Toy, Ex Rel. Elliott v. Voelker , 273 Mich. 205 ( 1935 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is quo warranto to try the title of respondent 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. At the general election in April, 1935, Dr. Maurice Keyworth was elected as his successor for the term beginning July 1, 1935. June 20th, Dr. Keyworth took and filed the constitutional oath of office. He did not give the bond provided in 1 Comp. Laws 1929, § 392. He died June 22d. On July 1st the governor, deeming the office vacant, appointed relator, Eugene Elliott, thereto. Dr. Elliott duly qualified, demanded possession of the office and Dr. Voelker refused to surrender it on the claim that he holds over under constitutional mandate.

The Constitution provides:

"A superintendent of public instruction shall be elected at the regular election to be held on the first Monday in April, nineteen hundred nine, and every second year thereafter. 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.

"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.

See, also, 1 Comp. Laws 1929, §§ 3361, 3365.

"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.

By 1 Comp. Laws 1929, § 3350, the legislature provided:

"Every office shall become vacant, on the happening of either of the following events, before the expiration of the term of such office."

Seven clauses of events resulting in vacancy are set up, all referring to acts of or conditions affecting the incumbent. The enumeration is not exclusive. The statute does not purport to, nor could the legislature, deny the fact that a vacancy exists when an officer completes his constitutional term of office and no one is legally authorized to succeed him.

The issue here is whether Dr. Voelker's term of office expired June 30th. Two questions are presented:

1. Whether, in order to have "qualified" within the meaning of the constitution, Dr. Keyworth would need to have lived until the commencement of the term for which he was elected,i. e., to July 1st.

2. Whether the failure of Dr. Keyworth to give the bond provided in I Comp. Laws 1929, § 392, resulted in his failing to "qualify" before his death.

Upon the first question there are no decisions of this court in point. The apparently unanimous opinion elsewhere is that —

"When a successor has been legally elected and qualified, the prior incumbent's right to hold over thereupon ceases, and it does not revive because his successor dies after his qualification, but before the commencement of his term." Mechem on Public Officers, § 401.

See, also, 46 C. J. p. 970.

In direct point are: State, ex rel. Elliott, v. Bemenderfer,96 Ind. 374; State, ex rel. Johnson, v. Albert, 55 Kan. 154 (40 P. 286); State, ex rel. Attorney General, v. Seay,64 Mo. 89 (27 Am. Rep. 206); People, ex rel. Sweet, v. Ward,107 Cal. 236 (40 P. 538); People, ex rel. Robinson, v. Boughton,5 Col. 487.

In the Indiana case the court said:

"The contention of the relator's counsel is that as McVitty died before his term of office commenced, he was never qualified, and, therefore, no successor to the relator was ever elected and qualified. This position is not tenable. The right of McVitty to the office was vested at the time he took the oath in the manner and form required by law, and his subsequent death did not entitle the relator to hold over. A vacancy resulted for the reason that a successor to the relator had been dully elected and qualified, and this having taken place his right to hold over terminated. It cannot be legally possible that when the right to an office has once been destroyed or terminated, the subsequent death of the person who had been elected and who had duly qualified, revives the right which the election and qualification had put an end to, for the right to hold over exists only in cases where there is no legally elected and qualified successor. When the rights of the successor vest, those of the incumbent terminate, and they do vest after election and qualification according to law. This is clear on principle, but authorities are not wanting.

"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 an official oath and executing an official bond."

The Kansas court reasoned:

"Under the constitution, judicial officers hold their offices until their successors have qualified. The term 'qualify,' 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 its 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 required of the person elected or appointed. The successor of the defendant had been elected and qualified. He was, then, entitled to take possession of the office on the second Monday in January; and at that time, had he lived, the right of the defendant to occupy would have terminated. The rights of the parties became fixed when Parry qualified. Although the defendant had the right to fill out his unexpired term he had a right to nothing more. Parry's right to occupy the office thereafter had become full and complete. Nothing whatever remained to be done but to assume and enter on the discharge of its duties when the day should arrive. Parry died. This event, however, conferred no new right on the defendant. The election and qualification of Parry had put an end to his right to hold over. The argument that an appointment to fill a vacancy cannot be made while there is a person in possession of the office entitled to discharge its duties may appear specious at first blush, but on anything like close consideration will readily be found fallacious."

