State ex rel. Doolittle v. Hays

• Decision Date: 02 March 1908
• Docket Number: 12,993
• Citation: 91 Miss. 755,45 So. 728
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI EX REL. ZACHARY T. DOOLITTLE v. JOHN H. HAYS

45 So. 728

91 Miss. 755

STATE OF MISSISSIPPI EX REL. ZACHARY T. DOOLITTLE v. JOHN H. HAYS

No. 12,993

Supreme Court of Mississippi

March 2, 1908

FROM the circuit court of Newton county, HON. JAMES R. BYRD Judge.

The state, on the relation of Doolittle, appellant, was plaintiff in the court below; Hays, appellee, was defendant there. The suit was a quo warranto proceeding. From a judgment in defendant's favor plaintiff appealed to the supreme court.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Jesse D. Jones, May, Flowers & Whitfield, and R. V. Fletcher attorney-general, for appellant.

The single question here presented is, whether, when a municipal officer is holding over after the expiration of his regular term, there is a vacancy which may be filled by a special election. This question was decided by the circuit judge against the appellant, his judgment reciting that "while the relator was thus holding over after the expiration of his regular term, there was such a vancacy as could be filled by the mayor and board of aldermen by a special election.

Code 1906, § 3456, provides that the terms of office of all officers, not otherwise provided for by law, shall be four years and until their successors shall be duly qualified. The terms of most officers are fixed by this general provision. Code 1906, § 3435, provides that a general municipal election shall be held in every city, town and village of the state on the second Tuesday in December, 1906, and every two years thereafter, for the election of all municipal officers to be elected by the people; and that the officer elected shall qualify and enter upon the discharge of his duties on the first Monday of January after such general election, and shall hold his office for two years and until his successor is duly elected and qualified. Appellant was elected to office under the provisions of acts of 1900, ch. 79, sec. 4 which is the same as Code 1906, § 3436, providing that "when it shall happen that there is any vacancy in a city, town, or village elective office, the unexpired term of which shall not exceed six months, the same shall be filled by appointment by the mayor and board of aldermen of said city, town or village," etc., "and if the unexpired term shall exceed six months, the mayor and aldermen shall make an order in writing, directed to the three election commissioners appointed as provided in § 3437 of this chapter, . . . commanding an election to be held on the day to be fixed, in order to fill the vacancy."

Doolittle, the relator, was elected to the same term to which Hancock, the former marshal, had been elected; and, of course, his term from that date forward was to be precisely the same as Hancock's would have been if the latter had not resigned. The relator was entitled to hold the remainder of the regular term and on until his successor should be legally elected and qualified. If his successor had been elected at the regular election on the second Tuesday in December, 1906, and had qualified, Doolittle's term would have expired on the first Monday of January, 1907. But the person for whom votes were cast in the regular election on the second Tuesday in December, 1906, was not a qualified elector, and hence there was really no election. 23 Am. & Eng. Ency. Law (2d ed.), 348 et seq.

The mayor and board of aldermen of a municipality cannot hold a special election unless there is a vacancy in the office to fill which the election is ordered. We have only two kinds of elections, general and special. The general election is fixed by law, and is held on a fixed date. The spcial election cannot be held except for the purpose of filling a vancacy, and before it can be authorized the vacancy must exist. The only question, then, in the case at bar, is whether there was a vacancy at the time the election was held in April, 1907, by virtue of which the appellee claims to be marshal.

"As a general rule there is a vacancy in an office whenever there is no incumbent to discharge the duties of the office, that is, whenever the office is empty or unfilled; but as long as there is any one authorized to discharge the duties of the office, the office is not to be deemed vacant so as to authorize the exercise of the power to fill vacancies in the office." 23 Am. & Eng. Ency. Law (2d ed.), 348. "But where the incumbent of the office holds over after the expiration of his expired term until the qualification of his successor, there does not exist, upon the expiration of his express term, a vacancy in the office so as to authorize the exercise of a power to fill vacancies in such office." Ib., 349.

