Hale v. Bischoff

The opinion of the court was delivered by Horton, C. J.: Section 40, chapter 34, Laws of 1876, providing “.for the assessment and collection of taxes,” reads: “ The mayor and common council of all cities of the first and second class shall, at their first regular meeting in Feb [304] ruary of each year, appoint an assessor, whose duties and powers shall be the same as prescribed by law for township assessors.” The act “to incorporate and regulate cities of the first class, and to repeal all prior acts relating thereto,” which took effect March 6, 1881, authorized the mayor, by and with the consent of the city council, to appoint a city assessor for a period of two years, and until his successor was appointed and qualified. The pivotal question in this case is, when did the term of office of city assessor commence after March 6, 1881, as relates to the office in the city of Topeka? The contention of the plaintiff is, as § 40, chapter 34, Laws of 1876, provided the mayor and council of the city were to appoint the assessor at the first regular meeting in February of each year, that §79 of the act of 1881 merely extended the term of office, but did not change the time when the term should begin. Whether this contention is correct or not we need not now decide. If § 79 merely extended the term of office, then the appointment of city assessor would occur in each even-numbered year. This would make the appointment of Hale as city assessor, on the 5th of February, 1894, valid, and entitle him to the possession of the office. Section 122 of chapter 37, Laws of 1881, reads: “All acts and parts of acts heretofore enacted by the legislature of the territory or state of Kansas in conflict with this act are hereby repealed.” *■ pofntraent— term“Dingof [305] 2l termteganr [304] The act of 1881 is silent on the point as to the beginning of the first appointee’s term. A term of office means “a fixed and definite period of time;” “the fixed period of time for which the office may be held.” A period or term of two years designates consecutive terms of two years following each other in regular order, the one commencing where the other ends. When no time is fixed by the statute for the commencement of an official term, it begins to run from the date of the appointment. As the legislature did not fix the time when the official term of city assessor, under the act of 1881, was to [305] begin, the date of the commencement of the term was necessarily left to be fixed by the appointing power. (The State v. Stonestreet, 99 Mo. 361; Attorney General v. Love, 39 N. J. Law, 476.) The first appointment made by the mayor and city council, after the act of 1881 went into effect, was on February 6, 1882. Therefore, if it be conceded tbat § 122 of the act of 1881 repeals §40 of the act of 1876, requiring the appointment of a city assessor in February, then the term of office for city assessor began upon the day of the first appointment, and continued for two years from and after that day. As the first appointment was on February 6, 1882, the term of office of city assessor commenced at that date, and continued for the period of two years. Each term followed the other in regular order, each one commencing where the other ended. This would make the appointment of city assessor to occur in each even-numbered year, and would also make the appointment of Hale as city assessor on the 5th of February, 1894, valid, and entitle him to the possession of the office. Counsel for the defendant admit that the office of city assessor, under the act of 1881, is a two-years term, but contend tbat § 40 of the act of 1876 was repealed by § 79 of the act of 1881; and further contend that, as the appointments of city assessor, until 1887, were made for one year only, the action of the appointing power was exercised in ignorance or in defiance of the statute of 1881, and therefore signifies nothing — does not fix the beginning of the term of office. [306] 3' during tSm.4 [305] Assuming that § 40 of the act of 1876 was repealed, then, after March 6, 1881, there was no statute in existence authorizing the appointment of any city assessor, except the act of 1881. Can it be urged that, because the mayor and city council did not act in full compliance with the statute of 1881, the appointment of a city assessor, on February 6, 1882, was void ? Not so. Yet the logic of this argument is, that unless they acted intelligently under the provisions of the act of 1881, in making the first appointment after March 6, 1881, they acted without the authority of any statute. If [306] the appointment on February 6, 1882, was anything, it was the commencement of a new term. That term, by the statute, was for two years, not one year. The mayor and city council had the power to make an appointment. They acted. The appointment was regular, but by a mistake of law was for one year instead of two. But this limit of the legal period of the term did not change the statute or limit the term. The rule is, that where, by the correct construction of a city charter, the term of a city officer is fixed at two years, and a person is appointed to the office for one year only, the appointment is valid for the full statutory period. In such a case, the action of the appointing power in selecting another person to the office at the expiration of one year is a nullity. (Stadler v. Detroit, 13 Mich. 346.) In The State v. Brady, 42 Ohio St. 504, it was decided that “ where a city officer’s term, as fixed by statute, is two years, but the common council has been accustomed to appoint the officer annually, a person appointed to the office is entitled to hold for two years, although, at the end of his first year, he unsuccessfully applied for a reelection.” 4- to^FnvaSinoy. ' Section 81 of chapter 37, Laws of 1881, emphasizes the construction given by us to the statute, as to the uniformity of the duration of the official term of city assessor, for that section provides: “ In case of any vacancy in any appointive office, the mayor, by and with the consent of the council, shall fill such vacancy for the unexpired term for which his predecessor was appointed.” As it was the intent of the statute of 1881 to designate consecutive periods of two years following each other in regular order, the one beginning where the other ends, the persons appointed to the office in the odd-numbered years, although appointed for full terms, would hold only for the unexpired balance of the term. (Throop, Pub. Off., § 330; The People v. Tyrrell, 87 Cal. 475.) When an appointment is made during a vacancy for a full term, this is in legal effect an appointment to fill the vacancy only. Bischoff was appointed in an odd-num [307] bered year, and his appointment can only hold for the balance of the term which commenced in February, 1892, and until his successor was elected and qualified. It appears from the evidence presented upon the trial, that not only was Hale legally appointed to fill the office of city assessor on the 5th of February, 1894, for a period of two years, but also, that on the 10th day of February he duly qualified by taking the oath of office, and filing and having his official bond approved as required by law; therefore he is entitled to the possession of the office at once. 6' -offlceraeer facto. It was suggested upon the trial by the attorneys for the plaintiff that Bischoff is not even a defaoto officer. We do not agree to this. An officer whose official term has expired, but who, nevertheless, remains in 7 7 ' possession of the office, exercising the functions thereof, and having the same under his control, is an officer defacto within the rule that such an officer’s actions are valid as respects the" public and third persons. (McCahon v. Comm’rs of Leavenworth Co., 8 Kas. 437; Throop., Pub. Off., §631.) Bischoff may be regarded as the city assessor de facto of the city of Topeka until he is actually ousted from the possession of his office by the court, or voluntarily gives up the possession of the same to the plaintiff; and all his acts as such, within the limits of his official power, are valid so far as they involve the interest of third persons and the public. A judgment of ouster will be entered. All the Justices concurring.