you personally
agree, believing that your physical condition is such as to disable you for the time
being from the full performance of your duties as governor.
As we understand, it is your desire that the duties of the chief executive should
be fully performed at all times and that during the temporary period of your absence, it is your desire that Lieutenant Governor Hammill act for you. As we

I.

 264

R PORT OE HE ATTORNEY GEN ER AI,

understand it, the period of your absence is indefinite, but will probably be for a
period of two or three months.
The sole question for our determination is as to whether or lot the Lieutenant
Governor can, during your temporary absence, perform the duties of Governor.
Section 17 of Article 4 of the Constitution of Iowa provides as follows:
"Section 17. fn case of the death, impeachment, resignation, removal from office,
or other disability of the governor, the powers and duties of the office for the
residue of the term, or until he shall be acquitted, or the disability removed, shall
devolve upon the lieutenant governor."
This section is a re-wording of section 18 of Article 4 of the old Constitution
of Iowa. The clause "or other disability of the governor" was not included in
the old constitution. Constitutional Debates, Vol. 2, 1080. We are firmly of the
opinion that during the temporary disability of the governor, that the lieutenant
governor may act as governor. Our conclusions are reached only after careful
thought and consideration.
From a consideration of this article it will be observed that in case of death,
„...Lo•irigin'T
. ion or remova
rom office of the governor, that the lieutenant governor
succeeds him as governor f the state for the residue of the term. It will further
- 7:apppar tatwhen--tliere-Is a temporary disability of the governor, the lieutenant
governor acts in his stead during the period of time such disability continues. In
the first instance, the lieutenant governor becomes governor. In the second instance
he simply acts as governor during the temporary disability of his chief.
A study of the.history of this section (Constitutional Debates, Vol. 2, 1089_1-will
disclose the fact that the clause "or other disability of the. gol,:esdo.r!' -.Waif not included in the old Constitrajorro -PlYarirAv a irts-Erte-rifil-The new Constitution for a
specific purpose is obvious. What was that purpose? A careful study of section
18 of Article 4 of the old Constitution will disclose the fact that there was no means
provided whereby the duties of the chief executive might be performed during the
disability of the governor.
For example, if the governor was so disabled as to render him either physically
or mentally incapable of performing the duties of his office, there was no provision
whereby anyone could act as chief executive. This presented an intolerable condition. The chief executive of the state is the head of the executive branch of the
government. For that branch of the government to cease to function for any extended period of time can only result in paralyzing and dislocating the functioning
of the entire structure.
It is obvious then, that the purpose and object sought to be accomplished by the
insertion of this clause was to insure that during all future time the state should
have an executive department continuously functioning.
Not only is this conclusion reached from study of the history of the constitution.,
but it is also reached without difficulty by the application of the simple rules of
constitutional construction. It is fundamental that the words and terms of a constitution, like those of a statute, are always to be given their natural and obvious
meaning. That is, the meaning in which they are commonly and ordinarily understood. Gibbons v. Ogden, 6 L. E. (U. S.) 23; Halsey v. Belle Plaine, 128 Iowa,
467; People v. May, 3 Mich., 598; Manley v. State, 7 Maryland, 135 ; Miller v.
Dunn, 72 Calif. 462.
The clause "or other disability of the governor" has a common and ordinary
meaning. As stated in Hill v. Insurance Company, 146 Iowa, 133:

