Vacancies in all county offices shall be filled by the
County Commissioners until the next general election when such vacancy shall be filled by election. (Sec. 57-906, I. C. A.; Sec. 57-909, I. C. A.)
The tenure of an officer filling a vacancy is, if elected to the full unexpired term, if appointed, only until his successor is elected and qualified. (Sec. 57-914, I. C. A.)
The Clerk of the District Court is a County Officer, and the County Commissioners have power to appoint someone to fill a vacancy therein. (Sec. 30-1501, I. C. A.; Sec. 30-2606, I. C. A.; Sec. 57-906, I. C. A.)
The appointee is not invested with the duties of office to the end of the term but merely until the vacancy is filled by election at the next general election. (State v. Lutz, (Kan.)227 P. 334; Budge v. Gifford, 26 Idaho 521, 144 P. 333; Hamiltonv. Raub, (Kan.) 292 P. 396; Bond v. White, 8 Kan. 333; State exrel. Welsh v. Mecham, (Kan.) 2 P. 816.)
Democratic principles of government require that elective offices shall, so far as possible, be filled at all times by incumbents chosen by the electors, and it is the general policy of the law that vacancies in elective offices should be filled at an election as soon as practicable after the vacancy occurs, and appointments to fill vacancies should be effective only until the people may elect. (State ex rel. Sullivan v. Moore, (supra); State ex rel. Weeks v. Gamble, 13 Fla. 9; McCreary v.Williams, (Ky.) 154 S.W. 417; State ex rel. McGowan v.Sedgwick, (Mont.) 127 P. 94; Rodwell v. Rowland, (N.C.)50 S.E. 319; State ex rel. Castle v. Schroeder, (Neb.) 113 N.W. 192; 132 A.L.R. -576.)
C.W. Poole and W.A. Ricks, for defendant.
All vacancies in any state office and in the supreme and district courts, unless otherwise provided by law, shall be filled by appointment by the governor, until the next general election after such vacancy occurs, when such vacancy shall be filled by election. (Sec. 57-902, I. C. S.; Budge v. Gifford,26 Idaho 521; Joy v. Gifford, 22 Idaho 301.)
Vacancies shall be filled in the following manner: in the office of the clerk of the supreme court, by the supreme court. In all other state and judicial district offices, and in the membership of any board or commission created by the state, where no other method is specifically provided, by the governor. In county and precinct offices, by the county
board; and in the membership of such board, by the governor. (Sec. 57-905, I. C. S.)
All vacancies in any county or precinct office of any of the several counties of the state, except that of the county commissioners (who shall be appointed by the governor), shall be filled by appointment by the county commissioners of the county in which the vacancy occurs until the next general election, when such vacancy shall be filled by election. (Sec.57-906, I. C. S.)
"The constitutional or statutory provisions for the time of an election to fill vacancies in public offices vary in the different states. 'Until the next general election;' 'the next election by the people;' 'the next annual election;' 'until the next general election or until their successors are duly elected and qualified,' etc., etc., are the usual terms employed. . . . These several provisions have been construed in different ways by the courts." (State ex rel. Fish v. Howell, (Wash.) 110 P. 386; 50 L.R.A. (N.S.) 336.)
According to one line of cases, the election indicated by phrases such as those quoted above is the next election at which a successor to the incumbent of the Office would have been elected if there had been no vacancy. (People ex rel.Murphy v. Col, (Cal.) 64 P. 477; State ex rel. Evard v. Roach, (Mo.) 192 S.W. 745; State ex rel. Livesay v. Smith, (Mont.)90 P. 750, 10 Ann. Cas. 1138; State ex rel. Patterson v. Lentz, (Mont.) 146 P. 932.)
In some jurisdictions where elections for certain classes of officers are held at a different time from elections for other classes of officers, phrases such as those considered here are held, in the case of a vacancy in an office belonging to a particular class, to refer to the next election of officers of that class, though not necessarily to the election at which there would have been an election for the particular office in question if there had been no vacancy. (Stephens v. Reid, (Ga.)6 S.E.2d 728; Brackett v. Etheridge, (Ga.) 9 S.E.2d 275;State ex rel. Watson v. Cobb, 2 Kan. 32; Matthews v. ShawneeCounty, (Kan.) 9 P. 765; Ward v. Clark, (Kan.) 10 P. 827;McIntyre v. Iliff, (Kan.) 69 P. 633; State ex rel. Taggart v.Holcomb, (Kan.) 111 P. 188; Wendorff v. Dill, (Kan.)112 P. 588; 50 L.R.A. (N.S.) 359.)
