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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Holdover Provisions
Box: 27
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
Holdover
PROVISIONS
THE WHITE HOUSE
WASHINGTON
April 7, 1983
MEMORANDUM FOR HELENE VON DAMM
FROM:
FRED F. FIELDING Orig. signed by FFF
SUBJECT:
Duration of Holding Office Pursuant
to a Statutory Holdover Provision
You have asked this office for guidance on the length of
time a member of the Board of Directors of the Securities
Investor Protection Corporation (SIPC) may hold office after
expiration of his term pursuant to the statutory holdover
provision. Five of the seven members of the SIPC Board are
appointed by the President, by and with the advice and
consent of the Senate, for fixed terms. Pursuant to 15
U.S.C. § 78ccc (c) (4) (C), a "director may serve after the
expiration of his term until his successor has taken
office."
Although this statutory holdover provision contains no
specific limit on the length of time an individual may hold
over, it is our view that an individual may hold office
pursuant to a holdover provision only for a limited,
"reasonable" period. Congress has enacted holdover provisions
to guarantee that offices are occupied without interruption
and to ensure continuity in government operations. It did
not intend holdover provisions to be used as a means of
circumventing its advice and consent function. While we
have found no pertinent federal authority, this view of
holdover provisions is amply supported by state court
decisions interpreting analogous provisions in state law.
What constitutes a "reasonable" length of time will of
course vary with the circumstances of each particular case.
A given period of time may not be objectionable if, during
that time, a nomination were pending before the Senate, the
Senate recently rejected a nominee, or there were
articulable difficulties in selecting a nominee, while the
same period could be objectionable in the absence of such
circumstances.
-2-
In sum, the SIPC Board holdover provision may not be used as
a substitute for the statutorily mandated nomination and
confirmation process. Permitting an incumbent to hold over
indefinitely by failing to nominate someone (including the
incumbent) for the vacancy would not only create a serious
political controversy, but it could also subject the incumbent
to lawsuits challenging his authority and subject any
actions taken by him to collateral attack.
FFF/JGR:sts
FFFielding
JGRoberts
Subj.
Chron.
DRAFT
FOR: JOHN ROBERTS
FROM: CLAUDIA MCMURRAY
SUBJECT: Holdover Provision for Securities Investor Protection
Corporation
The President is empowered by statute to appoint five of seven
directors of the Securtiels Investor Protection Corporation (SIPC), with
the advice and consent of the Senate. 15 U.S.C. { 78ccc (c) (2) (C) When
a vacancy occurs, it is filled in "the same manner as the original
appointment was made. " 15 U.S.C. 78ccc (c) (4) (C) Until that vacancy
is filled, however, "[a] director may serve after the expiration of
his term until his successor has taken office." Id.
The statute gives no indication of how long a director might "holdover"
after his term has expired. By the same token, it places no restrictions
on the amount of time the President has to make an appointment to fill
the vacancy. The legislative history sheds no light on the question
either. A general look at the President's constitutional powers of
appointment may be of more assistance in this inquiry.
Article II, Section 2 of the Constitution empowers the President to
"appoint Ambassadors, other public Ministers and Consuls, Judges of
the supreme Court, and all other officers of the United States
"
with the Advice and Consent of the Senate." The Supreme Court has interpreted
Page Two
the
*Constitution to contemplate "three distinct operations" in the ap-
pointment process. See Marbury V. Madison, 5 U.S. 137, 155-56 (1803).
According to the Court, the first step is the nomination of a candidate.
"This is the sole act of the President, and is completely voluntary.' "
Id. The appointment is the second step, and "can only be performed
with the advice and consent of the Senate." Id. The third step in
the appointment process is the President's granting of a commission to
the person appointed. Id.
This analysis appears to assign to the Senate a relatively minor role
in the appointment process. According to an opinion of the Attorney
General, "The Senate cannot originate an appointment. Its constitutional
action is confined to the simple affirmation or rejection of the
President's nominations, and such nominations fail whenver it rejects
them. " 3 OPS. Atty. Gen. 188 (1837).
This constitutional analysis, coupled with the absence of any statutory
limitations, would indicate that the President may initiate the appoint-
ment process at any time. Of course, when the Congress set the
term for an SIPC director at three years, it undoubtedly intended that
as possible.
time frame to be followed as closelyA While the statute cannot pat
effectively
conditions on the President's appointment power, it may^set a "reasonable
time" limit on the President in this situation.
There is some authority on the state level for the proposition that, when
an incumbent holds over at the expiration of his term, the term is
not prolonged indefinitely, but only for a reasonable time for his
successor to qualify. See Prowell V. State, 142 Ala. 80, 39 So. 164,
167 (1905). In Prowell, the court held that if a successor fails to
qualify within a reasonable time, a vacancy in the office will occur. Id.
Page Three
Only one case on this subject has arisen in the Federal Reserve Board,
a governmental body comparable to the SIPC. In that case, the
President appointed John Williams as Comptroller of the Currency, a member
of the Federal Reserve Board. Five years later, upon the expiration
of his term, the President appointed Williams to succeed himself. The
President then sent Williams' nomination to the Senate, which failed to
consider it before adjourning. In an opinion written two months after
Williams was appointed, the Attorney General found that Williams was
a de jure member of the Board, and that he could continue in that
office "until the office holder's successor shall have been appointed and
qualified." The Attorney General set forth no limits on the amount
of time the Senate had to approve Williams' appointment.
Conclusion
There appears to be no explicit limit on the President's power to
appoint a director of the SIPC. According to the Court in Marbury ,
the President's act of nomination is a voluntary one. Only some
states have held that an appointment must be made "within a reasonable
time" after the prior officer's term has expired.
3-1
Ch. 2B-1
INVESTOR PROTECTION
15 § 78ccc
om
(7) subject to the provisions of subsection (c) of this section,
as
to elect or appoint such officers, attorneys, employees, and
its
agents as may be required, to determine their qualifications, to
define their duties, to fix their salaries, require bonds for them
and fix the penalty thereof;
(8) to enter into contracts, to execute instruments, to incur
liabilities, and to do any and all other acts and things as may
be necessary or incidental to the conduct of its business and the
exercise of all other rights and powers granted to SIPC by this
chapter; and
or
(9) by bylaw, to establish its fiscal year.
be
(c) Board of Directors.-
(1) Functions.-SIPC shall have a Board of Directors which,
subject to the provisions of this chapter, shall determine the
policies which shall govern the operations of SIPC.
(2) Number and appointment.-The Board of Directors shall
consist of seven persons as follows:
(A) One director shall be appointed by the Secretary of
the Treasury from among the officers and employees of the
Department of the Treasury.
(B) One director shall be appointed by the Federal Re-
serve Board from among the officers and employees of the
Federal Reserve Board.
