46 Neb. 514 | Neb. | 1895
Lead Opinion
The essential facts charged in the information herein are as follows: That at the general election of 1891 Isaac
The first question presented by the record, and the question of chief importance in the case, is whether the failure of Lansing to present his bond within the time provided by law deprived him of the right to the office. The statutes bearing upon the subject are as follows:
Compiled Statutes, chapter 10:
“Sec. 5. Official bonds, with the oath indorsed thereon, shall be filed in the proper office within the times as follows: Of all officers elected at any general election on or before the first Thursday after the first Tuesday in January next, succeeding the election ; of all appointed officers within thirty days after their appointment; of officers elected at any special election, and city and village officers, within thirty days after the canvass of the votes of the election at which they were chosen.
“Sec. 7. The official bonds of all county, precinct, and township officei’s shall be approved by the county board. * * * All such bonds shall be filed and x-ecorded in the office of the county clerk. * * *
“Sec. 15. If any person elected or appointed to any. office shall neglect to have his official bond executed and approved as provided by law, and filed for record within the time limited by this act, his office shall thereupon ipso facto become vacant, and such vacancy shall thereupon immediately be filled by election or appointment as the law may direct in other cases of vacancy in the same office.
“Sec. 17. When the incumbent of an office is re-elected or re-appointed he shall qualify by taking the oath and giving the bond as above directed; but when such officer has had public funds or property in his control, his bond shall not be approved until he has produced and fully accounted for such funds and pi-operty; and when it is ascer*518 tained that the incumbent of an office holds over by reason of the non-election or non-appointment of a successor, or of the neglect or refusal of the successor to qualify, he shall qualify anew within ten days from the time at which his successor, if elected, should have qualified.”
Compiled Statutes, chapter 26:
“Sec. 101. Every civil office shall be vacant upon the happening of either of the following events at any time before the expiration of the term of such office, as follows: 1. The resignation of the incumbent. 2. His death. 3. His removal from office. 4. The decision of a competent tribunal declaring his office vacant. 5. His ceasing to be a resident of the state, district, county, township, precinct, or ward in which the duties of his office are to [be] exercised, or for which he may have been elected. 6. A failure to elect at the proper election, there being no incumbent to continue in office until his successor is elected and qualified, nor other provisions relating thereto. 7. A forfeiture of the office as provided by any law of the state. 8. Conviction of any infamous crime, or of any public offense involving the violation of his oath of office. 9. The acceptance of a commission to any military office, either in the militia of this state, or in the service of the United States, which requires the incumbent in the civil office to exercise his military duties out of the state for a period not less than sixty days.”
Lansing in 1893 was elected as his own successor, and section 17 is, therefore, applicable to the case. The effect of this section is to require that one who is re-elected to an office shall qualify by taking a new oath and giving a new bond “as above directed;” that is, as directed in regard to officers for the first time elected, by the former provisions of the chapter in which section 17 appears. This requires conformity with the provisions of sections 5, 7, and 15 above quoted. The object of section 17 was manifestly to place one re-elected to an office, so far as qualifying for the
It is contended by the relator that by virtue of section 15 Lansing’s failure to have his bond approved and filed within the time provided by law of itself created a vacancy in the office; that by such failure Lansing lost his right to the office and was not reinvested with the right by the subsequent approval of his bond. By the respondents it is contended that the provisions of section 15 are not self-executing; that, so far as the time for filing the bond is concerned, the statutes are directory only; that Lansing, notwithstanding his default, had a defeasible title, and that
In some of the cases cited in the respondents’ brief, or in opinions referred to in that brief, the expressions on the subject are entirely obiter. Thus, in Creighton v. Commonwealth, 83 Ky., 142, the person elected had never made any attempt to qualify, and what was said in regard to irregular. qualification was entirely foreign to the case. In State v. Hadley, 27 Ind., 496, the question was not as to the effect of a failure to file the bond within time, but as to the event from which the time began to run, and the court held that properly computed it had not expired when the bond was filed. State v. Ring, 29 Minn., 78, was a prosecution-of a treasurer for embezzlement for not paying over moneys to a successor in office. A resolution appointing the successor attached to the appointment a condition that bond should be given in two days. The bond was not given for three days. The court held that the county commissioners could waive and had waived the performance of this condition, but as the condition was created by their own-resolution and not by statute, this case throws no light on the present. State v. Colvig, 15 Ore., 57, was a case arising under a statute which contained no provision fixing the time for filing the oath of office. The court held that a fair construction of the law gave the officer some time after his term began to file the oath and then added that statute» fixing the time are generally construed as directory, an observation purely theoretical, inasmuch as there was no-statute fixing the time.
