45 So. 728 | Miss. | 1907
delivered the opinion of the court.
In April, 1905, L. B. Hancock was marshal of the town of Newton, and resigned. When he resigned, an election was held to fill the vacancy, and Z. T. Doolittle was elected. Under section 3435, Code 1906, the next general election was fixed for the second Tuesday in December, 1906, and every two years thereafter. At the December election, 1906, J. H. Hays was a candidate for the office and received a majority of the votes; but at the time of the election Hays was not eligible to hold the office, in that he was disqualified. Because of the disqualification of Hays, Doolittle held over and continued to perform the duties of the office until some time in April, 1907, when the mayor and board of aldermen declared the office vacant and ordered a special election for the purpose of filling same. At this special election Hays, being the only candidate, again received a majority of the votes cast and was declared elected. At the time this special election was ordered Doolittle was the incumbent of the office and was discharging its duties, claiming to be legally entitled thereto by reason of the fact that at the time fixed by law for the holding of an election for the purpose of electing his successor no person was elected, and, this being the case, he had the right to hold over until the next regular election. Doolittle was forcibly ousted by Hays after the special election, and brings this quo warranto for the purpose of regaining the office.
A reading of these statutes makes it manifest that the only time in which á general election could be held was in December, 1906, and, this time having passed, there cannot, now be another general election until the second Tuesday in December, 1908. If any other election can be held, it must be held under some other provision of the statute authorizing the holding of a special election, and this can only be done where there is a vacancy. This brings us to the consideration of the question of whether or not there was a vacancy which would authorize the mayor and board of aldermen to order an election. Whether there was or was not a vacancy cannot be settled by the mere declaration of the mayor and board of aldermen that there was. There must, in fact, exist a vacancy. Because there was a failure on the part of the electorate at the December election, 1906, to elect a party eligible to hold the office, can Doolittle hold over until the next regular election, or can the mayor and board of aldermen declare a vacancy and authorize the holding of a special election to fill it? The cases mainly relied on by counsel for appellee as warrant for the action of the mayor and board of aldermen in declaring that a vacancy existed and proceeding to fill it by special election are the cases of Sublett v. Bedwell, 47 Miss., 266; 12 Am. Rep., 388, and Hoskins v. Brantley, 57 Miss., 814. A close analysis of these cases shows that they are without application to this feature of the case, though the case of Hoskins v. Brantley seems to be in point. The question of whether or not there was a vacancy in the office to be filled by special election or appointment was not a question in either case to be determined by the court. . In the Sublett case, 47 Miss., 266; 12 Am. Rep., 388, there was no contention that either party had a right to hold over by reason of the failure of a successor to be duly elected and quali
Whether there is in fact a vacancy in office is not settled by the declaration of the authority vested with the power of filling it. It is a question always open, to judicial interpretation.
Applying these authorities to the state of facts presented in this record, we say that the effect of voting for a person at the December election not qualified to hold the office was just the same as if there had been no election. This being the case, there was no officer-elect who could qualify, and by virtue of the terms of the statute itself, this being the case, Doolittle held over until the next general election. Being lawfully the incumbent of the office under the statute, there was no vacancy to be filled, and the act of the mayor and board of aldermen in ordering an election to fill the supposed vacancy was without authority under the law and a nullity. In the case of Taylor v. Sullivan, 45 Minn., 309; 47 N. W., 802; 11 L. R. A., 272; 22 Am. St. Rep., 729, it is held that: “An incumbent of an office, who is entitled to hold for a fixed period and until his successor is elected and qualified, is entitled to hold over in the event of the. election of an ineligible successor, and has such
Section 3459 of the Code of 1906 can have no application to this case, for the reason that it applies to the ease of a person elected to any office and failing to qualify as required by law. That section is as follows: “ If any person elected to any office shall fail to qualify as required by law, on or before the day of the commencement of his term of office, a vacancy in such office shall occur thereby, and it shall be filled in the manner prescribed by law for filling vacancies in such office, unless the failure to qualify arise from their being no officer to approve the bond of such officer-elect, and except the Governor-elect, when the legislature fixes by resolution the time of his installation.” In order for a person to be elected, he must be capable of qualifying; and if he be ineligible, and receive a majority of the votes cast, he is not elected and the result of the election is a nullity. If the legislature had intended this section to apply to this state of case, it would have been easy for it to have said so. If the legislature had said in this section, “ If any person elected to any office shall fail to qualify as required by law,” and had added, “ or if for ^ny reason any person voted for at an election and receiving a majority of the votes cast be- ineligible to the office and cannot
The authority given by the statute to an officer to hold over until a successor is duly elected and qualified is just as much a right in the incumbent as is that part of the statute which fixes the definite period. The statute is in harmony with the Constitution of the state, and merely carries out a principle declared by the Constitution itself. Thus, in section 136 of the Constitution of the state, it is provided that: “All officers -named in this article shall hold offices during the term for which they were selected, unless* removed, and until their successors shall be duly qualified to enter on the discharge of their respective duties.” This section, of course, only applies to constitutional officers, as was held in the case of Andrews v. Covington, 69 Miss., 740; 13 South., 853; but it serves to illustrate what is the policy of the state. The office we consider in this case is a statutory office, and the legislature had the right to limit the tenure of the occupant in any way it saw fit, not violative of any constitutional provision of the state. The effect of that provision of the statute which provides that the officers of the municipality shall hold office for two years and until their successors are duly elected and qualified is to add an additional contingent term to the original fixed term. This contingent term for which the officer may be allowed to serve, and which is a right in him at the time he qualifies and assumes the duties of his office, may be defeated by the electorate electing, at the time fixed by law, an eligible successor to the office; but, if they fail to do so, there is no vacancy in the office, which can be filled by .appointment or by special election, if the incumbent of the office continues to hold over. When the electorate fail to elect a successor, the statute, ex vi termini, steps in and elects the incumbent for another term.
The mayor and board of aldermen had no authority for calling a special election. It was the duty of the electorate to
Without the controlling provisions of the statute of this state, we would’be inclined to give authority, if possible, to the public expression favoring the respondent in this case. The case of appellant is barren of all but technical legal claim; but the law of the case is undoubtedly with him, and under the law he must prevail.
Reversed and remanded.