The attorney general, upon the relation of Dr. Eugene Elliott, filed an information in the nature of quo warranto to try the title of the respondent, Dr. Paul F. Voelker, to the office of superintendent of public instruction.
Dr. Voelker was elected to the office at the general election in April, 1933, for the term of two years beginning July 1, 1933; and at the general election in April, 1935, Dr. Maurice R. Keyworth was elected to be his successor for the term beginning July 1, 1935.
On June 20, 1935, Dr. Keyworth took and filed the constitutional oath of office, but did not give bond as provided in the statute. 1 Comp. Laws 1929, §§ 390,392. He died June 22, 1935; and July 1, 1935, *Page 223 the governor appointed relator, Dr. Eugene Elliott, to such office. Dr. Elliott qualified, demanded possession of the office, and Dr. Voelker refused to surrender it to him on the claim he held over under the constitutional mandate.
The question involved is, whether Dr. Voelker is entitled to continue to hold the office of superintendent of public instruction, or whether Dr. Elliott is entitled to hold the same.
1. We are dealing with the construction of the Constitution and the statutes passed in pursuance thereof. The Constitution provides for the election of a superintendent of public instruction, fixes the time of election, and says:
"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." Constitution 1908, art. 11, § 2.
It says:
"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." Constitution 1908, art. 6, § 10.
It says:
"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." Constitution 1908, art. 16, § 5.
The legislature, in pursuance of the constitutional authority contained in the Constitution of 1850, which, by article 8, § 3, provided:
"Whenever a vacancy shall occur in any of the State offices, the governor shall fill the same by appointment, *Page 224 by and with the advice and consent of the senate if in session."
and by article 4, § 37, provided:
"The legislature may declare the cases in which any office shall be deemed vacant, and also the manner of filling the vacancy, where no provision is made for that purpose in this Constitution."
passed Act No. 172, Laws of 1851, which was amendatory of the Revised Statutes of 1846, ch. 15, § 3, and which still stands as 1 Comp. Laws 1929, § 3350, as follows:
"Every office shall become vacant, on the happening of either of the following events, before the expiration of the term of such office:
"1. The death of the incumbent;
"2. His resignation;
"3. His removal from office;
"4. His ceasing to be an inhabitant of this State; or, if the office be local, of the district, county, township, city or village, for which he shall have been elected or appointed, or within which the duties of his office are required to be discharged;
"5. His conviction of any infamous crime, or of any offense involving a violation of his oath of office;
"6. The decision of a competent tribunal, declaring void his election or appointment; or,
"7. His refusal or neglect to take his oath of office, orto give or renew any official bond, or to deposit such oath orbond in the manner and within the time prescribed by law:Provided, That the supervisor of any township, in which the office of a township treasurer or justice of the peace may become vacated by operation of this act, shall immediately transmit to the county clerk of the county in which such township treasurer or justice of the peace resides, a notice in writing, officially signed by *Page 225 him, informing the county clerk that the office of such township treasurer or justice of the peace is vacated."
It seems to be the established rule of construction that,
"When the Constitution clearly enumerates the events that shall constitute a vacancy in a particular office, we must suppose all other causes of vacancy excluded; especially when this construction can lead to no injurious consequences."People, ex rel. Melony, v. Whitman, 10 Cal. 38.
The same rule applies to the construction of a statute. This is but an application of an ancient and well-settled rule of statutory construction, that an express enumeration of certain things is an implied exclusion of things not enumerated; a rule so well fixed that the fathers inserted in the Constitution of the United States, at the conclusion of the bill of rights, the ninth amendment:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The facts involved in the instant case do not bring it within the language, spirit or intent of the statute; and hence no vacancy existed in the office of superintendent of public instruction and Dr. Voelker continued to hold over under the constitutional provision above quoted prescribing his term of office.
"The term of the office is fixed at two years, certain, with a contingent extension. When this contingency happens, this extension is as much a part of the entire term as any portion of the two years." People, ex rel. Melony, v. Whitman, supra.
See, also, Commonwealth, ex rel. Broom, v. Hanley, *Page 226 9 Barr. (9 Pa.) 513; Ballantyne v. Bower, 17 Wyo. 356 (99 P. 869,17 Ann. Cas. 82).
