(concurring).
I concur in the result.
I do not concur in the proposition that the provisions of the Duluth charter that a municipal judge shall hold over after the expiration of his term until his successor is elected and qualified, is wholly void because the term and the hold-over period together might exceed the constitutional limit of seven years in the contingency of failure of election and qualification of a successor within that time. The hold-over provision is valid, except insofar as it conflicts with the Constitution. The conflict is as to any excess over seven years, and the provision is void only as to any excess. This is the rule favored by the authorities. 29 Cyc. 1396; Sinking Fund Commrs. v. George, 104 Ky. 260, 274, 47 S. W. 779, 84 Am. St. 454; State v. Long, 21 Mont. 26, 52 Pac. 645. See also State v. Bates, 108 Minn. 55, 57, 121 N. W. 225; and this seems to me to be the practical and reasonable rule. As a matter of fact county officers in every county in the state are today holding under a statute fixing their term at four years from the first Monday in January, 1915, and until their successors are elected and qualified. G. S. 1913, § 810. That term exceeds the constitutional limit fixed by section 9, art. 7, of the Constitution, which permits of no hold-over at all in such offices. State v. McIntosh, 109 Minn. 18, 122 N. W. 462; State v. Billberg, 131 Minn. 1, 154 N. W. 442. Similar statutory provisions have been common in the past. R. L. 1905, §§ 481, 494, 530, 546, 563, 582, 599. But it has never been considered that such statutes are void except as to the excess over the constitutional limit.
*422My opinion is that a vacancy existed in the office of municipal judge by virtue of the provisions of 6. S. 1913, § 5723, that “every office shall become vacant on the happening of either of the following events * * *:
1. The death of the incumbent. * * *
6. His refusal or neglect to take the oath of office or to give or renew his official bond. * * *
7. The decision of a competent tribunal declaring his election or appointment void.”
In my opinion the seventh subdivision of section 5723 is applicable to this case and its operation necessarily limited the hold-over provisions of the Duluth charter. In the absence of section 5723 failure of election or qualification of a successor would not create a vacancy, but the hold-over official would continue to hold over until another election, or as long as permitted by the Constitution.
Section '5723 was designed to prevent just such a result. Instead of leaving the hold-over official in office until a succeeding election, it provides that the office shall become vacant, if, after the election, the incumbent fails to qualify or his election is judicially declared void. This statute operates to terminate the tenancy of the hold-over officer in either of these events.
It seems to me there should be little doubt as to the meaning of this section. The language is not well chosen. Strictly speaking there cannot be such a thing as an “incumbent” who has neither taken the oath of office nor given a required official bond, nor an “incumbent” whose election is void. But the term incumbent can be given no narrow construction. As used in the sixth subdivision, it has been held to include a person elected, but not qualified. County of Scott v. Ring, 29 Minn. 398, 13 N. W. 181. As used in the seventh subdivision, it is intended to include one who is declared elected at an election but whose title is, by reason of some frailty in the election, judicially declared void.
In this case an election was held on a regular election day, for the election of a municipal judge. Judge Smallwood was declared elected by the proper election officials, and received the usual certificate of election. Under well settled rules of law he was entitled to the possession of the office until his title was found defective. State v. Sherwood, 15 Minn. 172 (221). He was an incumbent within the meaning of sub*423division 7, section 5723, and by force of that statute the judgment of the court declaring the election void created a vacancy.
What few authorities there are sustain this position.
It is held that one in office, who is a candidate for re-election and has received the certificate of election and qualifies and acts thereunder, cannot, after the election had been declared void, be heard to say either that he was holding over or entitled to hold over under a former election by virtue of the hold-over provision of a statute. 29 Cyc. 1400; Farrell v. City of Bridgeport, 45 Conn. 191; Handy v. Hopkins, 59 Md. 157; Ex Parte Gray, Bailey Eq. (S. C.) 76.
Hnder a statute the same as ours it has been held that the office becomes vacant on the decision of the court declaring an election void on the ground that the person declared elected was ineligible. Campbell v. Board of Suprs. of Santa Clara County, 7 Cal. App. 155, 93 Pac. 1061. A determination that the election was void because of violation of the corrupt practices act would beyond doubt have the same effect. See State v. Billberg, 131 Minn. 1, 154 N. W. 442. It can make no difference on what ground the election is adjudged void. The statute makes no distinction between an election declared void because of ineligibility or personal misconduct, and one declared void because of a wrong method of voting. It is the decision of a competent tribunal declaring the election void, and not the ground of the decision, that creates the vacancy. The purpose of section 5723 is to create a vacancy in all cases where the old official has exhausted the term for which he was elected and an election has been held to choose a successor, even though the successor chosen refuses to qualify or the election be wholly void.
Taylor v. Sullivan, 45 Minn. 309, 47 N. W. 802, 11 L.R.A. 272, 22 Am. St. 729, is not an authority against this view. In the decision in that case no mention is made of the “vacancy” statute. A constitutional provision that would have been decisive of the case was overlooked. See State v. Billberg, supra. It is quite apparent that the “vacancy” statute was likewise overlooked.