On the other hand, a number of cases taking the view that the phrases under consideration refer to the election
at which a successor to the incumbent of the office would have been elected if there had been no vacancy, or, at any rate, that they do not necessarily indicate the next election in point of time, have pointed out that there is no inherent reserved power in the people to hold an election to fill a vacancy in an elective office, but such election can be held only when and as authorized by law and therefore that even where the Constitution contains a provision for the filling of a vacancy by election, such election can be held only as provided for by statute unless the constitutional provision is self-executing. (People ex rel. Murphy v. Col, (Cal.)64 P. 477; State ex rel. Halbach v. Claussen, (Iowa) 250 N.W. 195.)
Bert H. Miller, Attorney General of Idaho; William A. Brodhead, Thomas Y. Gwilliam, Frank Langley, and J.R. Smead, Assistant Attorneys General, appearing Amici Curiae.
The clerk's office under the Constitution was and is created as belonging to the judicial department. As clerk, he was not intended to be in the same category as the county officers created by Art. 18. This appears plainly from the discussions in the Constitutional convention. Convention Proceedings, Vol.2, pp. 1803, 1812.
Sec. 16, Art. 5, provides that he shall be
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Vacancies in all county offices shall be filled by the
County Commissioners until the next general election when such vacancy shall be filled by election. (Sec. 57-906, I. C. A.; Sec. 57-909, I. C. A.)
The tenure of an officer filling a vacancy is, if elected to the full unexpired term, if appointed, only until his successor is elected and qualified. (Sec. 57-914, I. C. A.)
The Clerk of the District Court is a County Officer, and the County Commissioners have power to appoint someone to fill a vacancy therein. (Sec. 30-1501, I. C. A.; Sec. 30-2606, I. C. A.; Sec. 57-906, I. C. A.)
The appointee is not invested with the duties of office to the end of the term but merely until the vacancy is filled by election at the next general election. (State v. Lutz, (Kan.)227 P. 334; Budge v. Gifford, 26 Idaho 521, 144 P. 333; Hamiltonv. Raub, (Kan.) 292 P. 396; Bond v. White, 8 Kan. 333; State exrel. Welsh v. Mecham, (Kan.) 2 P. 816.)
Democratic principles of government require that elective offices shall, so far as possible, be filled at all times by incumbents chosen by the electors, and it is the general policy of the law that vacancies in elective offices should be filled at an election as soon as practicable after the vacancy occurs, and appointments to fill vacancies should be effective only until the people may elect. (State ex rel. Sullivan v. Moore, (supra); State ex rel. Weeks v. Gamble, 13 Fla. 9; McCreary v.Williams, (Ky.) 154 S.W. 417; State ex rel. McGowan v.Sedgwick, (Mont.) 127 P. 94; Rodwell v. Rowland, (N.C.)50 S.E. 319; State ex rel. Castle v. Schroeder, (Neb.) 113 N.W. 192; 132 A.L.R. -576.)
C.W. Poole and W.A. Ricks, for defendant.
All vacancies in any state office and in the supreme and district courts, unless otherwise provided by law, shall be filled by appointment by the governor, until the next general election after such vacancy occurs, when such vacancy shall be filled by election. (Sec. 57-902, I. C. S.; Budge v. Gifford,26 Idaho 521; Joy v. Gifford, 22 Idaho 301.)
Vacancies shall be filled in the following manner: in the office of the clerk of the supreme court, by the supreme court. In all other state and judicial district offices, and in the membership of any board or commission created by the state, where no other method is specifically provided, by the governor. In county and precinct offices, by the county
board; and in the membership of such board, by the governor. (Sec. 57-905, I. C. S.)
