State ex rel. Carson v. Harrison
| Decision Date | 28 February 1888 |
| Docket Number | 14,005 |
| Parties | The State, ex rel. Carson, v. Harrison |
| Court | Indiana Supreme Court |
From the Boone Circuit Court.
The judgment is affirmed, with costs.
L. T Michener, Attorney General, E. K. Adams, L. J. Hackney, J. S Duncan, C. W. Smith and J. R. Wilson, for appellant.
F Winter, A. Baker, E. Daniels, T. L. Sullivan, A. Q. Jones, C S. Wesner, O. D. Wesner, R. W. Harrison and B. S. Higgins, for appellee.
The present case involves a controversy between the relator, Joseph L. Carson, and the respondent, Thomas H. Harrison, concerning the right to exercise the office of president of the several boards of trustees of the benevolent institutions of the State. The decision of the case depends upon the following facts:
On the 21st day of February, 1883, the General Assembly, by an act duly passed, vested the management of the benevolent institutions in three several boards of trustees, and provided for the election of one president for the three boards. The act provided that, upon the taking effect thereof, the General Assembly should elect a president of the several boards, and that if a vacancy occurred when the Legislature was not in session, such vacancy should be filled by appointment by the Governor, the appointment to hold good only until the session of the following General Assembly. The act provided further, that the term of office of the president of the boards should be four years, dating from the date of his election, and it made it the duty of the General Assembly to elect a president of the boards every four years. Pursuant to the provisions of the act, the respondent was elected president of the boards on the 27th day of February, 1883. The Legislature failed to elect a successor in February, 1887, as the law required, and the respondent continued, and still continues, in the office, asserting the right to hold over until a successor shall have been duly elected by a succeeding Legislature. Being of opinion that the failure of the General Assembly to elect a successor produced a vacancy in the office, the Governor appointed and commissioned the relator as president of the several boards, on the 27th day of May, 1887. The relator having duly qualified, and made demand, and being refused admittance into the office by the respondent, he prosecutes this suit in the name of the State, on his own relation, for the purpose of establishing his claim to the office. On his behalf, it is argued that the office became vacant on the 27th day of February, 1887, and that, in consequence of the failure of the General Assembly to appoint a successor to the respondent before the adjournment of its session in 1887, it became the duty of the Governor to supply the vacancy by appointment, under section 18, article 5 (section 144, R. S. 1881), of the Constitution of the State.
So much of the above mentioned section as applies to the office in dispute reads as follows: "When, during a recess of the General Assembly, a vacancy shall happen in any office, the appointment to which is vested in the General Assembly, * * * the Governor shall fill such vacancy by appointment, which shall expire when a successor shall have been elected and qualified."
On the other hand, it is contended that, notwithstanding the failure of the General Assembly to elect, the office did not become vacant, because, it is said, the respondent was, and continues, entitled to hold over until a duly qualified successor shall appear, who shall have been duly elected by the General Assembly in the manner provided by the act of February 21st, 1883. Moreover, it is insisted, conceding the office to have become vacant, that the power of the Governor to supply vacancies, such as that under consideration, is confined to such as happen during the recess of the General Assembly. Hence, the argument proceeds, if the office in question became vacant at all, the vacancy happened while the General Assembly was in session, and, therefore, within the terms of the section relied on, the Governor had no power to appoint.
Avoiding, for the present, so much of the controversy as relates to the power of the Governor to supply a vacancy in an office, the appointment to which is vested in the General Assembly, when such vacancy happens at a time when the body in whom the primary power of filling the office resides is in session, we come at once to the controlling question, and inquire whether or not the office became vacant at the expiration of four years from the date of the respondent's election, four years, as we have seen, being the term prescribed by the act under which the office was created.
Whatever question there may be as to the particular time when the vacancy must have happened so as to have authorized an appointment by the Governor, it is beyond dispute that the office must have become legally vacant at some time before the executive function could have been called into exercise so as to make an appointment.
