State ex rel. County Attorney v. Willott

• Decision Date: 18 October 1919
• Docket Number: 21099
• Citation: 174 N.W. 429,103 Neb. 798
• Parties: STATE, EX REL. COUNTY ATTORNEY, APPELLANT, v. FRANK F. WILLOTT, APPELLEE
• Court: Nebraska Supreme Court

174 N.W. 429

103 Neb. 798

STATE, EX REL. COUNTY ATTORNEY, APPELLANT, v. FRANK F. WILLOTT, APPELLEE

No. 21099

Supreme Court of Nebraska

October 18, 1919

APPEAL from the district court for Boone county: FREDERICK W BUTTON, JUDGE. Affirmed.

AFFIRMED.

R. D Flory and W. J. Donahue, for appellant.

Albert & Wagner and F. D. Williams, contra.

ROSE J. DEAN, J., net sitting.

OPINION

ROSE, J.

This is an action in the nature of quo warranto prosecuted in the name of the state on the relation of the county attorney of Boone county to oust respondent from the office of sheriff. The action was dismissed, and relator has appealed.

Otto Anderson, sheriff of Boone county, died October 29, 1918. He had been a candidate to succeed himself at the general election to be held November 5, 1918. His name remained on the official ballots after his death, and the election returns showed that he received the highest number of votes cast for that office. It thus happened that there was a vacancy in the office of sheriff October 29, 1918, for the unexpired term, and that Anderson's successor for the regular term beginning January 9, 1919, was not elected at the general election November 5, 1918. The county board, November 2, 1918, appointed respondent to fill the vacancy caused by the death of Anderson. Respondent qualified, entered upon the duties of his office, and is the present incumbent, claiming the right to hold over. The county board met January 20, 1919, and declared that respondent had no right to hold over for the following reasons: He was appointed to fill an unexpired term ending January 9, 1919, and a bond entitling him to hold over was not filed within the time prescribed by law. The county board then proceeded to fill the office of sheriff by the appointment of F. B. Waring.

Did respondent's tenure under his appointment end January 9, 1919, leaving a vacancy to be filled by the county board? An appointee to fill a vacancy in an office is protected by a general statutory provision that officers shall hold over until their successors are elected and qualified. State v. Metcalfe, 80 Ohio St. 244, 88 N.E. 738; Sackett v. State, 74 Ind. 486. As a general rule the appointing power has no vacancy to fill upon the expiration of a term, where the incumbent is entitled to hold over until his successor is elected and qualified. Re Advisory Opinion to Governor, 65 Fla. 434, 50 L. R. A. n. s. 368, 62 So. 363, and cases cited in note. The death of Anderson did not occur 30 days before the general election, and under the statute the vacancy could not be filled thereat. Rev. St. 1913, sec. 2278. The vacancy, therefore, was properly filled by the appointment of respondent, and thereafter there was an "incumbent to continue in office until his successor is elected and qualified." Rev. St. 1913, sec. 2275. His tenure under his appointment and the statutes did not terminate January 9, 1919. Rev. St. 1913, secs. 1967, 2280. The time for which the right to hold over exists is as much a part of the incumbent's term of office as the fixed statutory period. State v. Metcalfe, 80 Ohio St. 244, 88 N.E. 738.

It is argued, however, that respondent agreed with the county board that his term of office under his appointment should expire January 9, 1919, and it is insisted that he is estopped to declare the contrary. Where the tenure of office is fixed by statute, the appointing power cannot change the term as a condition of appointment. It is a well-settled rule of law, founded on the imperative demands of public policy, that an appointing officer or board, as a condition of exercising the appointing power, cannot exact of an appointee the surrender of any right, privilege or emolument appertaining to the office. This rule is not defeated by estoppel. Gallaher v. City of Lincoln, 63 Neb. 339, 88 N.W. 505; Abbott v. Hayes County, 78 Neb. 729, 111 N.W. 780; Throop, Public Officers, sec. 456. The conclusion, therefore, is that respondent's tenure of office under his appointment did not expire January 9, 1919.

Did respondent lose his right to hold over by failing to give an official bond within the time prescribed by law? The statute provides:

"When it is ascertained that the incumbent of an office holds over by...