Pruitt v. Squires

• Citation: 64 Kan. 855,68 P. 643
• Decision Date: 05 April 1902
• Docket Number: 12,999
• Parties: ANDREW PRUITT v. SMITH B. SQUIRES
• Court: Kansas Supreme Court

68 P. 643

64 Kan. 855

ANDREW PRUITT v. SMITH B. SQUIRES

No. 12,999

Supreme Court of Kansas

April 5, 1902

Decided January, 1902.

Original proceeding in quo warranto.

SYLLABUS

SYLLABUS BY THE COURT.

1. BIENNIAL-ELECTION LAW -- Sheriffs and Treasurers. Section 3 of article 9 of the constitution provides that "All county officers shall hold their offices for the term of two years, and until their successors shall be qualified, . . . but no person shall hold the office of sheriff or county treasurer for more than two consecutive terms." Under this provision, a term of office of the officers therein mentioned is not limited to two years, but is for two years certain, and for an indeterminate and uncertain period thereafter, designated by the phrase "and until their successors shall be qualified," and this is as true of a second term as of a first.

2. BIENNIAL-ELECTION LAW -- Appointment by Governor not Authorized -- Officers Hold Over. Chapter 176, Laws of 1901 (Gen. Stat. 1901, §§ 2751-2755), generally known as the "biennial-election law," by its operation postponed the election of certain sheriffs from the fall of 1901 to the fall of 1902, but made no provision for the filling of the interregnum thus created. Held that no vacancy existed in such office, and the governor was not authorized by the general provisions of the statute directing him to fill vacancies to appoint one to such office during such interregnum. Held, further, following the case of The State v. Andrews, ante, p. 474, 67 P. 870, that no means of supplying such offices during the interregnum resulting from the postponement of these elections having been designated, such incumbents will continue to hold until their successors, chosen in the usual manner, shall be qualified.

3. BIENNIAL-ELECTION LAW -- Cases Distinguished. The cases of Horton v. Watson, 23 Kan. 229, and Davis v. Patten, 41 id. 480, 21 P. 677, distinguished.

Ergenbright & Banks, Finch & Wheatley, and Dawes & Wulfekuhler, for plaintiff.

Lambert & Huggins, for defendant.

CUNNINGHAM J. DOSTER, C. J., SMITH, ELLIS, POLLOCK, JJ., concurring. GREENE, J., dissenting. JOHNSTON, J., dissenting.

OPINION

CUNNINGHAM, J.:

This is another action growing out of the conditions created by the enactment of chapter 176 of the Laws of 1901 (Gen. Stat. 1901, §§ 2751-2755), familiarly known as the "biennial-election law." By section 1 of that law it is provided that a general election shall be held on the Tuesday succeeding the first Monday in November, 1902, and on the Tuesday succeeding the first Monday in November in every second year thereafter, at which election all county officers, except county commissioners, shall be elected. By section 2 of the same act it is provided that no election for any of these county officers shall be held prior to the Tuesday succeeding the first Monday in November, 1902. The effect of this act was to postpone the election of all county officers, except county commissioners, from the fall of 1901 to the fall of 1902.

The defendant in this action, Smith B. Squires, was elected sheriff of Montgomery county in November, 1897, took possession of the office in January, 1898, was reelected in November, 1899, and commenced his second term in January, 1900. Had not the biennial-election law been enacted, his successor would have been elected in November, 1901, and entitled to take the office in January, 1902. Acting upon the theory that there was a vacancy in the office of sheriff of Montgomery county, the governor of the state appointed and commissioned the plaintiff, Andrew Pruitt, to fill such vacancy, and this is an action in quo warranto by him against Squires to determine who is entitled, under these facts, to the possession of the office.

The plaintiff claims that, by reason of section 3 of article 9 of the constitution of the state of Kansas, the defendant was made absolutely ineligible and incompetent to hold the office of sheriff for a longer period than four years, and when such period had elapsed a vacancy in that office occurred by reason of such provision. Omitting immaterial matters therefrom, that section reads as follows:

"All county officers shall hold their offices for the term of two years, and until their successors shall be qualified, . . . but no person shall hold the office of sheriff or county treasurer for more than two consecutive terms."

