State ex rel. Dosland v. Holm
| Decision Date | 14 April 1938 |
| Docket Number | 31,635 |
| Citation | 279 N.W. 218,202 Minn. 500 |
| Parties | STATE EX REL. C. G. DOSLAND v. MIKE HOLM AND OTHERS |
| Court | Minnesota Supreme Court |
Appeal by C. G. Dosland from a judgment of the district court for Hennepin county, Luther W. Youngdahl, Judge, dismissing his petition for a peremptory writ of mandamus to compel respondents, constituting the state canvassing board, to reconvene and issue to him a certificate of election to the office of judge of the district court of the seventh judicial district. Affirmed.
Judge -- vacancy in office -- power to fill vacancy.
1. Art 6, § 10, of our constitution furnishes the only guide in determining when and under what circumstances the governor may appoint a judge to fill a vacancy.
The power to fill a vacancy does not include the power to declare one.
There must be a vacancy before an election to fill it can be ordered, and an election to fill an anticipated vacancy may not be validly held unless there be constitutional authority for it.
Election -- validity of election -- notice.
2. Where there is in fact an election at the time and place fixed by law, the result thereof is valid although statutory notice may be wanting or inadequate. But where, as in instant case, there was total failure to comply with legal requirements so that only a negligible number of electors out of a large number exercised the right to vote, there was in fact no valid election.
Upon facts here appearing, relator having received only 334 votes out of more than 100,000 cast at the election, there being no notice of any kind given, statutory or otherwise, that the office of a district judge who had retired was to be filled at the election, held that no election resulted.
Henry C. Stiening, Charles A. Lund, and Philip R. Monson, for appellant.
William S. Ervin, Attorney General, David J. Erickson, Deputy Attorney General, William D. Gunn, Special Assistant Attorney General, and Phillips, Sherwood & Hughes, for respondents.
Relator appeals from a judgment dismissing his petition for a peremptory writ of mandamus to compel respondents, members of the state canvassing board, to reconvene and issue to relator a certificate of election to the office of district judge of the seventh judicial district.
There is no dispute respecting the facts, which may be summarized thus: Judge John A. Roeser was and over a period of more than 23 years had been one of the district judges of the seventh judicial district. His term would normally end on the first Monday in January, 1939. On September 30, 1936, Judge Roeser, pursuant to the provisions of 1 Mason Minn. St. 1927, §§ 210 and 211, as then amended, presented to the governor his petition for retirement. Therein he requested that his retirement, if granted, be not made effective prior to November 15. He stated that there were no general terms of court in session and there were "some matters that the petitioner has to attend to before he finally leaves the office." In conformity with the retirement act, the governor found the facts required thereby and made an order directing the retirement of Judge Roeser to become effective at the close of November 15, 1936. On October 1 the governor appointed Judge Himsl to fill the vacancy to arise upon the retirement of Judge Roeser. The appointment by its terms was made to take effect November 16, 1936. Judge Roeser continued in possession of his office and exercised the duties and functions thereof until and including November 15. Thereafter Judge Himsl assumed the office and has since been acting as such pursuant to his appointment. At the general election for state and other offices held November 3, 1936, 334 votes were cast by the electors of that district for petitioner. The votes consisted principally of printed "stickers" attached to the ballot by the voter, while in other instances there was written upon the ballot the name of petitioner, but as to both there was printed on the sticker or written upon the ballot by the voter the words: "for the office of district judge formerly held by Judge John A. Roeser." By reason of the votes so cast petitioner claims that he was legally elected judge for the six-year term which began on the first Monday in January, 1937. At the election aforesaid and within the 10 counties comprising the seventh judicial district, 107,280 votes were cast and counted. Amongst the offices to be filled in that district was that of district judge to fill a vacancy theretofore caused by the death of Judge Nye. Judge Wilson in December, 1935, had been appointed by the governor to succeed Judge Nye and was a candidate for that office at the 1936 election. His opponent was Mr. Schroeder of Detroit Lakes. Canvass of the votes cast for these men showed Mr. Schroeder to have received 40,650, votes, Judge Wilson 45,153 votes; and the latter was declared elected. Both men had been duly nominated as candidates, and only their names appeared upon the official ballot as candidates for the office of district judge. There was no space provided for electors to vote for anyone to succeed Judge Roeser. The same situation existed respecting the sample ballot published in the counties composing the district. Petitioner made no attempt to file for the office by petition or otherwise, nor was any application made to have ballots prepared in such fashion as to permit electors to vote generally for the office petitioner now seeks.
The canvassing board met pursuant to law on November 17, 1936, and made the following findings:
It will be noted that in six of the ten counties comprising the district no one voted for the office formerly held by Judge Roeser.
The court was of opinion and so found that "no vacancy existed * * * within 30 days prior to the general election * * * on November 3, 1936," and that "no election was in fact held for said office." In consequence, petitioner was held not entitled to any relief and his petition for a peremptory writ dismissed. Judgment in conformity with the findings was thereupon entered, and this appeal followed.
We shall take up the two questions presented by the court's findings in the order therein mentioned: (1) Was there a "vacancy" in the office of district judge of this district more than 30 days prior to the general election held November 3, 1936? (2) If that be determined in the affirmative, was there an election "in fact" for that office?
1. Art. 6, § 10, of our constitution furnishes our guide. It reads:
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