State ex rel. Broatch v. Moores

Sullivan, J.,

dissenting.

It seems to me the decision of the court is the result of a strange perversion of the statutory provisions quoted *293in the opinion. The argument which leads to the conclusion reached was not advanced by any of the learned counsel for respondent, and they will, doubtless, be amazed and much chagrined to learn that their client has at last succeeded in the action without effective aid from them. The assumption that section 102 was intended to apply only to exceptional cases and “as a last resort” is manifestly unwarranted. The language is sweeping, and plainly includes all the elective and appointive officers, agents, and servants holding office or intrusted with the care of public property or affairs under any general law or ordinance of the city, excepting those concerning whom some special provision had been made in the act. All persons lawfully holding public places under the charter of 1887 were to continue to exercise their functions under the act of 1897 until the election and qualification of their respective successors, except in cases where the new “act otherwise provided.” The new act did otherwise provide for the board of fire and police commissioners. It did otherwise provide in section 17, which immediately conferred upon the mayor and council the power to remove certain officers of the city for' cause, and to fill the vacancies thereby created. It did otherwise provide in section 103, which authorized the district court to remove any officer convicted of malfeasance or misfeasance, and provided that such' officer, pending the proceedings against him, might be deprived of the right to exercise his trust. In these particular instances, and perhaps in others, the first sentence of sec-' tion 102 was, for obvious reasons, made inapplicable. The office of the clause, “except as in this act otherwise provided,” was to make the act congruous — to give its parts harmonious relation — and to prevent the claim being set up that every one who held an office or exercised a trust under the old law should possess an absolute and unqualified right, by virtue of the special provision, to continue in office and in the exercise of such trust until relieved by a qualified successor chosen under the author*294ity of the new charter. It is known, of course, to those familiar with the recent political history of the state that back of the provisions concerning the police and fire commissioners was a distinct legislative purpose to precipitately end the official existence of the members of the old board; but neither in the act nor out of it is there anything whatever to warrant the assertion that the legislature contemplated unseemly or unusual haste in disposing of public servants who held their places directly or derivatively from the local electorate. Section 75 was certainly not adopted as part of a general scheme to accelerate the displacement of officers who were to hold temporarily under the saving clause of the substituted charter. It was a permanent provision, and intended to be effective so long as the law should remain in force. It is familiar doctrine that in the absence of a clear legislative intention to precisely limit the tenure of an office so that at a particular time the authority of the incumbent shall cease, such incumbent is entitled to exercise his official functions until another person is qualified to assume them. In McCrary, Elections [3d ed.], section 314, it is said that both reason and authority support the proposition that there is an implied right to hold over, unless the contrary appears to be the plain requirement of the statute. Section 104 of chapter 26, Compiled Statutes 1897, provides: “Every officer elected or appointed for a fixed term shall hold office until his successor is elected, or appointed and qualified, unless the statute under which he is elected or appointed expressly declares to the contrary.” Where is there an express declaration, or even reasonable implication, that the mayor of Omaha shall not hold his office and exercise its functions until a duly chosen and qualified successor is ready to take his place? Attention is directed in the majority opinion to section 75, where it is said that “when any vacancy shall happen in the office of mayor by death, resignation, absence from the city, removal from office, refusal to qualify, or otherwise, the president of the council” shall fill *295such vacancy. It is then argued that, since a refusal to qualify by one who has been elected and is eligible creates a vacancy, a failure to qualify, by one who has received a plurality of votes, but who has not been elected because of ineligibility, must also create a vacancy and be comprehended within the meaning of the word “otherwise.” Undoubtedly the legislature may, when not restrained by the constitution, declare what circumstance shall constitute a vacancy in office, but I have always understood that, in the absence of an express statute, a vacancy does not exist where there is a person lawfully in possession of the office competent to exercise'its functions and invested with authority so to do. (Meachem, Public Officers sec. 126; People v. Van Horne, 18 Wend. [N. Y.] 515; State v. Howe, 25 O. St. 588; State v. Harrison, 113 Ind. 434; People v. Tyrrell, 87 Cal. 475.) In Commonwealth v. Hanley, 9 Pa. St. 513, it was held that where an officer elect dies before qualifying, his death does not create a vacancy. And in section 330 [3d ed.] of Mc-Crary, Elections, it is said: “There are authorities of great weight holding that the power to fill a vacancy occurring in an office cannot be exercised until the office has once been filled during the term thereof; and that therefore no such power exists in a case where there has merely been a failure to elect within the time required by law.” In the Boyd Case it was held that the election of an ineligible candidate to the office of governor was void, but that the failure of the election did not create a vacancy. It was also held in Richards v. McMillan, 36 Neb. 352, that the failure to elect a person qualified to hold the office of county treasurer did not create a vacancy within the meaning of section 101 of the general election law. In the first point of the syllabus it is said: “A county board is not authorized to declare vacant a county office and make an appointment to fill such vacancy on the sole ground that an officer elect is ineligible and therefore unable to qualify. The incumbent of such office has a right to qualify -within ten days after it is *296ascertained, that his successor elect is ineligible, and upon qualifying’ in the manner provided by law will be entitled to hold over until a successor is elected and qualified.” The section of the statute defining vacancies specifies nine events, upon the happening of any one of which a public office shall become vacant. Five of these are enumerated in section 75, and the other four are presumably included in the word “otherwise.” A mere failure to elect does not of itself create a vacancy. The statute so states and this court has so decided. The decision on the demuiTer was right. The judgment of ouster was in accordance with the law and the facts and should be adhered to. This important litigation, after its eventful career, should not end in a dog-fall.