State ex rel. Wood v. Sheldon

• Decision Date: 06 May 1896
• Citation: 67 N.W. 613,8 S.D. 525
• Parties: STATE OF SOUTH DAKOTA ex rel. WOOD, Petitioner, v. CHARLES H. SHELDON, Governor of the State of South Dakota, Respondent.
• Court: South Dakota Supreme Court

8 S.D. 525

67 N.W. 613

STATE OF SOUTH DAKOTA ex rel. WOOD, Petitioner,

v.

CHARLES H. SHELDON, Governor of the State of South Dakota, Respondent. South Dakota Supreme Court Original Proceedings Application denied. John Wood, State’s Attorney C. S. Palmer, Mathews & Murphy Attorneys for plaintiff. Cheever & Hall Attorneys for defendant. Opinion filed May 6, 1896

CORSON, P. J.

This is an original information in the nature of quo warranto, brought in this court under the provisions of Sec. 5348, Comp. Laws. It is alleged in the complaint that the defendant has usurped, intruded into, and unlawfully assumed to exercise, the duties of the office of regent of education, and the state demands judgment against said defendant, declaring him not to be a legal member of the board of regents of education, and not entitled to act as a member thereof. The plaintiff also prays for an injunction restraining said defendant from acting as a member of said board. Upon the complaint, and affidavits filed therewith, an order was issued, requiring the defendant to show cause why an injunction should not be granted, as prayed for. On the return day the defendant appeared, and presented affidavits, from which it appears that he was appointed to the office of regent of education by the Hon. Charles H. Sheldon, governor of the state of South Dakota, and was commissioned by said governor, by a commission bearing date the 12th day of March, 1896, and that he duly qualified and entered upon the discharge of his duties as such regent of education, and that the acts complained of were done by him as such appointed regent of education. It further appears, from the affidavits on the part of the defendant, that on the 1st day of March, 1896, the term of office as regent of F. G. Hale expired, and that the defendant was appointed regent by the governor in place of said Hale, to fill the vacancy caused by the expiration of the term of office of said Hale. As the facts stated in the affidavits on the part of the defendant as to the expiration of the term of office of said Hale, and the appointment of the defendant by the governor, and the issuance to him of a commission, is not denied, the only question necessary to be considered is, was the defendant duly appointed a regent of education?

To determine the legality of the appointment of the defendant, two questions present themselves for our determination:

First. The term of office of Hale having expired, and no person having been appointed and confirmed by the senate, prior to the expiration of his term, to fill said office, can said Hale, under the constitution and laws of this state, hold over until a successor is appointed and confirmed by the senate?

Second. If he cannot, so hold over, and ceased to be a member of the board on March 1, 1896, was the governor authorized to appoint and commission the defendant, as regent, to fill the place made vacant by the expiration of the term of said Hale?

The authorities seem to be quite uniform in holding that, upon the expiration of an officer’s term, unless he is authorized by law to hold over, his rights, duties, and authority as a public officer must, ipso facto, cease. Territory v. Hauxhurst, 3 Dak. 205, 14 N.W. 432; King v. McLure, 84 NC 153; Badger v. U. S., 93 U.S. 599; People v. Tieman, 30 Barb. 193; People. v. Blain, 6 Cal. 510; 19 Am, & Eng, Enc, Law, p, 434; Mechem Pub. Off. § 396. The constitution of this state creates the office of regent of education, and fixes definitely their term of office. Sec. 8, Art. 14, provides that “they [the regents] shall hold their office for six years, three retiring every second year.” It will be observed that by the constitution the full term is definitely fixed at six years. No provision of the constitution has been called to, our attention indicating that the framers of that instrument intended the incumbent of the office of regent to hold over until his successor should be appointed and qualified. But, on the contrary, the framers of the constitution have clearly indicated, by the provisions fixing the terms in such manner that three shall retire every second year, that they did not intend to confer upon the incumbent the right to exercise the duties of the office after his term expired. Any other construction would lead to a subversion of the plan adopted in the constitution for the regular succession of regents on the board.

Our opinion is, therefore, that when Mr. Hale’s term expired on March 1, 1896, he ceased to be a regent, and his power and authority to act as such then terminated, and thereafter the office was vacant until filled by the governor by the appointment of the defendant. There being no person after March 1st legally authorized to perform the duties of the office, and the office, therefore, being vacant on March 12th, it was the duty of the governor to fill the vacancy, under the provisions of Sec. 8, Art. 4, of the constitution, which provides that ...