216 Pa. 152 | Pa. | 1907
Opinion by
At the general election held in November, 1902, M. L. Greider and Lewis J. Kirk, the nominees of the republican or majority party, and J. Valentine Wise, the nominee of the democratic or minority party, were elected county commissioners of Lancaster county and having been duly qualified, they entered upon the performance of their duties on the first Monday of January, 1903. At the election held in November, 1905, S. Millo Herr and L. R. Reist, the nominees of the republican or majority party, and Edward D. Reilly, the nominee of the democratic or minority party, were elected commissioners of the county. Herr and Reist- were duly qualified and entered upon the discharge of their duties on the first Monday of January, 1906. Reilly refused to take the oath of office, and on January 1, 1906, filed in the court of common pleas of Lancaster county a paper in which he states that “ I hereby resign and decline the office of county commissioner of Lancaster county to which I have been elected, and I hereby respectfully request you to fill the vacancy as provided by law.”
Article XIV of the constitution of 1874 is devoted exclusively to county officers, and is the only part of the instrument which makes provision for their election and the filling of vacancies in county offices. Section 1 of the article declares that “County officers shall consist of ... . commissioners, . . . . auditors or controllers, .... and such others as may from time to time be established bv law-” Section 2 of the
There are certain questions arising out of the interpretation of the provisions of the constitution of 1874 relative to county officers which are so well settled by the plain language of the instrument itself or by the adjudications of this court that they are no longer open to discussion. County officers in the several counties of the commonwealth must be elected at the general election, and by section 2 of article XIV of the constitution they shall hold their offices for three years from the first Monday of January following their election “and until their successors shall be duly qualified.” A vacancy in a county office not otherwise provided for, is to be filled, under this section of the article, in such manner as may be provided by law. County commissioners are county officers, and by section 7 of the article three persons are to be chosen commissioners under a system of minority representation, and any casual vacancy which may occur must be filled by the court of common pleas by the appointment of an elector who voted for the commissioner whose place is to be filled. If a vacancy occur in the office of county commissioner and it is filled, the occupant thus installed will perform the duties of the office for the residue of the triennial term. The death of a person elected to fill the office of clerk of the orphans’ court before he was qualified did not, under the constitutional amendment of 1838, create a vacancy, but the incumbent then in office held over until his successor was qualified. The same construction was given section 2 of article XIV of the present constitution where two candi
Conceding the above propositions to be settled law in this state, 'we now come to the consideration of the question involved in this case, to wit: whether J. Valentine Wise elected as the democratic or minority county commissioner at the general election in November, 1902, and whose term would otherwise have expired January 1,1906, is entitled to hold over and continue in office for another term of three years because Edward D. Reilly, elected in 1905 as the democratic or minority commissioner, declined to accept the office and qualify.
In construing a constitution, the object is to give effect to the intent of the people in adopting it. Cooley’s Const. Lim., 7th ed., 89. This is to be ascertained from the instrument itself, and by giving to its words and terms their ordinary and usual signification, unless it appears from the context or entire instrument that another meaning was intended. Judge Cooley in discussing the rule that the whole instrument is to be considered in ascertaining the intention of each part says (Const. Lim. 91): “ The rule applicable here is, that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and lean in favor of a construction which will render every word operative, rather than one which may make some idle and nugatory. . . . It is scarcely conceivable that a case can arise where a court would be justifiable in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together.”
The defendant contends that the refusal of Reilly to qualify and assume the duties of the office of county commissioner did not create a vacancy in the office, and that Reilly, being the minority commissioner, is the successor of the defendant in the office, and that therefore the latter is entitled to continue to act as commissioner until the first Monday of January, 1909. Prior to the adoption of the present constitution, the office of county commissioner was a statutory and not a constitutional of
It will be observed that there is no county office except that of commissioner and auditor which requires more than one person to be elected at the same election to fill it, and to which the principle of minority representation is or can be applied by the constitution. While section 2 of article XIV provides that county officers shall hold their offices for three years “ and until their successors shall be elected,” the subsequent section, 7, of the same article is devoted exclusively to provisions for the election and appointment of commissioners and auditors and provides that three commissioners and three auditors shall be elected triennially with minority representation, but contains no provision that they shall continue in office until their successors are elected. Provision is made, however, in both sections for the filling of vacancies. The second section provides that “ all vacancies not otherwise provided for, shall be filled in such manner as may be■ provided by law,” and section 7 declares that" “any casual vacancy in the office of county commissioner or county
Reilly’s failure to qualify left one officer short of the three which the constitution requires to form a board of county commissioners. Was he the successor of Greider, Kirk or Wise, the three commissioners who were elected in 1902, and whose respective terms of office would otherwise expire on January 1, 1906 ? There is no way known to the constitution or the laws of the commonwealth by which that question can be determined in any case when a commissioner or auditor refuses to qualify and enter upon the discharge of his duties.
