Burnett v. Brown

• Decision Date: 10 September 1952
• Citation: 72 S.E.2d 394,194 Va. 103
• Parties: H. P. BURNETT v. JAMES H. BROWN AND HON. JOHN S. DRAPER, JUDGE OF THE CIRCUIT COURT OF GRAYSON COUNTY, VIRGINIA
• Court: Virginia Supreme Court

Page 394

72 S.E.2d 394

194 Va. 103

H. P. BURNETT v. JAMES H. BROWN AND HON. JOHN S. DRAPER, JUDGE OF THE CIRCUIT COURT OF GRAYSON COUNTY, VIRGINIA.

Supreme Court of Appeals of Virginia

September 10, 1952.

J. L. Dillow, H. E. Widener and George M. Warren, for the petitioner.

Campbell & Campbell, for the respondents.

JUDGE: SMITH

SMITH, J., delivered the opinion of the court.

This is an original proceeding in this court whereby the petitioner, H. P. Burnett, makes application for a writ of mandamus to be directed to the respondents commanding and compelling them to restore and admit the said petitioner to the office of attorney for the Commonwealth of Grayson county.

The respondents have conceded at the bar of this court that mandamus is a proper remedy to try title to the office herein involved.

The following question is presented for decision: The duly elected attorney for the Commonwealth of Grayson county having died prior to January 1, 1952, the beginning of his term of office, and before he had qualified, did the Circuit Court of Grayson county have the authority to declare the office vacant on January 1, 1952, and make an appointment for the full term ending December 31, 1955?

We are of the opinion that the question should be answered in the affirmative.

The petitioner was elected attorney for the Commonwealth of Grayson county on November 4, 1947. He thereafter qualified and entered upon the discharge of the official duties of his office, but he was not a candidate in the election of November 6, 1951. The two candidates for the office at that time were E. Sam Burnett, Jr., nephew of the petitioner, and James H. Brown, one of the respondents in this proceeding. E. Sam Burnett, Jr., received a majority of the votes in this election and was duly declared elected, but he died on November 21, 1951, as the result of a tragic hunting accident, before he had qualified for office.

On January 1, 1952, the circuit court, by an order properly entered, declared a vacancy in the office of the attorney for the Commonwealth of Grayson county and appointed the respondent, James H. Brown, to that office for the four-year term commencing January 1, 1952. Later on that same day, Brown qualified by taking the prescribed oath of office and he has since occupied and performed the duties of that office.

The petitioner contends that the circuit court's order of January 1, 1952, is void, because E. Sam Burnett, Jr., had no term of office, since he died before he had qualified. It follows, says the petitioner, that there was no vacancy for the circuit court to fill, consequently the petitioner prays that he be restored to the office of attorney for the Commonwealth of Grayson county on the ground that as the incumbent of that office for the term ending December 31, 1951, he was automatically entitled to hold over for the ensuing four-year term commencing January 1, 1952.

Attorneys for the Commonwealth are constitutional officers. Section 110, Art. VII, of the Constitution states that 'There shall be elected by the qualified voters of each county * * *, an attorney for the Commonwealth, * * *.' The term of office is fixed by section 112, Art. VII, of the Constitution which provides that '* * * such officers shall enter upon the duties of their offices on the first day of January next succeeding their election, and shall hold their respective offices for the term of four years, * * *.' It is further provided, by section 33, Art. II, of the Constitution that '* * * All officers elected or appointed, shall continue to discharge the duties of their offices after their terms of service have expired until their successors have qualified.'

The possibility of a vacancy was foreseen and provided for by section 56, Art. IV, of the Constitution, which confides to the General Assembly the manner '* * * of filling vacancies in office, in cases not specially provided for by this Constitution, * * * and the General Assembly may declare the cases in which any office shall be deemed vacant where no provision is made for that purpose in this Constitution.'

The General Assembly has provided in Code section 15-475 that 'Every county and district officer elected by the people, * * * unless otherwise provided by law, * * * shall, on or before the day on which his term of office begins, qualify by taking the oath prescribed by § 49-1 and give the bond, if any, required by law, * * *.' Code section 15-477 states that 'If any such officer fail to qualify and give bond, as required by the preceding section, on or before the day on which his term begins, his office shall be deemed vacant; * * *.'

