State ex rel. Johnson v. Albert

The opinion of the court was delivered by Allen, J. : The only substantial controversy in this case is as to whether the election and qualification of D. D. Parry, as the successor in office of the defendant, and his death after such election and qualification and before the expiration of the defendant’s term of office, caused a vacancy, after the expiration of the term for which the defendant was elected which might be filled by the governor by appointment. The constitution provides, in article 3 : ‘ ‘ Sec . 11. All the judicial officers provided for by this article shall be elected at the first election under this constitution, and shall reside in their respective townships, counties or districts during their respective terms of office. In case of vacancy in any judicial office, it shall be filled by appointment of the governor until the next regular election that shall occur more than 30 days after such vacancy shall have happened. “ Sec. 12. All judicial officers shall hold their offices until their successors shall have qualified.” The constitution fixes the time for holding general elections, but does not provide when the term of office of a person elected shall commence. Paragraph 2718 of the General Statutes provides : “The regular term of office of all state, district and county officers, and of the justices of the supreme court, shall commence on the second Monday of January next after the election, except as otherwise provided by law.” The plaintiff claims that the election and qualification of Parry definitely fixed the limit of Albert’s tenure of office and created a vacancy at the end of his [159] regular term. The defendant urges that at the time of the death of Parry, the defendant was the duly-elected, qualified and acting probate judge; that he was lawfully filling the office at that time ; that an office having an incumbent legally entitled to discharge its duties, and actually so doing, cannot be said to be in any sense vacant; that the appointment made by Governor Lewelling, on the 10th day of January., was made when no vacancy existed, and is therefore inoperative. The view we take of' this case renders it unnecessary to consider either the effect of the subsequent appointment on the morning of the 14th of January, or the nice question discussed as to whether the constitutional limit of the term of a probate, judge to two years means that the term shall be exactly two calendar years, and must always expire on the same day of the month. Albert’s term of office commenced on the 9th of January, 1893, and the appointment having been made on the 10th of January, 1895, was made after the expiration of two calendar years. Without considering the question which has been somewhat argued by counsel with reference to an alleged conflict between the terms of office fixed by the constitution, and the statute above quoted making the terms always begin on the same day of the week, we shall decide this case as though the statute were valid, and the regular term of office of the defendant continued until the 14th of January. Under the constitution, judicial officers hold their offices until their successors.have qualified. The term “ qualify,” used in this connection, has a well-defined meaning. It means to take such steps as the statute requires before a person elected or appointed to an office is allowed to enter on the discharge of its duties. [160] In this case, it means to file a sufficient bond to be approved by the county clerk, and take and subscribe the official oath, these being the only prerequisites required of the person elected or appointed. The successor of the defendant had been elected and qualified. He was, then, entitled to take possession of the office on the second Monday in January; and at that time, had he lived, the right of the defendant to occupy would have terminated. The rights of the parties became fixed when Parry qualified. Although the defendant had the right to fill out his unexpired term he had a right to nothing more. Parry’s right to occupy the office thereafter had become full and complete. Nothing whatever remained to be done but to assume and enter on the discharge of its duties when the day should arrive. Parry died. This event however, conferred no new right on the defendant. The election and qualification of Parry had put an end to his right to hold over. The argument that an appointment to fill a vacancy cannot be made while there is a person in possession of the office entitled to discharge its duties may appear specious at first blush, but on anything like close consideration will readily be found fallacious. Whenever it is definitely ascertained that a vacancy will certainly occur, it may be filled by appointment. A vacancy occasioned by the death of an incumbent is, of course, not known until the death occurs, but vacancies caused by resignation are usually made and accepted in advance of the time the resignation is to take effect. In the case of The State, ex rel., v. Seay, 64 Mo. 89, a question substantially identical with that presented in this case was under consideration. It appeared that in November, 1868, Gale was elected judge of the ninth judicial circuit, his term of office commencing [161] on the first Monday in January, 1869. In November, 1874, McCord was duly elected as his successor, received his commission, and took the oath of office. On the 2d of January, after he had qualified, hut before the expiration of Gale’s term, he died. The governor issued a writ for an election to fill the vacancy. The opinion concludes : “ By the terms of the constitution, Gale’s term was to cease when a successor should be elected and qualified. His successor, McCord, was duly elected and duly qualified, and when that occurred Gale’s right to hold over ceased, and the death of that successor before his term commenced did not revive a right in Gale which ceased when McCord qualified.” In The State, ex rel., v. Bemenderfer, 96 Ind. 374, it was said: “It cannot be legally possible that when the right to an office has been destroyed, or terminated the subsequent death of the person who had been elected, and who had duly qualified, revives the right which the election and qualification had put an end to, for the right to hold over exists only in cases where there is no legally-elected and qualified successor. "When the rights of the successor vest, those of the incumbent terminate, and they do vest after election and qualification according to law.” The case of The State, ex rel., v. Hopkins, 10 Ohio St. 509, goes further, holding that a vacancy arises on the death of the person elected before qualification. (See, also, Mechem, Pub. Off., §401.) The general current of authorities would seem to be to the effect, however, that where the death of the successor-elect occurs before he qualifies, the incumbent holds over. We are clearly of the opinion that there was a vacancy occurring at the end of the regular term of the defendant which the governor might fill by appoint [162] ment; and the relator, baying been duly appointed and qualified, was entitled to the possession of the office on the 14th day of January, 1895. Judgment of ouster, and for delivery of the possession of the office to the relator will be entered. • All the- Justices concurring.