Dr. Keyworth died before entering upon the duties of his office. Dr. Voelker, the incumbent, was elected to "hold office for a period of two years * * * and until his successor iselected and qualified." Constitution 1908, art. 11, § 2. Dr. Elliott, the relator, has never been elected to the office.
"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." Conely v. CommonCouncil of Detroit, 93 Mich. 446.
"In a majority of jurisdictions, the rule obtains that the death or disability of an officer-elect before qualifying does not create a vacancy in the office which may be filled by the appointing power, since he never occupied the office, and that under the provision that an incumbent shall hold his office until his successor is elected and qualified the prior incumbent is entitled to continue in the office until the election and qualification of his successor." 74 A.L.R. 486.
The authorities cited in Conely v. Common Council of Detroit,supra, are classified by the writer of the text just quoted with those of Arizona, Arkansas, Idaho, Indiana, Iowa, Maine, Minnesota, Missouri, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, *Page 246 Washington and Wyoming. For citation of such authorities, see 74 A.L.R. 486 et seq.
The respondent devotes much space in his brief to an argument headed:
"This incumbent is in possession, no elected and qualified successor has appeared to take over the office and none of the facts necessary to constitute a vacancy under the statutory definition have occurred."
I adopt that view as well as the following statement:
"Certainly physical presence and existence are the chief qualifications for office."
I take this position because I believe it to be the law of this State as well as that of the majority of the others who have had occasion to pass upon the question. To hold otherwise we must overrule People, ex rel. Andrews, v. Lord, 9 Mich. 227, and hold for naught the language of Mr. Justice CAMPBELL who said in reference to a like situation.
"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."
Section 3350, 1 Comp. Laws 1929, applies only to vacancies in the event of the happening of certain events before the expiration of the term of such office. The governor's appointment being made on July 1st was not to a vacancy occurring before the expiration of the term.
For these additional reasons, I concur in the result stated by Mr. Justice POTTER.