The opposing decisions are based upon the fact that the statute required the qualification and induction into office to be on the same day. Ballantyne v. Bower, 17 Wyo. 356 (99 P. 869, 17 Ann. Cas. 82); Worley v. Smith, 81 N.C. 304.

In this State there is no such statute.

By way of contrast, although there are cases to the contrary, the weight of authority is that where the successor has been elected but dies before the commencement of his term and without having qualified, no vacancy occurs but the incumbent holds over. 50 L.R.A. (N.S.) 374, note; 74 A.L.R. 486, note; Lawrence v. Hanley, 84 Mich. 399. In some of these cases the rule above stated for this case is mentioned and approved, by way of differentiation. But as such references may be considered dicta and the cases are not in point, they need not be specifically cited. It is sufficient to say that no case has been cited or found in which "qualified," in similar provisions of Constitution or statute, means other than performance of acts required by law as a condition precedent to the right to enter upon the duties of the office, i. e., to take the oath and give a bond when bond is required; or that, in the absence of special language, "qualified" contemplates the physical survival of the elected successor until the commencement of his term or to any future time.

Respondent, for authority on his contention that such survival is necessary to "qualify" for the office, relies upon the following language in Conely v. Common Council of Detroit,93 Mich. 446:

"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."

None of these cases is in point. The Conely Case involved appointment or election to a newly-created office and the court held "there was no vacancy in the office, because no office or officer for that district ever existed." The language quoted by the court was wholly foreign to the issue and, apparently, was used by way of illustration or contrast or answer to counsel. Moreover, it was not stated as a rule but merely as the narration of the holdings in the Lord and Lawrence Cases.

In the Lord Case it was decided that, by virtue of the Constitution, where a re-elected judge of probate died before commencement of his new term, an appointee in his place held until his successor was elected and qualified, and a vacancy did not occur at commencement of the new term. The LawrenceCase held that where a successor to an incumbent was elected but died before commencement of his term and without taking any steps to qualify before his death, the incumbent held over. In neither case was the question of what constitutes qualification in issue nor discussed. Nor was there any mention of survival, either to actually take office or to commencement of the term, as an element of qualification.

As a statement of the ruling in the Lord and Lawrence Cases the language in the Conely Case was inaccurate without explanation. Literally, it would mean that to qualify for an office one must take physical possession of the paraphernalia or at least actually begin to perform the duties. Such rule would be an entire departure from the law of public officers. Respondent does not so claim.

The explanation must be that the court had in mind the particular situation in the Lord and Lawrence Cases and indulged either in tautology or in statement of cause and effect. In those cases the election of a successor was held after commencement of the regular term and while the hold over term was in operation. Consequently, immediately upon qualification the elected successor "entered upon the duties of his office." The phrase evidently was used to express the same idea as qualified or to denote its immediate effect. In any event, the language of the court must be confined to the situation before it and to which if was applied and is not authority for a wholly different set of facts.

However, it is contended that these cases indicate a trend of judicial opinion in this State, contrary to authority elsewhere, which adds survival until the commencement of the term to the otherwise accepted meaning of the word "qualified," and the trend is indicated in Baxter v. Latimer, 116 Mich. 356,364, in which the court said:

"An office is not vacant so long as it is supplied, in the manner provided by the Constitution or law, 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 is unoccupied by a legally-qualified incumbent who has a lawful right to continue therein until the happening of some future event."

This rule offers no help because, before it can be invoked, we first must determine whether Dr. Voelker, on and after July 1st, was legally qualified and authorized to exercise the powers and perform the duties of the office. We cannot assume he was so authorized, proceed to the conclusion that, therefore, there was no vacancy and, from the assumption and conclusion, return to the starting point and find that he had the authority.

"Until his successor is elected and qualified" is not esoteric language. The phrase is common in this State and elsewhere. The words are plain and have an accepted meaning in the law. Are there any considerations of the purpose of this provision which require a different construction than the natural one of taking the oath and filing the bond, where a bond is required, and performing such other acts, if any, as the law may require as a condition precedent to the right to take the office when the term begins?

It will be conceded that the hold over term was provided for the benefit of the public, not for the private profit of the incumbent. It is urged that the intention of the framers of the Constitution was to insure an elected officer in this particular office and to circumscribe the appointive power of the governor (granted in the same Constitution and of equal dignity with all other parts of it). Why was such intention not unmistakably expressed? Why did the framers use the word "qualified," which has a definite meaning in the law and expresses performance of definite acts not necessarily productive of the desired result? Why did they not provide for hold over of the incumbent in case of an equivalent vacancy, as when the successor should live until July 1st and then die before actually taking charge? Or for a special election if a vacancy should occur during the term of an incumbent ?