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265

"The word 'disability' does not express the same meaning as the word 'cleath';
nor is it ordinarily used as signifying the same thing. 'Disability' is defined as a
want of competent power, strength, or physical ability; sickness; incapacity; impotence."
Similar meaning has been given to the actual words as they are used in the Iowa
Constitution. The Supreme Court of Nebraska in State v. Boyd, 48, N. W. (Neb.)
739, says
"Under the provisions of section 16 noted above, the duties of the office of governor devolve upon the lieutenant governor in certain contingencies, among which
are the failure of the governor-elect to qualify, and disability of the governor. The
words 'other disability,' as used in the section, have no reference to the ineligibility
of the person to he elected to the office, but were intended by the framers of the
constitution to cover any disability of the governor not specifically enumerated in
the section, after the commencement of his term of office."
The Supreme Court of West Virginia, in Carr v. Wilson, L. R. A. (W. Va.) 64,
says:
"Again ; I do not think the non-declaration of the result of the election is a
disability of the governor such as is intended by the constitution. It is simply
non-action, or incomplete action, by the agencies of the laws assigned to vest the
title in the candidate. It is not like insanity, continued absence or other disability
connected with the person of the governor. Death, conviction or 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 construction seems confirmed by the after language of the section providing
that the president of the senate shall act as governor until the vacancy is filled
or the disability is removed, thus using the words 'vacancy' and 'disability' as meaning different things—`vacancy' referring to death, conviction, failing to qualify or
resignation. but 'disability' referring to something relating to the person, and for
the time being disabling him, notwithstanding the use of the word 'other.'"
An identical situation to that presented by you was presented in Barnard v.
Taggert, 29 Atl. (N. H.) 1027. The facts in this case were substantially as follows:
The governor of New Hampshire became ill and his physicians advised that it was
necessary that he take a vacation of some length. He was informed that his health
was impaired to such an extent as to render it necessary to the best interests not
only of the state, but of the governor, individually, that such a vacation be taken.
Thereupon the got ernor wrote to the attorney general as follows:
"Antrim, Mar. 31, 1890.
"Daniel Barnard, Esq.,
"Attorney General.
"Dear Sir: Please take such steps as you think necessary to cause the president
of the senate to exercise the powers of the office of governor during the vacancy
caused by my illness. I am not able to perform the duties of the office, and the
public service should not suffer from my inability.
"Very truly yours,
"D. H. Goodell."
The attorney general at once demanded that the president of the senate, during
such temporary absence of the governor, act as governor. He refused, and the
attorney general brought an action in mandamus to compel him to act. The court
held that during the temporary disability of the governor, the president of the
senate should perform the duties of the executive and that the governor was to
determine the commencement and ending of such disability. Among other things,
the court says :

 200

REPORT OE THE ATTORNEY GENERAL

"The mischief designed to be prevented was the suspension of executive government by the governor's death, absence from the state, or disability. 9 Cong. Rec.
pt. 1. 46th Con. 1st. Sess. pp. 184-189, 273-285. 287-298, 312-325, 341-355 ; Opinion
of the Court, 60 N. H. 585. The prescribed remedy is the duty of a substitute to
act in cases of necessity. The services of a substitute may be necessary when the
governor's absence or disability is temporary as well as when it is permanent. When
there is an office to which no one has a title, and which is in fact held by no one,
there is a vacancy. Johnston z'. Wilson, 2 N. H. 202, 203; Mechem, Pub. Off. 127.
But, in article 49, 'vacant, by reason of his death, absence from the state, or otherwise,' has a broader signification if due weight is given to the evidential force of the
primary and leading purpose that the executive work shall go on without interruption.
An intermittent vacancy, such as occurred in the time of Governor Weare, may
occur again; and the evils of an interregnum, which article 49 was intended to
prevent. are not to he introduced by technical reasoning or arbitrary rules.
from the imperfection of human language, there should be serious doubts respecting
the extent of any given power, * * * the objects for which it was given *
should have great influence in the construction.' Gibbons v. Ogden, 9 Wheat. 1,
189. The general object of article 49 forbids a construction that would sometimes
cripple the government, _and_render_it_powerless in a department in which the
public safety requires constant readiness for action."
Without extending this opinion further, it is obvious that whenever the governor
shall determine his physical condition to be such as to disable him from fully and
completely performing the duties of his office, he may call upon the lieutenant
governor to act in his stead, until the removal of the disability. In cases of physical
disability, there is no doubt lint that the governor is to determine the time when
such disability begins and the time when it ends. During such period of time the
lieutenant governor does not become governor, but remains lieutenant governor
performing the duties of the office of governor during the period of time as decided
by the governor himself.
Finally may we suggest that you should enter in the executive journal of the
governor a statement of the fact that you find your physical condition to be such
as to temporarily disable you from the performance of your duties as governor,
and that you have asked the lieutenant governor to act in your stead during your
temporary absence from the office. You should note that the lieutenant governor
is to act as governor only until your return to the capitol. You should note that
your absence from the office is only temporary and that you will return when,
in your opinion, your health is such as to permit of your doing so. Your record
should be clear to the effect that there is no resignation or permanent abandonment
of the office of governor, and that the lieutenant governor is to act for you Only
during your pleasure.
PAROLE. The time a convict is on parole is not to lie computed in determining
the length of time h" sl,p11 serve under sentence.
August 23, 1923.
Warden, Men's Reformatory: Your favor of the 13th to the Attorney General
requesting an opinion from this department has been referred to me for reply.
Your request is as follows:
"This man was sentenced on August 4, 1920, for five years and received a parole
from the bench and said parole was revoked on June 1, 1921, and he was received
at this institution on June 3, 1921.
"The question of the expiration of his time has now arisen 'Should this man
receive credit for the time he was on parole?' as the court's order states Or 'should
his time be computed from the time he was received at this institution?'"