. There is another class of cases which were suits on official bonds tendered and approved after the statutory 'time-
A few of the cases were collateral, attacks by impeaching the validity of the acts of an officer who qualified too late. Stokes v. Kirkpatrick, 1 Met. [Ky.], 138, was a motion to quash a summons on this ground. The statute provided that the failure to qualify as required by law “shall be a misdemeanor, and on conviction such officer shall be removed from office by judgment of the court where the .conviction is had.” Another provision of the statute was that in such case the office “shall be considered vacant.” The court held, construing these two provisions together, that
Still another class of cases is illustrated by Ex parte Candee, 48 Ala., 386, and Stale v. Carneall, 10 Ark., 156. These were cases whereby it was sought to oust an officer who had already been regularly inducted into office, and they proceed upon the ground that an office so acquired is a vested property right of which the incumbent cannot be divested without due process of law. That the court in each case took this view is evident from later decisions of the same states. Thus, State v. Tucker, 54 Ala., 205, expressly overrules Ex parte Candee, as well as Sprowl v. Lawrence, supra, in so far as those cases expressed the opinion that the failure to qualify within time operated as a defeasance and not as a condition precedent, and Falconer v. Shores, 37 Ark., 386, distinguished State v. Carneall, on
We now reach a class of cases more directly in point, and several of these, if we disregard the peculiar phraseology of our own statute, sustain the respondent’s contention. State v. Churchill, 41 Mo., 41, was an action in quo warranto. The statute is not cited, but, as nearly as the writer can ascertain, the statute then in force required the giving of a bond in ten days, but contained no provision for the consequences of a failure to give it; while another section provided for the renewal of bonds and for a forfeiture of the office for failure to properly renew them. The court held that the provision in regard to original bonds was directory only, and we can see no fallacy in that conclusion under such a statute. Other Missouri cases are to the same effect. Worley v. Smith, 81 N. Car., 304, was also quo warranto, and the court held that the incumbent remains legally in office until ousted by judicial proceedings. The statute is not quoted, but from the language of the court it would seem that its provisions were manifestly to that effect, although the court does not intimate what the proceedings should be, and unless the statutes provided special proceedings, we cannot see how they could be brought unless by quo warranto, as was attempted. ■ State v. Fuff, 4 Wash., 234, was an action in the nature of quo warranto. The statute provided that for a failure to qualify within time the office “shall become vacant.” The court said that “courts abhor forfeitures,” and that therefore the statute should be construed as directory, or, to use the precise language of the court, “declaratory,” but adds that if the statute had provided that the office should “ipso facto” become va
So far as the cases we have already referred to offer any support for the position of the respondents, they are met by the following cases holding that a failure to qualify within time is a failure to perform a condition precedent to the right of taking the office. Eor the sake of brevity we omit a full quotation of the statutes and quote only the words which follow what is, in substance, the premise that “a failure to qualify within the time provided,” etc.: “Shall forfeit his right to the office.” (Falconer v. Shores, 37 Ark., 386.) “Becomes vacant.” (People v. Taylor, 57 Cal., 620; People v. Perkins, 85 Cal., 509; People v. Shorb, 100 Cal., 537.) “Shall become vacant.” (State v. Matheny, 7 Kan., 327.) “Vacates his office.” (State v. Tucker, 54 Ala., 205, overruling, on this point, Sprowl v. Lawrence, 33 Ala., 674, and Ex parte Candee, 48 Ala., 386, relied on by respondents.) “Deemed vacant.” (In re Office of Attorney General, 14 Fla., 277.) “Shall be vacant.” (State v. Johnson, 100 Ind., 489.) “Shall operate a vacation of office.” (State v. Beard, 34 La. Ann., 273.) “Shall thereby become vacant.” (Bennett v. State, 58 Miss., 556.) “Shall immediately become vacant.” (People v. Common Council of City of Brooklyn, 77 N. Y., 503.) “Before entering upon the discharge of any functions as officers of this state, must take and subscribe the following oath.” (Childrey v. Rady, 77 Va., 518; Owens v. O'Brien, and three other cases, 78 Va., 116.)
