State ex rel. Hellier v. Vincent

• Decision Date: 03 October 1905
• Citation: 104 N.W. 914,20 S.D. 90
• Parties: STATE OF SOUTH DAKOTA ex rel. Charles T. Hellier, Plaintiff and appellant, v. MARSHALL VINCENT, Defendant and respondent.
• Court: South Dakota Supreme Court

20 S.D. 90

104 N.W. 914

STATE OF SOUTH DAKOTA ex rel. Charles T. Hellier, Plaintiff and appellant,

v.

MARSHALL VINCENT, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Marshall County, SD Application for Quo Warranto Affirmed Harry E. Phelps, Byron Abbott, Charles M. Stevens Attorneys for appellant. Campbell & Taylor Attorneys for respondent. Opinion filed Oct. 3, 1905

FULLER, P. J.

Claiming to be lawfully entitled to the office of sheriff of Marshall county by reason of his appointment by the county commissioners on January 6, 1905, plaintiff brought this action to oust the defendant, who was inducted into such office and discharging the duties thereof by virtue of the following appointment made on the 13th day of December, 1904:

“We, the honorable board of county commissioners of Marshall county, S. D., in regular session as per adjournment, do hereby appoint Marshall Vincent as sheriff of Marshall county for the unexpired term of H. A. Hinckley, deceased. This appointment is until January 1, 1905, or until his successor is appointed or qualified.

Board of County Commissioners:

Frank McKinley, Chairman. Geo. A. Elsom. Thos. Creaser.”

The material facts, which are undisputed, may be stated thus: On the first Monday of January, 1903, Mr. H. A. Hinckley duly qualified and entered upon the duties of the office of sheriff, to which he had been elected at the November, 1902, general election for a full term of two years, and continued therein until the 7th clay of December, 1904, when he departed this life. He had also been reelected at the regular November, 1904, election for the ensuing term, to commence on the first Monday of January, 1905; and the question, therefore, is whether the county commissioners had authority to limit the appointment of the defendant to the unexpired term.

It may be said in a general way that the power of appointment to an elective office is exhausted when once exercised, and any subsequent appointment to the same office ,until the incumbent has been legally removed or the office become vacant, is ineffectual and void. Thomas v. Burrus, 57 Am. Dec. 154; State ex rel. Brown v. Woodruff, 32 NY 355; Mechem on Public Officers § 115. Under a constitutional provision to the effect that a certain officer shall be elected and hold his office for four years and until his successor is elected and qualified, the Michigan court denied. the power to limit an appointment to the first term of a re-elected officer, and the headnote in a case similar to this upon principle is as follows:

“A judge of probate was re-elected, but before the commencement of his new term died, and an appointment was made by the Governor to fill the vacancy. January 1st [when the new term would commence] the Governor, on the supposition that there was now a new vacancy, made another appointment. It was held that the...