State ex rel. Smallwood v. Windom
| Decision Date | 17 December 1915 |
| Docket Number | 19,563 - (22) |
| Citation | 155 N.W. 629,131 Minn. 401 |
| Parties | STATE EX REL. W. H. SMALLWOOD v. WILLIAM L. WINDOM |
| Court | Minnesota Supreme Court |
Upon the relation of William H. Smallwood this court granted its writ of quo warranto directed to William L. Windom. Respondent filed his answer and prayed that the writ be discharged and the state by the attorney general and the relator filed a reply to the answer of respondent. A referee was appointed and the testimony taken before him was returned to the court. Writ of ouster.
Election -- surrender of office not an abandonment.
1. An incumbent of an office, failing of re-election, may abandon his right, if such is given by statute, to hold over until his successor is elected and qualified; but an incumbent claiming such right, willing to perform the duties of the office making his willingness known, may peaceably surrender possession to one having a certificate of election, without a demonstration of force, and without thereby working an abandonment; and it is found from the evidence that the respondent, claiming the office of municipal judge of Duluth under a hold-over provision of the statute, did not abandon his claim to the office though he surrendered it to the relator who had the certificate of election.
Term of office -- vacancy.
2. Under a statute creating an office, fixing the term, and making no provision for holding over until a successor is elected and qualified, the term is definite and a vacancy exists upon its expiration.
Officer -- holding over until election of successor.
3. Under a statute providing that the incumbent of an office shall hold until his successor is elected and qualified, the Constitution not prohibiting such a provision, effect is given to the word "elected;" and, if a successor is not elected, the incumbent holds over and there is no vacancy to be filled by appointment.
Vacancy in office.
4. The provisions of R.L. 1905, § 2667 (G.S. 1913, § 5723), relative to vacancies in office upon the decision of a competent tribunal declaring the election of an incumbent void, do not prevent the prior incumbent from holding over he not having waived or surrendered or abandoned his right nor do they create a vacancy to be filled by appointment, though the former incumbent has given actual possession to the incumbent holding the certificate of election; and the statute cited did not create a vacancy in the office of municipal judge upon which the relator can base a claim to it by appointment.
Municipal judge -- term of office.
5. Under article 6, § 9, of the Constitution, by virtue of which the municipal court of Duluth is created, the office of municipal judge is elective and the term of office, fixed by the legislature, cannot exceed seven years, the maximum period allowed by the Constitution.
Municipal judge -- change in date of election.
6. The legislature may change the date of election for the purpose of adjusting terms of office, this being the genuine purpose, though such change incidentally operates to extend the period of office of an incumbent of the office of municipal judge holding for a definite period, and until his successor is elected and qualified, by giving him the right to hold until a date beyond the expiration of his fixed term, if, by so doing, it does not extend it unreasonably, and if such change does not infringe upon the requirement of the Constitution that the office be elective, and that the term shall not exceed seven years. Jordan v. Bailey, 37 Minn. 174, followed.
Municipal judge -- enactment invalid.
7. The legislature cannot change the date of an election and thereby, or by other means, increase the term of a municipal judge beyond the term of seven years fixed by the Constitution; and under Sp. Laws 1891, p. 596, c. 53, § 4, providing that the municipal judge of Duluth shall "hold his office for a term of three (3) years and until his successor shall be elected and qualified," under which the respondent was elected on the first Tuesday in February, 1912, and the amendatory act of 1913 (Laws 1913, p. 107, c. 102), changing the term from three years to four years, and providing that "the present judge of said court shall continue in office during the term for which he was elected, and until his successor shall be elected and qualified," and providing for the election of a municipal judge on the first Tuesday in April, 1915, "and on the day of the general municipal election every fourth (4th) year thereafter," and not providing for a biennial election of the municipal judge, but industriously providing against it, the effect of the statute being to extend the term of the respondent, the then incumbent, beyond a term of seven years, if no successor was elected on the first Tuesday in April, 1915, and, none being elected, the necessary result was a term of more than seven years, the hold-over provision was unconstitutional, and a vacancy was created.
