145 N.W. 548 | S.D. | 1914
At the general election in November, 1910, one Washburn was elected county commissioner for one of the districts of Lyman county, and qualified and entered upon the duties of the office in January, 1911. The term of office was four years. On October 11, 1912, he resigned. One Brooks was appointed to fill the vacancy, on November 11, 1912, qualified, and was thereafter recognized by and acted with the other commissioners. In due season, relator Reariek filed a petition as candidate for the office of county commissioner for 'the same district, at the general election to be held November 5, 1912, pursuant to the provisions of section 1902, Pol. Code 1903. His nomination was certified by the county auditor, and notice thereof published in the official papers of Lyman county, in 'compliance with the requirements of section 1907, Pol. Code 1903. His name was placed on the official ballot, and also that of one Conley, his opponent, and the two names were generally voted upon as candidates throughout the district, at the general election held November 5, 1912. Relator received a majority of the votes cast, was declared elected by the canvassing- board, and received the proper certificate of election. Thereafter, within the time required 'by law, he qual-
The -words “if a vacancy occurs thirty days previous to -an - election day at which it may be filled” are somewhat ambigious perhaps, but, when -construed in connection with the other provisions of -the statute, and in the light -of the general -policy of filling vacancies by dection as soon- as -practicable, we are of opinion that the Legislature intended to declare that, when a vacancy occurs at any time within 30 days preceding a general -election at which the vacancy oan be filled by the election of a candidate whose name can be regularly placed on the -ballot at such election, no- appointment shall -be made unless the filling of the office is necessary to the holding of the election. This, however, is merely incidental to a consideration -of the queston whether relator’s -certificate of election entitles him to the writ of mandamus. Section 1905, Pol. Code, in -force at the time this election- was held, provided that certificates of nominations upon petition, -other than by conventions, should- be filed with the county auditor not less than 20 days before the' day fixed for the dection. Section 1907 required the county auditor to publish all nomination's certified to him in the- -official newspaper o-f the county in> at least two- -issues preceding the election, ¡and to furnish such papers a .certified list of nominations
• The decisions in McGee v. Gardner, 3 S. D. 553, 54 N. W. 606, and In re Supreme Court Vacancy, 4 S. D. 532, 57 N. W. 495, have no application to the case before us. In the former case, it was held that the Legislature had failed to enact a law, as required by the Constitution, under which a judicial election could •be held. In the latter case, it was held that, when the death of the incumbent of a judicial office occurred prior to the beginning of a new term for which he had been re-elected, a vacancy was created in the new term which might be filled by appointment, and that such appointee would hold during the full term, for the reason that the statute, enacted after the decision in the McGee case, provided that judicial elections should occur at six-year intervals, and’ therefore there was no election provided by law at which- the vacancy could1 ¡be filled at an earlier date.- It may also be noted that, under the 'statute then in force, judicial elections were held in odd-numbered- years, while general elections- were held in even-numbered years. It was therefore plainly the legislative intent to provide separate elections for judicial -offices, and not to fill vacancies in judicial office at a general election, which provided only for -election of state officers, other than judical.
In the -case before us, the vacancy, as. clearly contemplated by the statute, is one which may be filled' at a -general election. The statute in no wise- distinguishes the filling of any such .vacancies according to the length of term — whether two or four years.
W-e have considered -other matters discussed by counsel, but think it unnecessary to- refer to¡ them further in this decision. The judgment of the trial court is affirmed.