
    Case 14 — Action to Recover the office of Justice of the Peace—
    May 31.
    Campbell v. Dotson.
    APPEAL FROM PIKE CIRCUIT COURT.
    Judgment for Defendant and Plaintiff Appeals.
    Affirmed.
    Public Officers — Holding Over — Failure of Successor to Qualify— Vacancy in Office of Justice of the Peace.
    Held: Under Constitution, section 99, providing that justices of the .peace elected in November, 1894, should “continue in office three years, and until the election and qualification of their successors,” and that there should be an election of justices of the peace in 1897 and every four years thereafter, one who was elected to that office in November, 1897, having failed to qualify, his predecessor, elected in November, 1894, was not entitled to hold over, but there was a vacancy in the office, to be filled by appointment until the next general election, in November, 1898, as prescribed by Constitution, section 152, which provides for filling vacancies in all elective offices.
    CHIEF JUSTICE PAYNTER and JUDGE O’REAR — dissenting.
    J. M. Roberson, attorney for appellant.
    •Appellant alleges in his petition that he was duly elected ■to the office of justice of the peace in district No. 5 in Pike county, at the November election, 1894; was duly qualified and entered upon the duties of his office January 1, 1895, and held said office until the next regular election in November, 1897, when one J. J. Wolford wa-s elected to said office to succeed appellant; that Wolford failed to qualify by executing bond nr taking the oath of office or receiving a commission from the governor; that at the January term, 1898, of the Pike county court an order was entered upon the records of said court declaring said office vacant and the judge of said court thereupon appointed the appellee, Jas. L. Dotson, to fill the supposed vacancy, who qualified and was commissioned by the governor and took possession of said office and the records thereof and is yet exercising the duties pertaining thereto. Appellant claims that he, appellant; is rightfully entitled to hold and discharge the duties of said office and that appellee is unlawfully ■claiming tbe same, and be prays to be restored to tbe said ■office which now? rightfully belongs to him.
    A demurrer was sustained to appellant’s petition in the Pike circuit court, and his petition dismissed and he appeals.
    AUTHORITIES CITED.
    19 Am. & Eng. Ency. of Daw, 432 et seq.; State v. Harrison, 113 Ind., 434; 3 Am. St-. Rep., 663; Gossman v. State, 106 Ind., 203; People v. Osborne, 7 Colo., 605; State v. Howe, 25 Ohio .State, 588; 18 Am., .321; Walker v. Ferrill, 58 Ga.. 512; Com. v. Handley, 9 Pa. St., 513; Brightly’s Lead. Cas. on Elections, 670; Stevens v. Wyatt, 16 B. M.,_ 542, 549, 550; Const, of Ky., sec. 99.
   Opinion op the court by

JUDGE HOBSON

affirming.

At the November election, 1891, appellant, A. W. Campbell, was elected a justice of tbe peace for magisterial district No. 5 of Pike county, and entered1 upon tbe discharge of the duties of the office. At the November election, 1897, J. J. Wolford was elected justice of the peace in the district to succeed appellant, but failed to qualify i as provided by law. After Wolford' failed) to- qualify, the county judge entered an order declaring a vacancy to. exist in the office of justice of the peace for the district* and appellee, J. L. Dotson, was regularly appointed to fill the vacancy. Appellant insists there was no vacancy to be filled, and that he was still the rightful officer, under section 99 of the Constitution: ,

“There shall be elected in eighteen hundred and ninety-four in each county a judge of the county court, a county court clerk, a county attorney, sheriff, jailer, coroner, surveyor and assessor, and in each justice’s district one justice of the peace and one constable, who shall enter upon the discharge of the duties of their offices on the first Monday in January after their election and continue in office-three years, and until the election -and qualification of their successors; and in eighteen hundred and ninety-seven, and every four years thereafter, there shall be an: election in each county of the officers mentioned, who .shall hold their offices for four years (from the first Monday in January after their election), and until the 'election and qualification of their successors.” Appellant contends that under this section he continued in office for three years, and until the election and qualification of his .successor, and that, as Wolford was elected and failed to qualify, his right to the office was not interrupted. If this contention can be maintained, then, so far as section 99 goes, appellant would be entitled to the office for the next four years; for, according to that section, the election for justice of the peace is to be held every four years thereafter. The only other section ot the Constitution under which an election may be held is 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 annual election at which either city, town, county, district, or State officers are to be elected, the office shall be filled by appointment until said1 election, and then said vacancy shall be filled by election for the remainder of the term. If thre'e months do hot intervene between the happening nf said vacancy and the next succeeding election at which city, town, county, district or State officers 'are to be elected, the office shall be filled by appointment until the second succeeding annual election- at which city, town, county, district oir State officers' are to be elected; and then, if any part of the term remains unexpired, the office shall be filled by election until the regular time for the election of officers to fill said offices.”

It will be observed that this section applies only to vacancies. If there is a vacancy in an elective office, it may be filled1 by appointment for the remainder of the term in certain contingencies, or by appointment until the next general election, and then by election for the remainder of the term in all other cases. But thlere can be no election under this section unless there is a vacancy. It therefore follows that, if there- was no vacancy in the office of justice of the peace after Wolford fíile'd to qualify, no election could be held under this section to fill the office; nor could it be held under section 99 until the end of four years. These are the only provisions of the Constitution for holding an -election for the office, and, if appellant’s contention is correct, — that there was no vacancy, — it will result that he gets a term of seven years, instead of three, as provided by section 99, because Wolford failed to qualify. Section 99 applies not only to justices of the peace, but to nearly all other county officers; and, if appellant’s construction is correct, then all these officers, where their successors die after their election, or for any other reason fail to qualify, will get two terms instead of one. It can not be maintained that in such a case the old incumbent would hold over unitl the next regular election, and that his successor might then be elected; for there is no authority for holding an election at that time for such- an office, unless there is a vacancy in it, and, if there is a vacancy, then it must be filled by appointment until that election, as was done in this case by the appointment of Dotson. We can not believe it was intended by the Constitution to bring about any such result as appellant’s contention leads to. The term of county offices is fixed at four years. Elections are required to be held every four years to fill these offices. The persons elected enter upon the duties of their offices on the first Monday in January after their election. The term of the officer expires when the term of his successor begins. He holds until the election and qualification of his successor, so that there may always be an incumbent in the office to attend to the public business. ■ The meaning of section 99 is not different from a number of other sections. Thus, under section 73 the governor, after entering upon the duties of his office, “shall continue in the execution thereof until his successor shall have qualified.” By section 91 all the other important executive State officers “hold their offices until their successors are elected and qualified.” By section 93 the minor State officers hold “for a term not exceeding four years and until their successors are appointed or elected and qualified.” By section 97 Commonwealth attorneys and circuit clerks “hold their respective offices for six years from the first Monday in January after their election and until the election and qualification of their successors.” ' By section 112 the judges of this court hold “until their several successors are qualified.” By section 120 it is provided that the clerk of this court “shall hold his office until his successor is elected and qualified.” By section 129 circuit judges hold “until their successors are elected and qualified.” All these sections mean the same thing. None of them were designed to give the incumbent two terms in case his successor died before qualifying. The aim was simply to prevent a hiatus in the office in case the new officer for any reason failed to qualify. Tlie Constitution fixes' a definite term for each of these offices, and fixes a definite time when the regular election to fill them shall be held. It also provides for filling vacancies, and requires that these shall be filled by election, except when the unexpired portion of the term is so short as to make this impracticable. The construction urged by appellant is wholly out of keeping with the spirit and purpose of the constitutional provision. It is true, appellant holds until the election and qualification of his successor. His successor was elected at the November election, 1897. The person elected having failed to qualify and a vacancy being adjudged to exist, the term for which he was elected became vacant, just as much as if he had died after qualifying, but before the time for entering- upon the duties of his office; and when Dotson was appointed to fill this vacancy, gave bond, and took the oath, appellant’s successor had been elected and qualified, and therefore his right to the office ceased.

At the time the Constitution was formed, it had long been a settled rule in this State1 that where the person elected to an office died before qualification, or for any reason failed to qualify, or there was no election to fill the office at the time appointed by law a vacancy existed. The Constitution not only -aims at short, definite terms, but it also aims to vest in the people at the expiration of each term tbie right to choose the incumbents of the office for the next term; and section 152 was intended' to secure this right in all cases where the remainder of the term, in case of a vacancy, was long enough to justify it. In view of all the provisions of the Constitution, and the well-settled rule in the State at the time of its adoption, we' have no doubt that its framers intended by section 152 to provide for such a contingency as occurred in this case, and that they did n'ot contemplate that .the incumbent of an office, in the case of the failure of his successor to qualify, should hold for a second term to which he had not been elected. Judgment affirmed.

Whole court sitting.

Chief Justice Paynter, and Judge O’Rear dissenting.

Petition for rehearing by appellant overruled.  