State Ex Rel. Johnson v. Albert

• Decision Date: 30 April 1895
• Citation: 40 P. 286,55 Kan. 154
• Parties: THE STATE OF KANSAS, on the relation of C. A. Johnson, v. H. T. ALBERT
• Court: Kansas Supreme Court

40 P. 286

55 Kan. 154

THE STATE OF KANSAS, on the relation of C. A. Johnson, v. H. T. ALBERT

Supreme Court of Kansas

April 30, 1895

Original Proceeding in Quo Warranto.

THIS is an original proceeding instituted in this court to determine the right to the office of probate judge of Cowley county. It appears from the pleadings and the agreed facts, that the defendant, H. T. Albert, was duly elected to the office of probate judge in November, 1892, duly qualified, and entered on the discharge of the duties of his office on January 9 1893; that at the regular election held in 1894, D. D. Parry was elected as his successor in office for the ensuing regular term; that after the result of the election had been duly ascertained and declared, Parry executed and filed in the office of the county clerk a bond, which was approved by the county clerk, and took and filed therewith the oath of office prescribed by law on the 5th day of December, 1894. On the 4th day of January, 1895, D. D. Parry died. On the 10th day of January, 1895, the relator, C. A. Johnson, was appointed by the governor to fill the vacancy caused by the death of said Parry, and on the next day, having accepted his appointment, he filed his bond and took the oath of office as probate judge. On the 14th day of January, before the hour of 12 o'clock, and before Governor Morrill had taken the oath of office, Governor Lewelling again appointed the relator, who tendered a second bond, which the county clerk refused to approve. On the same day, the relator demanded possession of the office, which was refused.

John A Eaton, for plaintiff:

It is not contemplated by the constitution nor the statute that any such enlarged meaning shall be given to the term "qualify." Not only by common acceptation, but by standard definition and upon authority, this word when used in connection with public officers refers alone to the giving of the bond and the taking of the oath of office, and depositing the same at the place and in the manner required. The incumbent in office ceases to have the right of holding over when when the qualification, designated and defined by the statute, of a successor has occurred. See Mechem, Pub Off., §§ 253, 254, et seq.; Throop, Pub. Off., §§ 170, et seq.; Gen. Stat. of 1885, P 2719; 19 Am. & Eng. Encyc. of Law, 440, 445.

The construction urged by the defendant of the word "qualify" is that it not only includes the taking of the oath of office, and the giving of the bond, but also the act of entering upon the duties of the office--a meaning that is not contemplated by the statute, nor has it ever been so considered by this court. The State v. Mechem, 31 Kan. 435. See, also, The State v. Bemenderfer, 96 Ind. 374; The State v. Neibling, 6 Ohio St. 40; The State v. Seay, 64 Mo. 89; The State v. Matheny, 7 Kan. 327; The State v. Conn, 14 id. 217.

An election of a successor to the defendant as probate judge, and his qualification and death thereafter before his official term commenced created a vacancy, and the governor was authorized, under the constitution and statute of the state, to fill the same by the appointment of the relator. See Throop, Pub. Off., § 329; Mechem, Pub. Off., § 401; 19 Am. & Eng. Ency. of Law, 562p.; The State v. Bemenderfer, 96 Ind. 374; The State v. Seay, 64 Mo. 89; The State v. Hopkins, 10 Ohio St. 509; In re Supreme Court Vacancy, 57 N.W. 495; Borton v. Buck, 8 Kan. 302; Grieble v. The State, 12 N.E. 700; The State v. Harrison, 16 id. 384; Grossman v. The State, 106 Ind. 203; Commonwealth, v. Hanley, 9 Pa. St. 513.

J. C. Pollock, and Madden & Buckman, for defendant:

Could Parry have qualified so that his death would cause a vacancy in the office? Albert's term did not expire until the 14th of January. Parry died on the 4th. He could not, under the law, become probate judge until the 14th. True, he was elected; but his election did not make him probate judge. It gave him the right to hold the office when the time for him to take it should arrive. His filing a bond, though it might have been formal in all its details, and subscribing an oath which the statute requires, would not make him probate judge until the time for him to take his office should be actually present. If those acts would make him probate judge, then from the time he qualified, as claimed by plaintiff, up until the day of his death, Cowley county had the strange anomaly of two probate judges. Under their theory, which of these could legally transact the business of the office? Could both? Would not such a condition of affairs result in great confusion? Not only confusion, but would it not be a source of very great uncertainty, embarrassment and annoyance to the people? It seems to us to give even this section the construction which the plaintiff claims, is not only unsound in reason, but illogical; and that it is within the reasonable purview of construction to say that it cannot have the force and effect which he so assiduously endeavors to give it.

Parry, as before stated, died on the 4th of January, 1895. Did the office then become vacant? Admitting, by giving scope to the plaintiff's argument that he was probate judge, and that we had at the time two probate judges, then was there a vacancy in the office at the time of his death? Albert, then, was in the office, had charge of the books and control of the business. He had had such charge and control for almost two years, and when the life of Parry expired it created no vacuum. Upon entering the office one would find the same man occupying the chair and performing the duties of the office, so that there was no vacancy at that time. There was no vacancy on the day following, and on the morning of the 14th the same man who had occupied the office for two years presented himself again and began the performance of the same duties which he had theretofore performed, so when did the vacancy occur? Under the constitution, in order that the death of Parry make a vacancy, he must have been probate judge, actively in the discharge of his duties, after the time for taking the office had commenced.

In the case in the 36 N.E. 941, heretofore cited, the court, in its opinion, while commenting upon What necessarily creates a vacancy in an office, used this forcible language: "In contemplation of law there can be no vacancy in an office so long as there is a person in possession of the office, legally qualified to perform its duties," and then cites, approvingly, the case of The State, ex rel., v. Howe, 25 Ohio St. 588.

See, also, Commonwealth v. Hanley, 9 Pa. St. 513; 19 Am. & Eng. Encyc. of Law, 562p.; The People, ex rel., v. Henderson, 35 P. 517.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

The only substantial controversy in this case is as to whether the election and qualification of D. D. Parry, as the successor in office of the defendant, and his death after such election and qualification and before the expiration of the defendant's term of office, caused a vacancy, after the expiration of the term for which the defendant was elected which might be filled by the governor by appointment. The constitution provides, in article 3:

"SEC. 11. All the judicial officers provided for by this article shall be elected at the first election under this constitution, and shall reside in their respective townships counties or districts during their respective terms of office. In case of vacancy in any judicial office, it...