5 N.W.2d 402 | S.D. | 1942
This is a proceeding in the nature of quo warranto to determine the title to the office of state's attorney of Hyde County. At the general election held in November, 1938, M. Harry O'Brien was elected to that office and entered upon the discharge of the duties of the office on the first Monday in January, 1939, and continued in such office until his death, which occurred on April 27, 1940. Appellant, C.E. Noel, was appointed by the board of county commissioners to fill the vacancy. Appellant qualified and entered upon discharge of the duties of the office. At the time of his death, M. Harry O'Brien was the candidate of *608 the democratic party to succeed himself. The democratic central committee of Hyde County held a meeting on May 18, 1940, for the purpose of filling the vacancy in the nomination. A certificate nominating respondent, M.C. Cunningham, was filed by the chairman and secretary of the committee with the county auditor. At the general election held in November, 1940, respondent received a plurality of the votes cast for the office in question, was declared elected by the canvassing board and received from the county auditor a certificate of election. On December 11, 1940, respondent filed his official bond and took the oath of office. The county commissioners were not then in session and the county auditor refused to call a special meeting to consider the approval of the bond. Upon refusal of the board at its regular meeting in January to approve the bond filed by respondent, he presented the same to the circuit court and after the approval thereof entered upon and has since performed the duties of the office.
The claim is made that respondent by his election in November, 1940, was entitled forthwith to qualify and enter upon the performance of the duties of the office and having failed to qualify as required by statute abandoned the office.
SDC 48.0311 provides: "Except when otherwise expressly provided, the regular term of office for all county officers, when elected for a full term, shall commence on the first Monday in January next succeeding their election, except the office of county auditor, the term of which shall begin on the first Monday of March next succeeding his election. If the office to which any officer was elected be vacant at the time of his election, or becomes vacant after such election, even if he was not elected to fill a vacancy, he shall forthwith qualify and enter upon the duties of his office."
[1] Respondent was "elected for a full term." If the office of state's attorney was not vacant at the time of the election of respondent or had not become vacant after election, he was not required to qualify until the first Monday in January next succeeding his election. *609
[2] The tenure of an appointee to the office of state's attorney continues "until the next general election at which the vacancy can be filled, and until a successor is elected and qualified." SDC 48.0106. In State ex rel. Rearick v. Board of Commissioners of Lyman County et al.,
"It is the general policy of the law to fill vacancies in elective offices at an election as soon as practicable after the vacancy occurs. State v. Schroeder,
State ex rel. Hellier v. Vincent,
[3] The right to elect a successor to complete an unexpired *610 term does not depend on the duration of such term, and it would follow from the foregoing decisions that the electors of Hyde County had the right to elect a successor at the general election in November, 1940, to fill the office of state's attorney for the remainder of the term.
[4, 5] An office is not vacant so long as there is an incumbent lawfully authorized to exercise the powers and duties which pertain to it. In re Supreme Court Vacancy,
[6] Appellant further contends that respondent was not legally nominated and was not therefore elected to the office of state's attorney. It is claimed that written notice was not given to all members of the democratic central committee convened for the purpose of filling the vacancy in nomination; that a quorum of the committee was not present; and that respondent did not receive a majority vote of the members of the committee. Respondent contends that these objections came too late when made after election. This court has already indicated that a candidate desiring to challenge the nomination of his opponent must act with some diligence. State ex rel. Jacobsen v. Morrison,
"Objections relating to nominations must be timely made. It is too late to make them after the nominee's name has been placed on the ballot and he has been elected to office; his election cannot be impeached on the ground that statutory requirements regarding nominations were not complied with in his case, or that his nomination was procured by unlawful means."
In the note in 7 Ann. Cas. 839, it is said: "The American authorities are almost unanimous in holding that objections to irregularities in the nomination of a person for office must be taken prior to the election, and that thereafter it is too late."
Illustrations of the application of the rule may be found in the following cases: Bramley et al. v. Miller et al.,
The judgment appealed from is affirmed.
All the Judges concur.