Brown v. O'Connell

36 Conn. 432 | Conn. | 1870

Lead Opinion

Butler, J.

There are two distinct questions raised in this case. The first is, whether the judge of the police court of the city of Hartford was judge of that court de jure, when the proceedings in question were had, and if not, then second, whether he was so a judge de facto that the proceedings are valid.

The first question involves the construction of Art. 5 of the constitution of this state, and the constitutionality of the law authorizing the common council of the city of Hartford to appoint a judge for the police court of that city.

Sec. 1 of that article provides that “ the judicial power of the state shall he vested in a Supreme Court of Errors, a Superior Court, and such inferior courts as the General Assembly shall from time to time ordain and establish.” Sec. 3 of the same article provides that “ the judges of the Supreme Court of Errors and of the superior and inferior courts and all justices of the peace shall be appointed by the General Assembly in such manner as shall by law be prescribed.” And it further provides that “ the judges of the Supreme Court and of the Superior Court shall hold their offices during the term for which they were elected, and all other judges &c. shall be appointed annually.”

In the opinion given by the judges of this court in regard to the constitutionality of the soldiers’ voting act, (30 Conn., 593,) we held that the constitution embodied “ the supreme original will of the people in respect to the organization and perpetuation of a state government, and that whatever that supreme original will prescribes, the General Assembly and every officer and citizen to whom the mandate is addressed, must do; and whatever it prohibits, the General Assembly and every officer and citizen must refrain from doingand if either attempt to do that which is prescribed, in any other manner than that prescribed, or to do in any manner that which is prohibited, their action is repugnant to that supreme and paramount law, and is invalid.” This is the rule by which we are to be governed in construing the clauses involved and in determining the constitutionality of the law in question.

Has then the constitution prescribed the authority by which the judge of this police court shall be appointed ? for if so the mandate must be strictly obeyed.

It should be borne in mind that no judicial power is vested by the constitution in the General Assembly, either directly or as an incident of the legislative power, and the General Assembly cannot confer it.

Under the charter of Charles II, both the legislative and the judicial power were vested in the General Assembly; but it was one of the objects which the people had in view, in framing and adopting the constitution, to divest the General Assembly of all judicial power. To that end Art. 2 of the constitution provides that “ the powers of government shall be divided into three distinct departments, and each of them be confided to a separate magistracy, to wit: those which are legislative to one; those which are executive to another ; and those which are judicial to another.” For the same reason they used different language in different articles in conferring the powers. In Art. 3 they say that the legislative power'of the state shall be vested in the General Assembly. In Art. 5 they say the judicial power of the state shall be vested in the Supreme Court of Errors &c. as hereinbefore cited. Thus, while the entire legislative power is vested in the General Assembly, the judicial power is separated from it and vested in the courts “ as a separate magistracy.”

It is obvious from this view of these provisions that the General Assembly have no power or authority to oi’ganize courts, or appoint judges, by virtue of the general legislative power conferred pipón them, and that their authority to do either is special, and derived from Art. 5th of the constitution jalone; and that the judicial power is not conferred by the General Assembly, but vests, by force of the constitution, in the courts, when organized pursuant to the special provisions of that article.

It is conceded, as it well may be, that the legislature had tlie power to constitute this police court, under the provisions of sec. 1st of the fifth article. There is nowhere in that instrument any limitation in respect to the number or character of the inferior courts which they may establish. It was therefore competent for them to provide for the organization of the court in question, and to define the jurisdiction it should possess ; and when so constituted, the judicial power of the state vested in it, by force of the constitution, to the extent of the jurisdiction so defined.

It must also he conceded that the power to provide a judge of the court in any way the General Assembly should see fit to do, would necessarily be incidental to that power to constitute the court, if no special provision had been made for such appointment.

But such special provision was made, as heretofore recited, as follows : “ The judges of the Supreme Court of Errors, of the superior and inferior courts, and all justices of the peace, shall be appointed by the General Assembly, in such manner as shall by law-be prescribed.”

That provision is mandatory, and there is no possible ground for doubt in relation to its construction, unless it is found in the words “ in such manner as shall by law be prescribed.”

The term “ manner” is a comprehensive one, but it is evident that it has reference, in that connection, to the mode of doing the act prescribed—to the proceedings of the two houses of the General Assembly in making the appointment —whether by ballot or by resolution, and whether by joint or concurrent action of the two houses—and could not have been intended to authorize a delegation of the power to appoint any and all the judges, to any officer or tribunal to whom they might think proper to delegate it. The term “ appointed” means “ named,” or “ designated for,” or “ assigned to,” an office. The act of naming, designating or assigning, is necessarily the direct act of the body or person by whom the appointment is made. An appointment therefore, by a common council, pursuant to a law of the General Assembly, is not an appointment by the Assembly, and the construction supposed would render the words, “ by the General Assembly,” superfluous. But those words are there, and for a purpose, and if operative are conclusive. And such was the cotemporaneous construction given to the constitution by those who framed and adopted it.