"As there is no vacancy in an office where the incumbent is holding over beyond the usual time under a constitutional or statutory provision authorizing him to do so, in the absence of a provision creating a vacancy in such case, it follows that in such case the office cannot be filled by election or appointment under an authority so to fill a vacancy occurring therein. But it would seem that where the law expressly or impliedly creates a vacancy in an office at the expiration of the regular term, the office may be filled by election or appointment under an authority so to fill a vacancy therein, although the incumbent is authorized to hold over." 23 Am. & Eng. Ency. Law (2d ed.), 416. To the same effect, see State ex rel. v. Harrison, 113 Ind. 234; 3 Am. St. Rep., 663; State ex rel. v. Howe, 25 Ohio St. 558; 18 Am. Rep., 321; State ex rel. v. Henderson, 4 Wyo., 536; Ash v. McVey, 85 Md. 119.

Our statute law recognizes the existence of the above general rule that there is no vacancy where a legally elected incumbent is holding over. The provision in Code 1906, § 3436 which does not appear in acts of 1900, ch. 79, sec. 4), viz., that "if an officer elected shall fail to qualify, and election to fill the vacancy so created shall be held in like manner," is a recognition of the general rule. Such provision would have been unnecessary if, without it, there is such a vacancy as can be filled by appointment at the expiration of a regular term for which the officer is elected and while he is holding over. This provision in Code 1906, § 3436, was really inserted because of the language of Code 1906, § 3459, this latter code section providing that if a person elected to any office shall fail to qualify as provided by law, on or before the commencement of his term of office, a vacancy in such office shall occur thereby, and it shall be filled in the manner prescribed by law for filling vacancies in such office, unless the failure to qualify arises from there being no officer to approve the bond of such officer elect.

The general rule is that there is no vacancy if one who was legally elected to office legally holds over. Under our statute law, an officer who holds over after the expiration of his term is not so filling the office as that there is no vacancy therein to be filled.

This court held, in Roane v. Matthews, 75 Miss. 94; s.c., 21 So. 665, that the marshal of a town, who was entitled to hold over could oust by quo warranto one whose induction into office was illegal because he was not a qualified elector at the time of his election. The old incumbent was one Tunstall. Matthews was attempting to hold the office by virtue of an election. This court said, "Tunstall had the right to hold over, as marshal of Holly Springs, until a legal successor had been duly qualified."

Appellee relies upon two Mississippi decisions, Sublett v. Bedwell, 47 Miss. 266, and Hoskins v. Brantley, 57 Miss. 814. In the Sublett case the concluding sentence, found on page 277 of the opinion, is dictum of the purest ray serene. The question whether the inability of the person receiving the highest number of votes at an election, to qualify, thereby created a vacancy in the office, was not directly nor remotely before the court for decision. Other questions of moment were before the court relative to the constitutionality of an act conferring certain powers upon justices of the peace to hear and determine election contests, and relative to the functions of a jury in such cases, and to the question of whether, in the case then on appeal, the candidate who received the majority vote was disqualified. There was no discussion in the briefs of counsel as to whether there was a vacancy. The sentence in the opinion, upon which the appellee relies, was thrown in manifestly without reflection or consideration, and merely to round out a period. It has no value, and is not binding upon this court. The cast of Hoskins v. Brantley, 57 Miss. 814, blindly follows the Sublett case, and is another illustration of the court's speaking on a question not before it for decision. It was the case of an ineligible majority candidate seeking to oust an officer seeking to hold over. The court properly held that the ineligible candidate could not displace the officer so holding over. And here the opinion should have stopped. But the learned justice, with his eyes on the dictum of Sublett v. Bedwell, volunteered the further advice that a new election should be ordered.

As authorities upholding the contention of the appellant, see Kimberlin v. State, 130 Ind. 120; 14 L. R. A., 858; Commonwealth v. Hanley, 9 Pa. St., 513.

Foy & Banks, for appellee.

That an elective office is deemed vacant for the purpose of calling a special election for filling a vacancy therein where the old incumbent is "holding over until his successor is elected and qualified," is settled in the case of Hoskins v. Brantley, 57 Miss. 814.

Code 1906, §§ 3436, 3459, clearly give authority for the calling of the special election in this case.

An office is a public trust in which all of the people are more interested...