Olmstead v. Augustus

Decision Date19 December 1901
Citation65 S.W. 817,112 Ky. 365
PartiesOLMSTEAD v. AUGUSTUS. [1]
CourtKentucky Court of Appeals

Appeal from circuit court, Jefferson county, law and equity division.

"To be officially reported."

Action by D. S. Augustus against C. A. Olmstead to recover an office. Judgment for plaintiff, and defendant appeals. Affirmed.

Lieber & Lincoln, for appellant.

Lane &amp Harrison, for appellee.

HOBSON J.

Appellant Olmstead, was elected justice of the peace in November, 1894 for a term of three years, and until the election and qualification of his successor, under section 99 of the constitution. In November, 1897, Joseph Neihoff was elected for the succeeding term, but died before qualifying. On January 3, 1898, the county judge appointed Samuel Risley to the office. He brought suit against appellant for the office and was defeated, in the Jefferson circuit court, which would seem to have taken the view that appellant was entitled to the office until the November election, 1898. Risley resigned on December 11, 1899, and the county judge then appointed appellee, Augustus, and on the 26th of February, 1900, the governor also appointed him, on the ground that the appointing power was not vested in the county judge, but in the governor. Appellee then instituted this action to recover the office, and, the lower court having adjudged in his favor, Olmstead prosecutes this appeal.

Substantially this question was before this court and determined in Campbell v. Dotson (Ky.) 63 S.W. 480, the only difference being that in that case the person elected for the ensuing term had failed to qualify, and the county judge had made an order declaring the office vacant, under section 3755, Ky. St. The learned counsel for appellant concedes that case is conclusive here if adhered to, but earnestly insists that it is in conflict with the general current of authority and should be overruled. He does not take the position that Olmstead, when his successor died before qualifying, held until the next general election, and that his successor should then have been elected, under section 152 of the constitution. His position is that Olmstead is entitled to hold for the entire succeeding term, when Neihoff, his successor, who had been regularly elected, died before qualifying. A number of decisions in other states so holding are referred to.

The construction of a state constitution, like that of any other instrument, must rest, not on an isolated expression, but on the whole instrument, and the plain purpose of the framers of the instrument must be effectuated. We cannot believe that it was intended by the framers of the constitution, or the people who adopted it, that a man who was elected for one term should hold a second term, for which he was not elected because his successor died before qualifying. The reasons given by us for this conclusion in the case above referred to seem to us sufficient, upon a reconsideration of the subject. The learned counsel insists that by the constitution the judges of this court, circuit judges, and certain other officers hold for a definite term and until the qualification of their successors. As to such officers he concedes that the death of the person elected for the ensuing term before qualifying would not entitle the incumbent to hold for the second term, and authorities are cited from other states so holding. But he insists that, under section 99 of the constitution, county officers hold for their term, "and until the election and qualification of their successors"; and it is earnestly argued that some force must be given to the word "election," and that in this class of offices a different rule applies than in those cases where the incumbents hold for a term, "and until the qualification of their successors." It is said that the purpose of the distinction is to allow the people to choose themselves certain officers, and to prevent these offices being filled by appointment. We are unable to see why the framers of the constitution should have secured to the people the service of only officers of their own choosing in minor matters, when they allowed the judges of the circuit court and of this court to be appointed in case of a vacancy. The language of section 99,...

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8 cases
  • State v. Malone
    • United States
    • Tennessee Supreme Court
    • March 3, 1915
    ...182 Mo. 359, 81 S.W. 1148. There are cases in Kentucky to the contrary ( Campbell v. Dotson, 111 Ky. 125, 63 S.W. 480; Olmstead v. Augustus, 112 Ky. 365, 65 S.W. 817; Dixon v. Caudill, 143 Ky. 623, 136 S.W. 1043); these were based on a statute passed in 1850, as shown in 112 Ky. at page 370......
  • State v. Malone
    • United States
    • Tennessee Supreme Court
    • March 3, 1915
    ...Mo. 359, 81 S. W. 1148. There are cases in Kentucky to the contrary (Campbell v. Dotson, 111 Ky. 125, 63 S. W. 480; Olmstead v. Augustus, 112 Ky. 365, 65 S. W. 817; Dixon v. Caudill, 143 Ky. 623, 136 S. W. 1043); but these were based on a statute passed in 1850, as shown in 112 Ky. at page ......
  • Ballantyne v. Bower
    • United States
    • Wyoming Supreme Court
    • February 16, 1909
    ...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; v. Hopkins, 10 O. St. 509.) Whether this be the better rule or not under such cases would appear to be material under our sta......
  • State ex rel. Foster v. Rice, 6 Div. 752
    • United States
    • Alabama Supreme Court
    • May 23, 1935
    ... ... commenced prior to his death. Maddox v. York, 21 ... Tex.Civ.App. 622, 54 S.W. 24 (affirmed 93 Tex. 275, 55 S.W ... 1133); Olmstead v. Augustus, 112 Ky. 365, 65 S.W ... 817. The provision in a Constitution or statute, when the ... term is fixed, for holding over until a ... ...
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