State Ex Rel. Halbach v. Claussen

Stevens, J. This action was instituted by the county attorney of Clinton county under the authority and provisions of chapter 531 of the Code (section 12417 et seq.). It is provided by section 12417, which is a part of said chapter of the Code of 1931, that: “A civil action by ordinary proceedings may be brought in the name of the state in the following cases: 1. Against any person unlawfully holding or exercising any public office or franchise within this state, or any office in any corporation created by this state.” Section 12419 further provides that: “Such action may be commenced by the county attorney at his discretion, and must be so commenced when directed by the governor, the general assembly, or a court of record.” The action was commenced in the district court of Clinton county, which is the county of the residence of the defendant Claussen. Appellant first responded to the notice served upon him in Polk county, which is the county of his residence, by filing a motion for a change of the place of trial. 'It is alleged in the motion that the defendant Claussen is in truth and in fact the plaintiff; that the action was commenced at his instigation and procurement and in pursuance of a demand made upon the county attorney by appellee’s attorneys that such action be commenced; that the record of the *1082 proceedings showed that the method of bringing the action and each step therein was a subterfuge designed By appellee Claussen and his attorneys to obtain jurisdiction of the cause of action in Clinton county. The motion was overruled, and thereupon appellant filed answer to the petition of relator and' a reply to the answer of appellee Claussen previously filed. The facts upon the trial of the main issues were almost wholly stipulated by all of the parties. A recital of the material facts thus stipulated will make clear the nature and scope of the controversy without any extended statement at this time of the issues joined. E. A. Morling, one of the judges of the Supreme Court of Iowa, died on October 15, 1932. Thereafter and on October 18th, appellant was placed in nomination by the state central committee of the Democratic Party as a candidate to fill the vacancy caused thereby. The nomination was thereafter certified to the secretary of" state. On the same or the following day, the appellee Claussen was nominated as a candidate to fill such vacancy by the state central committee of the Republican Party and such nomination was thereafter certified to the secretary of state. Following the nomination of appellee by the Republican state central committee, he was appointed by the Governor of the State of Iowa to the vacancy caused by the death of Judge Morling. The names of the respective candidates were printed upon the ballots and voted for and against at the general election held on November 8th. The result of such election was that appellant received 472,922 votes and appellee 377,375 votes. Upon a canvass of the votes, the state board of canvassers found that appellant was duly elected to fill the vacancy caused by the death of Judge Morling and a certificate of election was issued to him. Appellant subsequently qualified by taking the oath prescribed by law and entered upon the performance of the duties of a judge of the Supreme Court. I. We shall first dispose of the exception of appellant to the ruling of the court on the motion for a change of the place of trial. It is, of course, admitted that appellant is a resident of Polk county and appellee of Clinton county. The grounds of the motion are that the action is not prosecuted in good faith by the relator, hut that same was instituted as a mere subterfuge and at the instance and procurement of Claussen and his attorneys and that appellee is in reality the plaintiff. He is designated in the pleadings as the defendant. The action was not commenced by direction of the Gov *1083 ernor, the General Assembly, or a court of record. Section 12419 of the Code, however, confers full authority upon the county attorney to, in" his discretion, prosecute the action. It appears that at a meeting of the Bar Association of Clinton county, a motion or resolution was adopted favoring the commencement of an action to adjudicate Claussen’s right to hold the office as judge of the Supreme Court under and by virtue of the commission issued to him by the Governor. Claussen testified that he had nothing to do with this action, took no part therein, and that he at no time solicited or caused the attorneys now representing'him to solicit the relator to commence the proceedings. The grounds of the motion are not sustained by proof. It is not claimed that if Claussen was, in fact, the defendant in the action, appellant could not be joined as a party and the action, be prosecuted in Clinton county. Obviously, the motion was properly overruled. II. The major propositions, however, relied upon by appellant for reversal, present questions largely of statutory construction. We are dealing at this time, primarily, with elections to fill vacancies in office caused by the death, resignation, or otherwise occurring during the term for which an officer has been elected. The provisions of the Constitution of this state in relation thereto are article IV, section 10, which is as follows: “Vacancies. When any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill such vacancy, by granting a commission, which shall expire at the end of the next session of the General Assembly, or at the next election by the people,” and article XI, section 6, which is as follows: “How vacancies filled.' Iri all cases of elections to fill vacancies in office occurring before the expiration of a full term, the person so elected shall hold for the residue of the unexpired term-; and all persons appointed to fill vacancies in office, shall hold until the next general election, and until their successors are elected and qualified.” It is provided by section 504 of the Code that general elections for state, district, county, and township officers shall be held throughout the state on Tuesday next after the first Monday in November of each even-numbered year. Provision is made by statute for the *1084 nomination of candidates for office to be filled at each general election. The machinery set up for this purpose is ample. The legislature has also made provision for filling vacancies occurring during the term for which an officer shall have been elected. Section 1157 of the Code is as follows: “If a vacancy occurs in an elective office in a city, town, or township ten days, or a county office fifteen days, or any other office thirty days, prior to a general election, it shall be filled at such election, unless previously filled at a special election.” Had the death of Judge Morling occurred more than thirty days prior to November 8, 1932, this controversy could not well have arisen. His death having occurred on October 15th, less than thirty days intervened until the date fixed by law for the holding of the next general election. Much of the contention of counsel for the respective parties is based upon differences of opinion as to the proper interpretation of section 1157, Code of 1931. All parties agree that this section of the Code authorizes the filling of vacancies occurring in office thirty days prior to the next general election. It is not only conceded, but it is the contention of counsel for appellant, that if a vacancy occurs in the office of a state officer thirty days or more prior to the next ensuing general election, the duty to fill such vacancy thereat is mandatory. It is the further contention of counsel that if a vacancy occur in a state office less than thirty days, permissible authority is given to fill the vacancy at the next ensuing general election. The contention of counsel that the duty to fill the vacancy, if it occurs thirty days or more prior to the general election, at such election is mandatory, is not exactly clear. Upon whom is it mandatory? There is no power resident in any one to compel any political party to nominate candidates for office. Of course, it is assumed that political parties desirous of maintaining their existence and members thereof in office will nominate candidates for any office for which authority exists to be filled at the next general election. No mandatory duty, however, upon any person or organization to do so exists. The statute in question authorizes the filling of a vacancy in a state office occurring thirty days prior to the next ensuing general election. The statute is mandatory only in the sense that it provides in definite language-when a vacancy in a state office may be filled at the next, ensuing general election. Clearly, it does *1085 not, in terms at least, authorize nominations to be made and candidates to be voted for at such general election if the vacancy occurs less than thirty days prior to the date on which such election is to. be held. If the duty to cause a vacancy to be filled is at any time mandatory upon some person or political organization, then is a permissive right implied if a vacancy occurs less than thirty days prior to the date fixed for a general election? It is a general rule of law early adopted in this state that when the language of a statute is explicit and definite, the words used govern. District Township of City of Dubuque v. City of Dubuque, 7 Iowa 262; First National Bank of Davenport v. Davies, 43 Iowa 424; State, for use of Estherville, v. Hanson, 210 Iowa 773, 231 N. W. 428. In the course of the opinion in the Dubuque case, the court said: “The expression of one thing is frequently the exclusion of another; and if, by a law or constitution, a thing is to be done in a particular manner or form, this, as we have seen, includes a negative, that it shall not be done otherwise. * * This rule, it is also said, is further modified by another, that where the means for the exercise of a granted power are given, no other, or different means can be implied, as being more effectual or convenient.” Section 1157 contains neither ambiguity of expression nor uncertainty as to its scope or purpose. The Constitution does not provide machinery for making nominations or holding elections. It was not designed for that purpose. The machinery, in obedience to the constitutional mandate, has been set up by the Legislature, and no one in this case challenges the validity of the provisions made thereby. The Legislature having acted, the machinery adopted is exclusive. If the construction for which appellant contends were to be adopted, the statute would be, at most, directory and practically useless. No doubt, the time fixed for filling vacancies in the various offices referred to in section 1157 was to give ample