132 Minn. 426 | Minn. | 1916
Lead Opinion
Statutory proceeding, original in this court, under G. S. 1913, § 357 (R. L. 1905, § 202), to compel the respondent, the county auditor of Wright county, to accept the filing of the relator as a candidate for the office of clerk of the district court at the June, 1916, primary. An alternative order was issued, the respondent answered, and the relator demurred. The proceeding is submitted upon the pleadings.
The provision of the Constitution (article 6, § 13), relative to the elective character and term of office of the clerk is as follows:
“There shall be elected in each county, where a district court shall be held, one clerk of said court, whose qualifications, duties, and compensation shall be prescribed by law, and whose term of office shall be four years.”
The provision of the Constitution (article 7, § 9), relative to the official year, terms of office and general elections, is as follows:
“The official year for the state of Minnesota shall commence on the first Monday in January in each year, and all terms of office shall terminate at that time; and the general election shall be held on the first Tuesday after the first Monday in November. The first general election for state and county officers, except judicial officers, after the adoption of this amendment, shall be held in the year 1884, and thereafter the general election shall be held biennially. All state, county or other officers elected at any general election, whose terms of office would otherwise expire on the first Monday of January, 1886, shall hold and continue in such offices, respectively, until the first Monday in January, 1887.”
The provision of the Constitution (article 11, § 4), relative to the election of county officers, is as follows:
“Provision shall be made by law for the election of such county or township officers as may be necessary.”
By Laws 1915, p. 233, c. 168, amending Laws 1913, p. 668, § 458, it is provided in effect that there shall be no election of clerks in 1916; that there shall be an election in 1918 for a four-year term, commencing on the first Monday in January, 1919; that those clerks whose terms expire on the first Monday in January, 1917, shall continue in office until the first Monday in January, 1919; that any appointment to fill a
“Section 1. In every county in this state there shall be elected at the general election in 1918 a county auditor, county treasurer, sheriff, register of deeds, county attorney, clerk of the district court, court commissioner, coroner, county surveyor and county superintendent of schools.
“Sec. 2 The terms of office of the said county officers shall be four (4) years and until their successors are elected and qualified, and shall begin on the first Monday in January next succeeding said election, and said offices shall be filled by election every four (4) years thereafter.
“Sec. 3. Any person now holding any one of the said offices, whether by election or appointment, shall continue in such office until the first Monday in January, A. D. 1919, and any appointment made to fill a vacancy in any of the said offices shall be for the balance of such entire term. All appointments under the provisions of this act shall be made by the county board.”
“The regular term of office of all state and county officers shall commence on the first Monday in January next suceeding their election, except as otherwise provided by law.”
If this statute were given effect the relator’s contention was sound and he was entitled to take office in 1891; and in considering this contention the court said. “This might be so if the legislature had power to change the term of office fixed in the Constitution, which it has not.” The effect of this holding was that the respondent continued in office until January, 1892, when the relator’s term commenced, and that the respondent’s constitutional four year term was not shortened by the statute. That the legislature can not abridge the constitutional term is beyond question. That it can not extend it is equally clear. The principle is illustrated by State v. Windom, 131 Minn. 401, 155 N W. 629. There it was held that a statute, the effect of which was to extend the term of a municipal judge, then holding office, beyond a period of seven years, which was the longest period the Constitution (article 6, § 9), authorized the legislature to prescribe, by continuing him in office beyond such period, was invalid. Hpon this point there was a unanimity of opinion among the justices.
It is argued that the statute does not extend the term; that it only works a postponement of the election. Sections 1 and 2 provide for an election in 1918 and fix the term at four years commencing with the first Monday in January 1919. 'Section 3 provides that “any person now holding any one of the said offices * * * shall continue in such office until the first Monday in, January, A. D. 1919.” This applies to those who were elected in November, 1912, whose terms of office commenced in January, 1913, and ’will terminate in January, 1917, with no right of
In considering sections 1 and 2, with the concession that section 3 is unconstitutional, we assume, though it is not necessary that we decide, that section 3 is not so connected with the subject matter of the statute and so dependent upon other parts of it that it should be presumed that the legislature would not have passed the other parts without it. 3 Dunnell, Minn. Dig. § 8936. If the statute be construed as intending to postpone the election of clerks from 1916 to 1918, and if it is valid legislation, the clerks whose terms expire in January, 1917, will not hold until January, 1919, but in January, 1917, there will be vacancies to be filled by appointment by the district judges and the appointees will hold until January, 1919, when those elected in 1918 will take office.
