State Ex Rel. Hairston v. Baggett , 145 Miss. 142 ( 1926 )

^* Corpus Juris-Cyc. References: Constitutional Law, 12CJ, p. 706, n. 10; Levees and Flood Control, 36CJ, p. 1012, n. 32, 38, 40. This is a quo warranto proceeding to determine the right of the appellee to the office of commissioner of the Mississippi levee district, and the appeal is from a judgment upholding the appellee's claim to such right.

The appellee was the duly appointed commissioner of the Mississippi levee board for Sharkey county for the term which expired on the 12th day of July, 1926.

During the 1926 session of the legislature, the Governor appointed Mrs. E.P. Darden of Sharkey county as commissioner of the Mississippi levee board for the term beginning July 12, 1926, which appointment was confirmed by the Senate. After the adjournment of the legislature and prior to July 6, 1926, Mrs. Darden notified the Governor that she would not accept the office of commissioner for the district, and would decline to qualify therefor. Whereupon he appointed, in her stead, R.E. Steen who took the oath of office and executed the bond required of him, but failed to obtain its approval for the reasons that will be hereafter stated.

On July 10th, Steen advised the Governor, in writing, that he did not desire to participate in partisan politics, and tendered his resignation of the office, which the Governor accepted, and thereupon he appointed A.P. George of Sharkey county as such commissioner.

Section 1, chapter 63 of the Laws of 1892 provides that commissioners of this levee district — "shall each give bond in the sum of fifteen thousand dollars, to be approved by the clerk of the chancery court and the president of the board of supervisors of the county from which they are appointed respectively."

Prior to resigning the office of commissioner, or, to be more accurate, for such is the effect of his letter to the Governor, prior to notifying the Governor that he would not accept the office, Steen executed the bond required by the statute, and vainly sought both the clerk of the chancery court and the president of the board of supervisors of Sharkey county in order to obtain their approval thereof, but each, as is manifest from the record, purposely kept out of his way and prevented him thereby from presenting the bond for approval. George also executed such a bond, but failed to obtain its approval for the same reason that Steen failed to obtain the approval of his bond, with the result that, when the board of levee commissioners met at noon on July 12th, he was compelled to present his bond to the board without its approval by the chancery clerk and the president of the board of supervisors.

Chapter 230, Laws of 1924, provides that:

"If any person elected or appointed to any state, state district, levee board, county, county district or municipal office, shall fail to qualify as required by law on or before the day of the commencement of his term of office, or for any cause any such officer shall hold over after his regular term of office expires under the authority given him to hold over until his successor is appointed or elected and qualified, a vacancy in such office shall occur thereby, and it shall be filled in the manner prescribed by law, as provided by section 103 of the Constitution for filling vacancies in such offices, unless the failure to qualify arises from there being no officer to approve the bond of such officer-elect, and except the governor-elect, when the legislature fixes by resolution the time of his installation."

Section 2, chapter 169, Laws of 1884, which was continued in force by section 231 of the present Constitution, provides that the term of office of the commissioners of the Mississippi Levee District shall be "four years and until their successors are duly elected and qualified."

When George presented himself at the meeting of the levee board on July 12, 1926, and attempted to participate therein, two members of the board declined to recognize his right so to do and, together with Baggett, claimed that because of George's failure to have his bond approved Baggett had the right to continue to discharge the duties of the office under the two statutes herein referred to, the result of which was that Baggett continued and still continues to discharge the duties of the office.

We do not understand counsel for the appellee to seriously, as, of course, they could not successfully, contend that, if George's appointment as levee commissioner was otherwise valid, his failure to obtain the approval of his bond by the chancery clerk and the president of the board of supervisors under the circumstances hereinbefore set out, rendered him ineligible to hold the office. He did all that he possibly could to obtain the approval of his bond, and the conduct of the officers who should have approved it was the equivalent of "there being no officer to approve the bond."

Among the contentions of the appellee, as set forth in the brief of one of his counsel, are:

"(1) The Governor has only the power to appoint jointly with the Senate, except under the emergency provision of section 103 of the Constitution, when he can appoint to fill a vacancy.

"(2) When he attempted to appoint Steen and then George in this case, no vacancy existed because appellee was filling the office as a ``hold-over' member, his term of office under the Constitution being for the period of his appointment and until his successor was appointed and qualified.

"(3) The ``hold-over' part of the term of a member of the levee board is as much a part of his term as the four years specified and cannot be changed by statute and is not changed or abrogated by the provisions of chapter 230 of the Acts of 1924, providing that the failure of an appointee to qualify creates a vacancy."

The controlling question here presented is the meaning of the words "vacancy in office," as used in section 103 of the Constitution. These words have no technical meaning (State v.Hays, 91 Miss. at page 755, 45 So. 728), and are not defined in the Constitution; but if they were employed therein by the framers of the Constitution, in the light of a long-settled legislative meaning and application, it will not only be proper for us, but it is, in fact, mandatory on us, to give them that meaning and application here (Daily v. Swope, 47 Miss. at page 367;Roberts v. Starke, 47 Miss. at page 261; 12 C.J. 706).

An examination of our statutes as far back as 1822, and probably prior thereto, discloses that the legislature of this state has uniformly declared that the failure of a person elected to an office to qualify therefor, by giving the bond required of him by the statute, creates a vacancy in the office to which he was elected.

But it is said by counsel for the appellee, citing State v.Hays, 91 Miss. at page 766, 45 So. 729, that "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 pertain to it;" that the "hold-over" addition to the term of office of a levee commissioner provides the office with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to the office, when a person appointed thereto fail to qualify therefor, and that this "hold-over" addition to the term of a levee commissioner is as much a part of the term of his office as is the fixed period thereof, and cannot be abridged by the legislature.

This contention is also negatived by the settled legislative meaning and application of the "hold-over" provision for public officers. All of our Codes, as far back as that of 1857, provide that:

"Public officers shall hold their offices for the terms for which they were selected and until their successors are elected and qualified" — and, further, that the failure of a person elected to an office to qualify by giving the bond required therefor creates a vacancy in the office to which he was elected, to be filled in the manner provided by law.

These statutes disclose that the "hold-over" addition to the terms of public officers was not intended to prevent or fill a vacancy in office, but, on the contrary, was intended simply as a provision for the discharge of the duties of the office until a vacancy occurring therein should be filled. The successor of a public officer contemplated by the two statutes, when construed together, manifestly is the person on whom has been legally conferred the right to hold the office for the term or the remainder thereof, as the case may be. This "hold-over" provision for public officers first appeared in our Constitutions in 1869 as section 22, article 5, of the Constitution then adopted, so that when it was incorporated therein, and afterwards in chapter 169 of the Laws of 1884, it had long been given by the legislature a definite meaning and application, which meaning and application, we must presume, was intended to be given to it by the convention, which adopted the Constitution, and by the legislature, which enacted chapter 169 of the Laws of 1884.

The cases mainly relied on by counsel for the appellee areBrady v. Howe, 50 Miss. 607; State v. Hays, 91 Miss. 755, 45 So. 728; Booze v. Cresswell, 117 Miss. 795, 78 So. 770. In none of these cases was the statute here under consideration, or one similar thereto, involved; and, consequently, they are not in point here. In the Hays case it was pointed out that the state of facts there claimed to create a vacancy in office was not embraced within the statute, and that if the legislature had intended the statute to apply thereto:

"It would have been easy for it to have said so; . . . it would have then covered the case." It follows from the foregoing views that the statute, under which George's appointment was made, is valid, and that the appellee is without the right to continue to discharge the duties of the office of levee commissioner.

Reversed and judgment here for the appellant.

Reversed.