(C) Five directors shall be appointed by the President,
by and with the advice and consent of the Senate, as fol-
lows-
(i) three such directors shall be selected from
among persons who are associated with, and representa-
tive of different aspects of, the securities industry, not
all of whom shall be from the same geographical area
of the United States, and
(ii) two such directors shall be selected from the
general public from among persons who are not asso-
ciated with a broker or dealer or associated with a
member of a national securities exchange, within the
meaning of section (a) (18) or section 78c (a) (21),
respectively, of this title, or similarly associated with
any self-regulatory organization or other securities in-
dustry group, and who have not had any such associa-
tion during the two years preceding appointment.
(3) Chairman and vice chairman.-The President shall desig-
nate a Chairman and Vice Chairman from among those direc-
tors appointed under paragraph (2) (C) (ii) of this subsection.
(4) Terms.-
(A) Except as provided in subparagraphs (B) and (C),
each director shall be appointed for a term of three years.
401
15 § 78ccc
INVESTOR PROTECTION
Ch. 2B-1
C
(B) Of the directors first appointed under paragraph
(2)-
(i) two shall hold office for a term expiring on De-
cember 31, 1971,
(ii) two shall hold office for a term expiring on De-
cember 31, 1972, and
(iii) three shall hold office for a term expiring on
December 31, 1973,
as designated by the President at the time they take office.
Such designation shall be made in a manner which will as-
sure that no two persons appointed under the authority of
the same clause of paragraph (2) (C) shall have terms
which expire simultaneously.
(C) A vacancy in the Board shall be filled in the same
manner as the original appointment was made. Any direc-
tor appointed to fill a vacancy occurring prior to the expi-
ration of the term for which his predecessor was appointed
shall be appointed only for the remainder of such term. A
director may serve after the expiration of his term until his
successor has taken office.
(5) Compensation.-All matters relating to compensation of
directors shall be as provided in the bylaws of SIPC.
(d) Meetings of Board.-The Board of Directors shall meet at the
call of its Chairman, or as otherwise provided by the bylaws of
SIPC.
(e) Bylaws and rules.-
(1) Proposed bylaw changes.-The Board of Directors of
SIPC shall file with the Commission a copy of any proposed by-
law or any proposed amendment to or repeal of any bylaw of
SIPC (hereinafter in this paragraph collectively referred to as
a "proposed bylaw change"), accompanied by a concise general
statement of the basis and purpose of such proposed bylaw
change. Each such proposed bylaw change shall take effect
thirty days after the date of the filing of a copy thereof with
the Commission, or upon such later date as SIPC may designate
or such earlier date as the Commission may determine, unless—
(A) the Commission, by notice to SIPC setting forth the
reasons therefor, disapproves such proposed bylaw change
as being contrary to the public interest or contrary to the
purposes of this chapter; or
(B) the Commission finds that such proposed bylaw
change involves a matter of such significant public interest
that public comment should be obtained, in which case it
may, after notifying SIPC in writing of such finding, re-
quire that the procedures set forth in paragraph (2) be fol-
lowed with respect to such proposed bylaw change, in the
402
NAME
POL.
STATE
APPOINTED
EXPIRES
* SABINE RIVER COMPACT ADMINISTRATION (Texas & Louisiana)
Representative of the U.S.
Lamar E. Carroon, Mississippi District of the
D
Miss.
8/21/78
Water Resources Division, U.S. Geological
Survey, Jackson, Mississippi
SECURITIES AND EXCHANGE COMMISSION (5) (BI-PARTISAN)
John R. Evans
R
Utah
9/20/79
6/5/83
Bevis Longstreth
D
N.Y.
8/20/82
6/5/84
Barbara S. Thomas
D
N.Y.
9/8/80
6/5/85
John S. R. Shad (CHAIRMAN)
R
N.Y.
6/5/81
6/5/86
James C. Treadway, Jr.
R
D.C.
8/20/82
6/5/87
SECURITIES INVESTOR PROTECTION CORPORATION (5)
James G. Stearns (CHAIRMAN)
R
Nev.
7/16/82
12/31/82
Ralph D. DeNunzio
R
Conn.
8/17/82
12/31/82
James W. Fuller
R
Calif.
7/16/82
12/31/83
David F. Goldberg
R
Ill.
8/17/82
12/31/84
Roger A. Yurchuck (VICE CHAIRMAN)
R
Ohio
8/17/82
12/31/84
224
Ala.
49 SOUTHERN REPORTER, 2d SERIES
tificate it seems that there was ample au-
inasmuch as no one had been elected or ap.
thority and opportunity to do so, and it
pointed to office, on February 17, 1950
and faithfully di
certainly knew how. In so close a ques-
there was a vacancy in office of constable
trusts imposed u]
tion we are reluctant to add words and
and Governor had right to appoint a new
election or appoir
thoughts to the restriction in order that it
constable. Code 1940, Tit. 17, § 69; Tit.
honestly account 1
may be interpreted to mean other than just
54, §§ 29, 31.
his hands hereina as sucl
as
what it says.
Affirmed.
IN gation exeept shall be nul
be and remain in f
D. T. Ware and Paul J. Hooton, of
BROWN, SIMPSON and STAKELY,
Roanoke, for appellant.
The next date pres
JJ., concur.
Thos. W. Graff, of Roanoke, for appellee.
election of a constab
County, was (
the first Monda
LAWSON, Justice.
siter Title 17, Code
KEY NUMBER SYSTEM
This is an information in the nature of a
constable of s
quo warranto by the State, on the relation
Mr. Benefield
of J. V. Benefield, and by J. V. Benefield
constable during the
individually, against Ed Cottle. From 2
judgment in favor of respondent, relator
January, 1949, althou
elected or appointed
appeals to this court.
appointment in October
STATE ex rel. BENEFIELD V. COTTLE.
