54 Tex. 482 | Tex. | 1881
At the general election in 1878, the relator, 0. 0. Bickford, was elected assessor of taxes for the county of Marion, and duly qualified- and entered upon his duties as such.
At the next succeeding general election, in 1880, M. K. Crawford was elected to that office, but failed to qualify within the twenty days prescribed by law. Some days after the expiration of this time, he presented to the commissioners’ court his resignation, which was accepted, and J. E. Cocke, appellee, was appointed, who accepted and was duly qualified.
This is a proceeding by information in the nature of a quo warranto, under our statute (Appendix Revised Statutes, 47), brought on the relation of Bickford, the former incumbent, for the office. He claims that he is entitled to hold it until his successor has been elected and qualified; that there has been no vacancy; and that consequently Cocke was not legally appointed.
On the trial below a jury was waived; judgment rendered declaring that Cocke was duly entitled to the office, from which this appeal is taken. The only question presented for our decision is this: Was there such vacancy in the office as authorized the appointment of Cocke?
The constitution of 1876, art. VIII, sec. 14, and Revised Statutes, art. 4693, provide for the election of an assessor
The Revised Statutes, art. 4694, give authority to the county commissioners’ court to fill vacancy for the unexpired term only, and until the election and qualification of an assessor at the next succeeding general election.
Article 4695 requires that every assessor of taxes shall, within twenty days after he shall have received notice of his election or appointment, and before entering upon the duties of his office, execute bond and take and subscribe the oath prescribed by the constitution.
Article 3400 reads as follows: “All county officers who are required to give official bonds, who shall fail to execute their bonds within the time prescribed by law, or who, when required in accordance with law to give a new bond or security, and shall fail to do so, may also be removed from office for such failure,” etc.
Under what circumstances an incumbent, who is entitled to hold office until his successor is elected or appointed and qualified, can lawfully hold over, has frequently been the subject of judicial investigation, and has given occasion to disagreement of opinion. People v. Whitman, 10 Cal., 38; People v. Reid, 8 Cal., 290; People v. Langdon, 8 Cal., 11; People v. Tilton, 37 Cal., 614; State v. Lusk, 18 Mo., 333; State v. Seay, 64 Mo., 89; State v. Howe, 25 Ohio St., 588; Commonwealth v. Hanley, 9 Penn. St., 513; People v. Lord, 5 Mich., 227; State v. Wells, 8 Nev., 105; Hubbard v. Crawford, 19 Kans., 570.
The primary object of this provision, that the incumbent is entitled to hold the office until his successor is elected or qualified, is simply to prevent, on grounds of public necessity, a vacancy in fact in office until the newly elected or appointed officer can have a reasonable time within which to qualify.
The right of the officer who thus holds over is by sufferance, rather than from any intrinsic title to the office.
That there is a distinction between the right to an office and the right to enter upon the duties of an office, is evident from the terms of art. XVI, sec. i, Const., which provides that all officers, before they enter upon the duties of their office, shall take the official oath, etc. There is a similar statutory provision in regard to the office under consideration. R. S., 4695. See dissenting opinion of Field, J., in People v. Whitman, 10 Cal, 47.
■ The right of removal for failure to give bond within twenty days after election or appointment, as provided for by Revised Statutes, art. 3400, above quoted, clearly recognizes an office from which a removal can be made.
■This is further evident in subsequent art. 4518, in regard to the office of sheriff, which provides that on the failure to give the bond and take the oath within the twenty days, “the office shall be deemed vacant,” and the commissioners’ court of the county shall appoint “as in other case of vacancy.” This is a substantial re-enactment of art. 5111, Pasch. Dig.
That a vacancy can be created by the election of one eligible to hold the office, and his failure to qualify, has been expressly decided. Opinion of Randall, Chief Justice, in matter of executive communication, 14 Florida, 217; State v. Matheny, 7 Kans., 327; State v. Hunt, 54 N. H., 431; Winnesheik County v. Maynard, 44 Iowa, 15; State v. Hopkins, 10 Ohio St., 509.
In the dissenting opinion of Field, J. (10 Cal., 48), it is " said that “there is no difference between a vacancy occasioned by the failure of the person elected to qualify, and a vacancy occasioned by his resignation immediately after qualifying.”
To the same effect is the dissenting opinion in the State v. Lusk, 18 Mo., 345.
We are of opinion that the election of Crawford, his failure to qualify, his subsequent resignation, and the appointment and qualification of Cocke as his successor, ended the term of office of Bickford, and therefore the judgment below is -affirmed.
Affirmed.
[Opinion delivered March 15, 1881.]
