Reporter and farmer. [volume] (Webster, Day County, Dakota [S.D.]) 188?-1946, 1910-10-27
BEST COULD NOT HOLD over
Present Incumbent Could Not
Hold Office in Case Hetley
Cannot Qualify.

There having been much discussion
on the part of voters as to what would
be done about the superintendent
Office after the election of Mr.. Hetley,
should he for any reason be unable to
qualify and hold the office, and Messrs.
Anderson & Waddell, having been
requested by various parties to look the
matter up, and they having in mind a
case which was recently tried in Rob-
erts county, wrote to Howard Babcock,
Of Sisseton, who was one of the attor-
neys in the case, and from him received
the following letter, which speaks for
itself:
''Sisseton, S. D., Oct. "a, 1910.
Messrs. Anderson & Waddel.
Webster, Sonth Dakota.
Gentlemen:
Replying to your favor of the 10th
inst, in which you ask me about the
issues and decision in the case of o. H.
Jones VS.. Roberts county, will say that
at the time this case arose, and at the
time it was tried, was associated with
J. j. Batterton, ESQ.,, of this city, who
had charge of the case on behalf of
Roberts county, and while l do not
know as much about the case as he
does, am familiar with he issues and
decision of the court and will say in
regard thereto that in this case the
plaintiff, o. H. Jones, had held the
office of superintendent of schools in
this county under certificate of election
up to and until the first Monday in j an
sary, 1909; that the party who had been
nominated and elected for the follow
ing two years was not eligible to hold
the office, and that the said o. H. Jones
remained in the Office and performed
the duties of the office for some nine
months after the expiration of his term,
claiming that he was entitled to hold
ever and to draw his salary for per-
forming the du ties of the office. This
action was brought to recover from
Roberts county his salary for such SER
vices.
'The case was tried in this county
before Judge j. HI. Bottum at the jan
aary 1910 term. In letter which Judge
Bottum wrote j. j. Batterton, which
letter now have before me. The
judge says in part: while there is
some conflict of authority as to whether
an officer is emit tied to hold over after
the expiration of his term and until his
successor is elected and qualified, there
being no statutory provisions to that
effect. The weight of authority is to
the contrary, and under the decisions of
eur own supreme court there is no
question that in this state their right
10 hold the office terminates immedi-
ately upon the expiration of the term;
m fact, in this state, the law does not
contemplate any contingency by which
it will be necessary for public officer
10 act after the expiration of his term.
Where vacancy occurs by reason of
death, resignation or failure to qualify,
the law requires that it be at once
flled by appointment. and presumes
tbat this will be done. Since the law
does not contemplate any contingency
which would require action on the part
Of the former occupant, it certainly
does not contemplate that he will act
''In his findings, copy of which /
have before me, the Judge concludes in
the following language: That the
plaintiff herein was not eligible to take,
hold or occupy said Office after the
expiration of his said term of Office on
the first Monday in January, 1909, and
in mot entitled to receive any of the sal