State ex rel. Jones v. Lyon

• Decision Date: 15 November 1926
• Docket Number: 26105
• Citation: 145 Miss. 163,110 So. 243
• Court: Mississippi Supreme Court
• Parties: STATE ex rel. JONES v. LYON. [*]

110 So. 243

145 Miss. 163

STATE ex rel. JONES v. LYON. ^[*]

No. 26105

Supreme Court of Mississippi

November 15, 1926

APPEAL from circuit court of Washington county, HON. S. F. DAVIS Judge.

Quo warranto by the state, on the relation of Howard Jones against L. H. Lyon. Judgment for defendant, and plaintiff appeals. Reversed and judgment rendered.

Judgment reversed.

Ernest Kellner, Jr., and Walton Shields, for appellant.

Our contention here, as in the Baggett case, is that there was a vacancy upon the failure of the officer to qualify and that the governor had the power to appoint the relator, Howard Jones, who as shown by the record was eligible to the office.

Lyon was required by law to qualify for said office on or before the day of the commencement of the term by taking the oath giving the bond required by law and having same approved by the proper officers. He was serving as commissioner under an appointment and confirmation in 1924 for the unexpired term ending the second Monday in July, 1926, and under that appointment and for that term had executed a bond with a surety company as surety thereon which had been approved.

The legislature has manifested no intention to give to the levee board discretion to deal with failure of levee commissioners to qualify or to deal with vacancies in office of such officers, but under the general laws of the state, chapter 230, Laws of 1924, a failure to qualify as required by law on or before the day of the commencement of the term of office produces a vacancy authorizing it to be filled as prescribed by law.

It is well settled that where the law, in terms, declares that a failure to qualify as provided by law on or before the day named produces a vacancy, such a failure forfeits and vacates the office. This case does not involve any question of the approving authority wilfully disapproving the bond and of the officer subsequently qualifying and complying with the statute as was the case in Broom v. Henry, 100 So. 602.

Wherever under a similar statute the neglect to secure the approval of the official bond was the neglect or default of the officer appointed whose duty it was to have his official bond approved, and not due to the default of the approving officer who wrongfully prevents the approval of said bond, a vacancy in the office is created. See State v. Wharton, 61 So. 2; State v. Dahl, 27 N.W. 343; Hayes case, 45 So. 728; Cresswell case, 78 So. 770; and Vassar v. George, 47 Miss. 728.

In the instant case upon the vacancy occurring, after expiration of July 12, with no additional effort on July 12 upon the part of Lyon to secure the approval of his bond, the governor acting under the authority conferred upon him by law, filled the vacancy on July 16 by the appointment of Mr. Jones. This is a case where the officer, Lyon, was guilty of neglect in making no effort at all to comply with the plain provisions of the statute. The levee board has no power to pass on the qualifications of levee commissioners and no discretion to deal with their failure to qualify which, under the law, causes a vacancy in said office.

After July 12, 1926, whatever Mr. Lyon's status may have been on and prior thereto, there was certainly a vacancy in said office, due to Mr. Lyon's neglect and failure to qualify as provided by law on or before the day of July, 1926, and this vacancy was the necessary legal consequence of his own acts and from and after the appointment and qualification of Mr. Jones on July 19, 1926, he, being eligible and offering to perform the duties of said office, became and was and is entitled thereto.

It was just as much a legal requirement of Mr. Lyon, though reappointed levee commissioner, to qualify for the new term in the manner required by law as if he had been appointed originally or he had been appointed to succeed some one else. 22 R. C. L., page 452, paragraph 109; 29 Cyc., page 1400, notes 38 and 39.

Whether the premium receipt should be held as a bond obligatory on the bond company or not, it has no bearing upon the question at issue here as to whether or not there was a vacancy authorizing the governor's appointment of Mr. Jones because even if it has been a bond in due form signed by Mr. Lyon and the sureties, nevertheless as it was not approved by the president of the board of supervisors and chancery clerk, under the facts shown in this record, with no effort upon Lyon's part to obtain such approval, there would have been a vacancy authorizing the appointment by the governor.

The statute providing that informal bonds shall be valid and binding on the sureties--Hemingway's Code, section 2801--and the statute providing that the acts of de facto officers shall be valid and binding upon the public--Hemingway's Code, section 2811--and the statute providing that surety bonds may be given by county officers--chapter 233, Laws of 1924--and other similar statutes, were not intended to, nor did they amend, repeal, or in any manner affect the other provisions of law requiring the approval of official bonds (both those with personal sureties and those with a surety company as surety), by the proper officers, and providing that failure so to do vacates the office, at least where such failure is due to the neglect of the officer in making no effort to have his bond approved and is not due to the unlawful act or wilful refusal of the approving officer. See, also, Hemingway's Code, section 3111. Finally, we refer the court to State v. Smith, 40 So. 22.

The vacancy occurring, the appointee to fill said vacancy complied with all the provisions of law as to his qualification, including the constitutional provision above referred to and, therefore, Mr. Lyon was not entitled to retain the office.

Sillers & Pearson and Cutrer & Smith, also, for appellant.

By what authority did the secretary and treasurer of the levee board pay a premium on a bond after the expiration of the term it covered? He knew the bond would expire with the term. Was there any extension of the bond written on the bond or attached thereto? No. Appellee says that the agent's receipt for the money extended his 1924 bond. We say that the bond was given to cover only the term ending the second Monday of July, 1926, and that the bond so expressly states as shown by the condition clause, which reads as follows:

"Now, therefore, the condition of this obligation is such that if the said L. H. Lyon shall from the 5th day of April, 1924, to the second Monday of July, 1926, well and faithfully perform all the duties of said office, then this obligation shall be void; otherwise, to remain in full force and effect."

The bond company had no legal right to exact the payment of a premium beyond the date of expiration of this bond, which expired with the term of office, and the secretary and treasurer had no authority to pay any such sum to the company's agent. Such payment was not authorized by the levee board. The levee board can act only while in session by orders entered on its minutes. There is no proof that the levee board so acted. The very terms of the bond preclude the construction of the lower court that this was a good and legal bond. The constitution says that the bond shall be given for the term to cover the term, and in a given sum of not less than ten thousand dollars. Section 230 of the constitution requires that the sureties on such bonds "shall be freeholders of the district." But Mr. Lyon accepted a surety company as the only surety instead of the sureties required by the constitution.

Section 82 does not abrogate the provisions of section 230 of the constitution. It does not relate to bonds of levee commissioners. It does not repeal section 230 or amend it. Section 230 is positive in its requirements that the sureties shall be freeholders of the district.

In support of our contentions, we refer to Hyde v. State ex rel., etc., 52 Miss. 665; State ex rel. Mitchell, District Attorney, v. Smith, 40 So. 22; State v. Hays, 45 So. 728; State v. Langsing, 64 N.W. 1109; State v. Murphy, 13 So. 712; 23 Am. and. Eng. Ency. of Law, page 354; 29 Cyc., page 1400, note 41, and authorities cited thereunder; 22 R. C. L., page 38, paragraph 93, and authorities cited in note 17; Bailey's Equity, page 77; Farrell v. City of Bridgeport, 45 Conn. 191; Handy v. Hoskins, 59 Md. 157.

The judgment of the lower court should be reversed and judgment entered here for the appellant.

Percy &amp Percy, Boddie & Farish...