3 S.D. 553 | S.D. | 1893
This is an application by the relator for leave to file in this court an information in the nature of quo warranto. The object of the proceeding is to try the title to the office of judge of the seventh judicial circuit. As the determination of this application depends upon the construction and effect of certain constitutional provisions, rather than upon a shown compliance with any rules of procedure, we epitomize the facts, which are set out in the information with particularity and clearness, and present the following general statement as sufficient for an understanding of the questions involved:
At a general election held on the 1st day of October, 1889, John W. Nowlin was duly elected judge of the seventh judicial circuit in said state for the term commencing November 2, 1889, and ending the first Tuesday after the first Monday in January, 1894; that he duly qualified, and discharged the duties of his office until the 1st day of November, 1891, when he resigned, and the said office became vacant; that thereupon the governor, by virtue of section 37, art. 5, of the constitution, and sections 1392 and 1394 of the Compiled Laws, appointed and commissioned the respondent, William Gardner, to fill such vacancy; that thereupon the said William Gardner qualified, and took, and still retains, possession of said office; that at the next general election, which occurred on the 8th day of November, 1892, the relator was a candidate for the office of said circuit judge for the unexpired term of said John W. Nowlin, and received a majority of all the votes cast; that all the requirements of the law in respect to his
While respondent’s objection to the filing of this information is in form and matter of time preliminary, the objection goes to the substance and merits of this whole controversy. Respondent does not question the regularity of relator’s nomination, nor his qualifications as to age, residence, or learning, nor the form and manner of the general election, nor the fact that relator received a majority of the votes cast, but contends that the votes so cast for the relator were nugatory, and without legal effect, for the reason that there was no law, either constitutional or statuory, authorizing an election to fill the vacancy in said office of circuit judge, and that his appointment by the governor is good and in full force, and continues him in said office until his successor is elected and qualified, which can only be. done at an election legally authorized to fill such vacancy. It is evident that the correctness of this claim is purely a question of law,
The real problem to be solved is to ascertain the true intent and meaning of section 37, art. 5, of the constitution. It reads as follows: “All officers provided for in this article shall respectively reside in the district, county, precinct, city, or town for which they may be elected or appointed. Vacancies in the elective offices provided for in this article shall be filled by appointment until the next general election as follows: All judges of the supreme, circuit, and county courts, by the governor; all other judicial and other officers by the county board of the counties where the vacancy occurs; in cases of police magistrates, by the municipality.” The argument of the relator is like this: The term “general election” is several times used in the constitution, and has a fixed meaning; section 20, art. 26, (Schedule,) providing
Section 26 of said art. 5 provides for the election of judges at the first election held under the constitution, and “thereafter as provided by law,” which may, it is expressly provided, be on a day different from that on which an election is held for any other purpose. The judicial election may therefore be at the general election in the even-numbered years, or at the annual election (section 1441, Comp. Laws) in the odd-numbered years, or it may be at a special election called for that and no other purpose. If this present legislature should provide for the election of judges ht an annual election to be held in the fall of 1893, as it has undoubted authority to do, then the term for which Judge Nowlin was elected would be thus determined. But suppose, the legislature having exercised its right, and made the judges electable, not at the general election, but at the annual election in 1893, a vacancy occurs, would the governor still appoint until the next general election? If so, his appointment might be good to continue the appointee in office beyond the term for which his predecessor was elected, and it would prove to be more than an appointment to fill a vacancy. This would not be tolerable, but it is plain that such a condition might easily occur, and we think the fact strikingly illustrates the propriety, if not necessity, of interpreting the term “next general election”-as we have already indicated. It will not do to say that it ought not to be so qualified, until such construction becomes necessary by the legislature having acted and made the -judges electable at a time other than
We find strong support for such interpretation of the term “next general election” in the very recent case of State v. Philips, (Fla.) 11 South. Rep. 922, where the court was called upon to determine the right of a respondent in quo warranto,.proceedings to the office of municipal judge. It was provided in the charter under which the case arose that the city council should, at its second regular meeting after the election in June, 1889, elect a city clerk and other designated city officers, and a municipal judge. The term of office of the judge was two years, and of other officers one year. It was further provided that thereafter, at the second regular meeting after the annual election, there should annually be elected the officers whose term of office was one year and biennially the officers whose term was two years; thus including the municipal judge. At its second regular meeting after the election in June, 1891, the city council made an election, but such incumbent resigned January 1, 1892. The city council was authorized to fill such vacancy “until the next regular election.” They filled the vacancy by the election of the relator. At the next regular election thereafter, being the second meeting of the council after the election in June, 1892, when other city officers were elected, they also 'elected a municipal judge to fill the unexpired term of the resigned judge, upon the theory that relator’s, appointment expired at such election, because it was in terms and in fact the “next regular election;” but the court held .that the expression “next regular election” must be understood and taken to mean the next regular election at which it was provided that a judge might be elected, and consequently that relator’s term did not expire until the regular election in 1893. The court said: “When it is declared that the city council shall fill vacancies until the next regular election, it means until the next
Feeling constrained to hold that the term “next general election,” as used in said section 37, art., 5, means the next general election at which a circuit judge might be elected, the next question, directly stated, is this: Is there any law, constitutional or statutory, which authorized the electors of the seventh judicial circuit, at the general election in November, 1892, to vote for and elect a judge of said circuit to fill the vacancy occasioned by the resignation of Judge Nowlin? The relator concedes that, although the office of circuit judge is elective, there is no inherent reserved power in the people to hold an election of such judge, either for a full term or to fill a vacancy, and that it can only be done when and as affirmatively authorized by law. This principle is firmly settled. 6 Amer. & Eng. Enc. Law, p. 294; People v. Mathewson, 47 Cal. 442; State v. Robinson, 1 Kan. 17; State v. Jenkins, 43 Mo. 261; Sawyer v. Haydon, 1 Nev. 75; Com. v. Baxter, 35 Pa. St. 263. Relator, however, insists that the authority to hold an election may be implied, and that what is implied is as much a part of the law as what is expressed, and contends that authority for filling said vacancy by election is conferred by necessary implication by the said section 37, art. 5, which we have already quoted and partially considered. He argues that, the power of the governor to appoint being limited to “the next general election,” there springs the plain implication that at that time the people are authorized to elect. If, then, this implication is a fair and reasonable one, and is therefore as much a part of the constitution as though it were expressed, what becomes of the authority expressly conferred upon the legislature by section 26 of the same article, to provide when the judges should be elected? It may be replied that this implied authority refers only to elections to fill vacancies, and in respect to' these two sections, and the necessity, if possible, of avoiding any conflict between them, relator, in his brief, says: “A reasonable construction would be to hold that section 26 refers exclusively to the full term, or regular election of the judges, — the day on which all the judges are elected throughout the state, — while section 37 has reference to
Section 26 of the same article says: “The judges of the supreme, circuit, and county courts shall be chosen at the first election held under the provisions of this constitution, and thereafter as provided by law; and the legislature may provide for the election of such officers on a different day from that on which an election is held for any other purpose,” etc. It is judicially known to this court that prior to this constitution the judges of which the supreme and circuit judges are the successors were not elective officers, and that there was no law providing for their election. Such fact was of course well known to the convention that