Commonwealth ex. rel. King v. King

Chief Justice Agnew

delivered the opinion of the court, October 1st 1877.^

The opinion of the learned judge of the Common Pleas contains a very full and satisfactory discussion of the question in this case. The true inquiry is whether under the constitution and laws of the state the governor, in filling a vacancy caused by death, can commission a sheriff for a term to last beyond the expiration of the term of the deceased officer. The argument of the relator fails to distinguish between the major power of the people to elect sheriffs, by way of regular succession, for fixed terms; and the minor power of the governor to fill a vacancy in an existing term. The second section of the 14th article of the new constitution declares that, “ county officers shall be elected at the general elections, and shall hold their offices for the term of three years, beginning on the first Monday of January next after their election, and until their successors shall be duly qualified ; all vacancies, not otherwise provided for, shall be filled in such manner as may be provided by law.” As the term is. fixed by the constitution to begin on the first Monday of January following the election, it is the clear constitutional right of the people to elect the successor of the incumbent of an existing term at the general election next preceding the expiration of his term; and if the successor does not qualify no vacancy takes place, but the existing term is extended until the successor is duly qualified. It is manifest, therefore, that the vacancy referred to in this section is one occurring in an existing term by death, removal, resignation or other cause, ívhich prevents the existing term being carried to its regular period of expiration. The appoinment to fill this vacancy, or intermediate period between the death and the period of the expiration, necessarily follows the nature of the vacancy. The constitution itself provides for the election of the sheriff in regular succession, and leaves no vacancy to be provided for as to him. When the successor is duly elected his term is fixed to begin on the first Monday of January following. It is clear, therefore, that the vacancy referred to in the section cannot refer to any portion of the new term which accrues under the constitution itself by regular election and by way of constitutional succession. It follows from this major requirement of the constitution, that the term vacancy used ill the 8th section of the 4th article, conferring power on the governor to fill vacancies, must have the same interpretation, so far as it relates to the office of sheriff, or other county elective offices under the 2d section of the 14th article, otherwise the two provisions would conflict. Such a conflict is unnecessary; for the general election referred to in the last clause of the 8th section of the 4th article can have no appropriate meaning without trenching upon the provisions of the 2d section of the 14th article. It says: “but in any such case of vacancy in an elective office, a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be hold at the second succeeding general election.” The true purpose of this provision is to preserve the popular right, and not to limit or destroy it. Without the provision for election, the appointment to fill the vacancy would run to the end of the term made vacant by death or other cause; hut with it, the right of the people to elect their officers takes effect at the next, or at the furthest, at the second succeeding general election. For example, if the sheriff die in the first year of his term and three months before the day of the general election, his successor will be chosen in the same year, or two years before the time fixed for the election of a successor in due and regular course of the constitutional arrangement of election to the office. If the incumbent die within three months of the election, then an election will take place one year in advance of the regular period. This is evidently the purpose of this part of the 8th section of the 4th article, and no conflict can arise between it and the 2d section of the 14th article. The true interpretation of the constitution being this, it is manifest that the Act of May 15th 1874 cannot change the constitutional provisions and extend a vacancy into the next regular term of office, and thereby defeat the popular right of election to fill the next regular term. That act, therefore, must have the same interpretation, and the right of appointment of the governor to fill a vacancy extends only to the period between the death of the incumbent and the beginning of the mew term by regular succession, under the provisions of the 2d section of the 14th article of the new constitution.

Judgment affirmed.