Jones v. Sizemore

117 Ky. 810 | Ky. Ct. App. | 1904

Opinion op the court by

JUDGE SETTLE

Affirming.

Tliis is a proceeding by rule in the nature of quo warranto to determine whether appellant or appellee is entitled to perform the duties of the office of sheriff of Lee county for the period intervening between the November election, 1903, and the first Monday in January, 1901. At the November election, 1901, W. E. Jones was elected to the office of sheriff of Lee county, and entered upon the discharge of the duties thereof on the first Monday in January, 1902, and continued to act as sheriff until his death, which occurred in the month of September, 1902. On September 25th after his death the appellant, John E. Jones, was appointed to fill the vacancy caused thereby, and after his qualification entered upon the performance of the duties of the office. As the vacancy caused by the death of W. E. Jones occurred within three months of the next succeeding annual election at which either city, town, county, district, or State officers were to be elected, no election was or could be held to. fill the vacancy in the office of sheriff until the regular November election, 1903, at which election the appellee was duly elected sheriff of Lee county to fill the unexpired term for which W. E. Jones had been elected, and at once executed his official bond and took the oath of office as required by law. At the December term, 1903, of the Lee circuit court, appellee appeared in court to perform the duties in waiting upon the court and executing its processes and orders. Appellant thereupon presented himself in court, and also insisted upon performing the duties of the office of sheriff at the same time, and objected to the appellee doing so. But appellee’s right to the office was recognized by the court, whereupon appellant procured a rule against- appellee to show cause why he should not give way to him until the first Monday in January following, to which the latter filed a response in which the facts of his election and qualification to the office in question were duly set forth, and upon the hearing of the rule and response the court rendered a judgment declaring appellee entitled to the office in dispute, and from that judgment this appeal was taken.

Section 152, Const., contains the following provision: “Except as otherwise provided in this Constitution, vacancies in all elective offices shall be filled by election or appointment as follows: If the unexpired term will end at the next succeeding annual election at which either city, town, county, district or State officers are to be elected, the office shall be filled by appointment for the remainder of the term. If the unexpired term will not end at the next succeeding annual election at which either city, town, county, district or State officers are to be elected, the office shall be filled by appointment until said election, and then such vacancy shall be filled by election for the remainder of the term. If three months do not intervene between the happening of said vacancy and the next succeeding election at which city, town, county, ¡district or State officers are to be elected, the office shall be filled by appointment until the second succeeding annual election at which city, town, county, district or State officers are to he elected; and then if any part of the term remains unexpired, the office shall he filled by election until the regular time for the election of officers to fill said offices.” It will be observed that in every instance the vacancies provided for by section 152 of the Constitution, supra, are to be filled by appointment “until the next succeeding annual election” which does not take place within three months next after the vacancy occurs. This regulation is in deference to the representative character of our government and the policy of our laws that the people are to choose those who are to serve them. The power to • appoint exists under certain circumstances, but it is only delegated and may be exercised Only when it is impracticable for the people to exercise their choice. Section 99 of the Constitution declares that the first term of county officers elected immediately following the adoption of the Constitution should be for three years beginning on the first Monday in January, 1895, but, asi such officers were thereafter elected for terms of four years, the next term began with the first Monday in January, 1898, and ended with the first Monday in January, 1902, and the next beginning with the first Monday in January, 1902, will end on the corresponding day in January, 1906, and so on, the election in each instance taking place in November of the preceding year. So the only regular term as applied to county officers, sheriff included, is that of four years. Section 236, Const., provides thát the General Assembly shall by law prescribe the time when the several officers authorized or directed by this Constitution to be elected or appointed shall enter upon the duties of their respective offices, except where the time is fixed by this Constitution.” Section 3759, Ky. St., 1903, provides that “all officers other than those mentioned in the preceding section (relating to commissioned officers) may enter upon the discharge of the duties of their offices respectively at the time prescribed by the 'Constitution or the statutes creating the office, upon taking the oath and executing the covenant required by law.” Section 3755 of the statutes, supra, provides: “If the official bond is not given, and the oath of office taken, on or before the day on which the term of office to which the person has been elected begins, or in cases of persons appointed to office, within thirty days after such person has received notice of his appointment, the office shall be considered vacant, and he shall not be re-eligible thereto for two years.” We are of opinion that the provisions of the Constitution and statutes, supra, all refer to offices which are to be filled for the full constitutional or statutory terms.

There seems to be nothing in either the Constitution or statutes of this State fixing the time at which one elected or appointed to fill a vacancy in office shall assume the duties of such office. It would, however, have been impossible for the appellee to have entered upon the duties of the office, the vacancy in which he was elected to fill, at the beginning of a term, for the term began on the first Monday in January, 1902, nearly two years before his election. Except as the beginning or ending of a full 1erm of office, the first Monday in January has no more significance than the first Monday of any other month.

The term of the office of sheriff is four years, no more and no less. The present term throughout the State began with the first Monday in January, 1902. The term had but one beginning, and will have but one ending, though there may be a dozen incumbents during the one term. The appellant was not appointed to serve during the remainder of the unexpired term of his predecessor, but only to fill the vacancy caused by the latter’s death until an election could be held as provided by law to fill such vacancy for the remainder of the unexpired term, which election as thus provided could not take place until November of the year 1908. Therefore, upon the election and qualification of appellee, the vacancy ceased, and it became the duty of appellant to retire at once from the office in favor of appellee, who was entitled to begin the immediate performance of the duties thereof, without waiting until the first Monday in January following, as would have been the case if he had been elected for a full term of four years.

The fact that the statute requires one elected to the office of sheriff for a full term to give bond by, and begin the duties of his office on the first Monday in January, following his election, and that his failure to do so shall forfeit his right to the office, does not compel one elected to fill a vacancy in that office to defer his qualification, or the commencement of his duties until the first Monday in January, any more than does the statute providing that the failure of one appointed to such vacancy to qualify within 30 days after the date of his appointment shall forfeit his right to the office, require such appointee to defer his qualification for and the taking of his office, until the end of the 30 days. Whether elected or appointed to such vacancy, the one so elected or appointed has the right to qualify and enter upon the performance of the duties of the office at once.

Being of the opinion that the lower court properly decided that appellee was entitled to the possession of the office of sheriff of Lee county immediately upon his election and qualification, the judgment is affirmed.