Vacancy in office -- appointment by Governor.
8. There being a vacancy in the office of municipal judge, because of the unconstitutional statute, the Governor, by virtue of article 5, § 4, of the Constitution, was authorized to make an appointment; and by his appointment the relator obtained title to the office.
Term of Office.
9. The intent of the statute of 1913 was to make the term of office four years, commencing in April, 1915; but such statute, when the term of office of an appointee is involved, is in contravention of the constitutional provision (article 5, § 4), that the Governor shall appoint until a successor is elected, and must yield to it, and the appointive term of the relator will continue only until the April, 1917, election, when an election will be held for a four-year period.
Election of municipal judge.
10. If no change is made in the statute or the charter, the provisions of the general election law will be followed at such election.
Acts of incumbents valid.
11. The official acts of the relator and respondent in their several incumbencies since the April, 1915, election are valid.
Lyndon A. Smith, Attorney General, and H. H. Phelps, for relator.
Fryberger, Fulton & Spear, for respondent.
Quo warranto on the relation of William H. Smallwood to try the title of respondent William L. Windom to the office of municipal judge of Duluth.
The proceeding is original in this court. Evidence has been taken and is before us.
The respondent, Judge Windom, was elected municipal judge in February, 1912, for a term of three years, and until his successor was elected and qualified. In 1913, the municipal court act was amended so that it provided for a four-year term, and further, that the then incumbent should continue in office until the election which was to be held on the first Tuesday in April, 1915, and until the election and qualification of his successor. Laws 1913, p. 107, c. 102. At this election Judge Smallwood was declared elected by the canvassing board. On appeal in a contest proceeding it was held that the preferential system of voting used at the election was unconstitutional and that Judge Smallwood was not elected. Brown v. Smallwood, 130 Minn. 492, 153 N.W. 953. Judge Windom brought mandamus soon after the election to compel the canvassing board to issue to him a certificate of election upon the theory that he was elected because of having received a plurality of the first choice votes. The trial court held that he was not elected. This holding was correct. State v. Prince, supra, page 399, 155 N.W. 628. On September 13, 1915, the Governor appointed the relator municipal judge and on the following day he qualified. He claims the office by virtue of his appointment. Judge Windom claims it because of the hold-over provision of the municipal court act.
The final question is whether there was a vacancy at the time of the appointment of Judge Smallwood. There are many connected and incidental ones.
1. The contention is made by the relator that Judge Windom abandoned his right to the office under the hold-over provision of the municipal court act.
An incumbent of an office may abandon it. To constitute an abandonment, limiting our consideration to the present case, the evidence must indicate that the officer intended to abandon, and one who voluntarily surrenders a public office to another cannot afterwards assert title to it. Attorney General v. Maybury, 141 Mich. 31, 104 N.W. 324, 113 Am. St. 512; State v. Moores, 52 Neb. 634, 72 N.W. 1056. But one who is in possession of an office, and is apparently defeated for re-election, still claiming his right to the office by virtue of the hold-over provision, and having and expressing a willingness to perform its duties, may surrender the office peaceably to one having the certificate of election without incurring a conclusive charge of abandonment. State v. Frantz, 55 Neb. 167, 75 N.W. 546.
The evidence shows beyond genuine controversy that Judge Windom at all times after the municipal election in April, 1915, was willing to assume the duties of the office and made his willingness known. To protect his right to the office under the provision for holding over, he was not obliged to use physical force to keep it. It would have been unseemly indeed had Judge Windom, who had held the office many terms, and Judge Smallwood, who had been chosen under the preferential system, engaged in a physical contest for an important judicial office vitally affecting in both its civil and criminal branches the interests of the community, or have done otherwise than submit their claims to an orderly judicial investigation. We find from the evidence that Judge Windom did not abandon his claim of title to the office under the hold-over provision of...
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