99 P. 869 | Wyo. | 1909
On January 14, 1909, the plaintiff was committed to the county jail of Albany County by one E. E. Anderson, claiming to be a justice of the peace, and here seeks his discharge on the ground that said Anderson was not a justice of the peace, and had no authority to issue the warrant for plaintiff’s arrest or the commitment under which he is imprisoned. The case has been submitted upon an agreed statement of facts by which it appears that at the general election held in November, 1906, one Hugh Hynds was duly elected justice of the peace in and for Laramie precinct in said Albany County, and entered upon the discharge of his duties on the first Monday in January, 1907. That at the general election in November, 1908, said Hugh Hynds and one Thomas J. Dayton, were opposing candi
The jurisdiction to consider in this case the right of Anderson to occupy said office is not here questioned, and we suppose that his authority in the premises is a proper subject for consideration in determining the legality of plaintiff’s imprisonment. Both parties who claim the office seem to be here represented by counsel, and the only question argued has been whether Anderson or Hynds is entitled to perform the duties of justice of the peace in the precinct aforesaid.
Justices of-the peace hold their office by election in their several precincts, except when appointed to fill a vacancy, and are required to be elected at the general election held on the Tuesday next following the first Monday in November in each even numbered year. (R. S. 1899, Sec. 202.) The constitution provides that all state and county officers elected at a general election shall enter upon their respective duties on the first Monday in January next following the date of their .election, or as soon thereafter as may be possible. (Art. 6, -Sub-Division “Elections,” Sec. 5.) And the stat
It is provided in the constitution (Art. 6, Sub-Div. “Elections,” Sec. 4) that “Every person holding any civil office under the state or any municipality therein shall, unless removed according to law, exercise the duties of such office until his successor is duly qualified.” Within the meaning of that provision the office of justice of the peace is clearly a civil office under the state. (Atty. Gen’l v. Common Council, 112 Mich. 145; Montgomery v. State, 107 Ala. 372; Shelby v. Alcorn, 36 Miss. 273; People v. Leonard, 73 Cal. 230; 14 Pac. 853; Barnhill v. Thompson, 122 N. C. 493; State v. Scott, (Minn.) 117 N. W. 1044.) It is an office provided for by the constitution and general laws of the state, and is connected with the judicial department
“These cases proceed upon the theory that all officers whose duties are prescribed by general law, however trivial, perform their own particular portion of the business of the state. The levying and collection of taxes are state matters. So are all things connected with the state system of schools, construction and maintenance .of public highways, and preservation of the peace, and these cases hold the generally conceded doctrine that all who have parts to perform in the. general scheme are officers holding under the state, if their engagement rises to the dignity of an office, rather than a mere employment.”
Thus it follows that Hugh Hynds, who was elected to the office in question at the. general election in 1906, and entered upon the discharge of his duties the first Monday in January, 1907, became entitled to exercise the duties of such office until his successor was duly qualified. It is said in Pruitt v. Squires, (Kan.) 68 Pac. 643, to be “well settled that the indefinite portion of time indicated by the phrase, 'until their successors shall be qualified/ is as much
It is contended by counsel for respondent in support of the authority of Anderson, under whose commitment the plaintiff is imprisoned, that Thomas J. Dayton, who had been elected at the general election in November, 1908, duly qualified by filing his oath and bond on November 21, two days before his death, although the bond was not approved until January 8, 1909', and that his death created a vacancy in the office after the commencement of the new term, which was properly filled by the appointment and qualification of Anderson.
By the apparent weight of authority it is held that where one elected to an office dies after he has qualified, though before the commencement of his term, a vacancy is created in the new term which may be filled as by law provided, and the previous incumbent will not be entitled to hold over as against one duly appointed and qualified to fill the'vacancy, but that where the person elected dies before having qualified a vacancy is not created, and the incumbent will be entitled to hold over to the time fixed by law for the
The principle upon which the death after qualifying of the person elected, though before the commencement of his term, is held to create a vacancy after the comencement of such term is that a successor having been duly elected and qualified the right of the one then in the office to hold over after the expiration of his definite term has ceased and having ceased is not revived by the subsequent death of such successor. The reasoning of the cases holding that a vacancy in the new term is caused by the death before qualifying and before the commencement of the new term of
The office in question is one regularly required to be filled by election at general elections, and it is only in case of vacancy that an appointment is authorized. The board of county commissioners of the proper county is authorized to appoint in case of a vacancy occurring in the office of justice of the peace. (Rev. Stat. 1899, Sec. 1225.) Reference has been made to that provision of the statutes that all county officers elected at any general election shall qualify and enter upon the discharge of their respective duties upon the first Monday in January immediately following such election. Section 1223, Rev. Stat. 1899, provides as follows:
“Every county officer provided for by law, shall, before entering upon the duties of his office, and within twenty days after the commencement of the term for which he was elected or appointed, execute and deposit his official bond, as prescribed by law, and eveiy such officer shall, also within the same time, take and subscribe the oath of office prescribed by Section twenty of Article six of the constitution of Wyoming * * * which oath shall be endorsed on the back of his certificate of election or appointment, and shall be deposited with his official bond.”
Sections 4317 and 4318, Revised Statutes of 1899, provide with reference to justices of the peace as follows:
“Sec. 4317. They shall, before entering upon the duties of their respective offices, take the oath required of other county officers, which oath shall be endorsed on the back of their certificates of election or appointment.”
