State ex rel. McGee v. Gardner

Citations

• 3 S.D. 553
• 54 N.W. 606
• 1893 S.D. LEXIS 19

Syllabus

<p>1. That clause of section 3, art. 5, of the constitution, which authorizes the supreme court to issue the “writ of quo warranto” must be understood as intended to give the court jurisdiction of cases in which the information in the nature of quo warranto has become a substitute for the ancient writ.</p> <p>2. In case of doubt between different constructions claimed for a constitutional or statutory provision or the meaning of a term, it is always allowable to inquire what results would legitimately follow either, with a view of ascertaining, if possible, whether such consequences were contemplated or intended.</p> <p>3. There is no inherent reserved power in the people to hold an election to fill a vacancy in an elective office.</p> <p>4. Such election can only be held when and as authorized by law.</p> <p>5. In section 37, art. 5, of the constitution, which provides that “vacancies in the elective offices provided for in this article (judiciary) shall be filled by appointment until the next general election,” etc., the expression “next general election” means the next election at which it is provided by law that the officer may be elected whose office has become vacant.</p> <p>6. In November, 1892, when the general election was held, there was no law, constitutional or statutory, authorizing the election of a circuit judge, either 'for a full term or for a fractional term.</p> <p>7. Until such a law is passed there can be no election of supreme or circuit judges under section 26, art. 5, of the constitution, providing that “the judges of the supreme, circuit, and county courts shall be chosen at the first election held under the provisions of this constitution, and . thereafter as provided by law.”</p> <p>8. Tie governor having appointed respondent to tie office of circuit judge' of tie seventh judicial circuit to fill a vacancy in said office, such appointment constitutes a good title to such office until the legislature provides toy law for the election of his