Ballantyne v. Bower

• Decision Date: 16 February 1909
• Citation: 17 Wyo. 356,99 P. 869
• Parties: BALLANTYNE v. BOWER, SHERIFF
• Court: Wyoming Supreme Court

99 P. 869

17 Wyo. 356

BALLANTYNE v. BOWER, SHERIFF

Supreme Court of Wyoming

February 16, 1909

HABEAS CORPUS.

Andrew Ballantyne, who was confined in the county jail of Albany County under a commitment issued by one F. E. Anderson claiming to be a justice of the peace, applied for his discharge upon habeas corpus. The facts are stated in the opinion.

S. C Downey and V. J. Tidball, for the plaintiff.

Dayton who was elected a justice of the peace at the general election in 1908, and died November 23, 1908, did not qualify before his death for two reasons: (1) His bond which he had executed was not approved until after his death and after the commencement of the term for which he was elected; (2) His attempt to qualify by taking the oath and giving bond was void because the statute did not permit him to qualify until the first Monday in January following the election. (In re Moore, 4 Wyo. 198.) To "qualify" means to take such steps as the statute requires before a person elected or appointed to an office is permitted to enter upon the discharge of its duties. In this case it means not only the taking and subscribing of the oath of office but the filing of a bond to be approved by the Board of County Commissioners. (State v. Albert, (Kan.) 40 P. 286; Holt County v. Scott, (Neb.) 73 N.W. 681; Rounds v. Bangor, 46 Me. 541; 29 Cyc. 1387.) The attempted qualification was premature and the attempt of the new Board of County Commissioners to approve the bond after Dayton's death was ultra vires. The statute requiring county officers to qualify on the first Monday in January next succeeding the general election or within 20 days thereafter is mandatory. (R. S. 1899, Secs. 1223, 1224; In re. Moore, supra; Cooley, Const. Lim., (5th Ed.) 92; State v. Lansing, 46 Neb. 514; Archer v. State, 74 Md. 443; Duffy v. Edson, (Neb.) 84 N.W. 264; People v. Perkins, (Cal.) 26 P. 245; State v. Conn, 14 Kan. 172; 29 Cyc. 1388.) The death of a person elected to an office before he has qualified does not create a vacancy. (People v. Whitman, 10 Cal. 38; Kimberlain v. State, 130 Ind. 120; Com. v. Hanley, 9 Pa. St. 513; State v. Dahl, 55 O. St. 195; State v. Benedict, 15 Minn. 198; McCreary on Elections, Sec. 349, (4th Ed.); 23 Ency. L. 416; State v. Jenkins, 43 Mo. 261.) At the time of Dayton's death he was not an incumbent of the office nor was he such incumbent at the commencement of his term occurring after his death so as to cause a vacancy in the office by reason of his failure to qualify. (People v. Whitman, 10 Cal. 38; Rosborough v. Boardman, 7 P. 261; Ward v. People, 40 P. 538; People v. Rogers, 50 P. 668; People v. Taylor, 57 Cal. 620; Adams v. Doyle, 73 P. 582; People v. Perkins, 85 Cal. 509; State v. Benedict, 15 Minn. 198.)

F. E. Anderson, Sheridan Downey and N. E. Corthell, for the defendant.

A vacancy arose in the office in the term for which Dayton had been elected at its commencement. His death after qualification, and either before or after the beginning of the term would create such vacancy, and, therefore, an appointment would be authorized after the commencement of the term. (29 Cyc. 1401; People v. Ward, 107 Cal. 236; State v. Bemenderfer, 96 Ind. 374; State v. Albert, 40 P. 287; State v. Seay, 64 Mo. 89.) It has been held in a number of cases that the death of an officer elect before qualifying creates such a vacancy. (Olmstead v. Augustus, (Ky.) 65 S.W. 817; State v. Hopkins, 10 O. St. 509.) Whether this be the better rule or not under such cases would appear to be material under our statute inasmuch as the contingencies specified in Sub-Division 7 of Section 381, R. S. 1899, would inevitably arise, and the vacancy would occur for (a) neglect to take the oath of office; (b) neglect to give the bond; (c) neglect to file the oath; (d) neglect to file the bond. The failure to qualify from whatever cause creates a vacancy in accordance with the statute, and the incumbent for the preceding term cannot exclude a new appointee from the office. (Kline v. McKelvey, (W. Va.) 49 S.E. 896; Chappell v. Board, (Cal.) 93 P. 1061.) The term "incumbent" as used in the statute does not apply to the outgoing officer after the expiration of his term, but to the newly elected officer in whose term a vacancy has occurred. (Adams v. Doyle, 139 Cal. 678.) There is nothing in the contention that Dayton's qualification was invalid. Statutes prescribing the time for qualification of an officer are directory. (Suth. Stat. Const. 447; Howland v. Luce, 16 Johns. 135; Boykin v. State, 50 Miss. 375; Mechem Pub. Off. 262-266; Rasmussen v. Board, 8 Wyo. 277.) The officer has done his duty when he has executed and filed his bond and its approval, therefore, relates back to the time when it was deposited. The title of the officer is not dependent upon the action of the approving body. (McFarlane v. Howell, (Tex.) 43 S.W. 315; State v. Dahl, 65 Wis. 570; Duffey v. Edson, (Neb.) 84 N.W. 264; Green v. Wardwill, 17 Ill. 278; Holt Co. v. Scott, (Neb.) 73 N.W. 681.) This accords with the practical interpretation by the public, for officers elected have customarily qualified before as well as during the twenty day period. Such practical construction in case of doubt should be regarded as decisive. (Suth. Stat. Const. 309; Smyth v. Bryan, (Va.) 40 S.E. 652.) To qualify means no more than giving the bond and taking the oath. (State v. Meidling, 6 O. St. 44.)

