By the Court,
Dixosr, C. J.
There can be no doubt that Hodges intended his resignation to apply to the term of office for which he had recently been elected, and which was to commence on the day the resignation took effect. He resigned on the last day of the old to take effect on the first day of the new term. On the day the resignation was tendered, he qualified as state prison commissioner, and on the next removed from the county of Winnebago to the county of Dodge. These circumstances seem to place his intention beyond reasonable doubt. And it would seem, too, that there can be as little doubt as to the intention of the governor. He intended the appointment for the new term.
But it is urged that as Hodges had not qualified for the new, but was in under the old term, at the time the resignation took effect, and as the old term might extend for the period of twenty days into the new, unless he sooner qualified for the latter, the resignation could only have effect as to those twenty days or such portion thereof as should elapse before the qualification of the new incumbent. In this case it was the full twenty days, as it is not pretended that Hodges ever qualified for the new term. After that it is insisted that the office was liable to be filled by election or appointment. No second appointment having been made, and the relator having received a majority of the votes cast for the office at the ensuing April election, it is insisted that he has lawful title to it. Some questions are made as to the validity of this election. No notice of election was given. Y otes were cast in only two or three election precincts. In all the others, comprising a very large majority of the voters of the county, no election for the office of county judge was had. But it is unnecessa[662] ry to consider these objections, since we are of opinion that the case must be determined on another ground.
It is furthermore urged in support of the same position, that there can be no resignation of an office by one not in fact seized; that a person elected to an office, but who has not qualified and taken possession, cannot surrender it in the form of a resignation. This may be in a technical sense true. It may be that Hodges, not having possession nor authority to act, could not have resigned. But he was lawfully possessed, holding by virtue of a previons election or appointment. A resignation was therefore a proper proceeding to terminate that tenure. So far there is no disagreement between counsel. But we think, under the circumstances presented, that the resignation had a further effect; that it vacated the office for the new term. It was, in our judgment, equivalent to a refusal on the part of Hodges to qualify for that term, and authorized the appointment forthwith. The statute declares that every office shall become vacant upon the refusal or neglect of the incumbent to take his oath of office, or to give or renew his official bond, or to deposit such oath or bond within the time prescribed by law. R. S., ch. 14, § 2, subd. 6. Subdivision four of the same section declares, in the case of a local officer, that his ceasing to be an inhabitant of the district, county &c., for which he may have been elected, shall have the same effect. On the same day of the resignation, Hodges ceased to be an inhabitant of the county. In view of these provisions of the law, we cannot but regard his conduct as tantamount to an unqualified refusal to act longer, either under the old or the new term. If so, then it was a refusal to qualify for the new term within the time prescribed" by law, and the office for that term, as well as the old, became vacant. For we suppose it to be possible for the person newly elected to refuse to qualify, and to signify such refusal before the expiration of the twenty days given by statute for that purpose. If he does so, the office for that term becomes vacant, and an [663] appointment may be made, although, to prevent an interregnum, the old incumbent is authorized for the time to perform its functions. So that under such circumstances there may be a lawful holding of the office by the old incumbent as of the old term, while a vacancy actually exists as to the new. In this case, if Hodges, on the first day of January, had made known to the governor his refusal to qualify for the new term, the office for that term would have become vacant, though he might still have lawfully continued to hold as of the old term until an appointment was made and the appointee qualified. It certainly cannot change the nature of the question or vary the rights of the parties, that he at the same time saw fit to surrender all title to the office by virtue of the old term.
The same thing might happen, as to a lawful holding as of one term and an existing vacancy in another, under subdivision eight of the section above referred to, if the person elected for a full term should die before he qualified or before the commencement of the term. The former incumbent would continue to hold, but his tenure would cease upon the appointment and qualification of an officer for the full term.
We think, therefore, that the appointment of the respondent was for the vacancy occurring in the new or full term, and not for any unexpired part of the old term existing by virtue of a vacancy in the new.
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By the Court,
Dixosr, C. J.
There can be no doubt that Hodges intended his resignation to apply to the term of office for which he had recently been elected, and which was to commence on the day the resignation took effect. He resigned on the last day of the old to take effect on the first day of the new term. On the day the resignation was tendered, he qualified as state prison commissioner, and on the next removed from the county of Winnebago to the county of Dodge. These circumstances seem to place his intention beyond reasonable doubt. And it would seem, too, that there can be as little doubt as to the intention of the governor. He intended the appointment for the new term.
But it is urged that as Hodges had not qualified for the new, but was in under the old term, at the time the resignation took effect, and as the old term might extend for the period of twenty days into the new, unless he sooner qualified for the latter, the resignation could only have effect as to those twenty days or such portion thereof as should elapse before the qualification of the new incumbent. In this case it was the full twenty days, as it is not pretended that Hodges ever qualified for the new term. After that it is insisted that the office was liable to be filled by election or appointment. No second appointment having been made, and the relator having received a majority of the votes cast for the office at the ensuing April election, it is insisted that he has lawful title to it. Some questions are made as to the validity of this election. No notice of election was given. Y otes were cast in only two or three election precincts. In all the others, comprising a very large majority of the voters of the county, no election for the office of county judge was had. But it is unnecessa[662] ry to consider these objections, since we are of opinion that the case must be determined on another ground.
