Pruitt v. Squires

The opinion of the court was delivered by Cunningham, J. z This is another action growing out of the conditions created by the enactment of chapter 176 of the Laws of 1901 (Gen. Stat. 1901, §§ 2751-2755), familiarly known as the ‘ ‘ biennial-election law.” By section 1 of that law it is provided that a general election shall be held on the Tuesday succeeding the first Monday in November, 1902, and on the Tuesday succeeding the first Monday in November in every second year thereafter, at which election all county officers, except county commissioners, shall be — 857 — elected. By section 2 of the same act it is provided that no election for any of these county officers shall be held prior to the Tuesday succeeding the first Monday in November, 1902. The effect of this- act was to postpone the election of all county officers, except county commissioners, from the fall of 1901 to the fall of 1902. The defendant in this action, Smith B. Squires, was elected sheriff of Montgomery county in November, 1897, took possession of the office in January, 1898, was reelected in November, 1899, and commenced his second term in January, 1900. Had not the biennial-election law been enacted, his successor would have been elected in November, .1901, and entitled to take the office in January, 1902. Acting upon the theory that there was a vacancy in the office of sheriff of Montgomery county, the governor of the state appointed and commissioned the plaintiff, Andrew Pruitt, to fill such vacancy, and this is an action in quo warranto by him against Squires to determine who is entitled, under these facts, to the possession of the office. The plaintiff claims that, by reason of section 3 of article 9 of the constitution of the state of Kansas, the defendant was made absolutely ineligible and incompetent to hold the office of sheriff for a longer period than four years, and when such period had elapsed a vacancy in that office occurred by reason of such provision. Omitting immaterial matters therefrom, that section reads as follows : “All county officers shall hold their offices for the term of two years, and until their successors shall be qualified, . . . but no person shall hold the office of sheriff or county treasurer for more than two consecutive terms.” A vacancy thus having occurred, the plaintiff further — 858 — claims that, under section 2628 of the General Statutes of 1901, the governor was empowered to fill the same by appointment. Section 2628 provides : “All vacancies in any state or county office, and in the supreme or district courts, unless otherwise provided for by law, shall be filled by appointment from the governor, until the next general election after such vacancy occurs, when such vacancy shall be filled by election.” Under this section is found ample power for the governor to appoint a sheriff to fill a vacancy ; hence, the vital and determinative question in this case is whether there was a vacancy in this office at the time plaintiff was appointed. The defendant claims that there was not, for the reason that, under the terms of the section of the constitution already quoted, the term of office of sheriff is not only for two years, but for two years and until his successor shall be qualified, and that the additional uncertain time between the expiration of the two years and the time when his successor shall be qualified is as much a part of his constitutional term as the two years itself; that inasmuch as the biennial-election law, which postponed the time of election, neither declared a vacancy nor made specific provision for an appointment by the governor, there was no vacancy, and, therefore, the general provision of the statute authorizing the governor to appoint in cases of vacancy did not apply. We are of the opinion that the contention of the defendant is correct, and that there was no vacancy in the office of sheriff of Montgomery county ' which authorized the governor to appoint and commission the plaintiff thereto. It seems to be well settled that the indefinite portion- of time indicated by the phrase “until their — 859 — successors shall be qualified” is as much a part of the term of office as the time during which the officer is entitled absolutely to hold. In the one case he is' entitled to hold as against every one, and in the other as against every one except such as should come with legitimate credentials. To be sure, this additional time is conditional and defeasible, but, until the condition arises which defeats it, it remains a part of the constitutional term. In the case of The State, ex rel. Carson, v. Harrison, 113 Ind. 434, 16 N. E. 387, the constitution provided that whenever an officer, other than a member of the general assembly, shall hold his office for a stated term, the same shall be construed to mean , that such officer shall hold his office for such term, and until his successor shall be elected and qualified. Under this provision, the court held (page 441): ‘ ‘ The effect of the foregoing provision is more than to supply the office until an executive appointment can or shall