103 Va. 694 | Va. | 1905
delivered the opinion of the court.
This writ of error brings before us a controversy over the office of Superintendent of the Poor of Culpeper county. By the judgment of the lower court a peremptory writ of mandamus was awarded, requiring the plaintiff in error to surrender the office in question, together with all of the property held in connection therewith, to the defendant in error. The correctness of this conclusion is the subject for our consideration.
It appears that John M. Chadduck, the plaintiff in error, had held the office in controversy for several terms immediately preceding this litigation. Under the law, as it was prior to the adoption of the present Constitution, the term of office of Superintendent of the Poor began on the 1st day of July, and expired with the 30th day of June, four years thereafter. The last term for which Chadduck had been appointed would have
The plaintiff in error executed the new bond, as required, and hence, under the provisions mentioned, his regular term which would have expired with June 30, 1903, was extended to the first day of January, 1904; and he was authorized to discharge the duties of his office until his successor had been duly chosen, and had qualified.
The provision for filling this office when it should expire on the 1st day of January, 1904, is found in section 95 of an act passed by the General Assembly on the 18th day of December, 1903. Acts 1902-,3-,4, p. Y42. It is there provided that each county judge, upon the recommendation of the Board of Supervisors of each county in which he holds court, shall, between the passage of the act and the 1st day of January, 1904, appoint for each county in which he holds his court, one Superintendent of the Poor. It is further provided that the judge
On the 31st day of December, 1903, the Board of Supervisors recommended for appointment as Superintendent of the Poor, Boy C. Burke, the defendant in error, for the term of four years, commencing January 1, 1904. On the 11th day of January, the judge rejected this recommendation, spreading, as required, his reasons therefor upon the order book of' his court, and proceeded by the same order, without any further recommendation by the Board, to appoint the plaintiff in error for the four years — term beginning January 1, 1904.
A court has no original or inherent power to appoint to office. Its sole power to perform the act is derived from the Legislature. The statute conferring the power must, therefore, be strictly pursued when the power is exercised. It is manifest that the appointment made by the county judge was void and of no effect, because of the failure to observe the requirement of the statute, which was mandatory, providing that he should make the appointment on the recommendation of the Board of Supervisors, unless the Board should fail to recommend a person, in his judgment suitable, for thirty days after his rejection of the preceding recommendation, in which latter case alone had he the power to fill the office by his own appointment.
But it is further contended that after the 1st day of January, 1904, the period to which the term of this office was extended by the Constitution, no appointment having been made by the county judge for the next ensuing term, there existed a vacancy in the office which the judge was authorized to fill under section 106 of the Act of December 18, 1903, which, so far as needful here, provides that when a vacancy occurs in any
It is said that the word “vacancy,” as applied to an office, has no technical meaning; that an office is vacant or not according to whether it is occupied by one who has a legal right to hold it and to exercise the powers and perform the duties pertaining thereto. A vacant office is one without an incumbent. Vacancy in office is one thing and term is another. An office may be vacant and filled many times during a term of four years; but it cannot become vacant at the end of a term where the incumbent is authorized to hold over, for the instant the successor is duly appointed and has qualified he becomes entitled to the office, and there has been no hiatus at all. So long, therefore, as an office is supplied with an incumbent, in the manner provided by the Constitution or law, who is legally qualified to exercise the powers and perform the duties which appertain to it, the office is not vacant. Section 106 of the Act under consideration, contemplates and has reference alone to vacancies occurring during the term of an office, by death, resignation, removal and the like. It does not refer to nor contemplate the filling of an office for the ensuing term, upon the expiration of the preceding term; that was fully provided for by section 95 of the same Act, which has already been adverted to.