The legislature, also, in pursuance of the constitutional authority above quoted, by Act No. 159, Laws of 1851, which now stands as 1 Comp. Laws 1929, § 3381, provided:
"That whenever, from any cause, there shall be a vacancy in the office of * * * superintendent of public instruction * * * the governor shall have power to appoint some suitable person to fill such vacancy, and the person so appointed shall take the same oath of office, and give a bond in the same manner as provided by law for the officer for whose vacancy he shall be so appointed; and such person shall hold such office * * * until his successor shall be elected and qualified under the Constitution of this State, or until the close of the next session of the legislature."
This statute, however, goes back to the constitutional provision that the legislature may provide by law the cases in which any office shall be deemed vacant, and is subject to and in furtherance of the constitutional authority of the governor, whenever a vacancy occurs in any of the State offices, to fill the same by appointment.
An office is vacant whenever it is unoccupied by a legally qualified incumbent, who has a lawful right to continue therein until the happening of some future event. Mayes v. Bassett,17 N.M. 193 (125 P. 609).
"A 'vacancy in office,' within the meaning of the law, can never exist when an incumbent of the office is lawfully there and is in the actual discharge of official duty."Holtan v. Beck, 20 N.D. 5 (125 N.W. 1048). *Page 227
"An existing office without an incumbent is vacant."Commonwealth, ex rel. Barratt, v. McAfee, 232 Pa. 36 (81 A. 85).
"The term 'vacancy' means an empty space, a place unfilled, and when applied to an office it means the state of being destitute of an incumbent, or a want of the proper officer to officiate in such office." Richardson v. Young, 122 Tenn. 471 (125 S.W. 664).
"The words 'vacancy' and 'occupancy' imply the opposite."Danels v. Farm Property Mutual Ins. Ass'n of Des Moines,213 Iowa, 352 (239 N.W. 24).
" 'Vacancy in office' means the absence of an incumbent of the office who has been legally inducted therein." State, exrel. Plunkett, v. Miller, 162 Miss. 149 (137 So. 737).
No vacancy occurred in the office of superintendent of public instruction. Dr. Voelker was, at the time of the appointment of Dr. Elliott, in office.
"Vacancy in an office means the want of an incumbent at the time." State v. Johns, 3 Ore. 533, 537 (approved in Baxter v.Latimer, 116 Mich. 356).
July 1, 1935, Dr. Voelker was in office, constitutionally qualified and entitled to hold that office until his successor was elected and qualified.
2. If Dr. Keyworth was a successor of Dr. Voelker, if he was elected, if he had taken the oath of office, if he would have been entitled to the office without doing anything further than he had done had he lived to July 1, 1935, if title to the office of superintendent of public instruction for the ensuing term was vested in him, then, had he lived, he could have resigned the office of superintendent of public instruction at any time after June 22, 1935, and prior to July 1, 1935. If he could not have resigned *Page 228 the office, then the office and the right thereto was not completely vested in him, in which case there was no vacancy caused by his death.
"One elected to an office cannot resign it, until after he has qualified, and entered into possession of it." Throop on Public Officers, § 413.
See, also, Miller v. Board of Supervisors of SacramentoCounty, 25 Cal. 93.
One cannot resign that which he has no right to occupy.Queen v. Blizard, L. R. 2 Q. B. 55 (15 L. T. 242); In reCorliss, 11 R.I. 638 (23 Am. Rep. 538); Throop on Public Officers, § 413.
In Stocking v. State, 7 Ind. 326, the court reviewed plaintiff-in-error's conviction of murder. It was urged his conviction was void because the judge who presided was not properly the judge of the court. It was said:
"There is no technical nor peculiar meaning to the word 'vacant' as used in the Constitution. It means empty, unoccupied; as applied to an office, without an incumbent. * * * An existing office, without an incumbent, is vacant, whether it be a new or an old one."
In Miller v. Board of Supervisors of Sacramento County,supra, Miller was elected public administrator for term to begin the first Monday in March. On the first Monday in March, before taking the oath of office, or giving a proper bond, he resigned. March 15th he gave notice he withdrew his resignation, took the oath of office, and tendered his official bond which was rejected because he had resigned. He brought certiorari. It is said:
"At the time the petitioner undertook to resign the office of public administrator he was not in fact invested with that office. Before he could become *Page 229 so, he was required by law to take the constitutional oath, and execute with sureties a proper bond to be approved by the board. * * * Having the mere naked right to the office of public administrator, the taking of the constitutional oath of office and executing the bond prescribed were conditions which, fully completed, were essential to the constituting of the petitioner such officer. * * * If the petitioner had not become the incumbent of the office which he Was elected to fill, he had no office to resign."
