State ex rel. Rives v. Herring
| Decision Date | 22 September 1953 |
| Docket Number | No. 5665,5665 |
| Citation | 261 P.2d 442,1953 NMSC 86,57 N.M. 600 |
| Parties | STATE ex rel. RIVES v. HERRING. |
| Court | New Mexico Supreme Court |
William C. Schauer, Roswell, for appellant.
Charles R. Brice, T. T. Sanders, Jr., Roswell, for appellee.
This case was tried on a stipulation of facts, which facts are briefly as follows: Phyllis Chandler, incumbent county clerk of Chaves County, New Mexico, was re-elected to that office at the general election of November 4, 1952; on December 8, 1952, she resigned her office and, by letter, advised the Board of County Commissioners that she would not qualify for the new term beginning January 1, 1953; on the same day, December 8, 1952, the Board accepted her resignation and appointed the defendant, Dorothy Herring, as her successor. On December 19, 1952, the defendant qualified as county clerk by filing oath and bond, entered into possession of the office, and since said date has performed the duties of the office. On January 12, 1953, the Board of County Commissioners, with two newly elected members, declared a vacancy in said office by reason of the failure of Phyllis Chandler to qualify for the term beginning January 1, 1953, and the newly constituted Board appointed as county clerk the plaintiff, Harold L. Rives, Jr., who in turn proceeded to qualify, but to whom the defendant, Dorothy Herring, refuses to turn over the office.
The stipulation concluded with the following statement of the question for decision by the trial court:
'The parties hereto are of the opinion that if there was a vacancy by reason of the matter stated, in the office of County Clerk of Chaves County, New Mexico, on the 12th day of January 1953, then such order appointing the plaintiff as county clerk was valid and the said plaintiff is the county clerk of Chaves County, New Mexico; if there was no vacancy in the office of county clerk at said time then in that event the defendant is the county clerk of Chaves County, New Mexico.'
The trial court entered judgment for the defendant, concluding as a matter of law that the resignation of the incumbent, Phyllis Chandler, created a vacancy which was filled by the December appointment of defendant 'which appointment filled such office until her successor should be elected and qualified'; that no vacancy existed January 12, 1953 and the attempted appointment of plaintiff is void; that defendant, Dorothy Herring, is entitled to hold said office until her successor 'shall be duly elected and qualified according to law.'
Parties will be referred to in this opinion as 'plaintiff' (appellant) and 'defendant' (appellee).
The constitutional and statutory provisions involved in this decision are as follows:
Constitution of New Mexico, Art. 20, sec. 2
'Circumstances causing vacancy in local office--Any office belonging to the class mentioned in section 3954 (Sec. 10-303) becomes vacant under any of the following circumstances:
'1. By death of the party in office;
'2. Removal of the officer as provided by this chapter;
'3. Failure of the officer to qualify as provided by law;
'4. Expiration of the term of office when no successor has been chosen as provided by law;
'5. When the officer removes from the county in which he is elected and in case of municipal officers, when he removes from the town or city for which he is elected;
'6. Absence from the county for six (6) consecutive months, and in cases of municipal officers, absence for such length of time from the village, town or city for which he is elected; but this provision does not apply to those officers wherein the law provides that the duties may be discharged by a deputy, when such absence is due to illness or other unavoidable cause;
'7. By resignation of the officer;
The contention of plaintiff is: That Phyllis Chandler, elected county clerk at the November election, 1952, failed to qualify for the term commencing January 1, 1953 pursuant to Sec. 15-3702 and Sec 15-3703, supra; that Sec. 15-3703 and Sec. 10-301, subsection 3, supra, both provide that such a failure creates a vacancy in the office; that, therefore, a vacancy existed and plaintiff's appointment on January 12, 1953 was a proper appointment under Sec. 10-302, supra.
The contention of defendant is: That Phyllis Chandler resigned December 8, 1953; that a vacancy in office was thereby created pursuant to Sec. 10-301, subsection 7, supra; that defendant was properly appointed (and qualified) pursuant to Sec. 10-302, supra; that Sec. 10-302, supra, provides that defendant, as appointee, is entitled to hold the office of county clerk until her successor is duly elected and qualified; that plaintiff was not elected to the office, and therefore, defendant is entitled to continue in the office until replaced at the next general election as specifically provided by Sec. 10-302, supra.
The only question for decision is whether or not there was a vacancy in the office of county clerk on January 12, 1953 when plaintiff was appointed.
To sustain the contention of plaintiff, it is necessary to hold that the provision of Sec. 10-301 (1909), supra, creating a vacancy for 'failure of the officer to qualify as provided by law' is in conflict with and prevails over the last line of Sec. 10-302 (1907), supra, which provides that an appointive officer shall hold office until 'his successor shall be duly elected and qualified according to law.' There was no specific repeal by the legislature, and plaintiff's contention rests, therefore, upon a repeal by implication; in other words, it is plaintiff's contention that the phrase of Sec. 10-302, supra, 'duly elected and qualified according to law', does not mean, or no longer means, what it says.
It is a generally accepted rule, amply sustained by our own authorities, that repeals by implication are not favored, it being the duty of the court, if possible, to so construe different acts that all shall be operative. Veterans' Foreign Wars, Ledbetter-McReynolds Post No. 3015 v. Hull, 1947, 51 N.M. 478, 188 P.2d 334; Atchison, T. & S. F. Ry. Co. v. Town of Silver City, 1936, 40 N.M. 305, 59 P.2d 351, and cases cited therein.
Briefs have made available to this Court a review of the pertinent authorities, and it is our conclusion that those authorities sustain the interpretation contended for by defendant, which interpretation will allow all acts to stand and avoid a repeal by implication.
The best summary of the law is found in the annotation, 164 A.L.R. 1248, entitled, 'Vacancy in public office within constitutional or statutory provision for filling vacancy, where incumbent appointed or elected for fixed term and until successor is appointed or elected is holding over.' It is stated at page 1249 thereof:
'The greater number of cases have held that during the period in which a public officer holds over after the expiration of his term, under constitutional or statutory authority entitling him to do so until the election and qualification of a successor, there is no vacancy in office which may be filled by an interim appointment.'
It is stated by defendant that, from this annotation, 'it appears that the courts of thirty-four states have held that under the facts and a similar statute there was no vacancy, while six states held there was a vacancy.' Be that as it may as to the exact count, a convincing majority hold with the defendant, that there is no vacancy under these circumstances.
Each party relies heavily upon one or two cases not cited in this annotation. They merit discussion.
Plaintiff cites Hood v. Miller, 1930, 144 Okl. 288, 291 P. 504, 506. In that case, Miller was the incumbent county treasurer....
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