The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-10-26

ing the time for holding elections in
certain judicial districts and provides
that the governor shall appoint to fill
the time intervening from the eXpira-
ton of the term of persons holding the
positions of judges in such districts un-
til filed at the general election in 1902.
Applying the familiar rule of con-
struction put upon the acts of the leg
islature by our courts, The expression
of one thing is the exclusion of an
other it becomes very clear that the
legislature intended that the present
county officers, whose terms would have
expired, but for this act, in January.
1902, should remain in office until their
successors were elected in 1902 and
properly qualified. Having in the same
act made express provision for filling
the office of judge in the judicial dis
tricts where the time of election was
extended, by clear implication the legiS-
lature declared that the county offices
mentioned in said act were not to be
filled by appointment or in any other
manner. Declaring a part of the offices
should be filled by appointment and be-
ing silent as to the others is equivalent
to saying that the latter shall not be
appointed
THE legislature having clearly in
tended to extend the terms of the Sher-
ifs and other officers, mentioned in said
act from January, 1902, to January 1903.
the present occupants of these offices
are the proper persons to fill the same
unless the constitution prohibits Sher-
ifs and trea SurerS who are now serving
a second term from doing So That part
of the constitution which relates to ten
ure of sheriff. is as follows: All county
officers shall hold their offices for the
term of two years, and until their sue
cessors shall be qualified, but per-
son shall hold the office of sheriff or
county treasurer for more than two
consecutive terms.
Does this provision in the constitu-
ton prohibit sheriff from legally hold
ing his office for more than four years
in succession and is the office vacant
when the four years have expired? If
so is it such vacancy as the governor
is by law authorized to fill by appoint
ment?
Clearly when a sheriff has served
four years in succession and is still in
Office there has happened none of the
conditions necessary to create a vacan-
cy. Under the statutes the governor
can appoint sheriff only when such
conditions exist that the sheriff ceases
to be sheriff and the under-sheriff be-
comes the only lawful person to per-
form the duties of sheriff. until the
governor shall make an appointment.
The constitutional provisions hereto
fore quoted should be construed togeth-
er so as to give effect to both provisions.
When so done it means that sheriffs
and ueasurerS can not be elected nor
appointed sc as to enable them to fill
the third consecutive term or any part
of it but they like other county officers
shall serve until their successors shall
be qualified Any other construction
annuls part of that constitutional pro-
vision which adds an additional contin-
gent and defeasable period to the orig
ina1 fixed term and excludes the posi-
bility of vacancy except in case of
death and other contingent conditions
mentioned in the statutes.
THE right to hold over is a condi-
tional right as sacred as the inhibition
a q m. hn1 1nt frG-
Office of sheriff becomes vacant when
the last day of the second two years
expires and that the undersheriff the
next moment becomes the sheriff is to
render a part of the Constitution abso-
lutely imperative. The Constitution
adds to the end of the last term as well
as to the end of the first term the right
to hold over until the successor is quail
, flied The period between the expiration
of the term as fixed by the Constitution
and the time at which the successor
shall be qualified to take the office is as
much part of the incumbent's term as
the fixed constitutional period. 1t fol-
lows that so long as the incumbent is
filling the office under the constitutional
provision permitting him to do SO there
is no vacancy"
The br1el submitted to Governor
Stanley by Attorney Lambert makes
the argument based upon the follow
ing cases:
State ex rel. Carson VS.. Harrison,
Qnd) 16 n. E. 3s4.
state eA rel wagner VS.. COmSOn,
| (Ore.) "a Pac. 349
Lawrence VS.. Hanley. Cdich) Al N.
| w. 1853.
State VS.. Bogard, Qnd.) 27 N. E. lib.
kroener vs. the State, Qnd.) AZ N. L.
323.
Gosman VS.. the State, Qnd) 1s N. E.
34s.
Kimberlin VS.. the State ex rel Tow,
| Qnd.) 20 n. E. 773.
State ex rel Harrison VS.. Menaugh,
| Ond.) OIL N E. III.
1 Commonwealth VS.. Hanley, Pa St
/ 513
Commonwealth vs. Meeser A Pa st.
| BAL.
People VS.. Tilton, 81 Cal. 614.
Straton VS.. Oulton, IS Cal. A.
People VS.. Whitman. 10 Cal. 46.
| People VS.. Tyrrell, 81 Cal. AS
State VS.. Lusk, Is Mo. S33.
| McHenry VS., Jenkins, 43 Mo. 261
State VS.. Seay, 81 Mo- SO.
Taylor VS.. Sullivan, 40 MINI. 309.
clam vs. the State. rs Ind SIS
| Hubbard VS.. Crawford, 10 Kan. $40.
Am. & Eng En- of Law. vol. 49, PIP.
430 and 431-
State VS.. Pagan, AZ Conn., g.
| Sparks VS.. Bank, Del. CHI. 274.
| Tulley VS.. State, l Ind. 50O
! State VS.. Howe, % Ohio St 583.
| Johnson VS.. Nun. n Va PCS.
| People VS.. Edwards, 90 Cal. 1853.
State VS.. McNeeley, "A La Ann. 10.
State VS.. Whorton, % La. Ann. 19.
Stadley VS.. Detroit, 13 Mich. 346.
| State VS.. Irwin, 5 New Ill
Wenner VS.. Smith, Utah 2SS
Rhodes VS.. Hampton. 101 n. c. 629.
State VS.. Hadley, GA N. H. 473.
People VS. Rodgers lis Cal $685.
Eek parte Lawhord, is Graf S5
| state VS.. Darby. II Ohio Cir. CT Rep.