All vacancies in any county or precinct office of any of the several counties of the state, except that of the county commissioners (who shall be appointed by the governor), shall be filled by appointment by the county commissioners of the county in which the vacancy occurs until the next general election, when such vacancy shall be filled by election. (Sec.57-906, I. C. S.)
"The constitutional or statutory provisions for the time of an election to fill vacancies in public offices vary in the different states. 'Until the next general election;' 'the next election by the people;' 'the next annual election;' 'until the next general election or until their successors are duly elected and qualified,' etc., etc., are the usual terms employed. . . . These several provisions have been construed in different ways by the courts." (State ex rel. Fish v. Howell, (Wash.) 110 P. 386; 50 L.R.A. (N.S.) 336.)
According to one line of cases, the election indicated by phrases such as those quoted above is the next election at which a successor to the incumbent of the Office would have been elected if there had been no vacancy. (People ex rel.Murphy v. Col, (Cal.) 64 P. 477; State ex rel. Evard v. Roach, (Mo.) 192 S.W. 745; State ex rel. Livesay v. Smith, (Mont.)90 P. 750, 10 Ann. Cas. 1138; State ex rel. Patterson v. Lentz, (Mont.) 146 P. 932.)
In some jurisdictions where elections for certain classes of officers are held at a different time from elections for other classes of officers, phrases such as those considered here are held, in the case of a vacancy in an office belonging to a particular class, to refer to the next election of officers of that class, though not necessarily to the election at which there would have been an election for the particular office in question if there had been no vacancy. (Stephens v. Reid, (Ga.)6 S.E.2d 728; Brackett v. Etheridge, (Ga.) 9 S.E.2d 275;State ex rel. Watson v. Cobb, 2 Kan. 32; Matthews v. ShawneeCounty, (Kan.) 9 P. 765; Ward v. Clark, (Kan.) 10 P. 827;McIntyre v. Iliff, (Kan.) 69 P. 633; State ex rel. Taggart v.Holcomb, (Kan.) 111 P. 188; Wendorff v. Dill, (Kan.)112 P. 588; 50 L.R.A. (N.S.) 359.)
On the other hand, a number of cases taking the view that the phrases under consideration refer to the election
at which a successor to the incumbent of the office would have been elected if there had been no vacancy, or, at any rate, that they do not necessarily indicate the next election in point of time, have pointed out that there is no inherent reserved power in the people to hold an election to fill a vacancy in an elective office, but such election can be held only when and as authorized by law and therefore that even where the Constitution contains a provision for the filling of a vacancy by election, such election can be held only as provided for by statute unless the constitutional provision is self-executing. (People ex rel. Murphy v. Col, (Cal.)64 P. 477; State ex rel. Halbach v. Claussen, (Iowa) 250 N.W. 195.)
Bert H. Miller, Attorney General of Idaho; William A. Brodhead, Thomas Y. Gwilliam, Frank Langley, and J.R. Smead, Assistant Attorneys General, appearing Amici Curiae.
The clerk's office under the Constitution was and is created as belonging to the judicial department. As clerk, he was not intended to be in the same category as the county officers created by Art. 18. This appears plainly from the discussions in the Constitutional convention. Convention Proceedings, Vol.2, pp. 1803, 1812.
Sec. 16, Art. 5, provides that he shall be elected at thetime prescribed by law for the election of members of the Legislature, but then distinguishes in that he shall serve for four years while legislators are elected only for two years.
Acting pursuant to the four year provision, the Legislature, immediately following the adoption of the Constitution, provided for the election of such clerks at four year intervals. This is shown by the annotation to Sec. 33-202 in the present Code. The section has been substantially re-enacted in every codification of our laws since that time. We emphasize, however, the provision of the present statute, that such clerks shall be elected at the general election of 1922
and every fourth year thereafter. This provision is as specific and definite as the English language permits. As such, we submit that it controls over any and all general provisions relating to the election of such clerks, following appointments to fill vacancies. The rule relied upon is so
firmly established that we believe citations of authority are unnecessary.
We think when that section is read together with Sec. 19,Art. 5 of the Constitution, and the general statute concerning the filling of vacancies by county commissioners here relied upon by petitioner (Sec. 57-906, I. C. A.), there should be no question that the respondent herein is fully entitled to serve out the present four year term of the office which he occupies.