"An incumbent of an office is one who is legally authorized to discharge the duties of that office. State, ex rel. Peters, v. McCollister, 11 Ohio, 46.
In Queen v. Blizard, supra, Lord Chief Justice Cockburn said:
"A man cannot resign that which he is not entitled to, and which he has no right to occupy."
This language was quoted with approval in Re Corliss, supra.
Not being in the possession of the office; not being able to resign the same, because one cannot resign an office he has no right to occupy; we must conclude Dr. Keyworth never had vested in him title to the office of superintendent of public instruction, and consequently Dr. Voelker is entitled to hold over under the constitutional provision above quoted.
3. The Constitution does not provide that one shall hold the office of superintendent of public instruction until some one competent to fill the office is elected and qualified. The constitutional language is "until his successor is elected and qualified."
"The word 'successor' is used in our statutes, as in the books, in the twofold sense of the one entitled to succeed, and the one who has in fact succeeded." People, ex rel. Sweet, v.Ward, 107 Cal. 236 (40 P. 538). *Page 230
Dr. Keyworth was elected, but he died June 22, 1935, prior to the beginning of the term of office for which he was elected. He never entered upon the performance of his duties as superintendent of public instruction; never had the right to enter upon and perform them; never occupied the office; and never vacated it. He could not well vacate that which he never occupied. He never succeeded Dr. Voelker in the office of superintendent of public instruction; never was in a position to succeed him; never had a right to succeed him; and never was his successor. Had Dr. Voelker vacated the office July 1, 1935, he would not have been succeeded by Dr. Keyworth who was already dead. A "successor" is one who follows or comes into the place of another. Dr. Keyworth did not follow Dr. Voelker, was not in a position to come after him in office, or to come into his place. In fact, there is no claim that Dr. Keyworth was the actual successor of Dr. Voelker. On the other hand, it is the claim that Dr. Elliott is entitled to be the successor of Dr. Voelker. Under the clear language of the Constitution, how can one who was never in office and never in a position to take the office be said to be the successor of one in office?
In Berry v. Berry, 165 Miss. 472 (144 So. 695), a controversy arose over the office of justice of the peace. A justice of the peace was elected to hold office for four years or until his successor was qualified. The statute of Mississippi provided that if a justice failed to qualify, or any officer held over after his regular term of office had expired, a vacancy in such office should occur which might be filled by appointment. It was held, under this statute, that in a strict sense there was no vacancy so long as there was a lawful incumbent; but the statute prescribing when a vacancy in office should occur recognized *Page 231 the statutory right of an incumbent to hold over but expressly declared that in case he held over there should be a vacancyfor the purpose of appointment and qualification of asuccessor. A similar question was before the court in Kline v.McKelvey, 57 W. Va. 29 (49 S.E. 896).
The rule stated in State, ex rel. Elliott, v. Bemenderfer,96 Ind. 374; State, ex rel. Attorney General, v. Seay, 64 Mo. 89 (27 Am. Rep. 206); Gosman v. State, ex rel. Schumacher,106 Ind. 203 (6 N.E. 349), and similar cases, is:
"Where, however, a successor has been elected and qualified, the right of such successor to the ensuing term vests immediately, and the contingent right of the incumbent is thereby defeated. In such a case the death of the officer-elect before the commencement of the term for which he was elected does not revive the right of the incumbent to hold over. A vacancy results. The title to the office for the succeeding term having vested in another, the owner of the term having died, and the contingent right of the incumbent having effectually ended, the office can only be filled by a resort to the means provided for supplying the vacancy." (Gosman v.State, ex rel. Schumacher, supra.)
This is not true. Because someone is elected and qualified for the office does not make him a successor. Where a person is elected and qualifies for the office, the right of such successor to the ensuing term may vest immediately. But there is a difference between the "right to begin a term" and "the beginning of a term." The right to begin a term upon the happening of an expected contingency does not make him the successor of the person in office. The right of the incumbent is not contingent, but absolute, until the expiration of his term. Upon the expiration of his term of office, if his successor has *Page 232 been elected and has qualified, then he will be succeeded, or the person who is his successor has a right to succeed him. But if the person who is elected and qualified dies before the commencement of the term of office for which he was elected, he is not a successor and does not succeed the person in office who continues to hold over until his successor is elected and qualified. No vacancy results. Under the law of this State, one elected and qualified to hold the office is in charge of the office. The person elected and qualified to succeed him has never taken the office, never entered upon the duties of the office, and his death does not vacate the office. The reasoning of this and similar cases is in plain disregard of the provisions of the Constitution and, in this State, of the repeated decisions of the court.