A vacancy thus having occurred, the plaintiff further claims that, under section 2628 of the General Statutes of 1901, the governor was empowered to fill the same by appointment. Section 2628 provides:

"All vacancies in any state or county office, and in the supreme or district courts, unless otherwise provided for by law, shall be filled by appointment from the governor, until the next general election after such vacancy occurs, when such vacancy shall be filled by election."

Under this section is found ample power for the governor to appoint a sheriff to fill a vacancy; hence, the vital and determinative question in this case is whether there was a vacancy in this office at the time plaintiff was appointed. The defendant claims that there was not, for the reason that, under the terms of the section of the constitution already quoted, the term of office of sheriff is not only for two years, but for two years and until his successor shall be qualified, and that the additional uncertain time between the expiration of the two years and the time when his successor shall be qualified is as much a part of his constitutional term as the two years itself; that inasmuch as the biennial-election law, which postponed the time of election, neither declared a vacancy nor made specific provision for an appointment by the governor, there was no vacancy, and, therefore, the general provision of the statute authorizing the governor to appoint in cases of vacancy did not apply. We are of the opinion that the contention of the defendant is correct, and that there was no vacancy in the office of sheriff of Montgomery county which authorized the governor to appoint and commission the plaintiff thereto.

It seems to be well settled that the indefinite portion of time indicated by the phrase "until their successors shall be qualified" is as much a part of the term of office as the time during which the officer is entitled absolutely to hold. In the one case he is entitled to hold as against every one, and in the other as against every one except such as should come with legitimate credentials. To be sure, this additional time is conditional and defeasible, but, until the condition arises which defeats it, it remains a part of the constitutional term.

In the case of The State, ex rel. Carson, v. Harrison, 113 Ind. 434, 16 N.E. 384, the constitution provided that whenever an officer, other than a member of the general assembly, shall hold his office for a stated term, the same shall be construed to mean that such officer shall hold his office for such term, and until his successor shall be elected and qualified. Under this provision, the court held (page 441):

"The effect of the foregoing provision is more than to supply the office until an executive appointment can or shall be made with a person qualified to discharge its duties. It adds an additional contingent and defeasible term to the original fixed term, and excludes the possibility of a vacancy, and, consequently, the power of appointment, except in case of death, resignation, ineligibility, or the like."

In the case of People v. Whitman, 10 Cal. 38, at page 44, the court said of a similar provision:

"The term of office is fixed at two years, certain, with a contingent extension. When this contingency happens, this extension is as much a part of the entire term as any portion of the two years. The language of the constitution is just as clear and express that the governor shall hold his office until his successor is qualified as it is that he shall hold it two years from the time of his installation. These two provisions are both contained in the same sentence, closely connected by the copulative conjunction; and both relate to the term for which this officer shall hold his office."

This general principle is laid down in Mechem's Public Offices and Officers, section 397, where it is announced as follows:

"It is usually provided by law that officers elected or appointed for a fixed term shall hold not only for that term but until their successors are elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is then no successor elected and qualified to assume it, but the present incumbent will hold until his successor is elected and qualified, even though it be beyond the term fixed by law."

It is important in this discussion to bear in mind the fact that the biennial-election law made no declaration whatever upon the question as to whether there was a vacancy in the office of sheriff and county treasurer during the interregnum created by the postponement of the time of election, nor did it provide for or direct the appointment by the governor, or by any other authority, of a person to fill such extended terms. Had this been done, the question here presented would have been a very different one. This consideration was pointed out in the case of The State v. Andrews, ante, p. 474, 67 P. 870.

It would seem to require no argument to prove that this extension of term, or extra term, created by the postponement of the time of election, could not possibly have been contemplated by the legislature when it passed the general law authorizing the governor to fill vacancies in office. There was no vacancy in the office within the meaning of the general provision. One who had been duly...