The issue involved in this cause is whether on July 1, 1935, there was a vacancy in the office of superintendent of public *Page 247 instruction. There could be no vacancy if there was a legally qualified incumbent of the office. In People, ex rel. Andrews, v. Lord, 9 Mich. 227, this 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. This case was decided under Constitution of 1850, art. 6, § 13, which provides:
"The judge of such court (probate) shall be elected by the electors of the county in which he resides, and shall hold office for four years, and until his successor is elected and qualified."
Section 2 of article 11, Constitution of 1908, provides:
"He (superintendent of public instruction) 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."
It is to be noted that the particular provision of the Constitution of 1850 is almost identical to the provision of the Constitution of 1908. It appears to me that the construction placed upon the constitutional provision in the 1850 Constitution should have great weight with this court in construing a similar provision of the Constitution of 1908.
"Where a particular interpretation has been placed on a statute by the court and the legislature at its subsequent meetings has left the statute materially unchanged, it is presumed that the legislature has acquiesced in that interpretation." 59 C. J. p. 1012.
"It will be presumed that a statute was passed with the intent that it should have the same effect as that given by the courts to previous similar statutes." 59 C. J. p. 1011. *Page 248
Under this interpretation the term of office of Dr. Voelker did not expire July 1, 1935, unless there was some one not only elected but qualified to enter into and assume the duties of the office and, under the facts in this case, Dr. Elliott should be denied title to the office of superintendent of public instruction. I, therefore, concur in the result stated by Mr. Justice POTTER.
The late Justice NELSON SHARPE took no part in the decision of this case.