Although it has often been held that, where it appears prima facie that acts have been done, or that events have occurred, which subject an office to a judicial declaration of vacancy, the appointing power is authorized to proceed and appoint without procuring the office to be judicially declared vacant, it is nevertheless a condition precedent to the power to appoint that an actual vacancy shall have occurred. State, ex rel., v. Jones, 19 Ind. 356 (81 Am. Dec. 403); Mowbray v. State, ex rel., 88 Ind. 324; Baker v. Wambaugh, 99 Ind. 312; Gosman v. State, ex rel., 106 Ind. 203, 6 N.E. 349.
While it is the right of the executive department to determine for its own guidance whether or not a vacancy exists in each particular case, and while every intendment is to be indulged in favor of the action of the executive, it must nevertheless be borne in mind that the power of the Governor to make a valid appointment does not arise until there is a vacancy in fact. The existing title of an incumbent can not be extinguished or affected by the ex parte judgment of the executive that the office is vacant. The authority to fill vacancies confers upon the Governor no judicial power. State v. Seay, 64 Mo. 89.
The final adjudication of such a right is, unless otherwise specially provided by competent authority, a matter of judicial concern, in respect to which the prior claimant is entitled to be heard in a forum whose proceedings are distinguished by the cautionary methods appropriate to the ascertainment and protection of personal and property rights. Page v. Hardin, 8 B. Mon. 648; Commonwealth v. Meeser, 44 Pa. 341; Dullam v. Willson, 53 Mich. 392, 19 N.W. 112.
The effect of an executive appointment, and the rights acquired by the appointee, are, therefore, dependent upon whether or not the office was without an incumbent, lawfully entitled to continue therein, at the time the appointment was made. State v. McNeely, 24 La. Ann. 19.
The word "vacancy," as applied to an office, has no technical meaning. An office is not vacant so long as it is supplied in the manner provided by the Constitution or law with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it; and, conversely, it is vacant in the eye of the law whenever it is unoccupied by a legally qualified incumbent, who has a lawful right to continue therein until the happening of some future event. Stocking v. State, 7 Ind. 326; Collins v. State, ex rel., 8 Ind. 344; Akers v. State, ex rel., 8 Ind. 484; State, ex rel., v. Bemenderfer, 96 Ind. 374; Gosman v. State, ex rel., supra; Butler v. State, ex rel., 20 Ind. 169; People v. Tilton, 37 Cal. 614; State v. Lusk, 18 Mo. 333; Commonwealth v. Hanley, 9 Pa. 513.
When an office has been conferred upon one legally eligible, and has been accepted, no vacancy can be said to exist therein until the term of service and right to hold as fixed by the law expires, or until the death, resignation or removal of the person elected or appointed. Johnston v. Wilson, 2 N.H. 202 (9 Am. Dec. 50).
Of course, it is not to be understood that an office can not become vacant, as respects the appointing power, so long as it remains in the actual physical occupancy of some one who asserts a claim thereto. An office is legally vacant unless the occupant has an unexpired right or title, founded in the Constitution or law, precisely as a house is vacant of a lawful tenant in case the lessee, without any provision authorizing him to hold over, refuses to surrender at the expiration of his term.
The inquiry then comes to this complexion: Had the respondent's lawful right to continue in the office of president of the several boards having the management of the State's benevolent institutions expired prior to or at the time of the relator's appointment? If it had, the office was vacant in law, and the respondent's continuance therein in defiance of the executive appointment is in the nature of usurpation. If it had not, the power of executive appointment had not arisen, and the designation of the relator by the Governor was futile and ineffectual.
That the fixed term of four years for which the respondent had been elected had expired prior to the relator's appointment, is beyond dispute, and it is, therefore, quite certain that the decision of the question must depend upon whether or not the respondent had the right to hold over until his successor was elected, and qualified, by the body authorized to make the original selection, or whether a vacancy occurred at the expiration of four years.
Whether or not, as a general principle of the common law, officers are entitled to hold over beyond their prescribed terms without some express provision, is not settled upon...
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