It is furthermore urged in support of the same position, that there can be no resignation of an office by one not in fact seized; that a person elected to an office, but who has not qualified and taken possession, cannot surrender it in the form of a resignation. This may be in a technical sense true. It may be that Hodges, not having possession nor authority to act, could not have resigned. But he was lawfully possessed, holding by virtue of a previons election or appointment. A resignation was therefore a proper proceeding to terminate that tenure. So far there is no disagreement between counsel. But we think, under the circumstances presented, that the resignation had a further effect; that it vacated the office for the new term. It was, in our judgment, equivalent to a refusal on the part of Hodges to qualify for that term, and authorized the appointment forthwith. The statute declares that every office shall become vacant upon the refusal or neglect of the incumbent to take his oath of office, or to give or renew his official bond, or to deposit such oath or bond within the time prescribed by law. R. S., ch. 14, § 2, subd. 6. Subdivision four of the same section declares, in the case of a local officer, that his ceasing to be an inhabitant of the district, county &c., for which he may have been elected, shall have the same effect. On the same day of the resignation, Hodges ceased to be an inhabitant of the county. In view of these provisions of the law, we cannot but regard his conduct as tantamount to an unqualified refusal to act longer, either under the old or the new term. If so, then it was a refusal to qualify for the new term within the time prescribed" by law, and the office for that term, as well as the old, became vacant. For we suppose it to be possible for the person newly elected to refuse to qualify, and to signify such refusal before the expiration of the twenty days given by statute for that purpose. If he does so, the office for that term becomes vacant, and an [663] appointment may be made, although, to prevent an interregnum, the old incumbent is authorized for the time to perform its functions. So that under such circumstances there may be a lawful holding of the office by the old incumbent as of the old term, while a vacancy actually exists as to the new. In this case, if Hodges, on the first day of January, had made known to the governor his refusal to qualify for the new term, the office for that term would have become vacant, though he might still have lawfully continued to hold as of the old term until an appointment was made and the appointee qualified. It certainly cannot change the nature of the question or vary the rights of the parties, that he at the same time saw fit to surrender all title to the office by virtue of the old term.
The same thing might happen, as to a lawful holding as of one term and an existing vacancy in another, under subdivision eight of the section above referred to, if the person elected for a full term should die before he qualified or before the commencement of the term. The former incumbent would continue to hold, but his tenure would cease upon the appointment and qualification of an officer for the full term.
We think, therefore, that the appointment of the respondent was for the vacancy occurring in the new or full term, and not for any unexpired part of the old term existing by virtue of a vacancy in the new.
The only remaining question arises upon the act of March 10, 1859. Laws of 1859, chap. 60. By the general law, the person appointed to fill a vacancy holds only until his successor is elected and qualified. R. S., ch. 7, sec. 100. The first section of the act of March 10th reads as follows: “ County judges now in office shall continue in office until the expiration of the term for which they were elected respectively, and each and every county judge hereafter elected shall hold and continue in office for and during the term -of four years from and after the first day of January next after his election, and until his successor is elected and qualified: Provided, that [664] when a vacancy in such office shall be filled, either by election or appointment, the person elected or appointed shall hold during the unexpired term only.” I confess that the intention of the legislature in this enactment seems to me not very clear. The relator’s counsel thinks it was not the intention to abrogate the general provision, but merely to modify it, so that, in case of an appointment, the appointee should hold only during the unexpired term as defined by statute, and not beyond it, and so that in case no successor is elected or appointed and qualified a,t the commencement of a new term, the office should become absolutely vacant; and that in all cases where the time intervening between the appointment and the expiration of the term will permit, an election is to be had and the office filled in that way according to the general rule. But if this were the intention, it extends to a vacancy filled by election as well as by appointment, for which no motive can be assigned, unless we suppose the legislature were aiming at creating an absolute vacancy in this office, which in every other is studiously avoided. Courts will hesitate before adopting such a construction. A more reasonable interpretation appears to be, that the legislature intended that the vacancy might be filled either by election or appointment, and that when filled in either mode, the person elected or appointed should hold for the unexpired term. If, in case of a vacancy, the governor should deem it unnecessary or inexpedient to appoint, the office may be filled by election; but if an appointment is made, then there is to be no election until the next regular term. This seems to us to be the most fair and rational construction which can be given, and we therefore adopt it. The word “ only,” at the end of the section, seems to have been employed to limit the time of holding in case of a vacancy filled by election. The previous clause declares that “ each and every county judge hereafter elected, shall hold and continue in office for and during the term of four years from and after the first day of January next after his election, and until his successor is elected and quali-[665] fiedbut if be is elected to fill a vacancy, he “ shall bold during the unexpired term only” — which is, during that term and until the election or appointment and qualification of his successor.
Complaint dismissed.