116 Mich. 356 | Mich. | 1898
The relator asks a mandamus to compel the respondent to vacate an order calling an election to be held by the officers of the 4th regiment to elect field officers, and to recognize the relator as major of said regiment. The petition sets out, substantially, that at a regular meeting of the officers of said regiment held October 5, 1897, for the purpose of electing field officers, there were present 27 officers, being all the officers of said regiment duly commissioned; that George L. Winckler was present, and claimed to be a second lieutenant, under a commission dated September 21, 1897, and signed by the governor of this State; that the colonel commanding said regiment and presiding at the meeting referred the matter of allowing said Winckler to vote to a committee, which reported that, at the time said commission was issued, the
The answer of Col. Latimer admits the facts stated in the petition. The adjutant general and all the parties interested were thereupon permitted to appear in the cause, and be represented by counsel.
The adjutant general makes a return to the order, in
It is further shown by the return of the adjutant general that, before the election of Lieut. Winckler as second lieutenant, he had been for many years an enlisted soldier in the company, and at the time of his election was first sergeant of said company; that on September 22d, when the commission was delivered to him, he was by his captain relieved from duty as first sergeant, and placed on duty as second lieutenant, and since that time has performed the duties of second lieutenant in that company, and has ever since been recognized as second lieutenant of that company by the officers and members of the company. It is claimed he was therefore entitled to vote at the election. The adjutant general further returns that after he received the protest from the 13 officers of the regiment, and from Lieut. Winckler, he was asked by Col. Latimer to refer the matter to the governor, and that upon such reference the governor, on December 13, 1897, ordered that a new commission issue to Lieut. Winckler, and that a new election be had; that, upon the receipt of this order, a new election was ordered and duly held, but that the officers failed to elect. It appears now that under the call for a new election there is a deadlock in the election; 14 voting for one set of officers, and 14 for another. In further answer to the petition, the adjutant general returns that he had no official notice of the governor’s absence from the State, and no notice whatever except newspaper rumor; that the lieutenant governor never assumed command of the National Guard, and never in any way communicated with or gave instructions to the adjutant general of that fact, or in any way modified his standing authority to act.
Upon this state of facts, it is claimed by counsel for relator that relator was elected, whether Lieut. Winckler was entitled to vote or not; that upon the assumption that he was entitled to vote, and that his vote ought to have
We are met at the outset with the proposition from respondent’s counsel that no legal election was held, as, under the statutes of this State, the regimental field officers had no right to vote at that election. Section 901, 1 How. Stat., provides:
“Companies may elect their own officers in the manner to be prescribed in general regulations; regimental field officers may be elected by the company officers according to general regulations.” .
Section 927 provides:
“On the occurrence of any vacancy in office after the first organization of any company, the members thereof may proceed to elect some person to fill such vacancy.”
Section 928 provides:
“The manner, time, and place of holding and conducting all company, elections shall be regulated by the bylaws of such company. All vacancies in the field officers of a regiment shall be filled by a majority vote of the commissioned officers of said regiment, at a time not exceeding sixty days from the date such vacancy occurs, to be fixed by the officer commanding such regiment. Ten days’ notice of the time and place of holding such election shall be given in writing to each company officer in said regiment.”
By Act No. 198, Pub. Acts 1893, section 928, 1 How. Stat., was amended so as to read, “ All vacancies in the field officers of a regiment shall be filled by a majority
By Act No. 63, Pub. Acts 1895, it is provided:
“The field and line officers, except when elected to fill a vacancy, shall be commissioned for a term of three years from the date of their election, and until their successors are commissioned.”
It will be noticed that section 901 has not, in terms, been amended by these acts. It is apparent that, at the first organization of companies into a regiment, there would be none but company officers to elect the field officers of the regiment. It is also apparent that section 901 is the only section providing for the election of the field officers of a regiment, except in cases of vacancies. Section 928 provides for the election of regimental field officers in cases of vacancies. The modes of election, and the officers who may participate in the election, are different, under the two sections» Under section 901, the regimental field officers are to be elected by the company officers. Under section 928, in cases of vacancies the regimental field officers are to be elected, under Act No. 198, Pub. Acts 1893, by the “field and company officers of said regiment.” By the act of 1895, regimental field officers, except when elected to fill a vacancy, are commissioned for three years from date of election, and until their successors are commissioned. Can it be said that there were vacancies in the field officers of this regiment, within the meaning of these statutes, at the time the election was called and held ? It was evidently the intent of the legislature, by the act of 1895, that no vacancies should occur by lapse of time of service, but that the officers commissioned for three years should hold over until their successors were commissioned. In State v. Howe, 25 Ohio St. 588 (18 Am. Rep. 321), it was held that where an officer appointed by the governor, by and with the advice and consent of the senate, is authorized to hold his office for a
“That the framers of the constitution, in providing for filling vacancies in office, did not regard an office as vacant when an incumbent might lawfully hold over his definite term until a successor was elected or appointed and qualified, is manifest from other provisions in the instrument. By section 4, art. 10, the duration of the term of township officers is fixed at one year from the Monday next succeeding their election, and until their successors are qualified. It would hardly be contended that, under this provision, a township office becomes vacant at the end of the year, from the mere fact that no successor to the incumbent has qualified. Again, the following provisions are found in the schedule: Section 7 provided that all county and township officers and justices of the peace in office on the 1st of September, 1851 (when the constitution took effect), should continue in office until their terms expired, respectively; section '8 provided for the filling of vacancies which might occur after that date, and until officers were elected or appointed and qualified under the constitution; and section 10 provided that all officers should continue in office until their successors should be chosen and qualified. Under these provisions in the schedule, it cannot be doubted that all officers in office on the day named continued in office de jure until their successors were chosen under the new constitution, unless removed by death or otherwise, although their fixed and definite terms expired before their successors were chosen; or, in other words, by virtue of section 10, the expiration of terms did not create vacancies to be filled under the provisions of section 8.”
In State v. Johns, 3 Or. 537, it was said:
“Vacancy in an office means the want of an incumbent at the time. * * * Vacancy in an office is one thing, and term is another. An office may be vacant and filled many times during a term of four years. ”
In the present case there were no vacancies in the field officers of the regiment. It appears that the dolonel, lieutenant colonel, senior major, and junior major were in office, either for the original term of three years, or under the legal extension thereof by reason of their holding over until their successors were elected. Therefore the election must be held under the provisions of section 901, and in which election only the company officers can participate. Section 928 has no reference to a general election, but to an election only to fill a vacancy, and it is at such an election only that the regimental field officers have the right to vote. It may have been an oversight in the legislature in not providing that regimental field officers, after the first election, may participate in all elections, whether general or to fill vacancies, but the legislature has not so provided by these statutes. However, we do not question the policy of the legislature in providing that regimental field officers shall be elected by company officers, except in cases of vacancies. It is a matter resting entirely with that body. It appears to be conceded by the parties hereto that the regimental field officers did take
In this view of the case, it is unnecessary to discuss the other questions raised. The writ will be denied. No costs will be allowed.