Inasmuch therefore as the judicial power of the state is separated from the legislative and confided to the courts as a separate magistracy, and the power to organize courts and appoint judges is conferred by special mandatory provisions, requiring direct action by the General Assembly, those powers cannot be delegated, and the appointment of judges, in all cases where the constitution has not been altered by amendment, can only be made by vote of the Assembly.

But it is claimed that, however that may be, the appointment of Judge Merrill was not within the purview of Sec. 3, Art. 5 of the constitution, for the reason that the cities existing at the time the constitution was adopted, of which Hartford was one, possessed as a franchise the right to hold city courts and appoint their judges, and that the franchise was continued by the clause of that instrument which continued the rights and franchises of corporations. The claim is supported by a decision made by a deceased and distinguished judge of this court on the circuit, but we do not think it should be sustained.

It is unnecessary to consider the effect of that continuing clause upon then-existing rights and franchises ; or whether, as a mere municipal corporation, the city of Hartford had then or has now, an intangible, vested right, as against the legislature, to have a city court with civil jurisdiction and appoint its judge. No rights or franchises were contemplated by that continuing clause except such as were then existing; and it cannot be construed to embrace new and distinct courts or judicial franchises, (if such they may be called) subsequently created. Whatever might have been true therefore, if the criminal jurisdiction conferred upon this police court had been given, as an extension of its jurisdiction, to the then existing city court, a right to'have and enjoy this new and distinct judicial tribunal, or the right to appoint its judge, cannot be regarded as within any franchise then possessed by the city. We are constrained by this view to hold that the law conferred no authority upon the common council to appoint Judge Merrill and that the appointment was void.

But I am entirely satisfied that Merrill was judge de facto, and that the proceedings in question were valid. It is claimed that to constitute an officer defacto, there must he color of an election or appointment by a body which has actual power to make it. In support of this proposition a dictum of the late Chief Justice Hinman is cited from his opinion in Douglass v. Wickwire, 19 Conn., 492. I am not satisfied that the dictum was intended to be as broad as it is claimed to be.

The general rule is well expressed by Judge Storrs in Plymouth v. Painter, 17 Conn., 588, thus :—“ An officer defacto is one who exercises the duties of an office under color of an appointment or election to that office. He differs on the one hand from the mere usurper of an office who undertakes to act as an officer without any color of right, and on the other hand from an officer de jure, who is in all respects legally appointed and qualified to exercise the office. These distinctions are very obvious and have always been recognized.”

It is easy to suppose cases where an officer may be appointed by a body who suppose they have a right to appoint him, when in law they have not, and yet the officer will be such de facto and his acts cannot be collaterally impeached. Such cases have in fact occurred, and the acts of the officer been sustained. In the state of Massachusetts the legislature passed a law organizing a new comity, and authorizing the governor to appoint a deputy sheriff for it. The law was to take effect at a future day. Before it took effect the governor appointed a deputy sheriff for the county and he acted as such. His power to act was questioned collaterally, and it was holden that the appointment was void, because the law had not taken effect, and the authority to appoint had not been conferred, but that the sheriff was nevertheless an officer defacto, and the validity of his acts could not be collaterally impeached. Fowler v. Bebee, 9 Mass., 231.

But it is unnecessary to follow out this view of the subject. This officer undoubtedly had color of appointment from the only body who had constitutional power to appoint him.

He was not an usurper. He had color of appointment by the common council of Hartford, and they had color of delegated authority from the General Assembly. That authority was defective and void, not because the General Assembly had not power to appoint, but because they could not delegate the power. But they did, in fact, authorize the common council to appoint, and by an act which had all the forms of law. There was color therefore, derived from the law, which emanated from the legislature who had constitutional power to appoint; for that law gave color of appointment to every officer, whether judge or clerk, who was elected or appointed pursuant to its provisions.

