People ex rel. Murphy v. Hardy

MINER, J.: From the agreed state of facts in this case, it appears that, at the August election at Salt Lake county, occur'ring m 1884 and 1886, one N. Y. Jones was elected collector of Salt Lake county. Jones resigned this office to the county court in November, 1886, shortly after his second election and before the expiration of his first term, without qualifying; whereupon the county court appointed Leonard G-. Hardy, the respondent, as such collector, for the unexpired term; “also for the term commencing June 1, 1887, and until his successor should be — 70 — duly elected and qualified.” On Jime 6, 1887, the county court again appointed Hardy collector for the year 1887. Hardy qualified under each appointment, according to law, and entered upon the duties of his office. At the August election for the year 1887 said Hardy was elected collector, and qualified in June following. No one was voted for or elected collector at the election provided to be held in August, 1888; but in August, 1889, Hardy was again elected collector, and duly qualified. After each appointment and election Hardy received his regular commission from the governor. At the regular election in August, 1890, no one was elected collector. At the election held in August, 1891, three candidates were voted for. The appellant, A. L. Williams, received 4,420 votes, that being the highest number of votes polled for any one candidate, and A. L. Williams was declared elected, and received his commission from the governor of Htah Territory, after which he duly qualified as such collector, and demanded possession 'of the office, which respondent, Hardy, refused to yield; whereupon this 23i’oceeding was commenced to test Hardy's title to this office. The relator now contends that the election of Williams in August, 1891, was valid-for the balance of the unexpired term of this office, which commenced June 1, 1891, and which would expire June 1, 1893; that Hardy's appointment in June, 1S87, gave him the right to hold until the next general election in August,- 1887, and that his election in August, 1887, gave him the right to hold until June, 1889, when the office became vacant; but, there being no election in 1888, Hardy would hold over until June, 1891, and that Williams’ election in August, 1891, gave him the right to the office for the unexpired term ending June, 1893. Eespondent, Hardy, .contends that his appointment by the county court, in 1887, confers upon him a right to hold the office until his successor is duly elected and qualified; and that, under the statute, the election held in — 71 — August, 1891, is void, and that Williams has no title to office under such election; that there was no vacancy in the office in June, 1891, such as, under the statute, could be filled by an election in August, 1891; that no election having been held in August, 1890, nor appointment made, the incumbent' holds over until June, 1893. By § 2018 (1 Comp. Laws, 1888, p. 722) it is provided that, at the general election in 1878, and biennially thereafter, there shall be elected, by the qualified voters of this Territory, a collector for each county, whose term of office shall be for two years, and until his successor shall be duly elected or appointed, and qualified; each collector to enter upon the duties of his office on the 1st day of June following his election, after having qualified. Section 2020 (Id. p. 723) provides that in case of the office of collector becoming vacant the county court of the county where such vacancy occurs shall have power to fill such vacancy, by appointment, until the next general election. Section 238 (Id. p. 318) provides that annually, upon the first Monday in August, there shall be a general election held in each precinct in the several counties for choosing all officers not otherwise provided for. Section 187, subd. 25 (Id. p. 303) gives county courts power to fill by appointment all vacancies that may occur in any office filled by appointment of the county court, and elective county district or precinct offices. Tinder the agreed facts, the question arises, was the election of Williams, in August, 1891, and the election of Hardy, in August, 1887 and 1889, authorized by law? Was there any vacancy in this office in June, 1891, that could be filled except by an election held in August, 1890, or by appointment of the county court? Section 2018 creates the office of collector, and provides that such collector shall be elected at the general election in 1878, and biennially thereafter; that his term of office shall be for two years, and until his successor shall be duly elected or — 72 — appointed and qualified; and that be should enter upon the duties of his office on the 1st day of June next following his election. The time of the election for the office created by the act is fixed by the same section at the general election to be held in August on each even numbered year following 1878. The term commences the 1st of June following the election, or in an odd numbered year. Under this section the incumbent holds until his successor is duly elected or appointed and qualified. Jones was elected under this statute in August, 1884, and again in August, 1886, but resigned both terms of office in November, 1886, to the county court; and Hardy was duly appointed to fill the long and the short term, under § 2020. This section gives the county court power to fill the vacancy caused by the resignation of Jones, by appointment, until the next general election, and § 187 gives the county court power to fill vacancies that may occur in any •office filled by appointment; so that the term for which Hardy was appointed