Bond v. White

The opinion of the court was delivered by Brewer, J.:

The facts of this case, so far as they are necessary to a right understanding of the questions involved, are these: At the general election in November, 1869, one Daniel Bruner was elected sheriff of Montgomery county. By virtue of such election he became and was entitled to hold such office until the second Monday of January, 1872. He however failed to qualify, whereby the office became vacant, and in April, 1870, the defendant was appointed by the governor to fill such vacancy. He qualified and entered upon the discharge of his duties as sheriff. At the general election in November, 1870, candidates for the office of sheriff of that county were voted for, and one Thomas Lawson received a majority of the votes cast, was awarded the certificate of election, and duly qualified. Railing to obtain possession of the office, he resigned, and plaintiff was appointed to fill the vacancy claimed to exist by virtue of such resignation. He qualified, but defendant refused to surrender the office; and this action is brought, an original proceeding in this court, to oust the defendant and place plaintiff in possession. The question arises upon the demurrer filed by plaintiff to the answer of defendant, and is therefore purely a question of law.

*• fintogySctíS Was the election in November, 1870, for the office of sheriff rightfully held? If it was, then by it Lawson became entitled to the position, and upon his resignation, and the appointment of this plaintiff, the latter would also become entitled to it. The clause of section 19 of art. 2 of the constitution, reads: “It” (the Legislature,) “shall have the power to provide for the election or appointment of all officers, and the filling of all vacancies, not otherwise provided for in this constitution.”

There is no provision in the constitution for fining a vacancy in the office of sheriff. We must therefore look to the statutes to see how the legislature has said it should be filled. Sections *341 57, 58 and 59 of general election law, (Gen. Stat., p. 418, 419,' are as follows:

“ Sec. 57. AE 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.

“Sec. 58. 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 iMonday of January next after the election, except as otherwise provided by law.

“Sec. 59. Any of the said officers that may be elected or appointed to fill vacancies may qualify and enter upon the duties of their office immediately thereafter, and, when elected, they may hold the same during the unexpi/red term for which they were elected, and until their successors are elected and qualified; but, if appointed, they shall hold the same only until their successors are elected and qualified.”

g. Person aponly until tiie next general election. The term “ general election ” has both a constitutional and statutory definition, and means the election held annually on the Tuesday succeeding the first Monday in November. Const., art. 4, § 2; Gen. Stat., p.-1000, 26th clause of § 1. The meaning of the sections above quoted is plain and obvious. No language could be used which would ° r3 more clearly express the obj ect which the legislature intended to accomplish. In case of a vacancy the governor was to designate some one to discharge the1 duties of the office until the succeeding fall election, at which time the people were to elect a successor. The appointee could hold only until the fall election, and the qualification of the officer then elected. The officer elected held the unexpired term. This construction is supported, if support it needs, by the reasoning in the case of The State, ex rel. Watson, v. Cobb, 2 Kas., 53 , where the court say: “The general principle is that the judiciary are elective. The exception made to meet possible necessities, is by appointment to fill vacancies, but that appointment is expressly limited and must expire at the next regular election.”

Probably if the three sections above quoted were all that bore upon this question there would be little controversy. But *342 it is claimed that section 2 of the act prescribing the time for holding elections, (Gen. Stat., p. 428,) compels a different construction of the sections we have quoted. That reads: “On the Tuesday succeeding the first Monday in November, 1869, and on the Tuesday succeeding the first Monday in November in every second year thereafter, there shall be held a general election for the election in each county of sheriff,” etc. From this it is contended that the time for the election of sheriff is in 1869, 1871, 1873, and so on; that there is no warrant for an election of sheriff in 1870, and that an election without warrant is void, and confers no title. Furthermore it is claimed that the constitution fixes the term of office of sheriff at two years, and if an election was rightly held in 1870 the time for electing sheriffs in that county would be changed from the odd to the even years, and thus great confusion might in time be created throughout the state, some counties electing sheriffs in the even and some in the odd years, a result'which was evidently not contemplated by the legislature. In regard to the first objection, section five of the same act declares that “ the provisions of this act shall not apply when there are special provisions in any other statute fixing the time for the election of any of the officers above named;” and section 57 heretofore quoted provides that there shall be an election to fill the vacancy at the next general election after such vacancy occurs. It matters not whether such general election is in the even or the odd years, the vacancy is, by this section, then to be filled by election. In regard to the second objection, the fact that the result suggested might ensue would be no ground for avoiding the legitimate construction of the language used by the legislature. While uniformity in all such matters is desirable, a failure, to secure it is no argument against the validity of the legislation, and no reason for construing away its obvious meaning. We do not desire to be understood as intimating that such a result would ensue. Far from it. We simply pass that question to be considered in some case in which it fairly arises. Here it is immaterial. For if Lawson became entitled by the election in 1870 to the office, he was entitled to it for at least one year *343 Besigning during the year, the appointee of the governor becomes entitled to it until and* only until the coming fall election, for the same decision which sustains the election last November compels another this fall.

S' of county ofücevs; vacan But again, it is urged that, as the constitutional term of office of sheriffs is two years, and as the constitution is silent in reference to unexpired terms, the appointment by the governor fills the vacancy in the office for the balance of the term; an^ 0:®ce being filled, there is no room for an eiection until the full term has expired. The language of the constitution is this — art. 9, § 3: “ All county officers shall hold their offices for the term of two years, and until their successors shall be qualified.” We understand this language as fixing the duration of the regular term. It is not within the power of the legislature to create a county office and fix the term of that office at any other period than two years. We do not understand that section as bearing upon the question of a vacancy at all. Whenever a vacancy occurs, there is an unexpired .term to be filled, and this section neither determines, limits, nor affects the manner of filling that unexpired term. That question is to be settled by the legislature, by virtue of the powers conferred by section 19 of art. 2, heretofore quoted. It has declared that an appointment by the governor shall be good only until the succeeding general election and the qualification of the party elected. We cannot add to that, and say it shall hold good for the unexpired term. That would be giving a power to the gubernatorial appointment which the legislature has failed to do.

Whether an election starts a “regular term” to running, we forbear to decide, for reasons heretofore given. An appointment obviously does not. The defendant’s right to the office having terminated on the election and qualification of Lawson, by the resignation of the latter and the appointment and qualification of the plaintiff he is entitled to the office, and judgment must be entered accordingly. It is proper to state that the allegations of the petition and answer exclude any applica *344 tion of sections 101 and 102 of the act in relation to counties and county officers to this case.

All the Justices concurring.