In State, ex rel. Attorney General, v. Seay, supra, the facts giving rise to the litigation were substantially similar to those in controversy here; but, under the Constitution of Missouri, the governor, upon being satisfied that a vacancy exists, is directed to issue his writ of election to fill the vacancy.
"The governor shall, upon being satisfied that a vacancy exists, issue a writ of election to fill such vacancy." Constitution of Missouri 1865, art. 5, § 14.
This language plainly confers the power and authority ofdetermining the question whether a vacancy exists upon thegovernor, and his determination is final and conclusive. No such provision is found in the Constitution of Michigan. In this case, the court of Missouri disagreed with the holding of this court in People, ex rel. Andrews, v. Lord, 9 Mich. 227, which established a rule based upon sound sense which has been repeatedly followed by this court. *Page 233
In Gosman v. State, ex rel. Schumacher, supra, which followed the Missouri case above cited, the Constitution provided that a person elected to the office there involved should hold over until his successor was elected and qualified. The Constitution also provided such officer should be ineligible to the office more than 8 years in any period of 12 years. The person who was claiming by virtue of the constitutional right to hold over had already served 8 years continuously and could not further hold office without violating the constitutional prohibition against holding office for more than 8 years in any period of 12 years.
In People, ex rel. Sweet, v. Ward, supra, the same rule was followed, but the court said:
"The incongruity of declaring a person an incumbent who has never taken possession or entered upon the discharge of the duties of an office, and who could not be chargeable with misfeasance or malfeasance, is apparent. But the learned justice who wrote the opinion in this case was constrained somewhat by the earlier decisions of the court, and by his own conviction afterward expressed in Rosborough v. Boardman,67 Cal. 116, that a vacancy could not exist unless it was one contemplated and declared by Political Code, § 996. The legitimate meaning of the word 'incumbent' was, therefore, somewhat strained to meet the substantial ends of justice, the incongruity resulting from the failure of the legislature to discriminate in the use of descriptive terms."
The gist of this case is in the language:
"It is a general rule, founded upon necessity, to prevent vexatious embarrassment in the public service, that an officer will not be considered out of office merely by the limitation of his term. In the absence of a statute authorizing or requiring him to *Page 234 hold until the qualification of his successor a vacancy arises upon the expiration of his term; but, notwithstanding, the law, for the public convenience, empowers him to continue to occupy his office. But one so holding over acquires no right to a new, fixed, and definite term. He is a makeshift merely, locumtenens, temporarily filling a public office which it is inexpedient to permit to stand without an incumbent."
In other words, the court enforced the provision of the Political Code, § 879, which provides that such officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified, recognizing the force of Political Code, § 878, which provides:
Every office of which the duration is not fixed by law, is held at the pleasure of the appointing power."
Ward was elected district attorney for the term beginning January 2, 1893. At the general election in November, 1894, William Darby was elected to succeed him, and Darby qualified before the beginning of his term of office, and died December 15, 1894. January 2, 1895, the personnel of the board of supervisors having changed, "the board as then constituted declared a vacancy to exist in the office of district attorney, and appointed the relator to fill the same during the term for which Darby had been elected."
It was held that by the county government act of 1891, § 60, and Political Code of California, § 879, there was a vacancy in the office and the board of supervisors could fill it.
Ward was elected for a fixed term and, under Political Code, § 879, he was obliged to continue to discharge his duties, although his term had expired, *Page 235 until his successor was qualified. His successor could be appointed. He was appointed. Ward's term had expired. The appointee qualified, and that terminated Ward's right and his duty to discharge the duties of his office although his term had expired. Ward held for a fixed term, and thereafter for a period not fixed by law and pursuant to Political Code, § 878, "at the pleasure of the appointing power."
State, ex rel. Johnson, v. Albert, 55 Kan. 154 (40 P. 286), involved a claimed vacancy in the office of probate judge. There, the claimed successor had been elected, filed the requisite oath and bond, and then died before the beginning of his term. The court held there was a vacancy, relying uponState, ex rel. Attorney General, v. Seay, supra, and State, exrel. Elliott, v. Bemenderfer, supra, neither of which, under our Constitution and laws, has any application to the point here involved.