It is claimed that there can be no color where the action of the appointing power is void, but there is no foundation for the claim. In the case of Douglass v. Wickwire, the appointment of the seventh grand juror was without authority and void, but his acts were sustained as those of an officer de facto. So in .Massachusetts, in the case cited, where the governor appointed a deputy sheriff for a new county before the law constituting the county and authorizing the appointment had taken effect. And there are many other cases of a similar character. Thus, where a minor, who was for that reason ineligible, was appointed to office, it was holden that his appointment was void, but that he must be treated as an officer de facto, on the production of his commission. The People v. Dean, 3 Wendell, 438. So of a commissioner of deeds, who acted under color of a void appointment from the governor who had no authority to appoint. Parker v. Baker, 8 Paige, 428. So also where a minister of the gospel, who was ineligible by statute, was appointed to office. McInstry v. Tanner, 9 Johns., 135. So also where a judge was appointed by vote of the legislature, void for want of a constitutional quorum. Morris v. The People, 3 Denio, 381.

It is very clear from these cases, and upon principle, that it is immaterial whether an appointment is void for the want of legal power to make it; or through irregularity or informality in making it; or is ineffective because of the failure of the appointee to comply with some condition precedent required of him. It is sufficient, in any case, that the officer have color of appointment from some power having authority, or color of authority, to make it.

Judgment must be advised for the plaintiff.

In this opinion Carpenter and Loomis, Js. concurred. Park, J., dissented.

---

Concurrence Opinion

Park, J.

I fully concur in the foregoing opinion of the majority of the court except so far as it holds that the acting ■judge of the police court was a judge defacto. I cannot concur with the majority upon this point for the following reasons.

An officer defacto is one who has the color of right or title to the office he exercises—one who has the apparent title of an officer de jure. This case differs from all the cases that have been cited, where courts have held officers to be defacto in character, in this; in all those cases the appointing or electing power had ample authority to make some election or appointment to the office; but here it is not only coneeded by the majority of the court, but they in fact hold, that the law purporting to authorize the court of common council of the city of Hartford to elect the judge in question was unconstitutional and void, and consequently conferred no authority to elect any person whatsoever to the office. It will be conceded that if no law had been passed upon the subject, and the court of common council had acted in the premises as they now have, the judge in question could not be regarded otherwise than as an usurper. The question then arises, does this unconstitutional law confer upon the common council color of authority to elect this judge ? They must have color of authority to make the appointment, in order to confer upon the appointee color of title to the office. This must be evident, for the common council cannot bestow what they have not to give. They must therefore have color of authority, in order to confer color of title, which is another term for color of authority.

Now, according to the opinion of the majority of the court, the constitution declares, in express and mandatory terms, that the judge of this court shall he appointed by the legislature, as much as it does that a judge of the Supreme Court of Errors shall be so appointed. This by necessary implication prohibits an election by any other body. Hence the case could not be stronger if the constitution declared in express terms that the common council of Hartford should have no power to elect a judge of this court. How then stands the case ? The law and the constitution are directly in conflict. What the one prohibits, the other declares may be done. If they were of equal authority the one would annul the other, and neither would be capable of conferring color of authority. This is evident, for if one is to be obeyed in preference to the other, one must have the supremacy, or appear to have ; hence, if both are equal in authority, and it so appears, both must be powerless to confer the semblance of authority when palpably in conflict; or we have the absurdity of an injunction to do, and not to do, at the same time. Suppose the constitution was silent on the subject, and the law in question was inconsistent with itself; that one section authorized the common council to elect the judge, as it does now, and another section declared that the legislature only should make the appointment; would it be contended that the law gave the common council color of authority to act in the premises ? And is the case less strong for the defendant because the constitution, instead of a section of the same act, dcclaics that the appointment shall be made by the legislature ?

The constitution is supreme over the legislature and all its enactments. It makes void whatever the legislature does in conflict with it. It declares that the judge of this court shall be appointed by the legislature. The legislature declares that the common council of Hartford shall make the election. Which has, or appears to havé, the supremacy ? Which confers, or appears to confer, authority ?