J. V. Benefield was appointed constable
On February 17, 19
5 Div. 494.
of Beat 10, Randolph County, by the Gov.
ernor appointed the r
Supreme Court of Alabama.
ernor in October, 1941. The appointment
constable of said beat
Nov. 30, 1950.
was to fill a vacancy created by resignation
Thereafter commissio
The appointment was for the unexpired
Governor on February
Quo warranto proceeding by the State on
portion of the term and until his successor
the relation of J. V. Benefield against Ed
The manner of fill
was elected and qualified. § 29, Title 54,
Cottle, to determine who was the constable
office of constable is
of Beat 10, Randolph County. The Circuit
Code 1940. Mr. Benefield was duly com-
Title 54, Code 1940,
Court, Randolph County, Will O. Walton,
missioned. Before entering upon his duties
follows: "Vacancies
J., entered judgment in favor of respondent
he executed bond in accordance with the
stable are filled by
and relator appealed. The Supreme Court,
requirements of § 31, Title 54, Code 1940.
governor, and the pe
Lawson, J., held that on February 17, 1950,
The term of Mr. Benefield's predecessor
office for the unexpir
there was a vacancy in the office of consta-
expired in January, 1945. He did not offer
successor is elected
ble in question, and on that date the Gov-
for reelection in 1944, nor was anyone else
ernor had the right to appoint respondent as
phasis supplied.)
constable.
elected constable of Beat 10, Randolph
The argument of ap
County, at the election held on the first
Affirmed.
is in substance that 1
Tuesday after the first Monday in Novem-
in the office of consta
I. Officers 0-54
ber, 1944. § 69, Title 17, Code 1940. Al-
dolph County, at the
The words "until his successor is elect-
though Mr. Benefield was neither elected
tempted to appoint tl
ed and qualified" as used in appointing
nor appointed constable of Beat 10, Ran-
in that relator had b
statutes were never intended to prolong
dolph County, for the term beginning Janu-
office in October, 19
term of office beyond a reasonable time
aΓy, 1945, and ending January, 1949, he
perform the duties of
after election to enable newly elected offi-
continued to act as such constable and on
signed, and no one h
cers to qualify.
December 2, 1946, filed a bond in the office
successor. Otherwis
2. Sheriffs and constables 12
of the probate judge of Randolph County,
claims that under th
Where relator was appointed a con-
reciting in part as follows:
Title 54, he is the de
stable by Governor in 1941 to fill a term of
"Whereas, the principal has been elected
beat under the 1941 a
office which expired in January, 1945, but
or appointed to the office of Constable
someone else is electe
no one was elected as constable in the
Now, Therefore, the Condition of this
[1] We cannot a
election in 1944 to qualify in January, 1945,
Obligation is such, that if the said 'Princi-
ence. It is now th
and relator continued acting as constable
pal' shall during the period beginning Janu-
state that the words
during term beginning January, 1949,
ary 20, 1947 and ending January 19, 1951
elected and qualified"
49 So.2d-15
KEITH V. CITY OF BIRMINGHAM
Ala.
225
Cite as 49 So.2d 225
1 been elected or ap-
well and faithfully discharge all the duties
to prolong the term of office beyond a rea-
February 17, 1950,
and trusts imposed upon him by reason of
sonable time, after the election, to enable
n office of constable
his election or appointment to said office,
the newly elected officer to qualify. Prowell
ht to appoint a new
and honestly account for all moneys coming
V. State, 142 Ala. 80, 39 So. 164; Ham V.
Tit. 17, § 69; Tit.
into his hands as such officer according to
State, 162 Ala. 117, 49 So. 1032. As stated
law except as hereinafter limited, then this
by Chief Justice Brickell in City Council
obligation shall be null and void; otherwise
of Montgomery V. Hughes, 65 Ala. 201,
to be and remain in full force and virtue."
206-207, wherein a similar provision was
Paul J. Hooton, of
The next date prescribed by law for the
involved, after the expiration of such rea-
t.
election of a constable for Beat 10, Ran-
sonable time the office would become vacant.
Roanoke, for appellee.
dolph County, was on the first Tuesday
[2] We are clear to the conclusion that
after the first Monday in November, 1948.
on February 17, 1950, the date on which the
§ 69, Title 17, Code 1940. No one was
Governor appointed Mr. Cottle, there was a
in the nature of a
elected constable of said beat in that elec-
vacancy in the office of constable of Beat
State, on the relation
tion. Mr. Benefield continued to act as
10, Randolph County, and that by virtue of
by J. V. Benefield
constable during the term beginning in
that appointment Cottle became the con-
Ed Cottle. From a
January, 1949, although he had not been
stable of said beat. The trial court cor-
of respondent, relator
elected or appointed to the office since his
rectly SO held.
appointment in October, 1941.
The judgment is affirmed.
appointed constable
On February 17, 1950, the present Gov-
Affirmed.
County, by the Gov-
ernor appointed the respondent, Ed Cottle,
941. The appointment
constable of said beat. He executed bond.
FOSTER, LIVINGSTON, and STAKE-
created by resignation.
Thereafter commission was issued by the
LY, JJ., concur.
for the unexpired
Governor on February 23, 1950.
and until his successor
The manner of filling vacancies in the
alified. § 29, Title 54,
office of constable is prescribed by § 29,
enefield was duly com-
Title 54, Code 1940, which section is as
KET NUMBER SYSTEM
entering upon his duties
follows: "Vacancies in the office of con-
accordance with the
stable are filled by appointment of the
Title 54, Code 1940.
governor, and the person appointed holds
Benefield's predecessor
office for the unexpired term, and until his
1945. He did not offer
successor is elected and qualified." (Em-
nor was anyone else
phasis supplied.)
KEITH V. CITY OF BIRMINGHAM.
of
Beat
10,
Randolph
The argument of appellant, relator below,
6 Div. 988.
held on the first
is in substance that there was no vacancy
first
Monday
in
Novem-
in the office of constable of Beat 10, Ran-
Court of Appeals of Alabama.
17, Code 1940. elected AF
Solph County, at the time the Governor at-
Aug. S, 1950.
was
neither
tempted to appoint the respondent, Cottle,
Rehearing Denied Oct. 3, 1950.
of
Beat
10,
Rath
that relator had been appointed to that
the term beginning Janu
elise in October, 1941, had continued to
S. P. Keith, Jr., was convicted in the Cir-
January, 1949, he
Derform the duties of the office, had not re-
cuit Court, Jefferson County, George Lewis
such constable and on
Bailes, J., of violating municipal parking
and no one had been elected as his
ordinance of the City of Birmingham, and
filed a bond in the office
missor. Otherwise expressed, relator
claims that under the last clause of § 29,
defendant appealed. The Court of Appeals,
of Randolph County
Bricken, P. J., held that the evidence sus-
follows:
Tale 54, he is the de jure constable of said
tained conviction.
principal has been electo
Seat under the 1941 appointment until he or
Affirmed.
office of Constable
wazeone else is elected to that office.
Certiorari denied, 49 So.2d 227.
the Condition of this
[1] We cannot agree with this insist-
I. Automobiles 0-6
that if the said 'Princt
ence. It is now the settled law of this
The municipal parking ordinance of
the period beginning Janus 1951
Mule dected that the words "until his successor is
city of Birmingham was valid. Code 1940,
ending
January
19,
and qualified" were never intended
Tit. 37, § 455.
43 So.2d-15
92
Ky.
294 SOUTH WESTERN REPORTER, 2d SERIES
when controversy involved in the appeal
ment where the amount in controversy was
of
relates to an amount more than $200 but
more than $200 and under $2,500. Those
vis
less than $2,500, Court of Appeals did not
cases hold that in such instances where ap-
eff
acquire jurisdiction of the subject matter.
pellant fails to file motion for an appeal,
OC
KRS 21.080.
this court does not obtain jurisdiction of
the subject matter.
