71 Vt. 196 | Vt. | 1899
The complainant was appointed chief of police for the city of Burlington, on the 16th day of March, 1898, and he contends that his term of office is for three years from the date of his appointment. The respondent claims, that Jerome Dumas was, on the 25th day of April, 1895, appointed chief of police; that his term of office was for three years from that date; that he held the office until his death, Feb. 4, 1898; that the complainant’s appointment was, under the charter, for the unexpired term of Jerome Dumas’s appointment; that the term for which the complainant was appointed expired on the 25th day of April, 1898; that on that day he, the respondent, was appointed chief of police for three years; and that he holds the office of right, under his appointment and the city charter.
Under the charter, as amended by No. 172 of the Acts= of 1894, it was the duty of the mayor, on the 25th day of April, 1895, to appoint a chief of police for the term of three years from the 25th day of April, 1895. By No. 148 of the Acts of 1896, the charter and all acts relating thereto were amended so as to read as is prescribed therein, and the rights of the parties must be determined from an inspection of this act, as nothing contained in the prior enactments not incorporated into this act was in force at the time the parties received their respective appointments. Section 278 of the last enactment provides, that the provisions of the act, so far as they are the same as those of acts thereby amended, shall be construed as a continuation of such acts and not as new enactments; but this does not continue in force any prior enactments that are not the same as the later enactment. Therefore, the earlier acts that are not the same as the act of 1896 are repealed, and we must look to, and be governed by, the act of 1896 in determining the term
In People v. Green, 2 Wend. 266, under a constitutional provision that sheriffs should be elected once in every three years and as often as vacancies should occur, it was held that the vacancy was in the office and not merely in the term of service of the person elected to fill it, and that an election on the occurring of a vacancy was for the full term of three years, and not for the unexpired term of the predecessor.
In Crowell v. Lambert, 9 Minn. 283, under a constitutional provision that a probate judge shall be elected for the term of two years, and that, in case of a vacancy, the governor shall fill the vacancy by appointment until a successor is elected and qualified, and that such successor shall be elected at the first annual election that occurs more than thirty days after the vacancy shall have occurred, it was held that the person elected on the occurring of a vacancy holds the
In People v. Burbank, 12 Cal. 378, it is held that a district judge whose election is occasioned by a vacancy in the office is, under the constitution, which fixes no day for the commencement of the term, elected for the full constitutional term. Under similar constitutional provisions, in People v. Townsend, 102 N. Y. 430, and in Sansbury v. Middletown, 11 Md. 296, the holdings are to the same effect.
If Dumas was appointed chief of police, he held the office after the new charter took effect, by virtue of that part of § 277, which provides that the city officials holding office therein under acts thereby repealed shall hold office till the expiration of their current terms of office, and not by reason of the term of office of the chief of police under the old charter being continued. The right to hold the office for the term provided by the old charter was personal to him, and his right was all there was in the way of the mayor’s making an appointment for three years under the new charter. When he died, the term of the office, under the saving clause in the new charter, expired; and there was no unexpired term to be filled. When he ceased to exercise the right secured to him, there was no vacancy to be filled under the old charter, for it was no longer in force; nor was there a vacancy to be filled under the saving clause of the new charter, for that provided only for the term of office for such officials as were in office when the new charter took effect. It did not provide for the term of office of the chief of police thereafter appointed. The term of his office is controlled by § 215 of the new charter, and at the time Dumas died, no appointment had been made under it. While Dumas held the office under the saving clause of § 277 of the new charter the right to appoint a chief of police under the provision of the new charter was suspended. When he died, the obstacle to an appointment was removed, and the new charter, in so far as it related to the appointment of a chief of police,
If Dumas was not appointed chief of police, when the new charter became operative, there was no chief of police, and the mayor could, at any time after the act was in force, appoint a chief of police, who would hold his office for three years from the time he was appointed. The complainant was the first appointee under the new charter and his term of office is for three years from the time he was appointed. He is, therefore, entitled to hold the office until the expiration of that term, unless sooner removed under the provisions of the charter.
Complaint sustained, writ awarded', and judgment that the complainant is entitled to said office, and that the defendant do not in any manner inter- - meddle therewith nor concern himself in nor about ■ the same, but that he be absolutely forejudged and excluded from exercising any of the functions thereof, and that he do pay the costs of this proceeding. \