*367 “Sec. 4318. They shall give bond in the sum of fifteen hundred dollars payable to the people of the State of Wyoming, with sufficient sureties to be approved by the board of county commissioners, conditioned for the faithful discharge of the duties of their respective offices, and that they will faithfully account for and pay over all moneys which may come into their hands by virtue thereof.”
The provisions of these two sections were as originally enacted contained in a single section providing that said justices of the peace shall “before entering upon the duties of their respective offices” take and file the oath required of other county officers, and execute a bond in the sum aforesaid, “with sufficient sureties, to be approved by the board of county commissioners,” conditioned as stated in Sec. 4318. (Laws 1895, Ch. 72, Sec. 1.) The-separation of the provisions into two sections was the work of the revision commission. The original act at least aids in the construction to be given the provisions, and we think it clear that the requirement is that the bond shall be given in the manner stated “before entering upon the duties of the office.” It cannot be doubted that the giving of the bond is one of the requirements for qualifying.
We are now prepared to consider the section of the statute prescribing the -events which, when happening, shall cause an elective office to become vacant. Section 381, Revised Statutes of 1899, provides as follows:
“Every elective office shall become vacant on the happening of either of the following events to the incumbent before the end of his term of office. 1. His death. 2. His resignation. 3. His becoming insane or non compos mentis. 4. His ceasing to be an inhabitant of the state, or if the office is local, his ceasing to be an inhabitant of the district, town, ward, or precinct for which he was elected. 5. His conviction of an infamous crime or of any offense involving a violation of' his official oath. 6. His removal from office. 7. His refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit*368 or file such oath or bond within the time prescribed by law. 8. The decision of a competent tribunal declaring his election void.”
Whether the office here in question was vacant so as to authorize the appointment of Anderson depends upon the construction to be given Section 381, in connection with the other provisions of the statute above referred to. The appointment _ of Anderson occurred after the commencement of the term for which Dayton had been elected. The events specified in Section 381 to occasion a vacancy in the office must have happened to the “incumbent.” At the time of Dayton’s death in November, Hynds was the lawful incumbent and the only incumbent of the office of justice of the peace in and for Laramie precinct. There could not have been two incumbents. The definite term for which Hynds had been elected did not expire until the first Monday in January, 1909, so that when Dayton died, Hynds was occupying the office by virtue of his election, and with the absolute right, if he lived, to continue in the office as against every one until the date of the commencement of the new term. We do not doubt that the term “incumbent” in relation to the 7th event stated in Section 381, viz.: the refusal or neglect to take the oath of office, and give or renew his official bond, refers to one last elected to the office, and whose duty it is before entering upon its duties to take the oath and give a bond. In other words had Dayton lived until the first Monday in January, 1909, for the purpose of determining a vacancy under that provision, he would have been the incumbent referred to. But before that date he had departed this life, and by no process of reasoning is it possible to consider him an incumbent of the office after his death. The seventh clause aforesaid is to be construed as referring to a living person. At the date of Dayton’s death, -he was not the incumbent of the office, but Hynds was. His death, therefore, did not create a vacancy in the office, unless the doctrine that death after qualifying of one elected to an office causes a vacancy in the new term
In several of the states one elected to an office is required to qualify before the time for his induction into the office, and generally within a stated period after his election or the issuance or delivery of a certificate of election; and that seems to have been the rule in those states where the death of one elected after qualifying is held to constitute a vacancy in the term thereafter to commence. And it seems also that in the cases so holding as to an office where such qualification had occurred-the acts of qualifying were completed, so that nothing further was required to be done to entitle the one so qualifying to the office at the date of the commencement of his term should he have lived until that time.
Our statute, however, prescribes the time for qualifying as the first Monday in January following the election, or “within twenty days after the commencement of the term” for which the person was elected or appointed. And that it is intended by the statute to fix the date for qualifying at or after the commencement of the term is rendered more plain in the case of the office of justice of the peace by Sction 4328; Revised Statutes of 1899, which provides that “Every justice of the peace in this state, after qualifying, is hereby authorized to hold his court for the trial of all actions of which jurisdiction is given him by law, and to hear, try and determine the same according to law.” It would hardly be contended that Dayton became authorized after filing his oath and bond in November, 1908, to hold court, and to hear and determine causes as justice of the peace, prior to the first Monday in January, 1909. The section last above referred to seems clearly to indicate the legislative understanding that the time for one elected justice of the peace to qualify is at or after the commencement of his term.
We are not to be understood .as denying the right of one elected to an office to take the required oath and execute
Dayton, then, was required to qualify on the first Monday in January, 1909, or within twenty days thereafter, and though we assume that he might take and execute his oath and bond and deposit them before that time, in anticipation of his induction into the office at the time provided by law, his acts in that respect would not operate or become effective for the purpose of qualifying until the time when the law provided that he should qualify. It is useless to inquire into the purpose or reasons for such a statutory provision. It is enough that the legislature has declared when and in what manner qualification shall occur.
Again, as a part of the required qualification it was necessary for the bond given by Dayton to be approved by the board of county commissioners. Until that was done he could not rightfully claim the office nor enter upon the duties thereof. (Andrews v. State ex rel., 69 Miss. 740; Rounds v. Bangor, 46 Me. 541.) There was no approval until after his death, and after the commencement of the term for which he was elected. It is hardly necessary to say that a person cannot qualify for an office after his death. It follows that he had not qualified before his death, and the office was left with a lawful incumbent who had been elected and who was