would not expire until June 1, 1889, unless the general election, referred to in § 238, above quoted, was the general election meant by § 2018, at which an election for this office could be held. It will be noticed that this § 238 has' reference to an election for ■choosing an officer not otherwise provided for. It will also be seen that § 2018 does provide for the election of collectors, so that § 238 cannot have reference to the •election of collectors, but has reference to the election of ■officers not otherwise provided for. In State v. Collins, 2 Nev. 351, it is held “that an election cannot be held for ■an office at a time not fixed for such an election;” and, under a statute providing that a “county superintendent ■of schools shall be elected in each county at the general ■election in the year 1886, and every two years thereafter who shall take office on the first Monday in January next ■succeeding his election, and hold until his successor is elected and qualified,” and providing that “any vacancy — 73 — may be filled until the next general election,” the court says that the “next general election” referred to means the next general election occurring on alternate years commencing with 1864, and not the election held in intermediate years. See Sawyer v. Haydon, 1 Nev. (64), 75; Kenfield v. Irwin, 52 Cal. 164; Paine, Elect. §§ 284, 310, McCrary Elect. § 109; Cooley, Const. Lim. 602; People v. Church, 6 Cal. 76. The county court haying the power to appoint and haying appointed Hardy to fill the vacancy then existing, the appointment would necessarily continue for the full term to June 1, 1889, and would not be affected by the election of Hardy in 1887, at a time when such election is not provided for by law. The time for the election occurs, under the statute, every two years, but no election was held, in August, 1888, or 1890; consequently Hardy’s term continued, , under the statute, until his successor was elected or appointed and qualified. The right to hold over until the successor is legally elected and qualified is as. much a part of his term of office as the regular period prescribed by statute, so that the length of his term depends upon the election of his successor. There can be no actual vacancy as long as the rightful occupant continues to hold office, — that is, until death, resignation, removal or some legal disability occurs. This provision is a proper one, and is so provided in order that vacancies in office may not occur from a failure of the people to elect at the regular general election fixed by the statute for that purpose. The result necessarily follows that a failure to elect at a period fixed by the statute creates no vacancy in the office, but imposes a right and a duty upon the incumbent to continue in office until his successor is legally elected and qualified; and this right falls upon the incumbent the same whether appointed or elected. In other words a person appointed to fill a vacancy in the office of collector can only be superseded by one — 74 — who is duly elected; .the person so appointed continuing to hold office in the same manner as if he were originally the incumbent; and his term of office will not expire until he is suspended by death, resignation, removal or some other legal disability' occurs, or until his successor is duly elected and qualified. Hardy’s term of office did not expire in June, 1891, unless some one duly elected and qualified was then and there ready to take the office. It is not' claimed that Mr. Williams was elected until August, 1891, and,' as we have seen, at a time when no election for this office could legally be had under the statute. The statute provides that a vacancy shall be filled by appointment until the next general election. At the next general election in 1888, and in 1890, the office should have been filled for the full term of two years; but no election was held, and there was no vacancy that could be filled by appointment, because the appointee was still there holding the office, and no one had been elected to take it. Paine on Election, § 227, says, “that if there was a vacancy in any just sense, after the expiration of the term, and before the election and qualification of a successor, the statute itself fills the vacancy by providing that the incumbent shall hold until the election and qualification of a successor, and that a failure to elect a successor to an office at the expiration of his term does not create a vacancy to be filled by appointment. * * * The incumbent holds over for an indefinite period if no successor be electéd and qualified.” There was no vacancy in the office to be filled at the time it is claimed the relator was elected, in 1891, and there was no authority to hold an election at that time for this office. The law had filled it with an incumbent who took and held it from June 1, 1891, because there was no other legal claimant. The incumbent had entered upon a legal term of two years, from June 1, 1891, and will hold until his successor is elected at the general election in August, 1892, unless a legal vacancy — 75 — shall sooner occur. There are many decisions that bear upon this question, but they depend largely upon the statutes of the several states where the decisions are rendered. As sustaining the principle herein expressed we cite Paine, Elect. §§ 225-228, Mechem. Pub. Off. §§ 128, 129, 141, 142, 170; State v. Howe, 25 Ohio St. 588, 595; State v. Lusk, 18 Mo. 333; Brewer v. Davis, 49 Amer. Dec. 706; People v. Lord, 9 Mich. 221; State v. Harrison (Ind. Sup.), 16 N. E. Rep. 384. The judgment and order of the third district court are affirmed, with costs. ANDERSON, J., and Blacxburn, J., concurred.'