The answer seems clear. They were framing a Constitution, the function of which is not to legislate in detail but generally to set limits upon the otherwise plenary power of the legislature. A Constitution is painted with broad strokes. It is not a complete system of law. In many respects it permits or needs supplementary legislation. Terms of office are provided in it in general language. The framers recognized the possibility of vacancies in State offices and provided for them by appointment by the governor. They did not undertake to legislate upon all possible future contingencies and vacancies but left them to operation of the general constitutional provisions, to legislative action, or their natural result. In the case of superintendent of public instruction they provided a general rule, usual in such cases to work the intended purpose, with well known language and effect, ordinarily working well in the general run of human affairs, and they added no words to indicate special privileges.

Giving effect to the hold over clause as it reads results in no absurdity nor departure from constitutional policy. The term consists of a "fixed tenure and a contingent term." People, exrel. Sweet, v. Ward, supra. The hold over provision is purely conditional, on failure of an elected successor or his qualification. Thereby, the right of incumbent to hold over term does not end until his successor has been elected and has accepted the office by qualifying. So, barring contingencies, the office is held by an elected official. This is further than the Constitution goes in securing an elected officer in such other State offices, of at least equal importance and rank, as the lieutenant governor, secretary of State, State treasurer, auditor general and attorney general, whose terms are fixed at two years without right of hold over. Constitution 1908, art. 6, § 1. Even the governor does not hold over in case of the death of his elected successor before the commencement of the term. Moreover, the fact that the governor is authorized by the Constitution to fill vacancies in "any of the State offices," Constitution 1908, art. 6, § 10, negatives the idea that the provision at bar should be twisted beyond its terms in order to avoid appointment by the governor.

The words "and until" in the hold over clause carry a permission but not a command of futurity. That is, they include but do not require the election and qualification of a successor or either to follow the ending of the incumbent's fixed term. If election and qualification of a successor should, or must, follow expiration of the fixed term, as in theLord and Lawrence Cases, the incumbent would step out of the office only when the successor steps in because such result would automatically follow qualification of the elected successor. But such situation cannot govern this case because the Constitution does not provide for such subsequent election. On the contrary, it requires the election to be held in April preceding end of the incumbent's fixed term and it establishes the constitutional oath as the only act of qualification and permits it to be taken before an elected officer's term begins. Constitution 1908, art. 16, § 2. Moreover, no other qualification was then required by statute and, from time immemorial, elected officers had been permitted, and sometimes required, by statute to qualify before their terms began. The provision therefore permits both election and qualification of a successor before the end of the incumbent's term and requires no further act to be done or condition to exist to nullify the hold over provision. It establishes one test for all conditions and works differently because the conditions, not the test, are different.

We discover no considerations which would justify amendment of the constitutional provision by construction. It is so plain in language and purpose that in fact it needs no construction. When Dr. Keyworth "qualified," if he did, he had fulfilled all constitutional conditions to vest in him the right to take the office on July 1st. Dr. Voelker's contingent right to a hold over term was thereby wholly abrogated and was not revived by Dr. Keyworth's subsequent death.

The second question is whether 1 Comp. Laws 1929, § 392, fixes the giving of a bond as a condition precedent to entering upon the duties of the office. The statute reads:

"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. Said bond shall be filed in the office of the secretary of State and in case default shall be made in its conditions, may be enforced in the same manner as are the bonds of other State officers, the premium of said bond to be paid by the State."

At the outset, one must divest his mind of the notion that a statutory command that an officer give a bond is necessarily intended as a qualification for the office. The giving of the bond may be "a mere ministerial act for the security of the government; and not a condition precedent to his authority to act as paymaster." United States v. Bradley, 10 Peters (25 U.S.), 343, quoted in Speed v. Common Council of Detroit,97 Mich. 198, 209; Glavey v. United States, 182 U.S. 595, 603 (21 Sup. Ct. 891). The secretary of State and his deputy and the private secretary and executive clerk of the governor are required to give bonds for the faithful discharge of their official duties and accounting for moneys but not until after they enter upon their offices. 1 Comp. Laws 1929, § 389.

