State Ex Rel. Jones v. Lyon

^* Corpus Juris-Cyc. References: Levees and Flood Controls, 36CJ, p. 1012, n. 38, 40. This is a quo warranto proceeding in which Jones seeks to obtain possession of the office of commissioner of the Mississippi levee board, which the appellee withholds from him and the duties of which the appellee is now discharging; and, from a judgment adverse to Jones, he has brought the case to this court.

The appellee was the duly appointed commissioner for the Mississippi levee board, for Humphreys county, for the term which expired on the 12th day of July, 1926. During the 1926 session of the legislature, the Governor appointed the appellee as his own successor as levee commissioner, for the term beginning July 12, 1926.

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."

When appointed for the term ending July 12, 1926, the appellee executed the bond therefor required by this statute, with a surety company as the surety thereon, and did not execute a new bond for the term beginning July 12, 1926. He paid the premium due the surety company on his old bond for the period beginning April 5, 1926, and ending April 5, 1927, which payment the agent of the surety company advised him extended the old bond for that period; and, acting on the advice of the secretary and other officials of the levee board that this extension of the old bond would satisfy the requirement of the statute for the execution of a bond covering his new term of office, he did not execute a new bond or have the old bond reapproved by the clerk of the chancery court and the president of the board of supervisors of Humphreys county.

Chapter 230 of the Laws of 1924 provides that, on the failure of a person elected or appointed to a public office to qualify therefor, as required by law, on or before the day of the commencement of his term of office:

"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."

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."

Acting on the theory that, under chapter 230, Laws of 1924, the appellee's failure to execute a new bond created a vacancy in the office, the Governor, as provided by section 103 of the Constitution, appointed Jones thereto, who qualified therefor by executing the bond and taking the required oath.

The questions for decision are (1) Did the appellee fail to qualify for the new term of the office to which he had been appointed? and (2) if he did fail to qualify therefor, was a vacancy thereby created in the office which could be filled by appointment by the Governor?

The requirement of section 1, chapter 63 of the Laws of 1892, that commissioners of the Mississippi levee district shall each give bond in the sum of fifteen thousand dollars manifestly means a bond covering the term of his office. It contains no provision that the bond given by a commissioner for one term of office shall serve when he is appointed as his own successor as his bond for the succeeding term, and we are, of course, without the right to add such a provision thereto. Chapter 230, Laws of 1924, which provides that the failure of a public officer to qualify as required by law, on or before the day of the commencement of the term of his office, shall result in a vacancy in the office to which he was elected or appointed, recognizes no excuse for the failure to execute the bond therefor except the absence of an officer authorized to approve the bond. That the appellee was advised and, in good faith, believed that the bond executed by him for his old term would serve as the bond for his new term cannot relieve him of the disqualification to hold the office for the new term, for "nothing short of what the law requires is sufficient." Andrews v. Covington, 69 Miss. 740, 13 So. 853.

The second question hereinbefore set out is ruled by the opinion this day delivered by us in the case of State ex rel.Hairston v. Baggett, 110 So. 240, wherein it was decided that the "hold-over" addition to the term of a public officer does not prevent a vacancy from occurring in such office, on the failure of a person elected or appointed as his successor to qualify therefor. What was there said is here reinforced by the appellee's contention here, which, in effect, is that a public officer, elected or appointed as his own successor, who fails to qualify for his new term, may, nevertheless, continue to hold the office and discharge its duties for the period of the new term.

Reversed and judgment here for the appellant.

Reversed.