In People, ex rel. Robinson, v. Boughton, 5 Col. 487, it was held that the facts and the constitutional and statutory provisions there involved brought the case fairly within the rule laid down by the supreme court of Missouri in State, exrel. Attorney General, v. Seay, supra. People, ex rel. Illinois Midland R. Co., v. Supervisor,100 Ill. 332, so far as it relates to any question important here, merely points out that under the constitution and law of Illinois the public officers named therein hold office until their successors shall be qualified and that, even though an officer who is elected and qualified may resign, he still, under the Constitution and laws of that State, holds office until his successor is qualified.
These cases arose under constitutional and statutory provisions different from ours. What appears *Page 236 to be the sophistical and unsound reasoning contained therein must be considered with reference to the plain provisions of the Constitutions and statutes there involved; and, when so construed, they do not all militate against the rule established by this court, which is the rule which must, at least should, govern here.
The precise point in controversy in this case is whether there was a vacancy in the office of superintendent of public instruction on the 1st day of July, 1935.
If there was such a vacancy, how did it occur? Dr. Keyworth never entered upon the duties of the office, he never occupied it, and consequently could never vacate it. A vacancy is a place which is empty. The term "vacancy" is applied to cases where an office is not filled. But, under the Constitution of this State, Dr. Voelker was in the office on the 1st day of July, 1935, and holding under a constitutional provision which authorized him to hold until that time and until his successor was elected and qualified.
One cannot vacate an office which he has never filled any more than he can vacate a house which he has never occupied. An office becomes vacant when it is unoccupied; when there is no one who has a legal right to hold it.
4. Though the superintendent of public instruction is not a disbursing officer of the State, his official acts may affect the rights and interests of other individuals and of communities. His general duties are prescribed by 2 Comp. Laws 1929, § 7331, and among the duties prescribed by this statute is that of requiring boards of education to observe the laws relating to the public schools. It is his duty to require boards of education to account for and pay over to the credit of the school district all moneys *Page 237 legally expended or otherwise disposed of, and to compel such observance and such accounting by appropriate legal proceedings instituted in courts of competent jurisdiction by the attorney general; to examine and audit the official records and accounts of any school district, and to require an accounting from the treasurer of any school district when deemed necessary; to require all school districts to maintain school or provide educational facilities for all children resident in the district; to require school boards to carry out recommendations relative to the safety of school buildings, equipment and appurtenances in the interest of the public health and safety of school children; to do all things necessary to promote the welfare of the public schools and public educational institutions of the State; and to account to the governor for the performance of his duties, and to make recommendations as to the future. It is his duty to appoint a time and place for holding teachers' institutes in the several counties of the State, and to report to the governor and the legislature. In addition to these general duties, he is to apportion the primary school fund (2 Comp. Laws 1929, § 7339, as amended by Act No. 17, Pub. Acts 1931), and file a statement of that apportionment with the auditor general who is to draw his warrants in accordance with such apportionment (2 Comp. Laws 1929, § 7347). The superintendent of public instruction may demand of the county clerk of the county in which a teachers' institute is held such sum as may be needed to defray the cost and expense thereof, and cause such sum to be drawn from the county treasury, not exceeding, however, the amount on hand and in his office (2 Comp. Laws 1929, § 7672); and he may cause money to be drawn for the education of blind, deaf and crippled children (2 Comp. Laws 1929, § 7560); and *Page 238 institute proceedings in proper cases for the dissolution of corporations organized for educational purposes (2 Comp. Laws 1929, § 10108).
Each of these things affects, or may affect, the rights and interests of other people of the State. It is to secure the performance of these duties that the legislature passed Act No. 311, Pub. Acts 1905 (1 Comp. Laws 1929, §§ 390, 391); and Act No. 8, Pub. Acts 1927 (1 Comp. Laws 1929, § 392), which provides:
That the superintendent of public instruction when he enters upon the duties of his office, shall give a surety company bond to the people of the State of Michigan in the penal sum of ten thousand dollars conditioned upon accounting for and paying over any money or moneys which shall or may come into his hands or under his control by reason of his holding such office."
This bond covers accounting for any and all moneys which shall or may come into the hands of the superintendent of public instruction or which may come under his control; and for paying over any money or moneys which shall or may come into the hands of the superintendent of public instruction or under his control.