The regular term of the plaintiff in error expired, under the law, on the 1st day of January, 1904, but he was just as fully authorized by law to hold the office and exercise the powers and perform the duties appertaining to it after that time, until his successor had been duly appointed and qualified, as he was before the expiration of his regular term. Indeed, the period between the expiration of his term and the qualification of his
As said in a California case, the plaintiff in error has, under the law, “a fixed term and a contingent term.” He holds absolutely for the full period of his regular term, and contingently after that until his successor is appointed and qualified. It is said that the law abhors vacancies in public offices, and that great precautions are taken to guard against their occurrence. Hence it is, no doubt, that we find so generally adopted the provision that an incumbent shall, at the end of his term, continue to hold the office and exercise its powers and perform its duties until his successor has been duly appointed and qualified. And also the statutory provisions for filling vacancies occurring during a term, which are emergencies often requiring prompt action. Such provisions are founded upon necessity to prevent vexatious embarrassments in the public service. As far as our investigation has gone, the great weight of authority upholds the view that wherever the law provides for an incumbent holding over until his successor has been appointed and qualified, there is no vacancy in the office at the expiration of the fixed term. Ex parte Lawhorne, 18 Gratt. 86; ex parte Meredith, 33 Gratt. 119, 122, 36 Am. Rep. 771; Mechem on Pub. Officers, ss. 126 et seq.; Throop on Pub. Officers, ss. 308 et seq.; Tappan v. Gray, 9 Paige (N. Y.), 507; People v. Van Horn, 18 Wend. (N. Y.) 515; State v. Harrison, 113 Ind. 434, 16 N. E. 384, 3 Am. St. 663; People v. Ward, 103 Cal. 236, 40 Pac. 538; State v. Askew, 48 Ark. 82, 2 S. W. 349; Baxter v. Latimer, 116 Mich. 356, 74 N. W. 726; Kimberlin v. State (Ind. Sup.), 29 N. E. 773, 30 Am. St. 208, 14 L. R. A. 858; People v. Henderson (Wyo.), 35 Pac. 517, 22 L. R. A. 754.
The case of Johnson v. Mann, 77 Va. 265, is cited for the proposition that a vacancy exists which can be supplied by the
Upon reason and authority, we hold that there was no vacancy in the office of Superintendent of the Poor of Culpeper county on the 11th day of January, 1904, that the judge of that county was authorized to fill under section 106 of the Act of December 18, 1903; that his action in attempting to fill the office was void; and that the plaintiff in error continued, as the incumbent, under the law, in the rightful possession of the office, awaiting the lawful appointment and qualification of his successor.
On the 19th day of April, 1904, the circuit judge of Culpeper county, upon the recommendation of the Board of Supervisors, entered an order appointing the defendant in error, Boy C. Burke, to fill the office in controversy.
Under the provisions of the schedule of the present Constitution, and of section 3058b of Va. Code, 1904, the circuit courts, created by the Constitution, succeeded to all the power that the county courts had under section 95 of the Act of December 18, 1903. This was the only source from which the Circuit Court derived authority to make an appointment to this office. Section 95 of the Act mentioned was amended and reenacted on the 15th of March, 1904, and is now found as section 95 in Va. Code, 1904. As already seen, the law conferring the power of appointment upon a court or the judge thereof measures and limits the extent of that power. We must, therefore, look to section 95, as amended on the 15th of March, 1904, for the authority of the Circuit Court of Culpeper county to fill the office in question on the 19th day of April, 1904.
Upon the whole case, our conclusion is that John M. Chad-duck, the plaintiff in error, is the rightful incumbent of the office of Superintendent of the Poor of Culpeper county, holding the same by authority of law, and that his term cannot be disturbed until a successor has been duly appointed and qualified. In view of the high testimony borne by the record to his experience, fidelity, and efficiency, the result reached cannot be regretted so far as the welfare of the public service is concerned.
Por these reasons the judgment complained of must be reversed, and, this court proceeding to enter such judgment as the lower court ought to have entered, it will be ordered that the writ of mandamus prayed for by the defendant in error be denied, and his petition dismissed.
Reversed.