Budd

This is an application for a writ of mandate to compel the governor to include in his proclama *169 tion for the coming election a call to fill the office of lieutenant-governor for the unexpired term of Spencer G. Millard, deceased. Respondent has filled the vacancy caused by the death of the lieutenant-governor by the appointment of William T. Jeter, who has duly qualified.

In this case both parties concede—as indeed the exigencies of each require him to do—that the vacancy caused by the death of Millard was one which the governor had the power fco fill. If there can be question of the power of the governor in this respect, therefore, we have not considered it. ’ And no question has been made, nor have we considered, whether a mandate will issue to compel the chief executive to perform an act which, if it be his duty to perform, is enjoined upon him by the constitution as the executive, nor whether he can be compelled to perform any public duty at the instance of one who has no vested right to have it performed nor any interest special to himself, or other than that which every citizen has in its performance; or, rather, we have not considered whether to issue the mandate asked…

I concur in the judgment. The constitution provides that the powers and duties of the office of governor, in case of vacancy, shall devolve upon the lieutenant-governor for the residue of the term, or until the disability shall cease. The constitution further provides that, in case of a vacancy in both the office of governor and lieutenant-governor, the president pro tempore of the senate shall act as governor until the vacancy be filled. The constitution does not provide that the president pro tempore of the senate shall perform the duties of the office of lieutenant-governor in case a vacancy exists in that office. And this omission to so provide is, to my mind, an unintentional lapse on the part of. the framers of the constitution. Such appears to be plain, when we consider that there is an ex *174 press provision of that instrument casting upon the president pro tempore of the senate authority to perform the duties of the office of governor if there be no lieutenant-governor, taken in connection with the many other provisions of that instrument which all point to that conclusion. But no authority is found in the constitution vesting the president pro tempore of the senate with…