4 Wash. 234 | Wash. | 1892
Lead Opinion
The opinion of the court was delivered by
The relator was, at the time of and prior to the election held in 1890, the auditor of Snohomish county. At said election respondent was duly elected as his successor in office, but did not qualify by taking the proper oath of office and giving bond, within fifteen days after the service upon him of notice of his election, as required by the statute. About the 17th day of January following his election he completed his qualification by complying with the statutes in that regard, and entered upon the discharge of his dúties as such auditor. Whereupon relator brought this action to determine as to the right to said office as between himself and said respondent.
The language of this section, then, if standing alone must, under the authorities, be construed as being simply declaratory. In fact, as we understand the position of relator, he does not question this position, and if the section above quoted stood alone in our statutes, there would be little ground for controversy in relation to the question at bar; but it is claimed that under the language of this section, as read in the light of § 3063 of the code, it must receive an entirely different construction from what it would if standing alone. Said last named section is as follows:
*236 “ Every office shall become vacant on the happening of either of the following events: . . . The death of the incumbent, . . . his refusal or neglect to take his oath of office . . . within the time prescribed by law.”
In determining the force of these statutes this well settled rule must be borne in mind, that forfeitures are abhorred by the courts, and that when it is reasonably possible so to construe the law as to avoid a forfeiture, such construction will be adopted. If, as we have seen, the first section above quoted is clearly declaratory when standing alone, the last section above quoted might be held to have been enacted in view of such construction of said first section, and the legislature to have intended in said last section by the words “ within the time fixed by law,” not within fifteen days as named therein, but within the time which the court would hold to be covered by said section when construed as declaratory and not mandatory. With such a construction of § 3063 all difficulty would be done away with and there would be nothing in it to change the rule of construction which would otherwise obtain as to said § 2708. Said § 3063 is found within the chapter relating to the filling of vacancies^ and provides what facts shall be sufficient to authorize the proper authority to exercise its powers in that regard. But it does not follow that the person elected has lost all right by reason of his failure to qualify. The object of such provision will be fully accomplished by holding that such failure to qualify does not in itself work a forfeiture of the right to the office, but simply authorizes the proper authority to declare such forfeiture and fill the office by appointment. By this construction force would be given to every word in said § 3063, and the usual construction preserved as to the other section in question. Thus construed the proper authority would, at any time after the expiration of the fifteen days
There have been numerous adjudications bearing more or less directly upon the question herein involved, some of which seem to warrant the contention of each of the parties to this action. We shall not attempt a general review of the cases, but shall content ourselves with a brief examination of the question in the light of the authorities. Mechem on Public Officers lays down the general doctrine as follows:
“ Statutes usually directory and not mandatory. Failure to give bond within time prescribed does not work a forfeiture, even though the statute expressly provide that upon a failure to give the bond within the time prescribed the office*238 shall be deemed vacant and may be filled by appointment. It is generally held that the default is a ground for forfeiture only, and not a forfeiture ipso facto.”
The authorities cited by the relator and respondent, respectively, satisfy us that the conclusion to which Mr. Mechem has come, as above stated, is warranted thereby. A large list of authorities have been cited by the respective parties as sustaining or contradicting the conclusion of Mr. Mechem, as above stated. The leading ones cited sustaining the text above quoted are: State v. Toomer, 7 Rich. Law 216; Sprowl v. Lawrence, 38 Ala. 674, City of Chicago v. Gage, 95 Ill. 593 (35 Am. Rep. 182). Of the long list cited by the relator upon the other side, the most of them, though perhaps tending in some degree to sustain the proposition for which they are cited, can easily be distinguished from this case, and can have but little force in deciding this question. For instance, he cites State v. Tucker, 54 Ala. 205, and claims that it not only decides the question adverse to the text above quoted, but that it substantially overrules the case of Sprowl v. Lawrence, supra; while, as we read this case, it only decides that a judicial determination as to the existence of a vacancy is not a necessary prerequisite to an appointment to fill the same, and to us it seems evident that there was no intention to overrule the case in 33 Alabama, above cited, but a direct intention to affirm said case and distinguish it -from this. State v. Beard, 34 La. Ann. 273, is also much relied upon, and if the statute, the construction of which was involved in that case, were like ours, the text would justify the citation, but such was not the case. The statute construed there provided that the officer should qualify within a definite time named, and that a failure to do so should ipso facto work a forfeiture of the office, and it needs no argument to show that the language of the court in construing a statute of this kind, could throw no light upon
Of all the cases cited by relator not more than two or three can be said to be squarely in point, and in our opinion they would not justify us in sustaining the contention of relator when that of respondent is upheld by such a text writer as Mr. Mechem, and by the authorities cited by him, especially as to do so would be to control and change what is conceded to be the ordinary and proper construction of the section directly relating to the qualification of an officer by another section upon a different subject, the language of which can be given force without so doing. Under some statutes the qualification is made a pre-requisite to the holding of the office, and in fact that which bestows the office. Under such statutes á failure to qualify within the time specified would no doubt prevent a later assertion of any right thereto. But under our statute
The judgment of the court below must be affirmed.
Anders, O. J., and Stiles, J., concur.
Dissenting Opinion
(dissenting). — I am unable to agree with the majority. Nor do I think that a plain statutory enactment setting forth specifically circumstances under which an office becomes vacant should be construed out of existence by the mere statement .of the theoretical rule that “forfeitures are abhorred by the courts.” What the courts abhor should be of very little consequence. The vital question is, what did the legislature intend ? I think it is an excellent idea for courts to give to statutory language its plain and ordinary meaning. Let us see what the lanuuage of § 3063 is:
“Sec. 3063. Every office shall become vacant-on the happening of either of the following events before the expiration of the term of such officer: First, the death of the incumbent; second, his resignation; third, his removal; fourth, his ceasing to be an inhabitant of the district, county, town or village for which he shall have been ■elected or appointed, or within which the dutes of his office are to be discharged; fifth, his conviction of an infamous crime, or of any offense involving a violation of*242 his official oath; sixth, his refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit such oath or bond within the time prescribed by law; seventh, the decision of a competent tribunal declaring void his election or appointment; eighth, whenever a judgment shall be otained against such officer for breach of the condition of his official bond.”
It seems to me that if the legislature had desired to enact that an office should become vacant upon the refusal or neglect of the officer-elect to take his oath of office or to give or renew his official bond within the time prescribed bylaw, it could not have expressed itself in language more clear or unambiguous. Nothing is said about a “forfeiture being ‘declared by the proper authority;” that is an idea expressed by the majority opinion, but it is not found anywhere in the law. It may be a wise amendment to the law, but, if so, it must be incorporated by legislative enactment, and not by judicial instruction. Theinterpretation of the majority that the language of § 3063, “within the time prescribed by law,” does not refer to the time fixed by law, viz., within fifteen days, but means the time within which the court would hold to be covered by said section when “construed as declaratory, and not mandatory,” is to my mind an interpretation unwarranted by any rule of construction, and will lead to results most confusing. “Within the time prescribed by law,” is a very common legislative expression in enactments of this kind, and ordinarily I am inclined to think thatin looking up the time in which to qualify under such a statute, the mind of every layman, practitioner or judge would go to the definite time prescribed by the law. It is true that hardships may arise in individual cases by construing these sections as mandatory, but that was a matter for the legislature to guard against. It is evident that it did not intend that the refusal of the officer to qualify should alone work a forfeiture, for the law specially provides that the neglect to
Scott, J., concurs.