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

On January 14, 1909, the plaintiff was committed to the county jail of Albany County by one F. E. Anderson, claiming to be a justice of the peace, and here seeks his discharge on the ground that said Anderson was not a justice of the peace, and had no authority to issue the warrant for plaintiff's arrest or the commitment under which he is imprisoned. The case has been submitted upon an agreed statement of facts by which it appears that at the general election held in November, 1906, one Hugh Hynds was duly elected justice of the peace in and for Laramie precinct in said Albany County, and entered upon the discharge of his duties on the first Monday in January, 1907. That at the general election in November, 1908, said Hugh Hynds and one Thomas J. Dayton, were opposing candidates for said office, and that said Dayton was elected, and on November 21, 1908, was given a certificate of such election. That on November 21, 1908, said Dayton filed with the county clerk of said county his oath of office, and his bond in the sum of $ 1,500, and thereafter, on November 23, 1908, died. That on January 8, 1909, after the death of said Dayton, the board of county commissioners of said Albany County approved the said bond theretofore filed by him; and on January 9, 1909, appointed said F. E. Anderson to the office of justice of the peace for Laramie precinct. That on January 12, 1909, said Anderson took the oath of office and filed the bond required by law which was approved by said commissioners. That said Hynds has never turned over the books or papers of his office to Anderson, but the latter as well as the former has undertaken to transact the justice business in said precinct. It may be stated that but one justice of the peace is authorized by law in that precinct.

The jurisdiction to consider in this case the right of Anderson to occupy said office is not here questioned, and we suppose that his authority in the premises is a proper subject for consideration in determining the legality of plaintiff's imprisonment. Both parties who claim the office seem to be here represented by counsel, and the only question argued has been whether Anderson or Hynds is entitled to perform the duties of justice of the peace in the precinct aforesaid.

Justices of the peace hold their office by election in their several precincts, except when appointed to fill a vacancy, and are required to be elected at the general election held on the Tuesday next following the first Monday in November in each even numbered year. (R. S. 1899, Sec. 202.) The constitution provides that all state and county officers elected at a general election shall enter upon their respective duties on the first Monday in January next following the date of their election, or as soon thereafter as may be possible. (Art. 6, Sub-Division "Elections," Sec. 5.) And the statute provides that all county officers shall qualify and enter upon the discharge of their respective duties upon the first Monday in January immediately following such general election. (R. S. 1899, Sec. 1224.) Although justices of the peace are required to be elected in precincts established by the board of county commissioners their jurisdiction extends throughout the county (Id., Sec. 4323), and the salaries of those for whom a fixed salary is provided by law are paid by the county (Id., Sec. 1246), and the fees collected by them are required to be paid into the county treasury. (Id., Sec. 4319.) They are required to take the oath required "of other county officers." (Id., Sec. 4317.) It seems reasonable, therefore, to regard them for some purposes, at least, as county officers, and to construe the term "county officers" in Section 1224, prescribing the date when they shall qualify and enter upon the discharge of their respective duties as including justices of the peace, there being no other provision of law relating in that respect specifically to those officers. This we understand to have been the uniform popular interpretation of the statute, and it does not seem to be here controverted. The commencement of the term of office of one elected justice of the peace at a general election is, therefore, the first Monday in January next following such election.

It is provided in the constitution (Art. 6, Sub-Div "...