State v. Breckinridge
| Decision Date | 02 April 1912 |
| Parties | STATE EX REL. WEST, ATTY. GEN., v. BRECKINRIDGE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 4, 1912.
Syllabus by the Court.
The resignation of a county officer, addressed to the board of county commissioners, and lodged in the office of the county clerk, while such office is open, and to which the attention of the clerk is called, is a valid one, and, in the absence of a different time fixed therein, the resignation takes effect immediately upon its deposit in such office.
The statute is silent as to whom the resignation of a county officer shall be addressed; but it is most appropriate to address it to the board of county commissioners, for the reason that, except where otherwise provided such board fills vacancies in county offices.
Section 1597, Comp. Laws 1909, provides: "Nor shall any county attorney, while in office be eligible to or hold any judicial position whatever." Held, that the word "eligible," as used in the statute, means "legally qualified to hold office," and does not mean "eligible to be elected or appointed to a judicial office." Under this statute, a county attorney may be either elected or appointed to a judicial position, while holding the office of county attorney, and will be eligible to qualify for such judicial position, if his term as county attorney has expired by law, or been terminated by resignation, prior to the time it is necessary to qualify for the judicial office.
The superior court of Tulsa county came into existence under the general provisions of Superior Court Act, §§ 1965-1976 inclusive (Comp. Laws 1909), on July 20, 1910, the date the population of Tulsa county, and the city of Tulsa, was officially made known by the United States Census Bureau; and at a time when the office could not be filled by the election of a judge at the general election of 1910. Held, that the vacancy in the office of judge of such county would unless filled by appointment, extend to the time at which a judge could be elected by the people; and, if filled by appointment, the appointee would hold until a judge of the superior court could be legally elected to succeed him.
Upon the coming into existence of an office provided for by the laws of the state, there is, ipso facto, a vacancy in the office.
The superior court is not a county court, and the judge thereof is not a county officer, and a vacancy in the office of superior judge is to be filled by appointment of the Governor.
The limitation of the term of an appointee to the office of judge of the superior court, providing that such term should expire January 9, 1911, applies only to judges appointed under the act, and whose successors could be elected at the general election of 1910. It does not apply to appointees for those courts coming into existence under a subsequent census at a time when successors could not be elected in 1910.
Additional Syllabus by Editorial Staff.
Under Comp. Laws 1909, § 4792, providing that resignations of elective officers may be made by filing or "depositing" such resignation in the office of the county clerk, where a resignation is in fact received in the office while it is open by those in charge, even temporarily, and the attention of the clerk is called to it, it is "deposited" within the meaning of the law.
Commissioners' Opinion, Division No. 2. Original proceedings by the State, on the relation of Charles West, Attorney General, for quo warranto to M. A. Breckinridge. Judgment for defendant.
Charles West, Atty. Gen., W. C. Reeves, Asst. Atty. Gen., and Bayard T. Hainer, of Tulsa, for plaintiff.
Biddison & Campbell and Davidson & Williams, all of Tulsa, for defendant.
This is an original proceeding in quo warranto, brought in this court by the state, upon the relation of the Attorney General, to oust the defendant M. A. Breckinridge from the office of judge of the superior court of Tulsa county. The case consists of amended petition, answer, reply, and proof in the form of depositions.
The grounds alleged, in the amended petition, for ousting the defendant are: First. That the defendant was not eligible at the time of his appointment, or at the time of his qualification, to become judge of the superior court, because at such times he was holding the office of county attorney of Tulsa county. Second. That the defendant never, in fact, became judge of such court, because his attempt at qualification and his assumption of the duties of the office were after the expiration of the term for which he was appointed.
The material facts are as follows: Defendant was elected county attorney of Tulsa county at the general election in 1907, filed his oath of office, and assumed and performed the duties of such office, and received the emoluments thereof up to, and including, January 7, 1911. At 6:45 p. m. January 7, 1911, he sent the following telegram from Oklahoma City: This message was delivered at the office of the county clerk of Tulsa county at 7:05 p. m. the day it was sent. It was received and opened by the county treasurer, who officed in the same room with the clerk. The evidence is conflicting as to the exact time the county clerk saw and read the telegram. The treasurer says as soon as he received it he gave it to the clerk. The clerk says it was probably as late as 8:30 when he saw and read it. The chairman of the board of county commissioners was called up on the telephone that same evening, and the telegram was read to him. The telegram was left in the office of the county clerk. After sending the telegram, and shortly before 7:40 p. m. January 7, 1911, the defendant received from the Secretary of State, duly signed and sealed, the Governor's commission as judge of the superior court. Defendant proceeded by first train to Tulsa, but arrived there shortly after midnight, Saturday, the 7th of January. He qualified by taking the oath of office at one minute past 12 o'clock Monday morning, January 9, 1911, and assumed, and has ever since been exercising, the duties of the office of judge of the said court. About 500 cases, civil and criminal, have been filed in the court, many of them having been finally disposed of. Superior courts were created by a general act of the Legislature approved March 6, 1909, and this act is found in Comp. Laws 1909, beginning with section 1965 and extending to and including section 1976. The portions material to this inquiry are: Section 1965: "There is hereby created and established in every county in this state having a population of thirty thousand (30,000) or more, and having a city therein with eight thousand (8,000) or more, as now or hereafter shown by the last federal census, a court of civil and criminal jurisdiction," etc. Section 1967: etc. Section 1968: "Upon the approval of this act, the Governor shall appoint a judge for each of said courts, who shall serve until the second Monday in January, A. D. 1911, and the judge of said court shall, by order of record, fix the terms of said court at not less than four terms each year; provided, that the first term of said court shall begin as soon as practicable after said court is organized under the provisions of this act." Section 1969: "At the general election of county officers to be held in the year 1910, and at every similar election every fourth year thereafter, the qualified electors of such county wherein a superior court has been established, as provided in this act, shall elect a judge of said court for such county to serve from the second Monday of the following January until the second Monday of January four years thereafter and until his successor shall be elected and qualified."
As has been seen, there are but two main questions presented here, but each of them involves a number of other propositions, some of which it may be necessary to discuss, others of which it may not be necessary to investigate. Counsel of both sides are to be commended for their industry in briefing the case, for they have pursued every possible theory that might, in any way, become involved in the consideration of the controlling questions.
First. Was the defendant eligible to be appointed to the office when he was appointed? The Attorney General contends that he was not. First, because he had not resigned when appointed second, that under the law the county attorney was not eligible to be appointed to a judicial position. The defendant answers these contentions by saying: First, that he had resigned as county attorney before receiving his commission; second, that the county attorney is eligible to be chosen, or appointed, to a judicial position, although he could not hold such position while such attorney. The statute cited and relied upon by the state to sustain the contention it makes of ineligibility is part of section 1597, Comp. Laws 1909: "Nor shall any county attorney, while in office be eligible to or hold any judicial position whatever." It seems that the reasonable construction of this clause is that the ineligibility mentioned is limited to the time "while in office," and that, if prior to receiving his commission as judge, the defendant had as a matter of fact resigned, being therefore "not in office," that he was not within the terms of the statute when he received his commission. Had he resigned? The county attorney being admittedly a county officer,...
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