2. Waters and Water Courses C=209
In action against water company for
[2] Had this appeal not been dismissed
1.
damages allegedly resulting to goods, mer-
for the reason just stated, we would have
chandise and equipment by water leaking
been compelled to have affirmed the judg-
ment on merits since an examination of the
acc
into plaintiff's basement allegedly as result
of negligence of water company, evidence
record convinces us the trial judge correct-
ute
as to whether water company was negligent
ly directed a verdict for appellee.
nat
reg
was insufficient to present question of fact
Appeal dismissed for want of jurisdic-
Go
for jury.
tion.
Thomas C. Carroll, Louisville (Greene-
KEY NUMBER SYSTEM
baum, Barnett & Carroll, Louisville), for
S
2.
appellant.
Charles W. Morris, Louisville (Morris &
diti
Garlove, Louisville), for appellee.
inc
Joseph T. HANCOCK, Appellant,
eve
V.
SIMS, Judge.
office
James F. QUEENAN, Clerk of Jefferson
23.3
On July 6, 1953, appellant, Mann Chemi-
County Court, et al., Appellees.
cal Corporation, filed suit against the Louis-
3. J
ville Water Company for $1,605 for dam-
Court of Appeals of Kentucky.
ages done their goods, merchandise and
Oct. 5, 1956.
jud
equipment by water leaking into their base-
cess
ment, which leak was alleged to have been
to
caused by the negligence of the Water
In an agreed case submitted pursuant
to statutory authority, the Jefferson Circuit
sub
Company. At the conclusion of appellant's
offic
evidence the trial judge directed a verdict
Court, Chancery Branch, 1st Division,
filin
for the Water Company on the ground that
Macauley L. Smith, J., adjudged that va-
appellant failed to make out its case and
cancy occurred in office of judge of Jeffer-
con
til ;
whether or not the Water Company was
son Circuit Court, Common Pleas Branch,
fied
negligent was a matter of guess and sur-
2nd Division, more than three months prior
23.3
mise. This appeal followed.
to general election to be held November
6, 1956, and that accordingly the county
4.
[1] Notice of appeal was filed by ap-
clerk must place names of nominees for
pellant in the circuit court and it filed the
office upon ballots. The judge who had
record in the office of the clerk of this
been appointed to fill such vacancy less than
was
court, but did not file a motion for an ap-
three months prior to the 1956 election ap-
can.
peal as required by KRS 21.080. This case
pealed, contending he had right to serve
Cor
until November, 1957, election. The Court
61.0
is on all fours with Davis V. Underwood,
Ky., 283 S.W.2d 851 and Johnson V. Mc-
of Appeals, Stanley, C., held that when
5. (
Coy's Adm'r., Ky., 284 S.W.2d 676, where-
Circuit Judge's application for transfer or
in we held mandatory the provisions of
assignment to office of Special Judge was
KRS 21.080 requiring a motion to be filed
accepted by order of Court of Appeals,
of
in this court for an appeal from a judg-
vacancy was ipso facto created by operation
far
HANCOCK V. QUEENAN
Ky.
93
Cite as, Ky., 294 S.W.2d 92
was
of law, for purposes of constitutional pro-
and relationship of offices or constitutional
hose
vision making appointment to vacated office
requirements are concerned; but Legisla-
ap-
effective only until next election, if same
ture has power to say that a special judge
occurs more than three months thereafter.
appointed under provisions of retirement
of
statute can hold no other office. Const. §§
Affirmed.
129, 165, 237; KRS 23.220, 23.330, 61.080.
1. Judges 10
6. Judges
8
have
Circuit judge's filing of application in
When circuit judge's application for
accordance with terms of retirement stat-
transfer or assignment to office of special
the
ute did not constitute tendering of "resig-
judge was accepted by order of Court of
rect-
nation" within meaning of constitutional
Appeals, vacancy was ipso facto created
requirement that resignations be filed with
by operation of law, for purposes of con-
Governor. Const. § 76; KRS 63.010.
stitutional provision making appointment to
vacated office effective only until next elec-
See publication Words and Phrases,
for other judicial constructions and defi-
tion, if it occurs more than three months
nitions of "Resignation".
thereafter. Const. § 152; KRS 418.020 to
418.030.
2. Judges
Legislature had power to prescribe con-
7. Officers 55(1)
dition which, when voluntarily accepted by
An office is "vacant" when it is with-
incumbent circuit judge, would bring about
out an incumbent who is legally qualified
event which had legal effect of vacating
to hold it or when incumbent has no right
office. Const. §§ 129, 152; KRS 23.300 to
to exercise its functions or receive emolu-
23.380, 23.310, 23.320, 23.330.
ments thereof.
See publication Words and Phrases,
3. Judges
for other judicial constructions and defi-
Constitutional provision, for circuit
nitions of "Vacant".
judges to continue in office until their suc-
cessors have been qualified, has reference
8. Elections 0=38
to reasonable extension of tenure, and is
Presidential electors are "state officers"
reuit
subject to condition that they do not vacate
within the meaning of constitution section
offices earlier; and incumbent circuit judge
providing that elections of officers for un-
filing application for retirement did not
expired terms shall be held at same time as
va-
continue as an incumbent of that office un-
effer-
election at which city, town, county, district
til his successor was appointed and quali-
or state officers are to be elected. Const. §
fied. Const. §§ 129, 165, 237; KRS 23.220,
prior
152; KRS 23.330.
23.330, 61.080.
mber
See publication Words and Phrases,
for other judicial constructions and defi-
4. Judges 0-8
for
nitions of "State Officers".
had
Taking oath of office as special judge
than
was not prerequisite to occurrence of va-
cancy in office of retiring circuit judge.
ap-
James W. Stites, Luther Roberts, Louis-
Const. §§ 129, 165, 237; KRS 23.220, 23.330,
serve
ville, for appellant.
61.080.
Court
Chas. Dobbins, J. W. Jones, Wilber
when
5. Officers 30.2
Fields, Oldham Clarke, Louisville, for ap-
or
There is no incompatibility in offices
pellees.
was
peals,
of regular and special circuit judge, inso-
far as incompatibility of duties or character
STANLEY, Commissioner.
94
Ky.
294 SOUTH WESTERN REPORTER, 2d SERIES
Honorable Burrel H. Farnsley, who had
not o
Section 152 of the Kentucky Constitution
provides that if an office is vacated three
served as a circuit judge for many years,
succe
the 19
months or more before an election for
was doing so for a term which will expire
either city, town, county, district, or state
on the first Monday in January, 1958. Sec-
KR
officers, an appointment to the vacated office
tion 129, Constitution. On July 25, 1956,
is
is effective only until the election. If the
Judge Farnsley filed an application in ac-
tem
elapsed period is less than three months, the
cordance with the terms of the statute, and
cer
appointment holds until the next year's
on July 30, 1956, this Court entered the
cei
election. The question before us is as to
following order:
office
the time a vacancy occurred. The particu-
lar facts make the case one of first impres-
"The Honorable Burrel H. Farnsley,
tion
sion.
Judge of the Jefferson Circuit Court,
in 1
Common Pleas Branch-Second Divi-
W
In an agreed case submitted under KRS
sion, having filed application for trans-
statu
418.020 to 418.030, the trial court adjudged
fer from the status of Circuit Judge to
a pul
that a vacancy occurred in the office of
the status of Special Circuit Judge un-
until
Judge of the Jefferson Circuit Court, Com-
der provisions of KRS 23.310 and
by eg
mon Pleas Branch, Second Division, more
23.330; and the Hon. Burrel H. Farns-
ment
than three months before the general elec-
ley having fulfilled all requirements
rel. \
tion to be held November 6, 1956; hence,
precedent to the making of such trans-
S.W.
that the County Clerk must place the names
fer, and the Court being sufficiently ad-
vised, it is ordered that the Hon. Burrel
of nominees for the office upon the ballots.
[1]
H. Farnsley be and he is hereby trans-
Honorable Joseph J. Hancock, who was
office,
ferred to the status of Special Circuit
appointed by the Governor within less than
with
Judge according to the statutes made
three months of the 1956 election to fill the
to fill
and provided, said transfer to be ef-
vacancy, brings an appeal. He maintains
judge
fective August 1st, 1956."
that he has the right to serve until the
been
November, 1957, election.
have
On August 20, 1956, the Governor ap-
Sparl
pointed the appellant, Joseph J. Hancock, to
In 1954 the General Assembly created
307.
fill the vacancy.
the office of Special Circuit Judge of the
and y
Commonwealth and made eligible therefor
Upon request, the Attorney General ad-
been
regular circuit judges who had served as
vised the County Court Clerk of Jefferson
the C
County, the appellee James F. Queenan,
tirem
such for as long as ten years and who for
that when Judge Farnsley accepted the
with
a minimum of two years had contributed
office of Special Judge, he automatically
of wl
to a fund out of which the salaries and ex-
penses of the special judges are payable.
vacated the office he held; and that under
A
Chapter 83, Acts of 1954, now KRS 23,300
the terms of Section 152 of the Constitution,
ated,
to 23.380. A judge who is eligible makes
a successor to serve during the unexpired
than
an application to the Court of Appeals for
term should be elected at the ensuing No-
failur
retirement and appointment to the office,
vember, 1956, election. Thereafter, the
district
and this Court is required to accept the ap-
appellee L. Lyne Smith, Jr. was nominated
the of
plication and make the appointment. KRS
as the Republican candidate, and the ap-
retire
pellee William Loraine Mix as the Demo-
23.320. This act establishes a system for
other
cratic candidate.
retirement of circuit judges and at the
same time sets up a pool of experienced
[2]
The appellant's claim that he holds over
could
judges who are required to serve as special
until the November, 1957, election rests on
peals
judges and perform such other duties as
the concept that the action taken by Judge
office
may be assigned to them throughout the
Farnsley was a resignation of his office,
incum
Commonwealth when and where needed.
and it did not take effect and a vacancy did
HANCOCK V. QUEENAN
Ky.
95
Cite as, Ky., 294 S.W.2d 92
not occur until the governor appointed his
status for that would be to legislate the in-
had
successor, which was within three months of
cumbent out of office; but it cannot be
years,
the 1956 election.
doubted that the Legislature has power
expire
to prescribe a condition which, when volun-
Sec-
KRS 63.010 provides:
tarily accepted by an incumbent officer,
1956,
"All resignations of office shall be
brings about an event which has the legal
in
ac-
tendered in writing to the court or offi-
effect of vacating the office.
and
cer required to fill the vacancy, and re-
the
ceived and recorded by the court or
[3,4] It is not an acceptable argument
officer in its or his records. Resigna-
that Judge Farnsley continued as an in-
tions to the Governor shall be recorded
cumbent of the office of circuit judge until
in the Executive Journal."
his successor was appointed and qualified.
Divi-
We have held that in the absence of a
Of necessity, the provision of Section 129
statute to the contrary "the resignation of
of the Constitution that circuit judges shall
to
a public officer does not become effective
"continue in office until their successors
un-
until accepted by the proper authority, or
shall have been qualified" refers to a reason-
and
by equivalent action, such as the appoint-
able extension of tenure, 67 C.J.S., Officers,
ment of a successor." Commonwealth ex
§ 48, and the provision is subject to the
rel. Wootton V. Berninger, 255 Ky. 541, 74
condition that they do not vacate the offices
932, 933, 95 A.L.R. 213.
earlier. Nor can we accede to the argu-
ad-
ment that there could be no vacancy until
[1] If Judge Farnsley had resigned his
Judge Farnsley took the oath of office as a
office, his resignation would have been filed
special judge, which he has not done. An-
with the Governor, who has the authority
other special oath was not required. KRS
to fill a vacancy in the office of a circuit
23.220 provides:
ef-
judge. Section 76, Constitution. If it had
"The commission issued to each regu-
been made to any other officer, it would
lar circuit judge shall have the effect
have been a nullity and of no effect.
ap-
of commissioning him a special judge
Sparks V. Adkins, 304 Ky. 212, 200 S.W.2d
to
of the Commonwealth with jurisdiction
307. But he did not tender a resignation,
coextensive with the state, and the
and we do not construe his action to have
judge shall remain such as long as he
ad-
been a resignation within the meaning of
continues to hold office under the com-
the Constitution or the statute. It was re-
fferson
mission as regular judge."
tirement pursuant to and in accordance
the
with a special statute, the spirit and intent
of which control.
[5] Nor is there involved the question
atically
of vacating an office by accepting another
under
A vacancy in a public office may be cre-
that is incompatible. The appellant's argu-
ated, of course, by means or events other
ment that there is no incompatibility in the
expired
than a formal resignation. Illustrative are
offices of regular and special judge is sound
No-
failure to qualify, death, removal from the
insofar as it concerns incompatibility of
the
district, or removal from or forfeiture of
duties or the character and relationship of
the office or an abandonment thereof. The
offices or as being in conflict with the terms
ap-
retirement statute effectually describes an-
of §§ 165 or 237 of the Constitution or KRS
Demo-
other event which will create a vacancy.
61.080. James V. Cammack, 139 Ky. 223,
129 S.W. 582. But the Legislature had
[2] It is doubtful if the Legislature
power to say that a special judge appointed
over
could force or authorize the Court of Ap-
under the provisions of the statute involved
on
peals to compel a relinquishment of the
KRS 23.330, could hold no other office.