Certainly such bond is not given for any other purpose than to secure the performance by the superintendent of public instruction of his official duties in accordance with the Constitution and laws of the State so far as accounting for and paying over money is concerned.
"Public officers to whom are entrusted the collection and custody of public money, and public ministerial officers whose actions may affect the rights and interests of individuals, are usually required to secure the faithful and proper discharge of their *Page 239 duties by giving bonds conditioned to that effect." Mechem on Public Offices and Officers, § 263.
"Whenever an act to be done under a statute, is to be done by a public officer, and concerns the public interest, or the rights of third persons, which require the performance of the act, then it becomes a duty in the officer to do it."Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. (N.Y.) 101, 113 (9 Am. Dec. 274).
See, also, Smith v. State, 1 Kan. 365, 391 (citing Mayor,etc., of the City of New York v. Furze, 3 Hill [N.Y.], 612;Cutler v. Howard, 9 Wis. 309).
"The term 'qualify' as 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 his 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 of the person elected or appointed."State, ex rel. Johnson, v. Albert, supra.
"Oaths and bonds (when bond is required) constitute the only guarantees of official fidelity; the one appealing to the conscience and the other to the purse. It is, therefore, the unavoidable conclusion, unless both the spirit and the letter of the law are to be construed away, that no one of the respondents is a legally constituted school trustee for said city." Childrey v. Rady, 77 Va. 518.
"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 the official oath and executing an official bond."State, ex rel. Elliott, v. Bemenderfer, supra.
See, also, Bradley v. Clark, 133 Cal. 196 (65 P. 395).
"It cannot be known until the new officer is 'qualified' that he will ever enter upon his duties, and until *Page 240 then all the duties of the office, of every kind devolve upon the incumbent." Wells v. Mayor City of Atlanta, 43 Ga. 67.
"It cannot be doubted that the giving of the bond is one of the requirements for qualifying." Ballantyne v. Bower, supra.
By 1 Comp. Laws 1929, § 1 390, the superintendent of public instruction may give a surety bond in a surety company authorized to do business in this State; and, while it is said that there is no requirement this bond shall he approved, it is approved by the commissioner of insurance when the surety company giving it is authorized to do business in the State. No justification by the surety on the bond is necessary. Such bond is to be filed and kept in the office of the secretary of State.
The statute requires the giving of the bond by the superintendent of public instruction "when he enters upon the duties of his office;" that is, at the time he enters upon the duties of the office. As said in Worley v. Smith, 81 N.C. 304:
"The qualification and induction are directed to be done at one and the same time."
At least, under the law of this State, entering upon the duties of the office and giving the statutory bond are, and must be, contemporaneous, correlative and interdependent acts. No one may enter the office without giving the statutory bond. No one need give the statutory bond except at the time he enters upon the duties of the office. Until the statutory bond should be filed, Dr. Keyworth could not have entered upon the duties of the office; and until that time, Dr. Voelker's duty was to carry out and perform the duties of the office. Dr. Keyworth never filed or tendered for filing the statutory bond, and never *Page 241 qualified to hold the office of superintendent of public instruction or to perform the duties of that office; and, hence, his death before qualification caused no vacancy in that office.
5. The Constitution fixes the official term of the superintendent of public instruction for two years "and until his successor is elected and qualified."
Dr. Keyworth died June 22, 1935. Dr. Voelker was holding the office of superintendent of public instruction at that time. His term of office had not expired. Who is his proposed successor? Not Dr. Keyworth, but Dr. Elliott. Dr. Keyworth never entered upon the duties of the office. He never performed the duties thereof. He never was an incumbent of the office. He was never legally inducted therein. Dr. Voelker's successor must have been elected in order to be entitled to the office. He must be elected and qualified. Dr. Elliott has never been elected. How, under a constitutional provision like ours, may Dr. Elliott be held to be entitled to the office of superintendent of public instruction? Only if we construe the constitutional provision for election and qualification to meanappointment and qualification. But the term elected carries the idea of a vote, generally popular, sometimes more restricted, and cannot be held to be synonymous with any other mode of filling the position (State, ex rel. Clarke, v. Irwin,5 Nev. 111, 121; Magruder v. Swann, 25 Md. 173, 214), whileappointment means the designation of a person, by the persons having authority therefor, to discharge the duties of some office or trust (1 Bouvier Law Dictionary [Rawle's 3d Rev.], p. 215).