be made with a person qualified to discharge its duties. It adds an additional contingent and defeasible term to the original fixed term, and excludes the possibility of a vacancy, and, consequently, the power of appointment, except in case of death, resignation, ineligibility, or the like.” In the case of People v. Whitman, 10 Cal. 38, at page 44, the court said of a similar provision: “The term of office is fixed at two years, certain, with a contingent extension. When this contingency happens, this extension is as much a part of the entire term as any portion of the two years. The language of the constitution is just as clear and express that the governor shall hold his office until his successor is qualified as it is that he shall hold it two years from the time of his installation. These two provisions are both contained in the same sentence, closely connected by the copulative conjunction; and both relate to the term for which this officer shall hold his office.” — 860 — This general principle is laid down in Mechem’s Public Offices and Officers,.section 397, where it is announced as follows: “It is usually provided by law that officers elected or appointed for a fixed term shall hold not only for that term but until their successors are elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is then no successor elected and qualified to assume it, but the present incumbent will hold until his successor is elected and' qualified, even though it be beyond the term fixed by law.” It is important in this discussion to bear in mind the fact that the biennial-election law made no declaration whatever upon the question as to whether there was a vacancy in the office of sheriff and county treasurer during the interregnum created by the postponement of the time of election, nor did it provide for or direct the appointment by the governor, or by any other authority, of a person to fill such extended terms. Had this been done, the question here presented would have been a very different one. This consideration was pointed out in the case of The State v. Andrews, ante, p. 474, 67 Pac. 871. It would seem to require no argument to prove that this extension of term, or extra teiun, created by the postponement of the time of election, could not possibly have been contemplated by the legislature when it passed the general law authorizing the governor to fill vacancies in office. There was no vacancy in the office within the meaning of the general provision. One who had been duly elected and qualified was still occupying the office. “The word ‘vacancy,’ as applied to an office, has no technical meaning. An office is not vacant so long as it is supplied in the manner provided by the constitution or law with an incumbent who. is legally qualified — 861 — to exercise the powers and perform the duties which pertain to it; and, conversely, it is vacant, in the eye of the law, whenever it is unoccupied by a legally qualified incumbent, who has a lawful right to continue therein until the happening of some future event.” (The State, ex rel. Carson, v. Harrison, 113 Ind. 439, 16 N. E. 386, and see cases there cited.) “The mere expiration of the term of the incumbent of an office does not create a vacancy such as the governor alone is authorized to fill by the appointment of a successor.” (People v. Tyrrell, 87 Cal. 475, 25 Pac. 684.) “An office cannot be said to be vacant while any person is authorized to act in it, and does so act.” (The People v. Van Horne, 18 Wend. 518.) In the case of Borton v. Buck, 8 Kan. 302, it was held by this court, where the plaintiff was elected justice of the peace, that unless his office should become vacant by death, resignation, or removal therefrom, or by his removal from the township, under sections 9 and 12 of article 3 of the constitution, which, taken together, contain substantially the provisions found in section 3 of article 9, above quoted, he would hold until his successor was elected, or appointed, and qualified, and, quoting this case, this court held, in The State v. Thoman, 10 Kan. 197, that “at the expiration of a term there arises no vacancy which can be filled by appointment.” The court, in Hubbard v. Crawford, 19 Kan. 572, referring to section 3, article 9, of the constitution, said : “Express provision is made by the constitution of this state that all county officers shall hold their offices until their successors shall be qualified.” (State v. Boucher, 3 N. Dak. 389, 56 N. W. 142.) A large number of authorities could be cited to the same effect, and, indeed, the plaintiff perhaps does not really contend to the contrary, but bases his conten — 862 — tion upon the claim that, because section 3 of article 9 restricts the right of any person to hold the office of sheriff and county treasurer for more than two consecutive terms, therefore, upon the expiration of four -years of consecutive incumbency of this office by the defendant, the office became ipso facto:vacant, as much so as if resignation had terminated his incumbency or death his existence; that under no conditions might the defendant hold longer