Todd v. Johnson

36 S.W. 987, 99 Ky. 548, 1896 Ky. LEXIS 121

• Court: Court of Appeals of Kentucky
• Decided: June 23, 1896
• Status: Published

Opinions

JUDGE HAZELRIGG

delivered the opinion of the court.

The death of Henry S. Tyler in January, 189G, caused a vacancy in the office of mayor of the city of Louisville, and the appellant, George D. Todd, was in due time, and as pro.vided by statute, chosen mayor pro tempore by the general council.

Whether this temporary election by the council was to fill out the entire unexpired term of Tyler, who had been elected in November, 1893, for four years, or was to provide an incumbent only until an election by the people in November, 1896, is the sole question presented on this appeal.

The sections of the Constitution supposed to affect the question are as follows: •

“Section 152.. Except as otherwise provided in this Constitution, vacancies in all elective offices shall be filled by election or appointment, as follows: If the unexpired term will end at the next succeeding annual election at which either city, town, county, district or State officers are to be elected, the office shall be filled by appointment for the remainder of the term. If the unexpired term will not end at the next succeeding annual election at which either city, town, county, district or State officers are to be elected, and if three months intervene before said succeeding election at which either city, town, county, district or State officers are to be elected, the office shall be filled by appointment until said election, and then said vacancy shall be filled by election for thé remainder of the term.” . . . The balance of the section is not involved here.

Section 160, after making certain provisions as to mayors or chief executives, police judges and members of legislative boards or councils of towns and cities, and providing for the election or appointment of other officers of towns and cities, concludes as follows: “The General Assembly shall prescribe the qualifications of all officers of towns and cities, the manner in and causes for which they may be removed from office, and how vacancies in such offices may be filled.”

In obedience to the one or the other of these sections, or of both, the General Assembly, in the enactment of a charter for cities of the first class (section 2788, Kentucky Statutes), provided as follows: “When a vacancy shall take place in the office of mayor, a mayor pro tempore, shall be chosen by the general council, in joint session, by the votes of a majority of ilie members elected. If the vacancy occur three months or more prior to a regular municipal election, a mayor shall be chosen for the unexpired term at the said •election. If the vacancy occur within three months, the mayor pro tempore chosen by the general council shall serve until the regular election for mayor. It shall be the duty of the president of the board of aldermen to issue his proclamation for such joint session, to be held not less than ten nor more than twenty days after such vacancv shall take place. Until the vacancy is filled the president of the board of aldermen shall act as mayor.”

As there is to be no “regular municipal election” in Louisville in November, 1890, the appellant contend® that the vacancy can not bo filled then, if the plain letter of the statute be observed; but without regard to the meaning to be .given the words “regular municipal election,” it seems clear to us that in so far as the statute provides “how” or by wha * process the vacancy is to be filled, namely, by the action of the general council in joint session and by +he votes of a majority of the members elected, etc., it conforms to and meets the requirements of the provisions of section ICO, giving the General Assembly the power to provide how such vacancy may be filled. But we think when it comes to providing the time at which an election is to be held by the people to fill the vacancy for the unexpired term of this officer, confessedly “elective” under the Constitution, we must look to section 152 of that instrument; and if the “tatute changes the time there fixed, so much the worse for +he statute, the 'Constitution must control.

In considering this precise question in Shelly v. McCulloch, 17 Ky. Law Rep., 53, we reached the wmelusion that the power of the General Assembly was limited to providing how vacancies in elective offices of towns and cities might be filled temporarily, and until an election could be had by the people to fill the unexpired term as provided by section 152. We need not repeat here the reasons there given fully for our conclusions.

However, granting this, the appellant says there is to be, at the November election, 1896, no election “at which either city, town, county, district or State officers” are to be elected, and, therefore, the vacancy can not then be filled; and this brings us to consider the only serious question in ibis case. There will be elected at that time the electors of president and vice-president, and these, say counsel for the appellees, are “State officers;” and such thev undoubtedly are.

The Kentucky Statutes, section 1514, provide for their election — which means an election by the people on a general ticket — on the Tuesday next after the first Monday in November, 1892, and on the same day in every fourth year thereafter. By section 1543 they are required to convene at the capítol of the State on the morning of the second Monday in January after their election, cast their votes and make due return thereof according to law; and for each day an elector so attends (section 1545) he is entitled to receive the same per diem and mileage as may at the time be allowed to a member of the General Assembly, to be paid out of the State treasury. He would seem, therefore, to be no more co¡ verted into a Federal officer, because he is lected by the people to cast his vote for a presidential candidate, than a member of the General Assembly would be considered a Federal officer because, when elected, he casts his vote for a senator of the United States; for while the latter is supposed to do more than that, he does that much, and Ms status as a State officer is not affected.

In in re Green, 134 U. S., 379, Mr. Justice Gray said: “By the Constitution of the United States the electors for the-president and vice-president in each State are appointed by the State, in such manner as its legislature may direct.. . . . (Constitution, article 2, section 2.) The sole function of the presidential electors is to cast, certify and transmit the vote of the State for president and vice-president of the nation. Although the electors are appointed and act under- and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are members of the State legislatures when acting as electors-, of federal senators, or the people of the States when acting as electors of representatives in Congress.” And a conviction in the State court for illegal voting for electors at a regular State election was upheld.