It will thus be seen that the overwhelming weight of authority, under statutes much less mandatory than our own, is to the effect that where a time is prescribed within which oue in order to be inducted into an office must take the oath or file a bond, the taking of the oath or the filing
The constitution (article 3, section 20) provides: “All offices created by this constitution shall become vacant by the death of the incumbent, by removal from the state, resignation, conviction of a felony, impeachment, or becoming of unsound mind.” It is contended that the expression of these events as creating vacancies is the exclusion of all others, and there are a few decisions in other states-lending color to the argument. It would be a sufficient answer to this contention to say that this court has always carried in view the principle that the state constitution is not to be considered as a grant of power, but that its provisions are purely restrictive and that legislation is valid unless prohibited by the state or the federal constitution. Therefore, in such cases as the present, the maxim “Ex-pressio uniu.s est exclusio alterius,” is not applicable, and the legislature may adopt any provision not prohibited by the constitution. (State v. Lancaster County, 4 Neb., 537; State v. Dodge County, 8 Neb., 124; State v. Bean, 16 Neb., 681; Shaw v. State, 17 Neb., 334.) To put it differently, the constitutional provision quoted creates a vacaucy upon the happening of any of the events covered by the provision, and the legislature would be prohibited by that provision from enacting any law whereby such an event would not create a vacancy. But it is not prohibited from enacting that vacancies shall be otherwise created. But aside from this, section 20, article 3, of the constitution manifestly refers to events occurring after an induction into office. The case presented is not one of that character. It is not the case of ousting one already legally inducted into office for events occurring after his induction, but, on the contrary, it is questioning the right of one to claim an office in the beginning. The distinction has already been alluded to, but throughout it should be borne in mind that we are here discussing the right of a person to claim a term of
The next question which arises is as to the right of the relator himself to claim the office. Section 21, article 6, of the constitution, provides: “In case the office of any judge of the supreme court, or of any district court, shall become vacant before the expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the governor, until a successor shall be elected and qualified, and such successor shall be elected for the unexpired term at the first general election that occurs more than thirty days after the vacancy shall have happened. Vacancies in all other elective offices provided for in this article [which includes the office of county judge] shall be: filled by election, but when the unexpired term does not. exceed one year, the vacancy may be filled by appointment, in such manner as the legislature may provide.” Therefore, in case of vacancy in the office of the county judge, the constitution does not provide for filling the vacancy, .but the general provision applies, that it shall be by election; provided, however, that where the unexpired term: does not exceed one year the vacancy may be filled by appointment as the legislature may provide. The legislature-has provided as follows: “Vacancies shall be filled in the-following manner: In the office of the reporter of the supreme court, by the supreme court; in all other state and judicial district offices, * * * by the governor. * * *' In county and precinct offices, by the county board.” (Compiled Statutes, sec. 103, ch. 26.) “Appointments under the-provisions of this chapter shall be in writing and continue-until the next election at which the vacancy can be filled, and until a successor is elected and qualified.” (Sec. 105.)-“Vacancies occurring in the office of county judge * * shall be filled by appointment as provided in section one-hundred and three.” (Sec. 107.) Here the unexpired teim did exceed one year and, therefore, was to be filled by elec
This brings us to the final question — the validity of the election in so far as it may be affected by the fact that the office of county judge was not one included in the notice of election for 1894. In State v. Skirving, 19 Neb., 497, which, by the way, is also in point on the principal question presented, it was said that the exercise of the right to fill such a vacancy did not depend on the notice or want of ■one. That it was generally understood by the electors of the county that a vacancy existed and they sought to fill said vacancy, nearly all having cast their ballot for one of the candidates named. It was therefore held that the election was valid, but the court disclaimed any intention of passing upon the question as to the validity of such an election had but a small percentage of the voters participated therein. In State v. Thayer, 31 Neb., 82, the court allowed a writ of mandamus to compel the canvass of the votes under similar circumstances. The governor had not included in his proclamation of the election the filling of the office in question. The court held that the provision in regard to proclamation was one of convenience for the purpose of calling attention to the contingency, but said: “ It is not believed that it touches the foundation of the right and power of the people under the statute to fill such
