State ex rel. McGee v. Gardner
| Decision Date | 24 February 1893 |
| Citation | 54 N.W. 606,3 S.D. 553 |
| Parties | STATE ex rel. McGEE v. GARDNER. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. That clause of section 3, art. 5, of the constitution, which authorizes the supreme court to issue the "writ of quo warranto" must be understood as intended to give the court jurisdiction of cases in which the information in the nature of quo warranto has become a substitute for the ancient writ.
2. In case of doubt between different constructions claimed for a constitutional or statutory provision or the meaning of a term, it is always allowable to inquire what results would legitimately follow either, with a view of ascertaining, if possible, whether such consequences were contemplated or intended.
3. There is no inherent reserved power in the people to hold an election to fill a vacancy in an elective office.
4. Such election can only be held when and as authorized by law.
5. In section 37, art. 5, of the constitution, which provides that "vacancies in the elective offices provided for in this article [judiciary] shall be filled by appointment until the next general election," etc., the expression "next general election" means the next election at which it is provided by law that the officer may be elected whose office has become vacant.
6. In November, 1892, when the general election was held, there was no law, constitutional or statutory, authorizing the election of a circuit judge, either for a full term or for a fractional term.
7. Until such a law is passed there can be no election of supreme or circuit judges under section 26, art. 5, of the constitution, providing that "the judges of the supreme circuit, and county courts shall be chosen at the first election held under the provisions of this constitution, and thereafter as provided by law."
8. The governor having appointed respondent to the office of circuit judge of the seventh judicial circuit to fill a vacancy in said office, such appointment constitutes a good title to such office until the legislature provides by law for the election of his successor.
Quo warranto by the state on the relation of Levi McGee against William Gardner to try the title to the office of judge of the seventh judicial circuit. Writ denied.
Coe I Crawford, Atty. Gen., and W. O. Temple, for relator. William Gardner and S. J. Parsons, for respondent.
This is an application by the relator for leave to file in this court an information in the nature of quo warranto. The object of the proceeding is to try the title to the office of judge of the seventh judicial circuit. As the determination of this application depends upon the construction and effect of certain constitutional provisions, rather than upon a shown compliance with any rules of procedure, we epitomize the facts, which are set out in the information with particularity and clearness, and present the following general statement as sufficient for an understanding of the questions involved:
At a general election held on the 1st day of October, 1889 John W. Nowlin was duly elected judge of the seventh judicial circuit in said state for the term commencing November 2 1889, and ending the first Tuesday after the first Monday in January, 1894; that he duly qualified, and discharged the duties of his office until the 1st day of November, 1891, when he resigned, and the said office became vacant; that thereupon the governor, by virtue of section 37, art. 5, of the constitution, and sections 1392 and 1394 of the Compiled Laws, appointed and commissioned the respondent, William Gardner, to fill such vacancy; that thereupon the said William Gardner qualified, and took, and still retains, possession of said office; that at the next general election, which occurred on the 8th day of November, 1892, the relator was a candidate for the office of said circuit judge for the unexpired term of said John W. Nowlin, and received a majority of all the votes cast; that all the requirements of the law in respect to his nomination, the manner and form of holding said general election, and the canvass of the votes were duly observed; that in due time relator took and subscribed the oath of office and transmitted the same to the secretary of state, and then demanded of the said William Gardner to be let into said office, which was refused; that at the general election held in November, 1890, the said William Gardner was duly elected a member of the legislature of said state for the term of two years, ending January 1, 1893, and duly qualified and assumed the duties of said office; that at the time of his said appointment to the office of judge as aforesaid, to wit, on the 2d day of November, 1891, his term of office as such member of the legislature had not expired, and he was ineligible to said office of circuit judge by reason of section 12, art. 3, of the constitution of the state; that the salary attached to said office is $2,000. Respondent presents his own affidavit, showing that on the 11th day of January, 1893, and after the expiration of the term for which he was elected a member of the legislature, as set forth in relator's information, he was duly appointed by the governor of the state to said office of circuit judge, to fill the unexpired term of Judge Nowlin, resigned; that he now holds the same by virtue of said appointment; and resists the filing of relator's information.
While respondent's objection to the filing of this information is in form and matter of time preliminary, the objection goes to the substance and merits of this whole controversy. Respondent does not question the regularity of relator's nomination, nor his qualifications as to age, residence, or learning, nor the form and manner of the general election, nor the fact that relator received a majority of the votes cast, but contends that the votes so cast for the relator were nugatory, and without legal effect, for the reason that there was no law, either constitutional or statutory, authorizing an election to fill the vacancy in said office of circuit judge, and that his appointment by the governor is good and in full force, and continues him in said office until his successor is elected and qualified, which can only be done at an election legally authorized to fill such vacancy. It is evident that the correctness of this claim is purely a question of law, and must be determined upon a consideration of constitutional and statutory provisions, of all of which we are now as fully informed as we could be upon a final and formal presentation of any issue that might be framed in the case. There was some discussion as to the precise form in which this court should exercise its jurisdiction in quo warranto, whether by issuance of writ or by entertaining an information in the nature of quo warranto. We deem it unnecessary, and it would probably seem pedantic in this court to undertake to review the growth and development through different forms, of proceedings in quo warranto, from the original prerogative writ down to the special proceedings, initiated by information, which have become the remedy now in general use as a substitute for the ancient writ. The jurisdiction of this court in quo warranto proceedings is derived from section 3, art. 5, of the constitution: "The supreme court shall also have power to issue writs of mandamus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine in such cases and under such regulations as may be prescribed by law." This constitutional provision, while using the terms "writ of quo warranto," has in different states been construed to mean the modern information in the nature of such writ. State v. Railroad Co., 34 Wis. 197; State v. Gleason, 12 Fla. 190; People v. Utica Ins. Co., 15 Johns. 358; State v. Leatherman, 38 Ark. 81; People v. Keeling, 4 Colo. 129.
The real problem to be solved is to ascertain the true intent and meaning of section 37, art. 5, of the constitution. It reads as follows: The argument of the relator is like this: The term "general election" is several times used in the constitution, and has a fixed meaning; section 20, art. 26, (Schedule,) providing "that the first general election under the provisions of this constitution shall be held on the first Tuesday after the first Monday in November, 1890, and every two years thereafter." So that said section 37 authorized the governor to fill the vacancy in the said office of circuit judge by an appointment which could not reach beyond "the next general election," to wit, the November election of 1892. And, further, that said section did by implication authorize the election at that time of a person to fill such vacancy, and the unexpired term of Judge Nowlin, resigned. Whether the expression "general election" is used in this section with the definite and defined meaning given to it in said section 20, art. 26, seems, at least, doubtful when other parts of the same section are considered. The object to be sought is the thought of the constitution makers in the use of this expression, not generally, nor in other parts of the same instrument, but in this particular provision; and, while the presumption is that they constantly used the same...
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