Ferguson v. Lawrence

Opinion by HATCHETT, C. The plaintiff, A. B. Ferguson, instituted this suit in the district court of Stephens county against the defendant, C. T. J.awxence, alleging that' about the 1st of February, 1912, the defendant was appointed by the county commissioners to the office of county treasurer, the same having theretofore become vacant; (¡hat at the general election on the 5th of November, 1912. the plaintiff was elected to the office of county treasurer, and on the 7th of November, 1912, duly qualified and filed his bond and demanded the office of (he defendant, but the defendant refused to turn it over to him. The defendant filed a general demurrer to the petition, -which was by the court sustained, and the plaintiff has appealed to this court. There is but one question to determine; that is: Did the plaintiff have the right to take charge of the office immediately after the election, or was he required to wait until the first Monday in July thereafter? Section 19, c. 69. page 137, Session Laws 1910, after fixing the term of their office, provides: ‘ “That the county treasurer and superintendent of public instruction shall hold office until the first Monday in July, 1913, and thereafter their tenns of office shall be for two years, and until their successors are elected and qualify." Under that section ordinarily the term ol' office of the plaintiff would begin on the first Monday in July, 1913, but he contends that the defendant’s term of office expired on the date of the election, to wit, November 5, 1912, under a provision of section 4798, Snyder’s 'Statutes 1909, as follows: “Provided, however, that if the 'vacancy is caused by the d'eath, resignation or removal of an elective officer, the person ap-iwinted to fill the vacancy shall be appointed from the same political party to which the officer elected 'belonged, and shall serve until the next general election.” And he argues that on the date of the general election the office of county treasurer became vacant because of the ex-piia-cion of the defendant’s term, and that under section 4786, Snyder's Statutes, as follows : “-But if the office to which any person is elected be vacant at the time of the election, even if 'he was not elected to fill the vacancy, he shall forthwith qualify and enter upon the duties of his office’ —he had a right to the office. Section 10, art 23, of the Constitution, among1 other things, provides: “That all officers within this state shall continue to perform the duties of their office until their successors shall 'be duly qualified.” The defendant contends that the teim “next general election,” as used in section 4798, means until the regular r.ime for installing officers after such election, but under our vie'w it is not necessary to decide that question. We think that under the provision of the Constitution quoted all officers whether elected or appointed continue ro perform the duties of their offices until their successors qualify under the law. Therefore there was no vacancy in the of lice of county treasurer at the time the plaintiff was elected. Finley v. Combs, 12 Okla. 497, 71 Pac. 625; State ex rel. Richardson v. Henderson, 4 Wyo. 535, 35 Pac. *120 517, 22 L. R. A. 751: Badger et al. v. U. S. ex rel. Bolles, 93 U. S. 599, 23 L. Ed. 991; People v. Tilton, 37 Cal. 624; Pruitt v. Squires, 64 Kan. 855, 68 Pac. 643; State v. Tallman, 24 Wash. 426, 64 Pac. 759. The plaintiff was not elected to fill out any unexpired term, and we are unaware of any statute providing for the election of a county officer to fill an unexpired term. So he had no right t.o take charge of the office before the term for- which he was elected began, unless there was a vacancy at the the time of the election- Having held that the office was not vacant at the time, the judgment of the trial court in sustaining the 'demurrer was correct. Under section 4282, Revised Laws 1910, which provides: “Every appointed officer shall hold his office until the end of the term for which the officer whom he succeeds was elected or appointed, and until his successor is elected and qualified” —the law now is perfectly clear, but it is not necessary for us to decide whether that section was the law at the time this suit was brought, for under the provisions of the statutes and the Constitution above referred to we have arrived at the same conclusion. We therefore recommend that the judgment, of the district court of Stephens county be affirmed. By the Court.: It is so ordered.