Toy ex rel. Elliott v. Voelker

• Decision Date: 24 October 1935
• Docket Number: No. 129.,129.
• Citation: 273 Mich. 205,262 N.W. 881
• Parties: TOY, Atty. Gen., ex rel. ELLIOTT, v. VOELKER.
• Court: Michigan Supreme Court

273 Mich. 205

262 N.W. 881

TOY, Atty. Gen., ex rel. ELLIOTT,

v.VOELKER.

No. 129.

Supreme Court of Michigan.

Oct. 24, 1935.

Quo warranto proceeding by Harry S. Toy, Attorney General of the State of Michigan, on the relation of Eugene Elliott, against Paul F. Voelker, to try title to office of superintendent of public instruction.

Judgment of ouster ordered to be entered.

POTTER, C. J., and BUSHNELL and EDWARD M. SHARPE, JJ., dissenting.

Argued before the Entire Bench.

Harry S. Toy, Atty. Gen., and Edmund E. Shepherd, Peter J. Monaghan, Jr., and Oscar A. Kaufman, Asst. Attys. Gen., for plaintiff.

Burke & Burke, of Ann Arbor (Edward F. Conlin, of Ann Arbor, of counsel), for defendant.

FEAD, Justice.

This is quo warranto to try the title of respondent Paul F. Voelker to the office of superintendent of public instruction.

Mr. Voelker was elected to the office at the general election in April, 1933, for the term of two years, beginning July 1, 1933. At the general election in April, 1935, Mr. Maurice Keyworth was elected as his successor for the term beginning July 1, 1935. June 20th, Mr. Keyworth took and filed the constitutional oath of office. He did not give the bond provided in Comp. Laws 1929, § 392. He died June 22d. On July 1st the Governor, deeming the office vacant, appointed relator, Eugene Elliott, thereto. Mr. Elliott duly qualified, demanded possession of the office, and Mr. Voelker refused to surrender it on the claim that he holds over under constitutional mandate.

The Constitution provides:

‘A superintendent of public instruction shall be elected at the regular election to be held on the first Monday in April, nineteen hundred nine, and every second year thereafter. He shall hold office for a period of two years from the first day of July following his election and until his successor is elected and qualified.’ Article 11, § 2.

‘Whenever a vacancy shall occur in any of the state offices, the governor shall fill the same by appointment, by and with the advice and consent of the senate, if in session.’ Article 6, § 10. See, also, Comp. Laws 1929, §§ 3361, 3365.

‘The legislature may provide by law the cases in which any office shall be deemed vacant and the manner of filling vacancies, where no provision is made in this constitution.’ Article 16, § 5.

By Comp. Laws 1929, § 3350, the Legislature provided: ‘Every office shall become vacant, on the happening of either of the following events, before the expiration of the term of such office.’

Seven clauses of events resulting in vacancy are set up, all referring to acts of or conditions affecting the incumbent. The enumeration is not exclusive. The statute does not purport to, nor could the Legislature, deny the fact that a vacancy exists when an officer completes his constitutional term of office, and no one is legally authorized to succeed him.

The issue here is whether Mr. Voelker's term of office expired June 30th. Two questions are presented:

(1) Whether, in order to have ‘qualified’ within the meaning of the Constitution, Mr. Keyworth would need to have lived until the commencement of the term for which he was elected, i. e., to July 1st?

(2) Whether the failure of Mr. Keyworth to give the bond provided in Comp. Laws 1929, § 392, resulted in his failing to ‘qualify’ before his death?

Upon the first question there are no decisions of this court in point. The apparently unanimous opinion elsewhere is: ‘That * * * when a successor has been legally elected and qualified, the prior incumbent's right to hold over thereupon ceases, and it does not revive because his successor dies after his qualification, but before the commencement of his term.’ Mechem on Public Officers, § 401; 46 C. J. p. 970.

In direct point are State ex rel. Elliott v. Bemenderfer, 96 Ind. 374;State ex rel. v. Albert, 55 Kan. 154, 40 P. 286, 287;State ex rel. v. Seay, 64 Mo. 89, 27 Am. Rep. 206;People v. Ward, 107 Cal. 236, 40 P. 538;People v. Boughton, 5 Colo. 487.

