State v. Howell

• Decision Date: 05 August 1910
• Parties: STATE ex rel. FISH v. HOWELL, Secretary of State.
• Court: Washington Supreme Court

110 P. 386

59 Wash. 492

STATE ex rel. FISH v. HOWELL, Secretary of State.

Supreme Court of Washington, En Banc.

August 5, 1910

Mandamus by the State of Washington on the relation of Benjamin R Fish against I. M. Howell, Secretary of State of the State of Washington. Writ denied.

Frank C. Owings, for relator.

W. P Bell and W. V. Tanner, for respondent.

CHADWICK J.

On the 4th day of May, 1909, Sam H. Nichols, who had been regularly elected to the office of Secretary of State at the general election held on the 7th day of November, 1908, tendered his resignation and thereafter, on the 10th day of May, 1909, the respondent, I. M. Howell, was appointed by the Governor to the office of Secretary of State. On May 15, 1909, he regularly and duly qualified and has ever since been, and is now, discharging the duties of that office. On the 19th day of July, 1910, the relator, Benjamin R. Fish, tendered a declaration of his candidacy for the office of Secretary of State, under the provisions of the direct primary law contending and claiming that the vacancy so occurring in the office of Secretary of State, and filled by appointment as aforesaid, was limited to the next general election, at which time the office should be filled by a vote of the people. His tender being refused, this proceeding was brought so that the question might be settled by the judgment of this court.

It will be evident that the only question for our determination is whether, under the Constitution and laws of this state, an election for the office of Secretary of State is to be held at the oncoming general election. Section 1, art. 3, of the Constitution, relates to the date and place of voting, and in no way fixes the term of the officers mentioned therein. It is as follows: 'The executive department shall consist of a governor, lieutenant governor, secretary of state treasurer, auditor, attorney general, superintendent of public instruction, and a commissioner of public lands, who shall be severally chosen by the qualified electors of the state at the same time and place of voting as for the members of the legislature.' Section 3, art. 3, of the Constitution, provides: 'The lieutenant governor, secretary of state, * * * shall hold their offices for four years respectively and until their successors are elected and qualified.' Section 13 of the same article provides: 'When, during a recess of the legislature, a vacancy shall happen in any office, the appointment to which is vested in the legislature, or when at any time a vacancy shall have occurred in any other state office, for the filling of which vacancy no provision is made elsewhere in this constitution, the governor shall fill such vacancy by appointment, which shall expire when a successor shall have been elected and qualified.'

The respondent was appointed and holds his office under the terms and provisions of this section. The only other section of our Constitution pertinent to the particular question under consideration is section 8 of article 6: 'The first election of county and district officers, not otherwise provided for in this constitution, shall be on the Tuesday next after the first Monday in November, 1890, and thereafter all elections for such officers shall be held biennially on the Tuesday next succeeding the first Monday in November. The first election of all state officers not otherwise provided for in this constitution, after the election held for the adoption of this constitution, shall be on the Tuesday next after the first Monday in November, 1892, and the elections for such state officers shall be every fourth year thereafter on the Tuesday succeeding the first Monday in November.'

The Constitution does not in direct terms provide for elections to fill vacancies in state offices, except as such vacancies may occur in the offices of Supreme or superior court judges. Sections 3 and 5, of article 4, make such provision in the following language: 'If a vacancy occur in the office of a judge * * * the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall be at the next succeeding general election, and the judge so elected shall hold the office for the remainder of the unexpired term.' Following the ordinary rule of statutory construction, it would seem that, if the members of the constitutional convention intended that all offices as well as those of judges should be filled at the next general election, they would have so provided either by particular reference, as in the case of judges, or by a general provision. Not having done so, the case reduces itself to a construction of the words 'which shall expire when a successor shall have been elected and qualified.'

The constitutional or statutory provisions for the time of an election to fill vacancies in public offices vary in the different states. 'Until the next general election;' 'the next election by the people;' 'the next annual election;' 'until the next general election or until their successors are duly elected and qualified,' etc., etc., are the usual terms employed. In only one state--Oregon--is there a provision in the exact language adopted by the framers of our Constitution. These several provisions have been construed in different ways by the courts, some of them holding that the office being elective, it is the policy of the law to sanction the filling of a vacancy by appointment only ad interim until the next general election, when the people may assert the right of franchise and selection; others holding that the term and not the person is the paramount consideration, and that the appointment continues until the next general election at which, in the regular order of things, the election for such office is provided by law. Much might be said on either side, for the policy of the law is debatable. But, however much conjucture has been indulged in the cases, all of them in their last analysis depend upon a proper construction of the Constitution and statutory provisions, and not upon the consideration of those theoretical questions proper to be considered and which we must presume have been considered by the legislative body, or the people as a whole, when the Constitution was adopted. It will be borne in mind that our Constitution does not use the words 'next general election,' but does say that the appointment 'shall expire when a successor shall have been elected and qualified.' Adopting relator's theory that the proper construction of our constitutional provision is that it means the next general election, we find that the words 'next general election,' and equivalent phrases, have been construed by the courts, and the modern authority is that the appointment does not expire until the expiration of the regular term, unless such be the plain intent or unmistakable terms of the statute.

In State ex rel. Watson v. Cobb, 2 Kan. 32 and in Matthews v. Commissioners of Shawnee County, 34 Kan 606, 9 P. 765, approved in Ward v. Clark, 35 Kan. 315, 10 P. 827, it was held that the phrase 'next general election,' as found in the Constitution of Kansas, meant 'the next election held conformably to established rule or law;' also, 'the regular election prescribed by law for the election of a particular officer to be elected.' In People ex rel. Lynch v. Budd, 114 Cal. 168, 45 P. 1060, 34 L. R. A. 46, under a contention that a vacancy in the office of Lieutenant Governor should be filled at the first general election following the occurrence thereof, the court said, after quoting section 8, art. 5, of the Constitution of that state, which reads: 'When any office shall from any cause become vacant, and no mode is provided by the constitution and law for filling such vacancy, the governor shall have the power to fill such vacancy by granting a commission, which shall expire at the end of the next legislature or at the next election by the people,' 'An...