While the constitution recognizes and enforces minority representation in the election and appointment of county commissioners and county auditors, yet after they assume the duties of their offices no such distinction is or can be recognized or permitted. Each officer, while he may or may not continue his past party affiliations, is a commissioner or an auditor of the county with the same rights, powers and duties as either of his two colleagues. The fact that he is elected as the minority representative of the board invests him with no greater
Entertaining these views of the duties and obligations of a county commissioner or county auditor after he assumes the office, we cannot assent to the proposition, so earnestly urged by the learned counsel of the defendant, that as Reilly was elected in 1905 as the representative of the democratic or minority party he is the successor of Wise who was elected as the representative of the democratic or minority party in 1902, so as to entitle the latter to continue in office under the provisions of section 2 of article XIY of the constitution. Aside from the contention being contrary and repugnant to the principles upon which officials hold their offices and discharge their official functions, there are other reasons why it cannot be sustained. Assume that the prohibition and not the democratic party had elected the minority commissioner in Lancaster county in 1905, it manifestly would be contrary to the spirit of the constitution to continue Wise in office who, presuming he had continued his party fealty, was a democrat and not a member of the prohibition party which by the votes cast in 1905 would be the minority party at that time. If, as suggested, a member of the prohibition party had been elected as the minority representative on the board of county commissioners in 1905 and had died while in the discharge of the duties of the office, it will be conceded that under section 7 of article XIV of the constitution the court would be compelled to fill the vacancy by appointing an elector who had voted for the prohibition candidate and not an elector who had voted for the democratic candidate. In that event, it is apparent that Wise or no other democrat who had voted for the democratic candidate would be eligible for the appointment to fill the vacancy. This provision of the con
Judge Cooley, in speaking of uniformity of construction, says (Cooley on Const. Lim. 88) : “ A cardinal rule in dealing with written instruments is that they shall receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable.” Let us see what would be the interpretation of section 7 of article XIY if Herr or Reist, the republican or majority representatives on the board of commissioners elected in 1905, had declined to accept the office. The rule of construction which we must apply in interpreting the constitution on the refusal of Reilly to accept the office must be the same' in case either of the majority candidates for the position had failed to qualify. If Herr or Reist, elected on the majority ticket in 1905 had declined the office, which of the two majority members of the former board would have held over as his successor ? The constitution affords no answer to the question and there is no statutory provision which solves it. Neither will it do to say that it is subject to an amicable arrangement between the interested parties. They can only proceed according to constitutional or statutory authority, and in the absence of such authority their act would be ultra vires and void, and would not sustain any claimant in his right to the office.
Let us, for a moment, look at other conditions which have existed and which under our elective system will doubtless exist again in some of the counties of this state in the election of county commissioners and county auditors. Assume the political situation in Lancaster county to have changed in the last three years, and that two democrats and one republican had been elected commissioners in 1905 and the republican elect had declined the office, which of the two of the majority
As there is no constitutional or statutory provision for determining which of the three predecessors in the office of county commissioner or county auditor is the predecessor of a commissioner or auditor elect who refuses to qualify, it is apparent, we think, that the provision in section 2 of article XIV, that a county officer shall continue in office until his successor shall be qualified, cannot apply where one of the county commissioners or county auditors elected under section 7 of article XIV declines to qualify and accept the office. That provision was manifestly intended to apply to cases where a single individual fills a county office and where therefore it is enforceable and gives an opportunity to continue in office an elective instead of an appointive official.