Judge
office of circuit judge and a transfer of the
What would be the result of such a special
office,
incumbent to the retired or semiretired
judge accepting some other office is of no
did
96
Ky.
294 SOUTH WESTERN REPORTER, 2d SERIES
concern here. It is pertinent, however, to
in the meaning of this section of the Con-
Ch
say that the statute discloses a legislative
stitution. Todd V. Johnson, 99 Ky. 548, 36
intent that the acceptance of the appoint-
S.W. 987, 33 L.R.A. 399; Smith V. Ruth,
ment as a special judge under the terms of
308 Ky. 60, 212 S.W.2d 532. The appellant
the statute shall be deemed a vacation of
vigorously argues that this conclusion is
the office of regular judge.
erroneous and that the opinions so holding
should be overruled and the court declare
Co
[6,7] In the present case, when Judge
that presidential electors are federal and
Farnsley's application for transfer or as-
not state officers. We reconsidered the
signment to the office of special judge was
question in Smith V. Ruth, 308 Ky. 60, 212
accepted by the order of the Court of Ap-
S.W.2d 532, and continue to adhere to the
De
peals, copied above, a vacancy was ipso
view.
Judgune
facto created by operation of law. No
dicial I
action on the part of the Governor or any-
The judgment is affirmed.
ling W
one else was needed to make the vacancy
The Co
complete on that day. An office is vacant
held tha
when it is without an incumbent who is
formed
KEY NUMBER SYSTEM
legally qualified to hold it or the incumbent
verdict
has no right to exercise its functions or re-
a term (
ceive the emoluments thereof. Kash V.
Jud
Day, Ky., 239 S.W.2d 959. After the ac-
ceptance of the office of special circuit
BIG JIM COAL COMPANY BURIAL
judge of the Commonwealth, Judge Farns-
Criminal
FUND et al., Appellants,
ley had no authority to perform the duties
Who
V.
as judge on his former bench or any other
indeterm
until and unless he was assigned specially
Arthur CINNAMON, Appellee.
defendan
by the Court of Appeals. KRS 23.330.
ment in
Court of Appeals of Kentucky.
As a matter of fact, Judge Farnsley did not
nor more
undertake to serve as regular judge but re-
Oct. 5, 1956.
was for
ceived the allowance or benefits of the re-
Appeal from Circuit Court, Bell County;
was refor
tirement fund from August 1, 1956, and
W. R. Knuckles, Judge.
for a ter
not a salary as circuit judge.
Ann.C.C.
J. C. Helton, Helton & Helton, Pineville,
[8] Another point raised by the appel-
for appellants.
lant is that the election to be held in Novem-
W. J. Stone, Pineville, for appellee.
No atto
ber, 1956, is not within the purview of § 152
of the Constitution. That section provides,
Leon E
as related above, that elections of officers
PER CURIAM.
for the St
for unexpired terms shall be held at the
Appellee Arthur Cinnamon recovered
same time as an "election at which city,
judgment against appellants Big Jim Coal
DICE,
town, county, district or state officers are
Company Burial Fund et al. for $520 as
to be elected". The only officers that may
The cor
burial benefits for his wife. Upon exam-
be said to be within these classes to be voted
ishment, 3
ination of the record and reading of the
on in Jefferson County at the coming elec-
tentiary.
briefs, no prejudicial error is found.
tion are presidential electors. This court
The ver
has for many years consistently held that
Motion for appeal is overruled and judg-
punishmer
presidential electors are state officers with-
ment is affirmed.
tiary for 3
The CO
proper app
tence law,
294 S.
STASCH V. WEBER
Neb.
391
Cite as 199 N.W 2d 391
3. Quo Warranto
34
188 Neb. 710
Jake STASCH et al., Appellants,
Under statute providing that any elec-
V.
tor of county may file quo warranto pro-
ceeding against any person unlawfully hold-
Clyde WEBER et al., Appellees
ing or exercising functions of any public
No. 38354.
office if county attorney refuses to bring
Supreme Court of Nebraska.
such action, residents of county, who had
complied with provisions of statute, had
July 7, 1972.
standing to bring quo warranto action to
oust members of county committee for re-
County residents initiated quo warranto
organization of school districts, even
action to oust members of county committee
though residents claimed no right to the
for reorganization of school districts. The
office themselves. R.R.S.1943, § 25-21,-
District Court, Cherry County, Robert R.
122.
Moran, J., rendered judgment for defend-
4. Quo Warranto
26,
55
ants and plaintiffs appealed. The Supreme
Court, White, C. J., held that where statute
Under statute providing that any elec-
required committee to be elected every four
tor of county may bring quo warranto ac-
years by members of school boards and
tion to oust an officeholder who is not
boards of education within county, but
legally entitled to his office when county
where there were no official minutes of an
attorney refuses to bring such action,
election or record of official board actions
residents of county, who had complied with
and there was no showing in record ex-
provisions of statute, became substituted
plaining failure of proof of official action
in interest with county attorney so that
in the official minutes of the county com-
same rules as burden of proof and pro-
mittee, members of committee had failed to
cedure applied as if action had been brought
meet their burden of proving that they were
by the Attorney General or the county at-
entitled to hold the office that they purport-
torney in the first instance. R.R.S.1943, §
ed to occupy and were subject to ouster.
25-21,122.
Reversed and remanded with direc-
5. Officers
81
tions.
The identity of an elected public of-
ficial must be established with certainty and
I. Quo Warranto
55
cannot rest upon speculation as to phonic
similarity with names of persons allegedly
In a quo warranto proceeding, no legal
elected in prior years.
presumption arises in favor of defendant
merely from his establishment of his physi-
6. Quo Warranto
55
cal possession of office which he claims
When a challenged official purports
or from his attempt to exercise the author-
to hold office by virtue of an election, he
ity of a public office.
must show that the election was held and
2. Officers
that he was in fact elected; holding a public
83
office can rest on nothing less than such
Quo Warranto
55
evidence, unless a satisfactory and convinc-
In an ouster action, the person claim-
ing explanation is made as to the lack of
ing the office must make a prima facie
an official record.
showing of his legal right to hold the of-
fice; ordinarily, in quo warranto pro-
7. Officers
=81
ceeding, burden of proof in first instance
The right to hold a public office is
is on the defendant whose right to the
ordinarily shown by producing a certificate
office is challenged.
of election by the proper officer, or by
392
Neb.
199 NORTH WESTERN REPORTER, 2d SERIES
fied
showing that by canvass of votes at elec-
of
the
results
thereof.
R.R.S.1943,
con
32-
indef
tion by the authorized persons, the officer
1045.
to al
has received a plurality or necessary num-
ber of votes to have been elected.