A law passed by the legislature cannot have color of authority unless it appears primé faeié to be law ; and it cannot so appear if it is manifestly repugnant to the constitution. A law of doubtful constitutionality may be presumed to be constitutional till judicially decided to be otherwise. But here no doubt can be entertained. The majority of the court do not suggest any. The language is plain and explicit. Suppose the legislature should pass a law giving authority to the common council to appoint a judge of the Supreme Court of Errors, is it so that the law would appear primá facié to be law, or have the semblance of authority, when the higher law declares, in so many words, that it shall be done by the legislature ? It seems to me, if anything is too clear for controversy, it is that such a law would be void upon its face, and unable to confer the appearance of authority. If this is not so, if the plain provisions of the constitution can be thus set at naught for the time being, and till the state by its proper officers shall see. fit to interfere by a proceeding of quo warranto, and till judgment of ouster shall be regularly pronounced through the slow process of the courts, then personal protection from legislative aggression is not so well secured^ as it is generally supposed to be. The framers of the constótution sought to make the judicial branch of the government independent of the legislative; and to this end they provided for the perpetuity of the Supreme Court of Errors, and of the Superior Court, and prescribed the mode for the appointment: of the judges, in order that the legislature might be held in, check, in cases of emergency, and the constitution be rigidly maintained; but if the judges may be appointed in any other way that the legislature may see fit to adopt, and the judges thus appointed be judges in fact till regularly set aside, the framers of the constitution have been unsuccessful in their efforts. If this may be done, I see no reason why the legislature may not abolish the courts themselves for the time being, and establish others in their places, until the abolishing law shall be judicially determined unconstitutional; for certainly the provision establishing the courts cannot be of more importance or binding authority than the provision organizing the courts when established.

If therefore the courts may be unconstitutionally organized, and still be courts for the administration of justice, as the majoi'ity of the court hold, it seems to me they might be unconstitutionally abolished for the time being as.easily as they could he unconstitutionally organized. If the law in the one case would be primd facie law, and have color of authority, so it must be in the other, and the Supreme Court of Errors would be primd facié out of existence, and its judges therefore disqualified to decide whether it had existence in fact or not. That question would have to be determined by the unconstitutional court established in its place, if one should be established; for, according to the argument, that would be the only court of last resort primd facié in existence. To this conclusion we must come, if the majority of the court are right in holding that a law of the legislature is primd facié law and has color of authority, however repugnant to the constitution it may be.

Again, it is familiar law that if a court has not jurisdiction of the process, or subject matter in controversy, in a particular case, its proceedings are coram non judice. This is true in relation to courts lawfully constituted. ‘ Why then may not the jurisdiction be contested for a much stronger reason —the manifest unconstitutional organization of the court itself, showing that it has no lawful jurisdiction whatsoever ? In the case of The People v. White, 24 Wend., 520, one of the questions was whether the aldermen of the city of New York could act as judges of the court of oyer and terminer, inasmuch as they had not been appointed judges of that court in the mode prescribed by the constitution, but were constituted ex officio judges of that court by the statute law of the state. Chancellor Walworth, in giving his opinion in the case, says:—“ Should the executive or the legislature, either by a public statute or otherwise, assign the duties of judges of the Supreme Court to the several clergymen of the city for the time being, or attempt to authorize them by virtue of their clerical offices to be judges and to hold the Supreme Court in violation of the constitution, such clergymen would not be judges of that court defacto, so as to make their judgments valid or binding upon the parties thereto. * * * If the aldermen as elective officers were constitutionally incompetent to hold a court of oyer and terminer in conjunction with the circuit judge or the first judge of the court of common pleas, then the law which in terms attempted to confer on them such a power, was unconstitutional and void, and it conferred no power whatever. * * * The constitution is the paramount law to which all courts in the exercise of their judicial powers must bow, notwithstanding any legislative enactments to the contrary. It is not necessary in this case to say that the judgments and proceedings before every tribunal illegally constituted, and in direct violation of a constitutional prohibition, are absolutely void ; so that the judges of the court, and all those who had attempted to execute the process issued by them, would be liable as trespassers. But in deference to the constitution which we have all sworn to support, I must declare as my deliberate opinion, that when the judgment of such a tribunal is properly brought before this court for review, on a writ of error, if the unconstitutional organization of that tribunal fully and distinctly appears upon the record, it is the duty of this court to reverse or annul that judgment.” The chancellor did not go farther in the case than he was required to go, but he went far enough to decide that the aldermen were not judges de facto of the court of oyer and terminer, notwithstanding the statute law attempted to constitute them judges de jure.

Senator Yerplanck, in the same case, and upon the same subject, thus remarks:—“ I can neither regard it as sound law or wise public policy, any more than as consistent with a republican regard to the rights of private citizens, to hold that the trial of the question of the constitutional or legal power of any officer or judge should depend solely upon the discretion of the attorney general, and remain unquestioned until he impeaches it in the name of the people; whilst the citizen, upon whom such unlawful authority acts immediately, and may bear hardly, has no means of defending himself, and appealing from this, the greatest of all errors that can occur. If, therefore, in this case the composition of the court be such as would upon information filed by the attorney general be pronounced unconstitutional, I cannot doubt but that the same question may be directly brought up in error by the prisoner denying the jurisdiction whilst his case is still open and undecided.”