It is suggested in the brief of the learned counsel of the appellant, that the Act of April 15, 1884, P. L. 537, makes provision for filling any vacancy which may occur in the office of county commissioner. That act would have met the case of any vacancy whatever in the office of county commissioner arising under the prior constitution. But the difficulty, and we think it insuperable, in applying it to the case in hand, is that the provision for appointing is not adequate to carry out the purpose of section 7 of article XIV of the present constitution. That section, as will be observed, provides for the election of a minority representative in the boards of county commissioners and county auditors, and directs that in case of a casual vacancy in either office, the same principle' shall be recognized in filling it. The spirit of the constitution as well as the expressed intention of its framers and the people who
Turning to the act of 1834 we see that section 16 provides that if, for the reasons therein stated, there is a vacancy in the office of county commissioner, “ the remaining commissioner or commissioners, together with the court of quarter sessions of the county, shall appoint a suitable citizen to fill the vacancy until the next general election, when a commissioner shall be elected for the unexpired term.” It is obvious, we think, that the act does not make sufficient provision for filling vacancies in the office of county commissioner like the one in the case at bar so as to carry out the principle of minority representation, as clearly contemplated shall be done by.section 7 of article XIV of the constitution. Admittedly, the vacancy must be filled for the residue of the three year term, and not until the next general election as the act of assembly provides. The act does not provide that in filling the vacancy, the appointing power shall recognize and enforce majority and minority representation as contemplated by the constitution. This was not required under the constitution in force in 1834, and hence it was not necessary that the act of assembly, passed in that year to fill vacancies in the office, should make provision for it. Under this act the single qualification required of the appointee is that he shall be “ a suitable citizen,” and the appointing power can fill a minority vacancy by an elector who had voted for the majority candidate, or could fill a majority vacancy or vacancies by an elector or electors who had voted for the minority candidate and thus make the board of commissioners to be composed entirely of electors who had voted for the majority candidates or for the minority candidates. Such action would be an infringement of the constitutional provision providing for minority representation, but it would not be a violation of any provision of the act of 1834.
It may be argued, however, that if the act of 1834 does not authorize the filling of vacancies in the office of county commissioner under the present constitution that the-, legislature
We are therefore of opinion that there is no act of assembly which authorizes the filling of vacancies occurring in the boards
Has the constitution made no provision for filling the place of a county commissioner or county auditor elect who declines to qualify, and is there a casus omissus in this respect in the constitution ? The defendant contends that such action by an officer elect does not create a “casual vacancy ” which, by the constitution, the.court is authorized to fill. If this be true, then as suggested above,' we know of no provision in the constitution or statutes of the state and have been referred to none, which makes provision for such a contingency, and hence the constitutional mandate that there shall be three county commissioners and three county auditors is incapable of being carried into execution. In view, however, of the settled rule of interpretation, we cannot accede to the construction of the words in question which will render the constitutional provision nugatory or incapable of being carried into effect. On the contrary, we think it was the intention of the framers of the constitution to provide in the instrument itself not only for the election of county commissioners and county auditors, but also for the appointment to fill all vacancies in those offices so as to preserve minority representation therein, and that, therefore, where there is a vacancy in the office by the candidate elect failing or refusing to qualify, or when he dies before entering upon the discharge of the duties of the office, it should be regarded as a “ casual vacancy ” within the intendment of section 7 of article XIY of the constitution, and be filled by appointment by the court as provided in that section. If it were determinable from the constitution or by any law which was or could be enacted in pursuance thereof which of the three incumbents of the office was the predecessor of the officer elect who refuses to qualify, there would be no difficulty in enforcing the provision of section 2 that he should continue to discharge the duties of the office, and under such circumstances, it might well be that a different interpretation would be given the words in question. In that case, the ordinary meaning of the words might control the meaning which a consideration of the whole instrument under the circumstances of this case requires to be adopted. While it is true that in construing a constitution the
For the reasons given, we must reverse the judgment of the court below and direct that defendant be ousted from the office.
The writer may be permitted to say that the recent assignment of the case is the cause for the delay in handing down the opinion.
The judgment is reversed and judgment is now entered here for the commonwealth upon the demurrer; and it is further ordered and adjudged by the court that the defendant, J. Yalentine Wise, be and hereby is, ousted from the office of county commissioner of Lancaster county, and from the franchises, rights, privileges and emoluments thereof, and that he pay the costs of this proceeding.