What has been said in this opinion relates to the case under consideration as presented by the record, and to the statutes brought under consideration. We do not wish to be understood as questioning the propriety of those decisions which hold provisions of the general character referred to directory rather than mandatory, where the language is ambiguous or fairly susceptible of that interpretation. We are, however, compelled, in order to avoid judicial legislation, to reach the conclusion already indicated in this case-Whether or not the law is wise is a question with which the court has nothing to do. The legislature has declared it, its constitutionality has not been questioned, and our sole office is to determine the legislative intent. The consequences are matters for legislative consideration and not for the considei’ation of the court.
Reversed and remanded.
Dissenting Opinion
dissenting.
It is evident that the question whether Lansing’s failure to execute, have approved, and filed his official bond by the first Thursday after the first Tuesday in January, 1894, created a vacancy in the office of county judge, must depend upon the construction of the following language found in section 15; chapter 10, Compiled Statutes: “His office shall thereupon ipso facto become vacant.” What is the meaning of the expression “shall thereupon ipso facto become vacant”? We think a fair construction of this phrase is that “his office shall at that time, by reason of such neglect, become vacant.” Is this section of the statute mandatory or directory merely?
In State v. Matheney, 7 Kan., 327, the statute under consideration provided: “The bond and oath of the county clerk must be filed with the treasurer of the county,” etc. “Every county office shall become vacant upon the refusal or neglect of the officer to deposit his oath and bond of office within the time prescribed by law.” Matheney was elected county clerk, executed his bond, and took the oath of office required by law, and within the time required by law, and entered upon the duties of his office, but neglected to deposit his oath and bond with the county treasurer within the time prescribed by the statute, and the court held that the failure of Matheuey to deposit his bond and •oath of office with the county treasurer of the county within •the time required by law — twenty days after his term of office began — created a vacancy in the office. The court said : “There can be no mistake as to the meaning of these statutes. Whatever may be the rule, independent of the statute, the plain provision of the law is, that not only a refusal, •but a neglect simply, to deposit the official oath and bond within the time prescribed vacates the office. We may not add to nor take from the law. It may seem a matter of •trivial importance whether a bond and oath, executed and
A statute of California provided: “An office becomes vacant on the happening of either of the following events before the expiration of the term: * * His [the officer •elect’s] refusal or neglect to file his official oath or bond within the time prescribed.” (Political Code of California, sec. 996.) Taylor was duly elected sheriff, but neglected to file his official oath or bond within the time prescribed by the statute and the supreme court of that state in People v. Taylor, 57 Cal., 620, held that the neglect to file the bond within the time prescribed created a vacancy in the office.
The charter of the city of Brooklyn, New York, provided that if an alderman of said city should be elected to and •accept any other public office, “ his office as said alderman shall immediately become vacant.” One O’Reilly was an alderman in the city of Brooklyn, and while holding that office was elected to and accepted the office of congressman of the United States, and the court of appeals of New York, in People v. Common Council of the City of Brooklyn, 77 N. Y., 503, held that O’Reilly’s acceptánce of the office of congressman created a vacancy in the office of alderman. The court, in effect, held that the quoted statutes were mandatory.
There are ot]ier cases holding that such a statute as the one we have under consideration is mandatory; but we think, however, that the weight of authority is to the effect that all such statutes are directory.
