State ex rel. Johnson v. Bloom

193 N.W. 940, 49 N.D. 890, 1922 N.D. LEXIS 8

• Court: North Dakota Supreme Court
• Decided: December 28, 1922
• Status: Published

Opinions

RobiNSON, J.

Defendant appeals from a judgment against bis claim to the office of game and fish commissioner. As the complaint avers, on April 21, 1921, Governor Prazior appointed him for a term of two years to the office of game and fish commissioner. Under such appointment defendant acted as game commissioner until February 27, 1922, without filing an official oath with the secretary of state. On February 28th, 1922, the governor declared the office vacant and appointed Elmer T. Judd to fill the vacancy. On March 3, 1922, Judd qualified, filed his oath of office and bond with the secretary of state, paying the fee of $2. On March 2d, 1922, after receiving notice of the revoking of his appointment, defendant attempted to qualify, but the secretary of state refused to receive the papers. On the trial defendant made proof that soon after receiving his commission he duly executed his official oath and mailed the same, at Devils Lake, in a sealed envelope with $3 in currency, addressed to the secretary of state at Bismarck ; but it appears the same was never received in the office of the secretary of state. When currency is inclosed in a letter it greatly lessens the chance of its delivery. The facts are defendant did not qualify, and his attempted qualification came too late. The statute attaches great importance to the qualification of an officer and makes it a misdemeanor to exercise the duties of an office without qualifying. Comp. I.aws, § 9300. The contention of defendant is that his failure to qualify did not constitute a vacancy, but that is contrary to the plain words of the statute:

Sec. 683. “Every office shall become vacant upon the happening of either of the following events:

1. Death of the incumbent.

2. His insanity judicially determined.

3. His resignation.

4. His removal from office.

5. His failure to discharge the duties of his office, etc.

6. His failure to qualify as provided by law.

7. His ceasing to be a resident of the state.

8. His conviction of a felony.

9. His ceasing to possess any of tbe qualifications of office prescribed by law.

10. Tbe decision of a competent tribunal declaring void bis election or appointment.”

Tbus it appears an office becomes vacant on tbe death of tbe incumbent, on bis resignation, on bis failure to qualify, or tbe decision of a competent tribunal declaring void bis election or appointment. Tbe plain word of tbe statute is that an office becomes vacant on a failure to qualify and also on tbe decision of a competent tribunal. Sncb being tbe plain words of tbe statute, there is no occasion for a review of tbe numerous decisions cited on different statutes of other states. Tbe defendant did not qualify and by reason of bis failure to qualify tbe office became vacant. The governor bad a perfect right to fill tbe vacancy just tbe same as if tbe defendant bad died or removed from tbe state, and just tbe same as if a court of competent jurisdiction bad declared void tbe appointment.

Judgment affirmed.

Biedzet.l, Cb. J., and ChbistiaNsoN, J., concur. BeoNsoN, J., concurs in result. Geace, J., did not participate.