109 Minn. 18 | Minn. | 1909
By the Governor’s proclamation (Laws 1907, p. iii) Ronald S. McDonald, Neis L. Olson, Fred Smith, Charles M. Bowman, and Hugh T. McIntosh were appointed to constitute the first board of county commissioners of Koochiching county. P. A. Walsh was the sheriff of the county during 1907, and at the general election held November 3, 1908, was elected for the term commencing on the fourth day of January, 1909; but he died November 4, 1908. Respondent, McIntosh, resigned his office as county commissioner on November 6, 1908, and on November 9,1908, the remaining members of the board appointed him sheriff to “fill the vacancy in said office caused by the death of the said P. A. Walsh, for the remainder of the unexpired term of said P. A. Walsh, deceased, and until his successor qualify.” Thereupon Mr. McIntosh executed a bond and entered upon the performance of the duties of the office.
On the first Monday in January, 1909 (January 4), R. S. McDonald, Neis L. Olson, and Fred Smith, the then remaining members of the board, held a special meeting at 1:30 o’clock p. m. in the county auditor’s office, and appointed Mr. McIntosh sheriff for the term of two years, from the first Monday in January, 1909, until the first Monday in January, 1911, to fill the vacancy caused by the death of Mr. Walsh. Respondent was then present, and executed a bond, and took the oath of office. The bond was filed at 1:30 p. m. January 4, 1909, but was not approved. Immediately after this act the board of commissioners, consisting of new members who had been elected at the November, 1908, election, qualified and entered upon their term of office, and at 4 o’clock p. m. January 4, 1909, held their first meeting. On January 5, 1909, the new board held its second meeting, and, on motion, laid the bond of respondent on the table without action. The new board held a special meeting, upon notice, on January 27, at which time they appointed the relator, Henry W. Forrer, as sheriff to fill the vacancy caused by the death of P. A. Walsh. For
The important question is: Did the old board have authority to fill the vacancy for the ensuing two years caused by the death of Mr. Walsh ? By section 9, art. 7, of the state constitution, the official year commences on the first Monday of January, at which time all terms of office terminate. State v. Frizzell, 31 Minn. 460, 18 N. W. 316. In that case, however, there was no occasion to consider whether the official year commenced at any particular time of the day. The statute, following the constitution, defines the term of office as follows: “The term of office of every state and county officer shall begin on the first Monday in January next succeeding his election, unless otherwise provided by law.” It. X. 1905, § 155. The statute does not provide that county commissioners shall hold office until their successors are elected and qualified
It is fair to assume, however, that it was not intended by the framers of the constitution that the change in office should take place at twelve o’clock midnight. The incoming officers should have a season-’ able and reasonable time at the beginning of the business portion of the first official day in which to qualify and assume their duties.
Although the new members of the board did not qualify until after 1:30 o’clock p. m. January 4, it does not follow that the old board were vested with authority in the meantime during that day to transact business which properly arose on the first day of the official year. There was no vacancy in the office of sheriff at 1:30 o’clock p. m. True, if Mr Walsh had been living and had qualified during the morning of that day, then by virtue of such act his official year would have commenced and the old term would have expired; but the then incumbent was entitled to hold by virtue of his appointment until such time during the day as the successor was appointed and qualified. No vacancy existed in the office of sheriff at 1:30 p. m., and could not exist during the day until the two-year vacancy was filled. . The old board attempted to create a vacancy by appointing respondent, but the act was an unwarranted assumption of authority. We are aware that as a general rule a board with continuing power has authority to anticipate the future and make appointments to take effect in the future; but such authority exists only where the vacancy occurs at a time when the board as then constituted is still vested with full legal authority, and we know of no case which-holds that outgoing officers may encroach upon the first day of the official year for the purpose of tying the hands of their successors in this manner. In the recent case of Manley v. Scott, 108 Minn. 142, 121 N. W. 628, the term of office of two of the five members of the board of commissioners of Hennepin county expired on the fourth of January, at which time they were succeeded by two new members elected at the preceding
On the admitted facts before us, no vacancy existed on the fourth day of January which the outgoing board could legitimately fill, and hence their act in appointing respondent for the ensuing two years was futile, and the relator, having been legally appointed and having qualified, is entitled to the relief prayed for.
Let-writ of ouster issue.
On August 18, 1909, the following opinion was filed:
The petition for reargument calls attention to the statement in the opinion that the statute does not provide that county commissioners shall hold office until their successors are elected and qualified. R. L. 1905, „§ 419, does so provide, but was overlooked in writing the opinion. This inadvertence however is of no importance as the statute is ineffective.
We discover no substantial reason for reargument and the petition is denied.
See .opinion on page 23, infra.