The legislature of Kentucky at one time attempted to abolish the court of appeals ordained and established by the constitution of the state, and create a new court in its place. The constitutional court of appeals held in the case of Hildreth’s Heirs v. M’Intire’s Devisee, 1 J. J. Marsh., 206, that although the new legislative tribunal “ assumed the functions of judges, and clerks, and attempted to act as such, their acts in that character were totally null and void, unless they had been regulárly appointed under and according to the constitution.” * * * “ They were not the encumbents of de jure or de facto offices, nor wore they de facto officers of de jure offices. They had no official rights and powers.”

This case is in point, and is decisive of this question, if admitted to be law.

Chitty, in his first volume on Criminal Law, page 744, says:—“ If a sentence is passed by a person who has no valid commission to judge the parties, it is void, and may be altogether set aside without a writ of error.” The same,doctrine is held in 3 Inst., 231, Plowd., 390, Bulst., 101, and 4 Bla. Com., 394.

In regard to what constitutes an officer de facto, Judge Hinman, in Douglass v. Wickwire, 19 Conn., 489, says :—“ The public and third persons are not required to ascertain the legality of an officer’s election or appointment; it is enough if the officer acts under color of an election or an appointment by the only body which has the power to make it.”

The majority of the court say that this last remark of the judge is a dictum, and was not intended to be as broad as the language imports. Whether a dictum or otherwise, it is all that the late Chief Justice says in giving the opinion of the court, bearing upon this question there in controversy. And whether a dictum or otherwise, I submit that it is the true doctrine, with perhaps this qualification: it is enough, if the officer acts under color of an election, or an appointment, by the only body which has the power, or jorimá facié power, to make it.

This rule harmonizes with all the authorities cited by the majority of the court, and by counsel on the trial, and, I submit, is strictly correct. I concede that the public and third persons are not bound to look further than to know that the body making an election or appointment is clothed with f rimáfacié authority to act in the premises and has so acted. They are not required to look beyond what appears upon the face of the case; but so far the officer and third persons are required to inform themselves in order to justify action under the election or appointment; then, if the election or appointment is defective on account of some collateral matter not apparent on the face of the proceedings, the officer is one de facto.

Take the case of Fowler v. Bebee, 9 Mass., 231, referred to by the majority of the court. The defect in the sheriff’s appointment was collateral, and could be ascertained only by investigation. The law gave the governor power to appoint a sheriff, and the defect was, that the appointment was made before the law creating the county took effect. But how could third persons know when the appointment was made ? After the law came in force they saw a man exercising the duties of the office of sheriff. They ascertained that the law gave the governer power to appoint a sheriff for the county, and that the appointment had been made. Manifestly, the presumption would be that the power had been duly exercised.

So it may be said of the case of Douglass v. Wickwire, cited from our own reports. Third persons having an interest in the question were bound to know that towns had am thority to elect grand-jurors, and that the one in question had been elected. These facts were sufficient to raise the presumption of a lawful election. They wei’e not required to examine and ascertain whether or not six other grandjurors had been elected, and duly elected, before the one in question. These facts could be known only by investigation. They did not appear upon the face of the case.

So it may be said of all the other cases cited by the majority of the court. The defect in each of them is collateral, and could be ascertained only by examination. Take the case of The People v. Dean, 3 Wend., 438, where a minor was appointed to office; or the case of M’Instry v. Tanner, 9 Johns., 135, where a minister of the gospel was elected to an office to which he was ineligible ; or the case of Morris v. The People, 3 Denio, 381, where a judge was appointed by a legislature without a quorum. These are plain cases of officers de facto. The defect in each of them consists in the existence of a collateral fact, which in the first instance would be presumed not to exist. When the legislature pass a law, or elect a person to office, the presumption is that a quorum was present. When an appointment is made, the presumption is that the appointee is not disqualified by reason of minority; or ineligible by reason of being a minister of the gospel; or unduly elected by reason of being the seventh grand juror numerically in the order of election ; | or improperly appointed, by reason that the appointment was made a little sooner than it should have been, as in the case in the 9th of Massachusetts Reports.

These cases cited by the majority of the court fall far short, it seems to ine, of sustaining the position that a law of the legislature is primá facié law, when the supreme law of the constitution, which all are bound equally to know, is directly and palpably in conflict with it. The law in question is confessedly unconstitutional. Can it be presumed constitutional ? It must be so presumed in order to be primá facie law. It must be primá facié^ law in order to confer upon the common council color of authority. The common council must have color of authority, or the acting judge of this court has no color of title.

I think judgment should be advised for the defendant: