The State ex rel. Edmund C. Weeks vs. Samuel T. Day, 14 Fla. 9

RANDALL, C. J., delivered the opinion of the Court. The relator alleges that on the 21th day of January, 1870, a vacancy existed in the office of Lieutenant-Governor of this State, and that he was duly appointed and commissioned by the Governor to fill such vacancy under and by virtue of the power and authority in said Governor vested by

Section 7 of

Article Y. of the Constitution, and that on that day he took and filed his oath of office as Lieutenant-Governor, ia the office of the Secretary of State, and accepted the office and became by virtue of said

Section 7 the Lieutenant-Governor of said State, and that he still is and will continue lawfully to be the Lieutenant-Governor until the first Tuesday in January, 1873; and that-the respondent, Samuel T. Day, has usurped said office, &e. The respondent answers that on the 30 th day of August, 1870, the Governor of this State issued his proclamation, giving notice that on the 8th day of November then next, an election would be held by the electors of this State to fill the vacancy which might occur in said office at the expiration of the commission of Edmund C.

Weeks, the relator, and that on said 8th day of November, it being the day of a general election throughout the State, an election was held by said electors, and the “respondent was duly and legally elected Lieutenant-Governor” to fill the vacancy, &c., and that he had taken and filed the oath of office, and has since then performed the duties of the office, and is entitled to hold said office and enjoy the emoluments thereof until the year 1873.

To this answer ^the relator demurs, and assigns for causes of demurrer : That the answer does not show that an election was legally held, or could be held at the time alleged; That the proclamation of the Governor is too uncertain, irregular and defective to authorize an election; That the answer does not show by proper averments that the respondent was elected pr had title to the office. It is claimed that the proclamation of the Governor is uncertain, irregular and defective in its terms to authorize the holding ©f the alleged election.

We think, however, upon examination of the proclamation, that if án election was legally authorized to be held at the time alleged, the proclamation is sufficiently formal and explicit. ■ It gives notice that an election would be held on the 8th day of November, 1870, “to fill the vacancy which might occur in the office of Lieutenant-G-overnor of said. State at the expiration of the eommission of Edmund O. Weeks,” then Lieutenant-Governor.

If there could legally be held, at the time stated, an election to fill said office for the unexpired term, under a proclamation calling a special election, there is nothing in the form or substance of the proclamation which renders an election beld on tbe day and for the office named invalid. The principal ground of demurrer raises the question whether such an election could legally be beld to fill tlie nnexpired term of tbe office while the relator held the office under the appointment and eommission of the Governor, by which the vacancy was supplied. It is contended by tbe relator, that the appointment of Mr.

Weeks was made solely under the authority of

Section 7 of

Article Y. of the Constitution of this State, which reads as follows: “ When any office from any cause shall become vacant, and no mode is provided by tbis Constitution or by the laws of the State for filling the vacancy, the Governor shall Lave the power to fill such vacancy by granting a commission which shall expire at the next election.” And the relator insists that the appointment by the Governor entitles him to hold the office until the same shall be filled by the regular election to be held in 1872. It will be seen that this

section of the Constitution provides for the filling of vacancies in offices by granting commissions, in the cases where no mode is expressly provided by the Constitution or by law for filling vacancies and if no mode is provided for filling vacancies, then the commission shall be in form and effect such as is here provided, hut if the laws have made provision, then this

section of the Constitution will not control, except as it upholds such provision. ( The Legislature, by

an act relating to vacancies in office, approved August 6, 1868, lias provided that every office shall be deemed vacant by occasion of the death, resignation, removal, judgment of a competent tribunal, &c., and that in all cases in which a vacancy may occur, if the office be a State, district or county office other than a member or officer of the Legislature, it shall be the duty of the Governor to fill such office by an appointment, and the person so appointed shall be entitled to take and hold such office until' the same shall be filled by an election as provided by law.