A statute of New Jersey provided that sheriffs should renew their bonds in November annually; and “That if any sheriff * * * shall neglect, refuse, or be unable to give the bond with sureties as aforesaid * * * at the time or times herein limited, the office of such sheriff
•The charter of the city of Chicago provided that all city officers who were required to give bonds for faithful performance of official duties should “file their bonds with the city clerk within fifteen days after their election,” etc. The charier further provided that when bonds should not be filed with the city clerk within fifteen days after the official canvassing of the votes, “the person so in default should be deemed to have refused said office, and the same should be filled by appointment as in other cases;” and in case a bond so filed should not be approved and a satisfactory bond should not be filed within fifteen days after such disapproval, the person so in default should “be deemed to have refused said office, and the same should be filled as above provided;” and further, the charter made it “the duty of the clerk to notify all persons elected to office of their election, and unless such persons should respectively qualify within fifteen days thereafter the office should become vacant.” It was held in City of Chicago v. Cage, 95 Ill., 593, that these provisions, in respect to the time within which official bonds were required to be filed, were not mandatory, but merely directory. The municipal authorities were empowered, in their discretion, to declare a vacancy, or to waive the default as to the mere time of filing the bonds, and to accept and approve it when afterwards
A statute of Washington provided : “Every office shall become vacant upon the happening of either of the following events: * * * His [the officer elect’s] refusal or neglect to take his oath of office within the time prescribed by law.” The supreme court of that state in State v. Muff, 29 Pac. Rep., 999, construing this statute, held that the failure of the officer to take his oath of office within the time prescribed by law did not work a forfeiture of his right to the office, but simply authorized the proper authorities to declare the office vacant, and fill it by appointment. (See, also, State v. Justices of the County Court, 41 Mo., 44; State v.
A statute of Indiana provided: “County school superintendents, within thirty days from the issuing of the proclamation by the governor announcing the making of a contract for furnishing school books, and every county superintendent hereafter elected before he enters upon his official duties, shall enter into a special bond, and upon the failure of any county school superintendent to give such bond his office shall become immediately vacant.” A county school superintendent elected after the passage of the act gave a general bond and entered upon his duties, but failed to give a special bond within thirty days after his election. In Commissioners of Knox County v. Johnson, 24 N. E. Rep. [Ind.], 148, the supreme court of that state, construing this act, said: “But it-by no means results from the construction we have given the statute that the appellee lost his title to the office to which he was elected and into which he had been legally inducted. It is held by our own and other courts that statutes requiring official bonds to be filed within a designated time are directory and not mandatory. Upon this question the authorities are harmonious.” The court then cited a number of authorities and continued: “This rule is carried very far, for it is held, without substantial diversity of opinion, that unless the statute makes the filing of a bond within a limited time a condition precedent to the right to the office, a failure to file it within the time prescribed will not work a forfeiture of the right to the office nor create a vacancy:”
A statute of Louisiana provided that for the failure or refusal of a bank to pay specie for the period of ninety days its charter should become ipso facto forfeited. In construing this statute the supreme court of that state, in Atchafalaya Bank v. Dawson, 13 La., 497,- said: “It would certainly be difficult to find in our language stronger terms, or to combine them with more force, for the purpose
Respondent’s case falls within the principle of these last cited cases, and controlled by the weight of authority we reach the conclusion that said section 15 is directory, and not mandatory, in so far as its provisions are under consideration here; that the section is not self-executing; that the execution and filing of an official bond by respondent for his second term of office was not a condition precedent to his right to enter upon and to discharge the duties of his office for the second term; that since respondent was already in office as county judge, was re-elected to succeed himself, and since he held under his first election and qualification until his successor should be elected and qualified (Compiled Statutes, sec. 104, ch. 26), he held office under his second election by a defeasible title from the time of his neglect to execute and file his official bond; that is, he held the office by a title capable of being divested at any time by the proper legal authorities; and that the execution and filing of his official bond by respondent, coupled with the neglect and failure of the proper authorities to declare the office vacant or to take any steps to that end prior to the time that respondent did execute and file his bond, saved the forfeiture incurred, and barred and precluded a subsequent judgment that the office was vacant by reason of respondent’s default.