time for the electors to act and to inform themselves as to the issues and persons involved or to be considered. This is consonant with the provisions of section 506 of the Code, which require that a proclamation of the holding of a general election designating the offices to be filled by the electors shall be issued by the Governor at least thirty days prior to such election. A similar proclamation must be issued before any special election may be held. Section 509, Code. *1086 But numerous sections of the Code relating to nominations of candidates for various state, county, and township offices and to the printing of ballots are called to our attention as supporting appellant’s theory of a permissive right to nominate a candidate to fill a vacancy in a state office occurring less than thirty days prior to the next ensuing general election. We shall now give attention to these sections of the Code. Section 606 provides that vacancies in nominations made in the primary election, when such vacancies occur after the holding of a county, district, or state convention, shall, generally, be filled by the party central committee appropriate to such action. Section 609 provides that nominations occasioned by vacancies in office after the holding of county, district, or state conventions, or prior thereto, but too late to be made thereat, shall be made by the appropriate party committee except when the vacancy is in the office of Senator of the United States and occurs thirty days prior to the holding of the regular November election, the nomination shall be made by convention as provided in case of vacancies in nominations for such office. Section 615 provides that nominations made in case of vacancy and nominations made by state, district, and county conventions shall, under the name and place of residence and post office address of the nominee and the office to which the nominee is nominated and the name of the political party making the same, he forthwith certified to the proper officer by the chairman and secretary of the convention, or by the committee, as the case may be, and, if received in time, the names of such nominees shall be printed on the official ballot. It is provided by section 655-a4 that: “Objection to the legal sufficiency of a certificate of nomination or to the eligibility of a candidate may be filed by any person who would have the right to vote for a candidate for the office in question. Such objections must be filed with the officer with whom such certificate is filed and within the following time: “1. Those with the secretary of state, not less than twenty days before the day of election. “2. Those with other officers, not less than eight days before the day of election. “3. In case of nominations to fill vacancies occurring after said twenty or eight days, as the case may be, or in case of nominations *1087 made to be voted on at a special election, within' three days after the filing of the certificate.” Section 669 provides that nominations for the office of judge of the Supreme or district court shall he certified to the secretary of state in the same manner that nominations for other state officers are certified. Section 670 provides that objections to the legal sufficiency of such certificate of nomination or eligibility of the candidate shall be governed by the statute already referred to. Sections 776, 777, 778, 779, and 780 are as follows: “776. The name supplied for. a vacancy by the certificate of the secretary of state, or by nomination certificates or papers for a vacancy filed with the county auditor, or city or town clerk, shall, if the ballots are not already printed, be placed on the ballots in place of the name of the original nominee. “777. If vacancies be certified after the ballots have been printed, new ballots, whenever practicable, shall be furnished. “778. When it may not be practicable, after a vacancy has been certified, to have new ballots printed, the election officers having charge of them shall place the name supplied for the vacancy upon each ballot used before delivering it to the judges of election. “779. If said ballots have been delivered to the judges of election before a vacancy has been certified, said auditor or clerk shall immediately furnish the name of such substituted nominee to all judges of election within the territory in which said nominee may be a candidate. “Pasters with the name of the substituted nominee thereon shall likewise be furnished the voter with his ballot when possible to do so. “780. Judges of election having charge of the ballots shall, in the case contemplated in the preceding section, place the name supplied for the vacancy upon each ballot issued before delivering it to the voter, by affixing a paster, or by writing or stamping the name thereon.” We do not understand counsel to contend that any of the foregoing sections purport, in terms at least, to authorize nominations to fill vacancies to be made where such vacancy occurs less than thirty days prior to the next general ensuing election, but that, when given *1088 proper weight and effect 'in the interpretation of section 1157, permissive authority is shown to do so. All of the foregoing sections, except section 609, which is without possible ambiguity, relate either to vacancies occurring in nominations, the placing of names of candidates on the official ballot, or objections to certificates of nomination and the eligibility of candidates to become such or to hold office. None of them purport to create or give authority to hold an election. They all proceed upon the hypothesis that such authority already exists. If this thought be kept constantly in mind, there can be no conflict in the terms and provisions of any of the statutes in this state relating to elections, nominations, or the placing of names of candidates upon official ballots. It is a necessary conclusion that the authorization of the several statutes relied upon by counsel presupposes the already existing authority to hold an election to fill an office for a full term or to fill a vacancy. See chapter 37, Code 1924 (sections 649-655), chapter 33, Laws 24th General Assembly. Particular emphasis is sought to be given by counsel to section 655-a4. If the effect for which counsel contends be given to this statute, then nominations to fill vacancies occurring at any time before the general election is held may be filled even if it be necessary that the names of the candidates be placed upon the ballot by the use of pasters. Counsel does not contend for the conclusion stated, but such would seem to be the logical result of the contention urged. Section 655-a4 does not relate to, or in! any sense authorize, nominations to be made. The subject of the section makes this clear. It provides that if there be objections to the legal sufficiency of a certificate of nomination or to the eligibility of a candidate, the same may 'be filed in the proper office and within the time designated. The obvious purpose of this section is to, so far as possible, obviate any question as to .the legality of the certificate of nomination or the availability of a candidate to fill the office to which he has been nominated. A certificate may be informal or so irregular as, in the absence of some such provision, to render the election void. Likewise, the election of a candidate for any office, who is ineligible to hold the same, would be invalid. This section of the Code makes easily ascertainable the eligibility of the candidáte before the election is held. Again, it must be obvious that the nominations referred to are of candidates for offices or for vacancies therein to be filled at any *1089 ensuing general election. The only sections of the Code which prescribe the time within which and which authorize the filling of a vacancy in a state office at a general election are sections 1157 and 1155, Code 1931. The only authority granted by section 1157 is to fill a vacancy in a state office occurring thirty days before a general election. No election can be held without statutory authority. This no one does, or can, deny. But, it is further contended by counsel that there is such inconsistency in the terms and provisions of the foregoing sections, when considered together, as to, by implication, repeal the so-called mandatory provisions of section 1157. The contention is clearly unsound. None of the sections referred to deal with the subject dealt with in sections 1156 and 1157. It is the law that repeals by implication are not favored and will he held to occur only when the court is driven thereto by the necessities of the situation. Central Iowa Railway Co. v. Board of Supervisors, 67 Iowa 199, 25 N. W. 128, Eckerson v. City of Des Moines, 137 Iowa 452, 115 N. W. 177, Diver v. Savings Bank, 126 Iowa 691, 102 N. W. 542, 3 Ann. Cas. 669. A subsequently enacted statute dealing with the same subject, when properly construed, may be held to repeal by implication some or all of the provisions of a prior enactment. To hold that statutes dealing merely with the procedure to be followed in making nominations and filling vacancies occurring therein by implication operates to repeal a statute dealing with an entirely different subject would be to clearly violate the canon of interpretation stated above. Repeal by implication in such situation so broad and sweeping as would be necessary cannot be favored. As was said by the Supreme Court in State v. Simon, 20 Or. 365, 26 P. 170, 172: “ ‘It is always competent for the legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain and obvious meaning of an act, rather than to speculate upon what might have been the views of the legislature in the emergency which may have arisen. It is wiser and safer to leave to the legislative department to supply a supposed or actual casus omissus than to attempt to do so by judicial construction.’ People v. Woodruff, 32 N. Y. 364. Courts cannot supply omissions in legislation, nor afford relief, because they are supposed to exist. To adopt the language of Mr. Justice Woods in Hobbs v. McLean, *1090 117 U. S. 579, 6 S. Ct. 870 [29 L. Ed. 940]: ‘When a provision is left out of a statute, either by design or mistake of the legislature, the courts have no power to supply it. To do so would be to legislate, and not to construe.’ ” Wé are clear that no portion of section 1157 has been repealed by implication. The provisions of the constitution quoted supra fix the period of time for which an appointee to a state office shall serve. It is provided thereby that such appointee shall hold until the next general election and until his successor is elected and qualified. These provisions of the Constitution are directed to the Legislature, whose duty it is to- make provision for carrying their purpose into effect. As was said by the Supreme Court of Pennsylvania in Commonwealth v. Maxwell, 27 Pa. 444: “A constitution cannot execute itself. It is a frame or plan of government. It lays down certain great and fundamental principles, according to which the several departments it calls into existence are to govern the people; but all auxiliary rules which are necessary to give effect to these principles must, from the necessity of the case, come from the legislature.” The Legislature of this state, in recognition of the power thus conferred and in fulfillment of the duty implied therein, has enacted numerous statutes fully meeting the constitutional require.ments. Attention at this time, and in connection with the constitutional requirements, should be directed to section 1155 of the Code, which is as follows: “An officer filling a vacancy in an office which is filled by election of the people shall continue to hold until the next regular election at which such vacancy can be filled, and until a successor is elected and qualified. Appointments to all other offices, made ■under this chapter, shall continue for the remainder of the term of each office, and until a successor is appointed and qualified.” The authority granted by this section is in strict harmony with the constitutional requirement. It likewise provides that an officer filling a vacancy, which is to be filled b,y the election of the people, shall hold until the next general election at which the vacancy can be filled. It is further provided by this statute that appointees *1091 to all other offices made under chapter 59 (section 1145 et seq.) shall continue for the remainder of the term of such office' and until a successor is elected and qualified. The next general election means the next general election at which, in pursuance of law, a vacancy may legally be filled. Under all of the authorities called to our attention dealing with the subject, it is held that this does not necessarily mean the next ensuing general election, but the election at which the vacancy can be legally filled. State v. Superior Court, 140 Wash. 636, 250 P. 66; State v. Simon, 20 Or. 365, 26 P. 170; Sawyer v. Haydon, 1 Nev. 75; State v. Jepson, 48 Nev. 64, 227 P. 588; State v. Minor, 105 Neb. 228, 180 N. W. 84. The Constitution, as stated, is in no sense self-executing. Its mandates directed to the Legislature must be obeyed in accordance with the provisions made thereby for that purpose. The only authority granted by the Legislature for filling vacancies occurring in state offices is to be found in the sections quoted. The authorization to fill a vacancy occurring in an elective state office at the next ensuing general election is when such vacancy occurs thirty days or more previous to a general election. In whatever sense this statute is to be held mandatory, it definitely and in specific terms refers only to vacancies occurring thirty days prior to the general election. This operates as a limitation upon the authority given. None of the provisions of this statute have been, by implication or otherwise, repealed. It in no sense violates the Constitution, but in specific terms responds to the mandate thereof. It is our conclusion at this point that no vacancy in the office of judge of the Supreme Court which could be legally filled at the general election on November 8, 1932, existed, and that, as a necessary conclusion, the election to fill such pretended vacancy is void and without effect. The question now naturally arises: “For -what term may appellee continue to hold said office?” The Constitution and statutes are plain on’ this subject. Under these provisions, he will, unless by some act or conduct on his part, as claimed by appellant, he has waived his right to do so, hold the office until the next ensuing general election and until his successor shall have been elected and qualified. It is, however, contended on behalf of appellant that no issue is involved in this case as to the time for which appellee shall hold *1092 the office. This contention would seem to overlook certain allegations of the answer of appellee and the general denial contained in the reply of appellant to the answer. The action was brought to determine the title under which appellee claimed to hold the office. That was the issue to be tried in the action. We think there can be no doubt as to the soundness of the decree of the district court at this point. III. It is further contended by appellant that appellee did not properly qualify for the office by filing his commission in the office of the secretary of state, as required by section 1154 of the Code, which provides: “Appointments under the provisions of this chapter shall be in writing, and filed in the office where the oath of office is required to be filed.” The authority of one appointed by the Governor to fill a vacancy in a state office is conferred by the commission issued to him. Noncompliance with section 1154 would be an irregularity only which could be complied with at any time and which would not affect the validity of the commission. This question arose many years ago, and the holding of the Supreme Court of the United States in Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60, would seem to still be sound. The contention is without merit. IV. Appellant, in his reply to the answer of Claussen, pleaded estoppel in three