It has been held that the legislature may make reasonable changes in respect of the time for holding the election of officers whose terms are fixed by the legislature and that the incumbents at the time, if a holdover provision is attached to their terms, will continue in office. The change must not be such as substantially to deprive the office of its elective character, if it is given an elective character by the Constitution. Thus in Jordan v. Bailey, 37 Minn. 174, 33 N. W. 778,-the court held that the legislature might postpone for two years the time for holding the election of the judges of the municipal court of Minneapolis, and that the incumbents would continue in office under the hold-over provision of the statute under which they were elected. In this case the period for which the municipal judges would hold was six years, and this did not exceed the period of seven years fixed by section 9 of article 7 of the Constitution as a permissible term for the judicial officers; nor was the change thought to affect the elective character of the offices as declared
“Section 1. That in all counties in this state in which the terms of office of clerks of the district court will expire on the first (1st) Monday in January, A. D. eighteen hundred and ninety-six (1896), the successors thereto shall be elected at the general election to be held in November A. D. eighteen hundred and ninety-six (1896).
Sec. 2. That when vacancies shall occur in said offices under the provisions of section one (1) of this act, said offices shall be filled as now provided by law.”
We may assume that it was because of this statute that no election was held in 1894. No question was made upon the right of anyone to file for the office in 1894, for no one filed. If some one had filed the question which we now have might have been presented. There being no election in 1894, and there being no hold-over provision in the Constitution fixing the term of the office of the clerk, there was a vacancy on the first Monday in January, 1896. The vacancy was to be filled at the November, 1896, election. It has been the general construction of the Constitution throughout that a vacancy in the office of the clerk is to be filled by election at the next general election. In referring to the situation presented and to the act of 1891 quoted, the court said: “The purpose of these two sections is plain. It was the intention of the law
If the language quoted had been used when the constitutionality of the statute was before the court for consideration, it would have been a direct decision in support of the power of the legislature to postpone an election to fill an office which was created, and the term fixed by the Constitution; but no constitutional question was before the court. A constitutional question could not have been presented unless someone had attempted’ at the November, 1894, election to be a candidate for clerk of the district court for the term commencing in January, 1896. There having been no election in 1894 there was of necessity a vacancy on the first Monday in January, 1896. It required no statute to bring this result. It came because there was no election and no hold-over provision attached to the office. There would have been just as much a vacancy if the 1891 act had not been passed; and, while the court refers to the act as causing a vacancy, it is clear that the question of the constitutionality of a postponement of an election for office of clerk of the court was not present in the mind of the court. The court had before it exactly the situation that there would have been had there been no statute. This case, therefore, decides nothing other than that, upon a failure to elect a successor to a clerk, there is a vacancy to be filled by appointment and no right of holding over.
It may be doubted whether the purpose intended by the statute, however beneficial it may be, can be accomplished by legislation. Perhaps the only method of accomplishing it is by a constitutional amendment. The constitutional amendment of 1883 was framed to accomplish a purpose in part similar to that which the statute seeks to accomplish. Const, art. 7, § 9.
Nothing said in this opinion should be taken to be an intimation as to the validity of Laws 1913, p. 668, c. 458, which the 1915 statute under consideration amends, fixing the terms of county officers in general, nor to affect the 1915 statute except in respect of clerks of court. The
Let a peremptory order issue.
Dissenting Opinion
(Dissenting.)
I concur in the first and second divisions of the opinion; but hold the contentions of respondent, as stated in the third division by my brother Dibell, sound, and therefore do not agree to the conclusion that a peremptory order should issue. The only offices so affected by constitutional inhibitions that the legislature is powerless to arrange for a uniform time of election are those of judges of the supreme and district courts.