Prior to the Constitution of 1908 the superintendent of public instruction held office for a definite term. When the hold over term was provided in our present Constitution the only requirement for qualification was the constitutional oath. Evidently because of the situation involved in People, ex rel.Johnson, v. Coffey, 237 Mich. 591 (52 A.L.R. 1), then pending in this court, the above statute was enacted, Act No. 8, Pub. Acts 1927 (1 Comp. Laws 1929, § 392). Did the legislature intend to establish the giving of a bond as a condition precedent to taking the office or merely as a security?

The expression "enter upon the duties of his office" is the stereotyped phrase in our Constitution and statutes to indicate induction into office. Acts of qualification for an office are set up with the stock phrase "before entering upon the duties of his office." Thus, it is so provided as to oaths of office. Constitution 1908, art. 16, § 2; 1 Comp. Laws 1929, § 384, as to bonds of the State treasurer, § 142, auditor general, § 388, county officers, § 1418, various township officers, §§ 1009, 1017, 1020, 1026, and others cited by counsel. "Before" would be the natural and inevitable word to use if the legislature intended to establish the giving of a bond as a qualification for the office. The use of the word "when" instead of "before," especially as the balance of the stock phrase was adopted, necessarily carries the inference that the legislature intentionally used different language to produce a different effect.

"When" has no fixed meaning. It is an adverb of time. The ordinary meaning is at the time of " or "after," according to the context. 68 C. J. p. 244. Because of the difficulty or impossibility of doing two acts at once, and as the law does not deal in split seconds of time, the word is to be given a sensible construction in the law, as to the time of doing the acts, and sometimes it may mean a "reasonable time after." It does not mean "before." To give it the effect of "before" in the above statute plainly is unnatural and inadmissible because it is used to designate the time at which the duty to give the bond arises.

By indicating time, "when" may create a condition precedent in the respect that one act is to be done before another. The condition precedent is expressed in the clause of which "when" is a part and which is governed by it. Thus, if the legislature should provide that an officer may enter upon the duties of his office "when" he gives a bond, clearly the giving of the bond would be the condition precedent as it is the first act to be done. By the same token, and conversely, when the legislature provides that the bond shall be given "when" the officer enters upon the duties of his office, taking the office is the first act to be done. Consequently, according to the language, the duty to furnish the bond would not have arisen until after Mr. Keyworth had become invested with the office and the remedy for failure to give it would have been removal.

It is suggested that the use of the word "when" instead of "before" was inadvertent on the part of the legislature. The bill took the regular course through the legislature. The legislature gave at least sufficient attention to it to amend it before passage. H. J. 1927, p. 248. The title of the act is:

"An act to provide that the superintendent of public instruction shall give a bond to the people of the State of Michigan."

It is interesting to compare this title with that of the act requiring the auditor general and commissioner of the State land office to give bonds. 1 Comp. Laws 1929, § 388:

"An act requiring certain State officers to give bonds before entering upon their official duties,"

and of an act which permits the giving of the bond after entering upon the duties of the office. 1 Comp. Laws 1929, § 389:

"An act requiring the secretary of State and the deputy secretary of State and the private secretary and executive clerk of the governor to give bonds for the faithful discharge of their official duties."

It cannot be assumed that the legislature was ignorant or disregardful of appropriate language to create a "qualification" for office.

Of determinative force, however, is the fact that the bond, in its substance, bears the marks of a special and not of a qualifying bond. By 2 Comp. Laws 1929, § 7350, the superintendent of public instruction is required to deliver to his successor:

"All property, books, documents, maps, records, reports, and all other papers belonging to his office, or which may have been received by him for the use of his office."

The bond does not require accounting for anything except moneys. Nor does it cover faithful performance of the duties of the office as is common with officers' bonds. Nor is it required to be approved by anyone. It is hardly reasonable to hold that the legislature intended the bond to fit into the groove of official qualifying bonds when it departed radically and inconsistently from both the appropriate language and the conditions consistently employed by the lawmakers to fit a bond into the groove.

The legislature speaks its intent in the written law. This court may not find and give effect to an intent contrary to the language and substance of the statute as it is written. It must be held that the bond required by the statute was not provided as a qualification for the office.

In my opinion, Dr. Keyworth qualified for the office before his death by taking the oath and, thereupon, the term of Dr. Voelker ended on June 30th. Consequently, the office was vacant on July 1st.

Judgment of ouster against respondent will enter, but without costs.

NORTH, WIEST, and BUTZEL, JJ., concurred with FEAD, J.