subdivisions thereof. It is stated in the argument of counsel that the count upon which appellant relies at this point is the one pleaded in division 5 of such reply. The specific allegations of this count are that appellee, by reason of his failure to withdraw as a candidate for the office of judge of the Supreme Court at the general election, and by reason of his failure to follow the method provided by law to test the validity of such nomination and certificate of nomination, acquiesced therein and waived the right to object to the results of the election. In addition to the foregoing, the division reaffirms all matters alleged in the pleading. First, as to estoppel: The nomination of appellant preceded that of appellee. It is obvious, therefore, that he did not, in becoming a candidate and accepting the nomination of his party as a candidate to fill the supposed vacancy, rely upon any act or conduct of appellee. If there was no vacancy which could be legally filled at the general election in November, 1932, it must be obvious to *1093 every one that appellee could have done nothing that would operate as an estoppel against him. If, on the other hand, the names of both appellant and appellee were legally upon the ballot to be voted for or against, then certainly no estoppel could arise in favor of appellant. Indeed, none would have been necessary, as appellant admittedly received a large majority of the votes cast at such election. Conversely, if the names of both appellant and appellee were not lawfully placed upon the ballot because there was no vacancy to he filled at the election, then, even if it were conceded that appellee by some act or conduct forfeited his right to serve out the unexpired term as an appointee to the office, it would in no sense avail appellant. In such case, appellant would not have obtained legal title to the office if appellee’s name had not been placed upon the official ballot. The most that could be claimed in such situation would be that a new vacancy in the office was created — a vacancy for which appellant was not a candidate. To render the election valid, a vacancy must have existed at the time the respective nominations were made which, under the provisions of the statute, could be filled at the last general election. Upon the theory of the estoppel pleaded, just when did appellee forfeit his right to the office? If at all, it must have been after the nomination of appellant, which preceded that of appellee. All parties concede that appellee was entitled, under his commission issued by the Governor, to keep the office until the general election at which the vacancy caused by the death of Judge Morling could be legally filled. Appellee has not resigned. Even if it were conceded that by permitting his name to he printed upon the official ballot he thereby forfeited his right to the office and that a vacancy arose because thereof, it would not be the vacancy which appellant was nominated to fill. The relator has not appealed. It is significant at this point that the appointment of appellee to the vacancy, which all agree on the date thereof existed, did not precede hut followed the purported nomination of him by the Republican State Central Committee. If, therefore, there was any abandonment on his part, it must have been of the nomination and not of his right to hold the office under the Governor’s appointment. Appellee testified that the nomination by the Republican State Central Committee was without his knowledge or consent and' that he never at any time by any affirmative act accepted the nomination. It could hardly be reasonably contended that if appellee was legally *1094 in possession of the office he owed a duty to appellant to in some way renounce the act of the Republican State Central Committee or to take action to test the validity of appellant’s place on the ballot. This was not in any sense necessary and the fact that he did not do so avails appellant nothing. The decree of the district court adjudged that appellee was legally in possession of and entitled to perform the duties of'judge of the Supreme Court until the general election in 1934. This adjudication is binding upon the state and all persons except such as are before us on this appeal. Appellant must win., if at all, upon his own title and right to the office, and not to any weakness in the title of appellee. One of the grounds provided by statute upon which an action in quo warranto may be based is that a public officer has done or suffered some act which works a forfeiture of his office. This ground does not appear in the petition, and it is not claimed by relator that any such ground, in fact, existed. It is our conclusion that neither the plea of estoppel nor waiver is proven, or, if established, are, upon any theory, available to appellant, or give him title to the office. We have, because of the importance of this case, both to the litigants and to the public, endeavored to discuss and dispose of every proposition urged by appellant on this appeal. The question before the court is one of law and must be disposed of as such. The interpretation placed upon the statutes involved permits but one conclusion, and that is that the judgment and decree of the district court should be in all respects affirmed. It is so ordered.— Affirmed. Albert, C. J., and Evans, Kindig, Anderson, and Donegan, JJ., concur.