State ex rel. Baker v. Nichols

Smith, C. J., delivered the opinion of the court. On November 29, 1912, W. C. Harris,, sheriff and tax collector of De Soto county, died; his office deputy, E. S-Nichols, continued to discharge the duties of the office under the provision of section 3487 of the Code. Shortly after the death of Harris, the governor of the state, acting under section 103 of the Constitution, appointed relator to the vacancy in this office created by the death of Harris, and authorized him to discharge the duties thereof until the office should be regularly filled in the manner provided by law. He thereupon executed a bond and took the oath of office, but appellee refused to turn the office over to him. A special election was called by the board of supervisors for the filling’ of the vacancy which resulted in the election of appellee. Afterwards this proceeding was executed in the court below by the relator in order to try the right to the office, which resulted in a judgment for appellee. The. petition alleged that.at the time of the death of Harris, and of the appointment of relator, appellee was not a registered voter of the county, and that at the [430] timé of thé special election held to fill the vacancy, he had only been registered one month, and in a district in which he had resided less than one year, and that therefore he was not a qualified elector. The demurrer which was interposed to this petition should have been overruled. The position of deputy sheriff is an office created by section 4664 of the- Code, and is therein expressly designated as such.- It ■ can ■ therefore only be held by a qualified elector. Since the demurrer admits the allegation of the petition that appellee was not a qualified elector at the time of the death of Harris, it follows necessarily that he was not qualified'tcr'kold the office, and therefore was not a legal deputy; and, since the statute provides no method for filling the Vacancy in the office existing between the death of the sheriff and the election of a successor, except that its duties shall be discharged by the office deputy, and there-being in this instance no such deputy, there clearly existed such an emergency as contemplated by section-103 of the Constitution, and the appointment of relator was-therefore valid.! This being true, it is not necessary for us to decide whether his appointment would have been valid- had appellee been a legally qualified deputy. ’ Since the démurrer also admits that appellee was not registered until one month before the election, it follows that he -was hot then eligible to the office, and his election was a nullity:: • "We gathér'fr-om the-briefs of counsel for appellee that he was duly-registered in another district of the county, and had- rémoved therefrom to the county seat in order to discharge'’ the- duties of deputy sheriff; and their contention is-tkat he' still remained a qualified voter without any necessity of again registering in the district in which the county'seát was situated. These facts, if such they be,' do not appear -in the petition,- and therefore are not pféséntéd to hs 'for consideration. Reversed mid remanded.