In the Indiana case the court said:

‘The contention of the relator's counsel is that as McVitty died before his term of office commenced, he was never qualified, and, therefore, no successor to the relator was ever elected and qualified. This position is not tenable. The right of McVitty to the office was vested at the time he took the oath in the manner and form required by law, and his subsequent death did not entitle the relator to hold over. A vacancy resulted for the reason that a successor to the relator had been duly elected and qualified, and this having taken place his right to hold over terminated. It can not be legally possible that when the right to an office has once been destroyed or terminated, the subsequent death of the person who had been elected and who had duly qualified, revives the right which the election and qualification had put an end to, for the right to hold over exists only in cases where there is no legally elected and qualified successor. When the right of the successor vest, those of the incumbent terminate, and they do vest after election and qualification according to law. This is clear on principle, but authorities are not wanting.

‘The term ‘qualified’ as used in the statute does not mean possessed of the necessary political, mental and moral endowments, but means the acts performed after election, as taking an official oath and executing an official bond.'

The Kansas court reasoned: ‘Under the constitution, judicial officers hold their offices until their successors have qualified. The term ‘qualify,’ used in this connection, has a well-defined meaning. It means to take such steps as the statute requires before a person elected or appointed to an office is allowed to enter on the discharge of its duties. In this case, it means to file a sufficient bond, to be approved by the county clerk, and take and subscribe the official oath, these being the only prerequisites required of the person elected or appointed. The successor of the defendant had been elected and qualified. He was, then, entitled to take possession of the office on the second Monday in January; and at that time, had he lived, the right of the defendant to occupy would have terminated. The rights of the parties became fixed when Parry qualified. Although the defendant had the right to fill out his unexpired term, he had a right to nothing more. Parry's right to occupy the office thereafter had become full and complete. Nothing whatever remained to be done but to assume and enter on the discharge of its duties when the day should arrive. Parry died. This event, however, conferred no new right on the the defendant. The election and qualification of Parry had put an end to his right to hold over. The argument that an appointment to fill a vacancy cannot be made while there is a person in possession of the office, entitled to discharge its duties, may appear specious at first blush, but, on anything like close consideration, will readily be found fallacious.'

The opposing decisions are based upon the fact that the statute required the qualification and induction into office to be on the same day. Ballantyne v. Bower, 17 Wyo. 356, 99 P. 869,17 Ann. Cas. 82;Worley v. Smith, 81 N. C. 304.

In this state there is no such statute.

By way of contrast, although there are cases to the contrary, the weight of authority is that where the successor has been elected but dies before the commencement of his term and without having qualified, no vacancy occurs, but the incumbent holds over. 50 L. R. A. (N. S.) 374 note; 74 A. L. R. 486 note; Lawrence v. Hanley, 84 Mich. 399, 47 N. W. 753. In some of these cases the rule above stated for this case is mentioned and approved by way of differentiation. But as such references may be considered dicta, and the cases are not in point, they need not be specifically cited. It is sufficient to say that no case has been cited or found in which ‘qualified,’ in similar provisions of Constitution or statute, means other than performance of acts required by law as a condition precedent to the right to enter upon the duties of the office, i. e., to take the oath and give a bond when bond is required; or that, in the absence of special language, ‘qualified’ contemplates the physical survival of the elected successor until the commencement of his term or to any future time.

Respondent, for authority on his contention that such survival is necessary to ‘qualify’ for the office, relies upon the following language in Conely v. Common Council, 93 Mich. 446, 53 N. W. 564: ‘In People v. Lord, 9 Mich. 227, and Lawrence v. Hanley, 84 Mich. 399, 47 N. W. 753, the court held that the death of a person elected to office before he qualified and entered upon the duties of his office created no vacancy, and the reason was simply because there was an incumbent of the office elected to serve until his successor should be elected, qualify, and enter upon the office.’

None of these cases is in point. The Conely Case involved appointment or election to a newly created office, and the court held ‘there is not vacancy in the office, because no office or officer for that district ever existed.’ The language quoted by the court was wholly foreign to the issue, and apparently was used by way of illustration or contrast or answer to counsel. Moreover, it was not stated as a rule, but merely as the narration of the holdings in the Lord and Lawrence Cases.

In the Lord Case it was decided that, by virtue of the Constitution, where a re-elected judge of probate died before commencement of his new term, an appointee in his place held until his successor was elected and qualified, and a vacancy did not occur at commencement of the new term. The Lawrence Case held that where a successor to an incumbent was elected but died before commencement of his term, and without taking any steps to qualify before his death, the incumbent held over. In neither case was the question of what constitutes qualification in issue nor...