The vacancy in the office of Lieutenant-Governor was caused by the operation of the judgment of a competent tribunal, and this vacancy, and the appointment of the relator occurred after the enactment of the law referred to, and the appointment and its tenure must be controlled by that law, which authorized the relator “ to take and hold such office until the same shall be filled by an election as provided by law.” The constitutional provision, as well as the act in question, provide for the filling of a vacancy by a commission or appointment by the Governor, which commission shall expire at the happening of an election.

If it had been intended that the appointment by the Governor should supply the office for the residue of the term of the office, there would have been no occasion for using the words which are here used to designate the expiration of the commission ; because the time of holding an election to fill the ■office, at the expiration of the term, for the ensuing term, is appointed by the Constitution, and the commencement of the term is there fixed and designated to be in January succeeding the election ; whereas the provision- for filling vacancies by appointment expressly declares that the commission of the Governor shall expire at the “ next election,” or when the office shall “ be filled by an election as provided by law.” If it had been intended that the commission issued by the Governor should fill the office for the residue of the term, words to that effect would, without doubt, have been employed, instead of words which limit the tenure by an appointment which may expire at an election to be provided by law.

What, then, are the provisions of law for holding elections to fill offices — general and special elections ? The act to provide for the registration of electors and the holding of elections, approved August 6, 1868, Sec. 1, provides, that a general election shall be held on Tuesday succeeding the first Monday of November of each year, in which State and county officers are by law required to be elected. Sec. 2 provides that a Governor and Lieut.-Governor shall be elected every four years; members of the Senate and Assembly, and such county officers as are elective, every two years.

Sec. 3 provides for the holding of special elections. The first, second and third clauses of this

section provide for -filling vacancies which may occur from various causes, in the seat of a representative in Congress, Senators and members of Assembly, and in county offices. The fourth clause provides that special elections maybe held “when, in any other case of a vacancy not particularly provided for, the 'Governor shall in his discretion direct.” And the act then proceeds to direct the manner of conducting such elections, and among other things that special elections for any office may be held under the proclamation of the Governor, to be- issued not less than fifteen or more than forty days from the day of the publication of the proclamation. The 5th

section requires the Secretary of State to issue a notice stating what offices and vacancies are to be filled at each general election in the State, county or district, &c. The office of Lieut-Governor is not named in any of the provisions for filling vacancies or for holding special elections, nor are other offices named; but it cannot be questioned that when a provision refers to certain cases, and in terms refers to “every other” ease not particularly provided ■for, it must include this. The language is quite as comprehensive as that used in the 7th

Section of

Article V. of the Constitution, which, it is considered, when it refers to “ any office,” includes that of Lieut.-Governor as among those in which a vacancy may be filled by an appointment. , It is claimed that the office of Lieut.-Governor is not included among those which may be filled by a special election, because the Constitution fixes the time for choosing that officer by election.

But so do the Constitution and the statutes appoint the time for the election of all other elective officers; and to say that because the Governor or any other officer may make an appointment to prevent a hioshis in an office, this supercedes and legally nullifies the power to provide for an election by the people to fill the office for the residue of an unexpired term, is in effect to declare that the people shall not have the power to choose one to fill an elective office.

"We cannot conclude that the provisions for holding special elections relate solely to constables, and there being no other offices except that of Lieut.-Governor which can be filled by special elections, it must be deemed that the framers of the Constitution and the Legislature intended to refer to this, and that some semblance of popular representation should be preserved. The conclusion is, that the appointment of Mr.

Weeks to the office of Lieutenant-Governor in January, 1870, entitled him “ to take and hold such office until the same ” should “be filled by an election as provided by law ;” and that if an election was held in November, 1870, in pursuance of a proclamation of the Governor, the term of the relator expired when the office was filled by an election, and that period arrived when it was determined by the canvass that another had been elected.

Upon this branch of the demurrer the opinion of the court is against the relator, but. upon the question of the sufficiency of the answer as to the title of tbe respondent, the allegation that he was “duly elected” is not sufficient. Facts must be averred, showing that he was elected in the manner prescribed by law. Rex vs. Leigh, 4 Burrow, -2,143; State vs. Gleason, 12 Fla., p. 265. Upon this ground the demurrer is sustained with leave to the respondent to amend his answer.