So in McPherson v. Blacker, 146 U. S., 35, where the validity of a State law was- attacked as repugnant to the Constitution of the United States because the law provided for the-appointment of electors by district elections, the court upheld-the State law on the ground that “the legislatures of the-several States have exclusive power to direct the manner in which the electors of president and vice-president shall be-appointed,” and held that they might be appointed by the-legislatures directly or by popular vote in districts or by-general ticket. “In short,“ said the court, “the appointment and mode of appointment of electors belong exclusively to-the States under the Constitution of the United States.”

When framing the present Constitution, therefore, its. makers had before them the plain proAdsions of the statutes making these-officers-“State officers,” not in some peculiar or-qualified sense, but in every conceivable sense, Congress having no control over their election or appointment, but being empowered merely -to determine the time when they should be- chosen; and they had before them, if that were needed, the decisions of the Supreme Court to this effect.

Why they should be held, therefore, to have intended that the words “State officers,” in section 152, should not include these electors' — these particular State officers — we can not conceive.

It is said, however, that these officers are not named in the Constitution. This is true, and for the best of reasons. It would have been a wholly useless thing, unless indeed it had been thought desirable to fix permanently the mode of electing such officers. The technical rule of construction which would confine the words “city, town, county, district or State officers” to those officers who had been mentioned in the Constitution, if adopted, would not only override the literal construction of the section, which undeniably includes these electors, but would also set at defiance the well-settled constitutional policy of our State since the abrogation in 1850,of the old Constitution of 1799. And that policy is to refer to the people — the source of all governmental power — the right of filling the offices of their creation with incumbents uf their own selection.

The only excuse for the appointment of any officer made elective under the law is founded on the emergency of the public business, and when by death, removal, resignation or otherwise an elective office is made vacant, the policy of the law is to give to the people a chance to fill it as soon as practicable.

“The great object in the change in the system,” said this court in Speed, &c. v. Crawford, 3 Met., 207, and which ir emphasized in the well-considered case of Toney v. Harris, 85 Ky., 473, was to refer to the people the choice of their officers of all grades and classes, whether State, district, county, city or town offices. That choice was to be made through the instrumentality of an election.

In Berry v. McCullough, 94 Ky., 247, we had under consideration section 148 of the Constitution in so far as it prohibited the election of city, town or county officers in the same year in which members of Congress are elected. And it was contended that a vacancy in the office of coroner of Jefferson county could not be filled at the election of county officers in 1892. We held that the adoption of such a construction “would stretch the appointive term very far beyond what was even intended or provided for under either the old or the new Constitution,” and “construed the prohibition to apply to regular elections only.”

The framers of the Constitution were not ignorant of this policy, and they must be supposed to have intended to embrace in the comprehensive language used in the section, viz., city, town, county, district or State officers, all the officers of these divisions and subdivisions, from the highest to the lowest, which were then eleetible by the people, or which, under any future law, might become so; and to have intended that the occasion of any such election must furnish also the occasion for filling vacancies in any elective office.

It will be observed that the vacancy is to be filled at the “next succeeding annual election at which.” etc.

The use of the word “annual” is not without significance. It carries with it the idea of an annually recurring election, and one which must, under the scheme devised in the Constitution, recur in every November for all time.

The construction we have adopted gives at least some force to this word, for, including presidential elections, the occasions afforded for filling vacancies are largely increased, and elections for that purpose become at least more nearly “annual.” Indeed the use of this word gives strong color to the argument of one of our associates that upon, the first Tuesday after the first Monday in November of every year the occasion arises for filling any vacancy in an elective office, if it occurs, of course, more than three months before, because no such November can occur when there will not be an election in some of the classes named.

As to odd years there would seem to be no question of the right to hold the elections to fill any vacancy, and in even years there will always either be an election for presidential electors, or a district election for a judge or judges of the Court of Appeals.

Waiving for the present the question of the electors, an illustration of this argument may be drawn from the present situation.

The regular election for a judge of this court from the Fifth district is to be held at approaching November election. There was a vacancy on the bench, caused in February of this year, by the death of our late associate, the lamented John E. Grace, and the argument is that it is most inconceivable to suppose the law makers intended that an election might be held for the purpose of electing a regular judge of this court, and jref not one held at the same -*egular election to fill a vacancy on the same bench- This view of the matter, however, is not suggested or argued by counsel, and need not, therefore, be considered further than to say that the use of these words,“ at which either city,” etc., would seem to indicate that it was not at every succeeding November election that vacancies might be filled, but only when those who were to be elected of the classes named, and hence unless an officer of that class is to be elected the vacancy can not be filled, even if there be an election for members of the lower house of Congress.

Be this, as it may, we are convinced that within the meaning and intent of the Constitution vacancies in elective offices may be filled at the succeeding annual election at which electors for president and vice-president are to be elected.

It appears from the agreed facts and from the statute on the subject that a trustee for the Louisville common schools is to be elected in each legislative district of the city, and it is argued that this is an election at which “district officers” are to be elected within the meaning of section 152, and an election, too, in the same territory as that covered in the election for mayor.

This would seem to- be true, but a determination of that question is not necessary in this case.

The judgment must be affirmed.

Judges Guffy and DuRelle dissenting. Judge Landes not sitting.