People v. Parker

By the Court, Sanderson, J.: This is an action brought under the provisions of the Fifth Chapter of the Practice Act to determine the right of the relator and the defendant to the office of Director of the Insane Asylum. The complaint shows that, by an Act of the Legislature of the 31st of March, 1866, (Stats. 1865-6, p. 513,) E. S. Holden and six other persons were constituted a Board of Directors of the Insane Asylum. That, by the terms of that Act, Holden’s term of office was fixed at two years, commencing from the date of the passage of the Act, to wit: the 31st of March, 1866. That Holden resigned on the 8th day of February, 1867, thereby causing a vacancy, which, in accordance with the provisions of the statute, was filled by the other members of the Board, by the appointment of the defendant, ivhich appointment, as claimed by the relator, expired, by the terms of the statute, at the commencement of the next session of the Legislature, to wit: the first Monday in December, 1867, at which session it became the duty of the Legislature to fill the remainder of the vacancy for the unexpired term of Holden. That the Legislature adjourned on the 30th of March, 1868, having failed to fill the remainder of the vacancy for the unexpired term of Holden, and also to elect his successor for the full term, commencing on the 31st of March, 1868. That on the 16th of June, 1868, the relator was appointed and commissioned by the Governor to the office of Director, vice the defendant, whose term, as alleged, had expired. That possession of the office was subsequently demanded and refused.

The defendant demurred upon the general ground that the complaint did not state facts sufficient to constitute a [641]cause of action. The Court below sustained the demurrer, and final judgment passed for the defendant, from which the plaintiff has appealed.

Two questions are presented in argument: first,,was there a vacancy in the office at the time the relator was appointed and commissioned by the Governor ? and second, if so, was the Governor entitled to fill it by virtue of the eighth section of the Fifth Article of the Constitution, which provides that “when any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill such vacancy by granting a commission, which shall expire at the end of the next session of the Legislature, or at the next election of the people ?”