Pursuant to the constitutional authority above noted, the General Assembly has also provided in Code section 24-145 that 'When a vacancy occurs in any county * * * office, and no other provision is made for filling the same, it shall be filled by the circuit court of the county * * * in which it occurs, or the judge thereof in vacation; * * *.'

Code section 24-145, above referred to, was first enacted by the Acts of 1874-75, chap. 153, p. 133. In 1938, a new provision, section 24-147.1, was added to the Code. While we are not herein directly concerned with this new section, it does give some indication of the legislative interpretation of Code section 24-145 with which we are vitally concerned. Code section 24-147.1 provides that 'When any person elected at a regular election as a member of the board of supervisors or other governing body of any county shall die, resign or be legally incapacitated to hold such office, prior to qualifying as such officer, then the judge of the circuit court of the county shall, in lieu of appointing a successor for the term for which such person did not qualify, issue a writ of election as provided in § 24-139 to fill such vacancy. * * *'

It is to be noted that Code section 24-147.1 takes away from the court or the judge the authority to appoint a member of the board of supervisors or other governing body of the county when the vacancy has been occasioned by the death, resignation or legal incapacity to hold office prior to qualifying as such. The language of Code section 24-147.1 is a strong indication that the General Assembly recognized that except for its enactment, the court or judge thereof in vacation would be charged with the responsibility for the appointment of a successor in a case like that now before us.

This analysis of the constitutional and statutory law gives great weight to the contention of the respondents that the failure of the attorney for the Commonwealth-elect to qualify for his office by reason of his death, either on or before the date on which his term of office would have begun, created a vacancy in that office and authorized the circuit court to appoint a successor.

To buttress our analysis of the constitutional and statutory law governing this case we now turn to an examination of the decided cases on this subject. In Johnson v. Mann, 77 Va. 265, decided in 1883, a question arose in the city of Petersburg over the right of a treasurer to hold office. Johnson was the retiring treasurer, a situation comparable to that of the petitioner in the case at bar. Couch was elected to succeed Johnson, but Couch failed to qualify before the beginning of the first day of his term of office as he was required to do. Johnson there contended, just as the petitioner does here, that there was no vacancy in the office of treasurer and that he, Johnson, was entitled to hold the office of treasurer for the succeeding term of three years. However, the court held that the elected officer's failure to qualify before the commencement of his term created a vacancy in the office which this hustings court was authorized to fill and that the incumbent was not entitled to hold over until the next election but only until his successor had been appointed and had qualified. This conclusion was based on a construction of the Constitution of 1870. We quote from the opinion in the Johnson Case, 77 Va., at page 271, as follows:

'The provision of the constitution mainly, if not solely, relied on by counsel for the petitioner, is the twenty-fifth section of the sixth article [which is substantially the same as section 33 of the Constitution of 1902 hereinbefore referred to]. It simply provides for the holding over by the incumbent after the expiration of his term, until his successor shall qualify. The plain unequivocal import of this section of the constitution is, that when the regular term expires, the office becomes, in the eye of the constitution, vacant, but with authority to the incumbent, already qualified, to continue by virtue of such previous qualification, made effective for the purpose by the constitution, to discharge the functions of the office until he is succeeded in the way preferred by the people, as pointed out in the constitution made by them, and in the laws made in pursuance of that instrument. The petitioner filled out his regular term; and under the constitutional provision being considered is, to prevent the evils which would flow from either an accidental or designed failure to qualify on the part of the person elected to succeed him, enabled to go on in the discharge of the duties appertaining to the office, not his office, so far into the succeeding regular term, as the time when his successor, legally selected, shall be fully equipped as an officer to take charge of the office and perform its functions.'

At the risk of being repetitious, it must here be noted again that the Virginia Constitution, § 112, in fixing the term of office does not say either expressly or impliedly that an attorney for the Commonwealth shall hold his office for a period of four years 'and until his successor qualifies.' To the contrary, it proclaims that he shall enter upon the duties of his office on the first day of January next succeeding his election and that he shall hold his office for a term of...