112 Ky. 365 | Ky. Ct. App. | 1901
Opinion of the court by
Affirming.
Appellant, Olmstead, was elected justice of the peace in November, 1894, for a term of three years, and until the election and qualification of his successor, under section 99 of the Constitution. In November, 1897, Joseph Niehoff was elected for the succeeding term, but died before qualifying. On January 3, 1898, the county judge-appointed Samuel Risley to the office. He brought suit against appellant for the office,/and was defeated in the Jefferson circuit court, which would seem to have taken the view that appellant was entitled to the office until the November election, 1898. Risley resigned on December 11, 1899, and the county judge then appointed appellee, Augustus, and on the 26th of February, 1900, the governor also appointed him, on the ground that the appointing power was not vested in the county judge, but in the governor. Appellee then instituted this action to recover the office, and, the lower court having adjudged in his favor, Olmstead prosecutes this appeal.
Substantially this question was before this court and determined in ‘ Campbell v. Dotson (23 R. 510) 111 Ky., 125 (63 S. W., 480, the only difference being that
The construction of a State Constitution, like that of any other instrument, must rest, not on an isolated expression, but on the whole instrument, and the plain purpose of the framers of the instrument must be effectuated. We can not believe that it was intended by the framers of the Constitution, or the people who adopted it, that a man who was elected for one term, should hold a second term, for which he was not elected, because his successor died before qualifying. The reasons given by us for the conclusion in the case above referred to seem to us sufficient, upon a reconsideration of the subject. • The learned counsel insists, that by the Constitution the judges of this court, circuit judges and certain other officers hold for a definite term and until the qualification of their successors. As to such officers he concedes that the death of the person elected for the ensuing term before qualifying would not entitle the incumbent to hold for the second term, and authorities are cited from other States so holding. But he
The elective system of choosing public officers of this class was first established in the State by the Constitution of 1850. The first General Assembly after the adoption of that Constitution enacted this statute in the chapter on elections and vacancies: “The term vacancy in office or any equivalent phrase as used in this, article means such as exist when there is an unexpected part of a term of office without a lawful incumbent therein, or when the person elected or appointed to an office fails to qualify according to law, or when.there has been no election to fill the office at the time appointed by law. It applies whether the vacancy is occasioned by death, resignation, removal from the State, county,- district, or otherwise.” 1 Stanton’s Rev. St., 439. The statute is still in force and was in force at the time of the adoption, of the present Constitution. The term “vacancy” had at that time a well defined legal meaning among the people of the State by reason of the statute which had been in force 40 years, and, taking all the sections of the Constitution together, we think it evident that the framers of that instrument used the term in the sense then well settled in the State. The same General Assembly also passed this statute: “If the official bond is not given and the oath of office taken within thirty days of the time when the officer was elected or received notice of his appointment, or of the time when his appointment ought to take effect, the office
Judgment affirmed. Whole court sitting.
Petition for rehearing by appellant overruled.