Donelan v. Bird , 118 Ky. 178 ( 1904 )

Opinion of the court by

JUDGE SETTEE

Affirming.

The record herein presents an agreed case in which the parties sought in the court below, and are now seeking in this court, a decision of the question as to when an election in Campbell county for filling the vacancy in the office of circuit judge for the Seventeenth Judicial District, caused by the death of the Honorable John P. Newman, should take place — whether in November, 1904, or November, 1905. The decision of the Question submitted must turn upon the construction to be given section 152 of the Constitution, for section 1522, Kentucky Statutes 1908, bearing on the subject, is but a repetition of what we find in the Constitution. The section of the Constitution supra reads as follows: “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 filed by appointment for the remainder of the term. Tf 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 said election, and then said vacancy shall be filled by election for the remainder of the term. If three months do not intervene before the happening of said vacancy and the next succeeding annual 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 or 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. Vacancies in all offices for the State at large, or for districts larger than a county, shall be filled by appointment of the Governor. All other appointments shall be made as may be provided by law. No person shall ever be appointed a member of the General Assembly, but vacancies therein may be filled at a special election, in such manner as may be provided by law.”

It appears that John P. Newman was duly elected judge of the Seventeenth Judicial District at the regular election held therein on the 3d day of November, 1903, for the full term of six years, beginning the first Monday in January, 1904; that he received his certificate of election from the State Board of Election Commissioners, and his commission from the Governor, after which he took the required constitutional and statutory oaths. But before the arrival of the time for undertaking the performance of the duties of his office, Newman died — -his death having occurred January 1, 1904 — -thereby causing a vacancy in the office to which he had been elected. On January 27, 1904, the Governor duly appointed and commissioned the present incumbent, Albert S. Berry, to fill the vacancy, and he has, ever since his appointment, performed the duties of the office.

Obviously, the section of the Constitution supra will not permit the appointee of the Governor to continue in the office in question until the expiration of the term for which his predecessor was elected, as the term will not end at the next annual election at which city, town, county, district or State officers will be elected. It is equally manifest that the contingency can not arise that would entitle him to continue in office until the second annual election after the happening of the vacancy at which officers of the classes named are to be elected, because more than three months will intervene between the happening of the vacancy and the time for the holding of the first election thereafter of the character indicated, and it is only where three months do not intervene between the beginning of such vacancy and the next succeeding election at which city, town, county, district or State officers are to be elected that the Constitution will permit the appointee to hold over until the second annual election occurring after the happening, of the vacancy. As in this case not only three, but more than ten, months will intervene between the happening of the vacancy and the next succeeding annual election, if at such election there are to be elected officers of the character specified in flic section supra, we think this case must be controlled by that part of the section which declares that “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 the said election, and then said vacancy shall be filled by election for the remainder of the term.”

The only question that remains to be determined is as to whether at the November election, 1904, there will be elected either city, town, county, district or State officers. This court judicially knows that on Tuesday after the first Monday in November, 1904, members of Congress and presidential electors will be voted for in every county and elected throughout the State. In Eversole v. Brown, 21 R. 925, 53 S. W. 527, and Neely v. McCollum, 21 R. 823, 53 S. W. 37, it was held by this court that members of Congress are not district or State officers, within the meaning of section 152 of the Constitution. But in Todd, Mayor, v. Johnson County Clerk, etc., 99 Ky., 550, 18 R., 354, 36 S. W., 987, 33 L. R. A., 399, it was held by this court that presiden tal electors are State officers, within the'meaning of the section supra. We adhere to the conclusion expressed in that case, and find that it is sustained by the Supreme Court of the United States in the cases of McPherson v. Blacker, 116 U. S., 1, 13 Sup. Ct., 3, 36 L. Ed., 869; In re Green, 131 U. S., 377, 10 Sup. Ct., 586, 33 L. Ed., 951.

We are of the opinion, therefore, that an election should be held in Campbell county on Tuesday after the first Monday in November, 1901, for the purpose of electing a circuit judge for the Seventeenth Judicial District, to fill the vacancy in that office caused by the death of John P. Newman, and to serve during the remainder of the term for which he was elected.

Wherefore the judgment is affirmed.