12. Officers ©54
Where statute required county com-
Mi
8. Quo Warranto 0=55
mittee for reorganization of school districts
Where statute required county com-
to be elected every four years and where
W
mittee for reorganization of school dis-
members were last shown to have been
Wag
tricts to be elected every four years by
elected in 1957, members could not claim, in
land,
members of school boards and boards of
quo warranto action brought over ten years
He
education within county, but where there
later, to be holding over in office as in-
SPE
were no official minutes of an election
cumbents under statute allowing an incum-
COV
or record of official board actions and there
bent to remain in office after expiration of
was no showing in record explaining fail-
his term until his successor is duly quali-
W
ure of proof of official action in the official
fied. R.R.S.1943, §§ 25-21,122, 32-1045, 79-
minutes of the county committee, members
426.05.
TH
of committee had failed, in quo warranto
seve
action brought by residents of county, to
13. Quo Warranto 0-54, 57
bras
meet their burden of proving that members
Cher
The only issue in a quo warranto ac-
of committee were entitled to hold the of-
tion which may be litigated is the right of
orga
fice that they purported to occupy and were
after
defendant to hold public office, and the ac-
subject to ouster. R.R.S.1943, §§ 25-21,122,
The
tion must be strictly confined to that issue;
79-426.05.
in f
the legality of official action or constitu-
the
tionality of statutes under which officer
9. Quo Warranto ©55
rect
purports to act may not be litigated.
Statute allowing an incumbent to re-
TI
main in office after expiration of his term
Syllabus by the Court
whet
until his successor is duly qualified has no
stan
application in a quo warranto proceeding
1. In a quo warranto proceeding, ordi-
seco
where officer cannot show that he is an in-
narily the burden of proof in the first in-
office
cumbent rightfully in office in the first
stance is on the defendant who claims the
estal
place. R.R.S.1943, § 32-1045.
right to the office.
to th
05, ]
!0. Officers ©54
2. In a quo warranto proceeding, no
part
legal presumption arises in favor of the
Generally, provisions for holding over
boar
defendant merely from his establishment of
until a successor is elected and qualified
cour
his possession of the office which he claims.
do not prolong the incumbent's term in-
dicti
definitely, but only for a reasonable time,
3. Section 25-21,122, R.R.S.1943, pro-
a m
to allow a successor to qualify.
vides any elector of the appropriate county
cour
may bring a quo warranto proceeding
hun
11. Officers ©54
against any county public office holder
and
The only purpose of statute allowing
when the county attorney of the appropri-
min
an incumbent to remain in office after ex-
ate county refuses to do SO.
num
piration of his term until successor is duly
mitt
4. Generally, in a quo warranto pro-
qualified is to prevent a temporary vacancy
sect
ceeding, when a challenged official pur-
in a public office and to permit a reasonable
year
ports to hold office by virtue of an election,
time to allow for exigencies in transfer of
com
he must show that the election was held and
public office; it is not intended to eliminate
that he was in fact elected.
the necessity for having a proper and re-
quired statutory election, and for keeping
5. Generally, provisions for holding
port
a proper official record of such election and
over until a successor is elected and quali-
STASCH V. WEBER
Neb.
393
Cite as 199 N.W.2d 391
fied do not prolong the incumbent's term
erning the procedure are different than in
indefinitely, but only for a reasonable time
an ordinary civil action. No presumption
to allow a successor to qualify.
arises in a person's favor merely from his
physical possession or his attempt to ex-
ercise the authority of a public office. In
an ouster action, the person claiming the
Michael V. Smith, Gordon, for appellants.
office must make a prima facie showing of
W. Gerald O'Kief, Valentine, John A.
his legal right to hold the office. Once
Wagoner, Thomas A. Wagoner, Grand Is-
that is done, certain presumptions (not ap-
land, for appellees.
plicable herein) arise in his favor which
may cause the burden of advancing to shift
Heard before WHITE, C. J., and
to the relator, but it is clear that the burden
SPENCER, BOSLAUGH, SMITH, Mc-
of proof in the first instance is on the de-
COWN, NEWTON, and CLINTON, JJ.
fendant whose right to the office is chal-
lenged. See, State ex rel. Einstein V.
WHITE, Chief Justice.
Northup, 79 Neb. 822, 113 N.W. 540; 74
This is a quo warranto action initiated by
C.J.S. Quo Warranto § 43, p. 260; 44 Am.
several residents of Cherry County, Ne-
Jur., Quo Warranto, S. 106, p. 167; Ferris,
braska, seeking to oust the members of the
Extraordinary Legal Remedies, S, 136, p.
Cherry County Committee for the Re-
156.
organization of School Districts, herein-
after referred to as the County Committee.
[3,4] The relators have standing to
The district court resolved all of the issues
bring this action. This is true even though
in favor of the defendants. We reverse
they claim no right to the office themselves.
the judgment of the district court and di-
This result follows from a proper construc-
rect that a judgment of ouster be entered.
tion of section 25-21,122, R.R.S.1943. The
The issues presented in this case are
action, under the statute, must in the first
whether the defendants, in the first in-
instance be brought by the county attorney
stance, were lawfully elected to office and
of the appropriate county. The statute pro-
second, whether they are lawfully holding
vides that in the event he refuses to bring
office at the present time. The statute
such action, a private person acting in the
establishing the procedure for the election
public interest may bring such action to
to the County Committee is section 79-426.-
oust an officeholder who is not legally
05, R.R.S.1943, which provides in relevant
entitled to his office. The relators, hav-
part: "All of the members of the school
ing complied with the provisions of the
boards and boards of education within the
statute, become substituted in interest with
county and joint districts under the juris-
the county attorney and it follows that the
diction of that county committee shall, at
same rules as to burden of proof and pro-
a meeting called for that purpose by the
cedure apply as if the action were brought
county superintendent of schools within one
by the Attorney General or the county at-
hundred twenty days from August 27, 1949,
torney in the first instance.
and each four years thereafter, (1) deter-
mine by a majority vote of those present the
[5] We turn to the evidence. Despite
number of members of the county com-
the fact that the statute requires an election
mittee within the limits prescribed in this
every 4 years, the only official record in
section, and (2) elect for a term of four
the evidence in this case of an election of
years, all the remaining members of the
or to the County Committee are the min-
committee
*
*
utes of a meeting held for that purpose on
October 15, 1957. The minutes show that
[1,2] Because of the nature and im-
one "Cleo Bloom" was elected in 1957, and
portance of an ouster action, the rules gov-
"Cleo Bloom, Jr." is a defendant in this
199 N.W.2d-25%
394
Neb.
