State v. Harmon

• Citation: 98 A. 804
• Parties: STATE ex rel. DEERING v. HARMON.
• Decision Date: 03 October 1916
• Court: Supreme Judicial Court of Maine (US)

98 A. 804

STATE ex rel. DEERING

v. HARMON.

Supreme Judicial Court of Maine.

Oct. 3, 1916.

Report from Supreme Judicial Court, York County, at Law.

Information in the nature of quo warranto by the State, on the relation of John P. Deering, against G. Wallace Harmon. Information dismissed.

Argued before SAVAGE, C. J., and KING, BIRD, HALEY, and HANSON, JJ.

Eben Winthrop Freeman, of Portland, and Cleaves, Waterhouse & Emery, of Biddeford, for plaintiff. William R. Pattangall, Atty. Gen., and James O. Bradbury, of Saco, for defendant.

KING, J. This is a proceeding by the Attorney General, on the relation of John P. Deering, upon information in the nature of quo warranto against the respondent, C. Wallace Harmon, to test his right and title to the office of judge of the municipal court of Saco.

The substance of the information, filed January 14, 1913, is, that the relator was duly appointed, February 2, 1909, by the Governor and Council, judge of said court, and was commissioned as such for a term of four years; that on November 28, 1912, the Governor and Council determined that the office of judge of said court was vacant by reason of the abandonment of the office by the relator, and by reason of his failure to reside in the city of Saco as required by the charter of said court; that on December 19, 1912, the Governor and Council appointed the respondent to be judge of said court and he was commissioned for the term of four years; and that since December 20, 1912, he has used and enjoyed and continues to use and enjoy all the rights, privileges, and benefits belonging to that office. It is unnecessary we think to state here, either in detail or in substance, the allegations of the answer of the respondent or of the replication in behalf of the relator, since it is conceded by both sides that the controlling question presented is whether there was a vacancy in said office at the time of the respondent's appointment thereto.

The term of office of the relator expired by limitation on February 1, 1913, soon after these proceedings were begun, and before any hearing was held thereunder. But that fact is immaterial. The proceedings are prosecuted in behalf of the state by the Attorney General to determine by what warrant or authority the respondent is holding the public office in question. That is a question of present public interest, for if the respondent is wrongfully holding the office there should be a judgment of ouster against him notwithstanding the relator is not now entitled to the office. Commonwealth v. Swasey, 133 Mass. 538.

Under the Constitution the Governor, with the advice and consent of the Council, has authority to fill by appointment a judicial office when a vacancy in such office exists. And it is not contended, as we understand, that the respondent's appointment as judge of said court on December 19, 1912, was invalid on any other ground than that there was no vacancy in the office at that time.

The tenure of office of judges of municipal and police courts is fixed by the Constitution to be "for the term of four years." And it may be stated at the outset, that the determination by the Governor and Council on November 28, 1912, that the office of judge of the municipal court of Saco had become vacant by reason of the abandonment of it by the relator, and by reason of his failure to reside in Saco, did not create a vacancy in that office. That office could have become vacant only by the removal of the relator by impeachment for misdemeanor in office, or by his removal "by the Governor, with the advice of the Council, on the address of both branches of the Legislature" (Const. of Maine, art. 9, § 5), or by his death, or resignation, or by his abandonment of the office. The Governor has no authority, either alone or with the advice of the Council, to remove a judicial officer whose term of office is fixed, except "on the address of both branches of the Legislature." And indeed it is not claimed in this case that the Governor and Council did remove the relator as judge of said court, thereby creating the vacancy in that office which they filled by the respondent's appointment. If, as a matter of fact, the office was then vacant the Governor and Council were authorized and required in furtherance of the public interest to fill it. What they did, therefore, on November 28, 1912, was to determine for themselves if there was such a vacancy, and, having decided that there was, they appointed the respondent to that office. But their action was not conclusive against the relator. They could not in that way deprive him of his office, if it then belonged to him to use and enjoy. No such power is vested in them in respect to such an office.

The vital issue involved in this case will appear the more distinct if we note briefly the distinction between an abandonment of an office by the incumbent, and his forfeiture of it by official neglect or misconduct. The abandonment of the office is ipso facto a vacation of it, because the abandonment necessarily implies a voluntary and intentional disclaimer and surrender of the office by him to whom it pertains, which in its effect is like a resignation of it. If the abandonment exists as a matter of fact, then a vacancy also exists, for that is the inevitable inference. But the official neglect of the incumbent of a public office or his misconduct therein, although constituting just and legal grounds of a forfeiture of the office, do not produce a vacancy in the office until it has been judicially determined and declared that the incumbent is guilty thereof and that he has thereby forfeited his right to continue in the office; and the reason for that is apparent, for the official neglect and misconduct which would sustain a forfeiture, do not establish, as an inference of fact or law, that the incumbent had voluntarily or actually relinquished the office. In such case he is still the incumbent of the office, subject, however, to be removed therefrom because he has forfeited his right therein. No claim is made, or could be made, in this case that the office in question became vacant because the relator had forfeited it by failure to perform its duties, or by misconduct therein, since no adjudication of that question has been made by any tribunal having authority to do so; and without such an adjudication there could have been no vacancy in the office for that cause.

The real question, therefore, is whether the relator at or prior to the time of the respondent's appointment on December 19, 1912, had in fact abandoned the office of judge of said court.

It is a well-settled principle that a public office may be abandoned by the incumbent so that a vacancy in the office is thereby created. To establish such abandonment, however, the proof must show a voluntary and intentional relinquishment of the office by the incumbent, for there can be no abandonment of an office or any other right without an intention, actual or imputed, to abandon it. Such intention is a question of fact, and may be inferred from the party's acts. If his conduct is such as to clearly indicate that ho had relinquished the office, an intention to do so may be imputed to him.

This case is before this court on report of the evidence which justifies, we think, a finding of the following material facts: The charter of said court provides that the judge thereof "shall reside during his continuance in said office in said city of Saco." The court is to be held in Saco, with sessions on the second and fourth Tuesdays of each month for the transaction of civil business, and it "shall be considered as in constant session for the trial of criminal offenses." The relator was appointed judge of said court (the last time) February 2, 1909, for the term of four years. He resided in Saco and was a practicing attorney. In April, 1912, he was employed by a Mr. Ray of Massachusetts to organize a corporation and assist in finding parties to finance it for the purpose of developing a township of timberlands in Piscataquis county, Me. In pursuance of that employment it was necessary for him to be absent...