People ex rel. Andrews v. Lord

Campbell J.:

The relator claims to have been duly elected to the office of Judge of Probate of Oakland county, at a special election held on the first Monday of April, 1861. Van Valkenburgh was appointed in November, 1860, upon the death of Oscar F. North, the previous incumbent, who had just been re-elected for the four years to commence January 1, 1861. Lord, who is in possession of the office, was appointed by the Governor, January 1, 1861, and both he and Van Valkenburgh claim that the election of Andrews was invalid, and each claims the office by virtue of his appointment.

It is not disputed that Van Valkenburg’s appointment was valid, but it is claimed by Lord that his appointment was revocable, and was revoked by the appointment of the latter. It is also claimed that, whether revocable or not, it had determined, and left a vacancy to be filled by appointment.

The Constitution provides that the Judge of Probate shall bo elected, and shall hold his office for four years, *231 and ’■'■until a successor is elected and qualified.” In case of vacancy, the Governor is to appoint a person to continue “until a successor is elected and qualified. When >elected, such successor shall hold his office the residue of the unexpired term.”

These provisions are so free from ambiguity that there Is no room left for construction. A person appointed to fill a vacancy can only be superseded by one who is duly elected, and holds in the same manner as if originally the incumbent until thus superseded. His term of office did not expire on the first day of January, 1861, unless some one elected and qualified was then ready to take the office. As Mr. North was re-elected, and was then dead, the election had then fallen through. This was not a technical vacancy, but it was a case where a new election was expressly provided for by §26 Compiled Laws, which authorizes a special election “ when the right of office of a person elected to any of the aforesaid district or county offices shall cease before the commencement of the term for which he shall heme been elected.” We conceive this to be just such a case.

It is claimed, however, that by the Constitution- the Legislature may authorize the removal of county officers <E in such manner and for such cause as to them shall seem fust and proper” (Art. 12, §7 Constitution). And it is further claimed that, by a statute of 1857, entitled “An Act In relation to vacancies in county offices filled by appointment by the Governor” (L. 1857, p. 420), the absolute right of removal is given in all cases of appointment to fill vacancies, and that Lord’s. appointment amounted to a removal of Yan Valkenburg, whose commission expressly gave him the office for the remainder of North’s term “ unless previously removed by the Governor.”

Without undertaking to construe the act in question,, it is sufficient to remark, that the other clauses of the Constitution already referred to, expressly prohibit the Governor *232 from appointing one Judge of Probate to supersede another already appointed to fill a vacancy. And it rvould also be an unwarrantable construction to hold, that power to authorize removals for a cause to be defined by law, would allow a removal at discretion and without cause. No such power was intended by the Constitution to be vested anywhere. Nor does the form of Yan Yalkenburg’s commission change the case. The duty of the Governor in filling the vacancy was defined by the Constitution, and the limitation, which we are satisfied was placed in the commission by an inadvertant use of a wrong form, was entirely inoperative, and would have been under any circumstances.

The appointment of Mr. Lord was made when Yan Yalkenburg had an existing title to the office, only defeasible by an election; and was therefore void. The only remaining question is, whether Andrews was legally elected. It is objected that the notice was not legal. The law requires the order of the supervisors to set forth, how the vacancy occurred, the name of the officer, the time when the term expires, and the day of election. These all appear in the body of the order, and tbNomission to copy the preamble does not vitiate it. We think the law was complied with.

It is objected, however, that by the law of 1857, an appointment to a vacancy can not be superseded even by an election. Without attempting to determine the meaning or effect of this law, as to other officers, it could not be so interpreted as applicable to Judges of Probate, without an express violation of the constitutional provisions already quoted. We can not regard this law, therefore, as repealing the existing statutes providing for special elections, which are in perfect harmony with the constitutional provision, which clearly designs that no obstacle shall be thrown in the way of permitting elections to keep filled, as well as to fill originally, the office in question.

We are of opinion, that Yan Yalkenburg was entitled *233 to the office until the election and qualification of Andrews, on whom it then devolved; and that Lord is guilty of intrusion ; and judgment of ouster must therefore be rendered, with costs, in favor of Andrews against Lord. The judgment will also contain, as required by law, an adjudication upon the rights of Yan Valkenburg, but no costs are to be awarded against him, as he was not in possession when the information was filed.

The other Justices concurred.