American Falls press. [volume] (American Falls, Idaho) 1907-1937, 1917-01-18
of the prosecuting attorney vas read
and considered by the board:
SPENCER l.. BAIRD
Prosecuting Attorney
Power County

American Falls, Idaho
January 8. 1917.
To the Hon. Board Of County Com
missioners, Power County. Idaho.
Gentlemen:
In Re: Qualification for the office
Of sheriff Of Power county, Idaho.
In the above the facts are undisput-
ed and about as follows: W. A. West
al elected TO fill the office Of sheriff
Of Power county. Idaho for the term
Of 1917 and 1918. after his election
and before the time for the taking Of
the oath he died.
Query-Is there a vacancy in the
office Of sheriff Of Power county. Ida
no?
Sec. 3l7 Revised Codes Of Idaho.
provide among other things, as fol-
lows: Every civil office shall be
vacant upon the happening Of either
OF the following events at any time
before the expiration of the term of
such office as follows:
/. The resignation OF the incum-
bent.
2. His death.
3. His removal from office.
4. The decision OF a competent tri-
bunal declaring his office vacant.
8. His ceasing to be a resident OF
the state, district or county in which
the duties Of his office are 10 be ex-
.~1sr.l - - rrIE,L - w.urr 49,. br,r
elected.
6. A failure to elect at the proper
election. there being no incumbent to
continue in office until his successor
is elected and qualified nor other pro-
visions relating thereto.
Z. A forfeiture of office as pro-
vided by n law OF the state.
s. Conviction OF any infamous crime.
or of any public offense involving the
violation of his oath OF office, either
in the militia Of this state. or in the
service of the Uniteo States which re-
quires the incumbent in the civil Of
flee to exercise his military duties out
OF the state of a period Of not less than
sixty days"
Under this section the only subdivi-
sion which might be applicable would
be subdivision three go thereof, pro-
viding for the removal OF the incum-
bent from the said office. Our codes
provide that a public officer can be
removed from office only for miscon-
duct, such as refusal to pay in fees
or refusal to serve in the capacity of
the office.
Under Terms Of Office" the law
provides that officers shall serve in
that capacity until their successor
is elected and qualified, which un-
doubtedly includes officers who are
appointed. While it is our opinion
that the above provision is principal
" to safeguard against the contingency
of an office becoming vacant. it is
our opinion. that in as much as there
is no section of our statutes directly
providing for the contingency in this
particular case. that the present in
cumbent Of the office will hold over
This position is strengthened by sub
division six 90 Of section 81 above
referred to providing that " a fail
ure TO elect at the proper election
there being no incumbent to continue
in office until his successor is elected
and qualified. nor other provisions
relating thereto" II appears that pro.
vision has been made by u legisla-
ture for a vacancy in office in case
no one is elected at the proper cleo
ton and there is no present incum.
bent. BY analogy. therefore the in
tention Of the legislature is apparent
that if there is a present incumbent
at the prope election and no Officer
is elected to fiji that particular of.
hce that the present incumbent shall
hold over.
Although there are contrary author
titles in some states this office is O.
the opinion. after INVESTIGATION Of
the authorities above quoted anC
after having received an unqualified
opinion of like effect from both th'
present attorney general, the Hon T
A. Walters and his predecessor. tbs
Hon. ]. II. Peterson. that no vacancl
occurs in the office Of sheriff Of Pow
Ell county. Idaho. nor is the board o
county commissioners empowered e
create such a vacancy. except for mis-
conduct in office. and hat the pres
ent incumbent in the office Of sheriff
Of Power county. Idaho. is entitled Il
hold said office for the term of TIVE
years. commencing with the Sth da,
Of January. A. d. 1917. or until hi
successor is elected and qualified
upon his taking of the oath requires
by law and the filing OF the bond o
continuance of the present bond a
required by law by the present incum
bent Of said office.
Respectfully submitted.
SPENCER l. BAIRD.
Prosecuting Attorney.
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