than four years. Of course, this construction utterly ignores the other provisions of the same section, which makes the constitutional term to extend for two years and until their successors shall be qualified. It is freely granted that this “and until” extension would attach to the first term of the sheriff, but it is claimed that it would not to the last. We are unable to make the distinction. Note the language of the constitution, “shall hold their offices for the term of two years and until,” etc. Now, if one term is two years plus the “and until,” why should not two terms be four years plus the “and until ” ? Or, to put it in another way, if the first term is two years plus the “and until,” what, constitutional reason is there that the second term is not of equal length ? The limitation contained in the last clause is a limitation upon the holding of more than two of these constitutional terms consecutively; that is, one who has held two of these constitutional terms consecutively may not thereafter hold another term by appointment or election without the happening of an intervening term. Were the inhibition of the constitution against holding a definite time, such as four years, then undoubtedly, under the authorities, the contention of the plaintiff would be correct; but such is not this case. The limitation is for two terms, and a term is two years “and until,” etc. In support of this consideration, see State v. Compson, 34 Ore. 25, 54 — 863 — Pac. 349 ; The State, ex rel. Carson, v. Harrison, supra ; The State, ex rel. Reese, v. Bogard, 128 Ind. 480, 27 N. E. 1113 ; State, ex rel. Meredith, v. Tallman, 24 Wash. 426, 64 Pac. 759. Plaintiff cites and relies upon two cases decided by this court, Horton v. Watson, 23 Kan. 229, and Davis v. Patten, 41 id. 480, 21 Pac. 677. Beyond question, if we shall take segregated portions of the opinions in these cases and consider them apart from their settings and the facts of the case, they would seem to be conclusive in his favor. This, however, we may not do ; and, when we come to consider the facts in each of these cases, we find that the portions of the opinions relied upon are of little or no weight in this case. In Horton v. Watson, supra, the facts were that Watson held the office of county treasurer of Douglas county for the Jatter half of a first term and all of a second term, as the terms existed under the law at that time. The legislature having directed that the term of office of county treasurers next ensuing after Watson’s second term ended should begin some three months later, and having also declared that this intervening period of time was a vacancy, directed that the county commissioners should fill the same by appointment. This was done, and another took possession of the office and held the same until the beginning of the term next succeeding, when Watson, having been previously • elected thereto, again took possession of the office for the purpose of holding another term under his election. This the court held he might constitutionally do, because the intervening time, which had been denominated by the legislature as a vacancy, was such an interregnum, or interlude, as to render Watson competent to hold a third term, it not being consecutive with the second. It must be apparent that under these facts the question is very wide of the one in the — 864 — case at bar, and while everything that was necessarily said by the court in the Watson case was eminently applicable to the facts of that case, yet, wrenched from their connection and deprived of the light thrown upon them by their appropriate facts, they become quite misleading when applied to this case. In the case of Davis v. Patten, supra, the facts were that upon the organization of Kiowa county, and upon the first election for county officers, held in March, Patten was chosen county treasurer. In the fall of the same year-, and at the regular election, he was elected for a full term, and held under this election until the expiration of that term. The court decided that he was ineligible to be chosen to or to hold the office for the next succeeding term, and this because he had already held for two terms, the court saying that the limitation upon his right to hold was by terms and not by years. No quarrel can be had with either of these cases, but the law as announced in either may not be carried beyond what the facts of the case will warrant. We conclude that, as the constitution provides that the term of office of a sheriff shall be two years and until his successor shall be qualified, and as the legislature did not in the biennial-election law, either directly or indirectly, provide for the appointment of any one to fill the office during the interregnum caused by the postponement of the election of such officer from the fall of 1901 to the fall.of 1902, there was no vacancy in such office, and, therefore, the governor had no authority to appoint, and the plaintiff has no right to the office. The judgment will be for the defendant. Doster, C. J., Smith, Ellis, Pollock, JJ., concurring. Greene, J., dissenting.