199 NORTH WESTERN REPORTER, 2d SERIES
action brought over 10 years later. There
intendent of schools testified this election
absence
is nothing in the record to explain or to
was in fact held but could not remember
tion and
show that these names refer to the same
who had been elected. Again, there are
has been
person. More important, "Bob Hanna" was
no official minutes, no showing that the
proof or
elected, according to the minutes, in 1957,
election was held by the proper officers, no
establish
and "Samuel K. Hanna" is a defendant
showing that the votes were canvassed, or
office th
herein. There is an oblique reference in
the number of votes cast or that they were
the record which indirectly suggests that
cast by the authorized persons. Again, the
[9-11]
these may be the same person, but there is
only evidence in the record in this respect
they are
no proof that they are. Surely the identity
is that almost one and one-half years later,
of section
of an elected public official must be estab-
in August 1967, and again in August 1968,
vides for
lished with certainty and cannot rest upon
an information letter was set to the State
after the
speculation as to phonic similarity.
Department of Education which purports to
successor
show that the members of the County Com-
The record does show that in January
answers t
mittee included most, but not all, of the
1963, an information letter was set to the
tion obvie
defendants. Again, the court is left in
State Committee for Reorganization of
warranto
School Districts which shows the names of
doubt with reference as to whether any
not show
legal election was held, because there is no
the members of the County Committee and
rightfully
statement or report of the election and
indicates that they were elected April 5,
ond, even
its results in this information letter.
1962. But nowhere in the record does there
persons W
appear the official minutes of the County
not claim
Committee, the results of the voting, or a
[6-8] We can come to no other conclu-
proper ru
canvass of the votes to establish officially
sion but that the defendants have failed
§ 48, P. 20
the record of the defendants' election. No
to meet their burden of proof. Without
for holdin
explanation of this failure appears in the
explanation, there are no official minutes
and qualif
record. It is not suggested that they were
or record of official board action, no of-
term indef
lost, destroyed, or for some other reason
ficial document in the record which entitles
time to all
secondary evidence could not be introduced
the defendants to hold the office that they
phasis sup
to establish the minutes showing that the
purport to occupy. When a challenged of-
holding 01
statutory procedure had been followed and
ficial purports to hold office by virtue of
rary vacar
the election held. It becomes apparent
an election, he must show that the election
mit a reas
there is a total lack of competent proof in
was held and that he was in fact elected.
igencies m
this record to establish that a proper elec-
Holding a public office can rest on nothing
of public
tion was held under the statute and that
less than such evidence, unless a satisfac-
successor.
the defendants were legally elected by a
tory and convincing explanation is made
the necess
majority vote of those present to the office
as to the lack of an official record. The
quired sta
they now purport to hold.
right to hold a public office is ordinarily
proper off
shown by producing a certificate of election
the results
Turning now to the situation 4 years later
by the proper officer, or by showing that
of the elec
in 1966 we find there is evidence in the
by the canvass of votes at the election by
ed by the
record showing the publication of an of-
the authorized persons, the officer has
of the part
ficial notice of an election to be held to
received a plurality or the necessary num-
for comply
select members of the County Committee.
ber of votes to have been elected. 2 Bailey
ments of h
This election was to be held, pursuant to the
on Habeas Corpus, S. 329, P. 1278. There
reporting t
terms of the notice, on April 1, 1966. As-
is no showing in this record explaining the
principles :
suming that this election was held, pur-
failure of proof of the official action in
you have t
suant to the notice, there is no record of
the official minutes of the County Com-
responsibili
the results. The lack of all official action
mittee. The integrity of the elective proc-
successors
and all official record is confirmed by the
ess cannot be established by extra-statu-
fact that the only evidence introduced in
tory informational letters signed by one
[12]
In
this respect is that the then county super-
person as a substitute for the unexplained
defendants
HYDROTEX V. PUTNAM
Neb.
395
Cite as 199 N. W.2d 395
absence of any official record of the elec-
holding over in office as incumbents is
tion and the legal results thereof. There
without merit.
has been an entire failure of the burden of
proof on the part of the defendants to
[13] Other issues are presented in the
establish their right to hold the purported
briefs of the parties. The main contention
office that they claim.
is the unconstitutionality of the enabling
statutes for the creation of the County
[9-11] Also the defendants contend that
Committee and the exercise of its powers
they are holding over in office by virtue
thereunder. It is not necessary to discuss
of section 32-1045, R.R.S.1943, which pro-
this issue because, from what we have said
vides for an incumbent to remain in office
herein, the defendants are not legally hold-
after the expiration of his term until his
ing office and are subject to ouster. We
successor is duly qualified. There are two
point out, however, that the only issue in a
answers to this contention. First, this sec-
quo warranto action which may be litigated
tion obviously has no application in a quo
is the right of the defendant to hold public
warranto proceeding where the officer can-
office, and the action must be strictly con-
not show that he was an incumbent who was
fined to that issue. The legality of the
rightfully in office in the first place. Sec-
official action or the constitutionality of
ond, even if the defendants are the same
the statutes under which the officer pur-
persons who were elected in 1957, they can-
ports to act may not be litigated in a quo
not claim the protection of the statute. The
warranto action. State ex rel. Johnson
proper rule is stated in 67 C.J.S. Officers
V. Consumers Public Power Dist., 143 Neb.
§ 48, P. 204, where it is stated: "Provisions
753, 10 N.W.2d 784; State ex rel. Good V.
for holding over until a successor is elected
Conklin, 127 Neb. 417, 255 N.W. 925; 74
and qualified do not prolong the incumbent's
C.J.S. Quo Warranto § 11, P. 193.
term indefinitely, but only for a reasonable
The judgment of the district court is re-
time to allow a successor to qualify." (Em-
versed and the cause remanded with direc-
phasis supplied.) The only purpose of the
tions to enter the proper judgment of
holding over statute is to prevent a tempo-
ouster against the defendants.
rary vacancy in a public office, and to per-
mit a reasonable time to allow for the ex-
Reversed and remanded with directions.
igencies many times present in the transfer
of public office from one person to his
successor. It was not intended to eliminate
KEY NUMBER SYSTEM
the necessity for having a proper and re-
quired statutory election, and keeping a
proper official record of such election and
the results thereof. Otherwise the integrity
188 Neb. 727
of the elective process would be emasculat-
HYDROTEX, a corporation, Appellee,
ed by the indifference or the negligence
V.
of the parties responsible under the statute
L. D. PUTNAM, Appellant.
for complying with the mandatory require-
No. 38428.
ments of holding the election and officially
reporting the results thereof. All of these
Supreme Court of Nebraska.
principles are particularly applicable where
July 7, 1972.
you have the same entity charged with the
responsibility of the election of their own
successors in office.
Seller brought action against buyer to
recover price of goods allegedly sold to
[12] In the context presented here the
buyer. The District Court, Holt County,
defendants' contention that they are legally
William C. Smith, Jr., J., rendered judg-