Appointment and election are not synonymous. They are separate and distinct functions. An election is selection by all of a class. Appointment is *Page 242 made generally by one or several. The one is the exercise of a sovereign power; the other of a delegated power. We cannot consistently, with the ordinary use of the English language, construe the constitutional provision for election to mean appointment; and such has been the construction placed upon our Constitution from the beginning.
"The framers of the Constitution unquestionably understood that there was a difference in filling an office byappointment, and by election. And where either of these words are used in a statute law, under that Constitution, this court ought not, unless for strong and powerful reasons, to give to the word a different meaning from that which it plainly imparts, as used in that instrument." State, ex rel. Peters, v.McCollister, supra.
6. Whatever may be the rule elsewhere under the Constitutions or laws there in force, the rule adopted by this court in accordance with the spirit of the Constitution which provides:
"All political power is inherent in the people." Constitution 1908, art. 2, § 1.
is plainly declared in People, ex rel. Andrews, v. Lord, supra;Lawrence v. Hanley, 84 Mich. 399; Conely v. Common Council ofDetroit, 93 Mich. 446; Baxter v. Latimer, 116 Mich. 356.
In People, ex rel. Andrews, v. Lord, supra, the Constitution provided that the judge of probate should hold office for four years and until a successor was elected and qualified. The court said:
"His term of office did not expire on the first day of January, 1861, unless some one elected and qualified was thenready to take the office."
In Lawrence v. Hanley, supra, the court commented extensively upon the opinion in People, ex rel. Andrews, v. Lord, supra, and said: *Page 243
"It was held that Van Valkenburgh, who stood in the place of North, the deceased judge, would hold the office until his successor was elected and qualified, and that his term did not expire on the 31st day of December, 1860, and that Lord's appointment was therefore void. And it was also held that it was not a technical vacancy, but a case where a new election was expressly provided for by paragraph 3, § 138, How. Stat., heretofore quoted; that the election in the fall had fallen through by the death of the person elected before the time arrived when he could qualify and take his office; and that the appointment of Lord was made when Van Valkenburgh had an existing title to the office, and therefore void."
It was contended in that case, as it is contended here, that the principle laid down in the Lord Case should not be followed, but the court said:
"We think that the construction was correct, and in harmony not only with the Constitution and laws, but with the policy of our State, which from the beginning has inclined most strongly in favor of elections by the people of local officers, as against the appointment of the same by the governor or the legislature."
In Conely v. Common Council of Detroit, supra, it is said:
"In People, ex rel. Andrews, v. Lord, 9 Mich. 227, andLawrence v. Hanley, 84 Mich. 399, 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 duties of the office."
In Baxter v. Latimer, supra, it is said:
"An office is not vacant so long as it is supplied, in the manner provided by the Constitution or law, *Page 244 with an incumbent who is legally qualified to exercise the powers and perform the duties which appertain to it; and, conversely, it is vacant, in the eye of the law, whenever it isunoccupied by a legally-qualified incumbent who has a lawful right to continue therein until the happening of some future event."
The court cited with approval People, ex rel. Andrews, v.Lord, supra; Lawrence v. Hanley, supra; Conely v. CommonCouncil of Detroit, supra.
There was no vacancy in the office of superintendent of public instruction so long as there was a legally qualified incumbent of the office. There was no vacancy because the office was not unoccupied. There can be no such thing, under the law of this State, as a vacancy in an office which is occupied. Baxter v. Latimer, supra.
These cases, it seems to me, put at rest the question here involved, and, unless they are to be overruled and a rule of constitutional construction at variance therewith adopted, they must be held to govern.
As a result of his election, Dr. Keyworth never had anything except an inchoate and contingent right to occupy the office of superintendent of public instruction if he lived to July 1, 1935. An unforeseen contingency intervened so that he never became superintendent of public instruction, and never entered upon the duties of the office.
One is not a successor of a public officer who does not succeed him in office. Dr. Keyworth was never invested with the duties of the office; and was not divested of them by his death. He was never in office, and consequently did not go out of office at his death. He never had title thereto and, therefore, could not have resigned what he did not hold. He never occupied the office and, therefore, could not vacate that which he never occupied. *Page 245
The writ of ouster should be denied; but without costs, a public question being involved.
BUSHNELL, J., concurred with POTTER, C.J.