79 Me. 426 | Me. | 1887
Lead Opinion
The controversy in this case arises in relation to the title to office of city marshal of the city of Lewiston, and a petition for mandamus is instituted against the mayor and aider-men, and Daniel Gruptil, the present incumbent of said office. The petitioner claims under an appointment made by the mayor by and with the advice and consent of the aldermen, March 12, 1885. The defendant, Gruptil, claims under a similar appointment made April 1, 1886. It being conceded that both appointments were made by the proper authorities, the controversy arises by reason of the contention of the petitioner that his appointment, although expressly purporting to extend only to April 1, 1886, was by operation of law for the term of two years from the date of such appointment and would not expire till March 12, 1887, and that consequently the appointment of Guptil during that time was unauthorized and void. Guptil, at the time of his appointment, took possession of the office and was recognized as the lawful city marshal, and has ever since been acting as such.
By an examination of section four of the city charter, it will be found that all subordinate officers were to be elected and appointed annually by the city council for the ensuing year, on the third Monday of March or as soon thereafter as might be convenient; that all officers should be chosen and vacancies supplied for the current year, except as therein otherwise provided; and that all the subordinate officers and agents of the city should hold their offices during the ensuing year, and till othei’s should be elected and qualified in their stead, unless sooner removed by the city council.
Thus the tenure of office provided by this section was for the current year.
Section eighteen authorized the appointment of a city marshal by the mayor and aldermen in the manner provided in the section before named; constituted such marshal chief of police, and specified his duties.
It is also provided by said charter that the city may ordain and publish such acts, laws and regulations, not inconsistent with the constitution and law's of this state, as shall be needful to the good order of the city.
In accordance with the express authority with which the city was thus invested, certain ordinances were duly ordained and published,— the twenty-first section of which provided that all police officers should hold their office until the last day of March next succeeding their appointment.
And here it may be stated as a fact about which there is no dispute, that since the incorporation of the city it has been the custom pertaining to the administration of police for the term of office of city marshal to expire on the last day of March and to begin on the first day of April in the respective years in which terms of said office expire and begin, not only under the original
Inasmuch, therefore, as that act provided that the city marshal should hold his office for the term of two years, the subsequent appointments were made on April 1, 1880, 1882 and 1884. Although several appointments were made from April 1, 1884, to the time when, the petitioner was appointed, none of them received the advice and consent of the aldermen till the appointment of the petitioner, March 12, 1885.
It is at this point that the present controversy arises. It is insisted by the petitioner that a city marshal duly appointed in accordance with said act to succeed one whose term has fully expired, has by the express provisions of the act a definite and individual term of office of two full years from such appointment which cannot be abridged either by the act of the mayor or of the aldermen, and whether made at the commencement of the municipal year or any time thereafter.
On the other, hand, it is claimed in defence that by a proper legal interpretation of the act when read along with the act of incorporation, as necessarily it must be, the term of a city marshal appointed to succeed one whose term has expired, is to be reckoned, for the purpose of ascertaining its duration, from the first day of April next succeeding the prior term, and that the person thus appointed is entitled to hold his office only to the expiration of two years from that date, notwithstanding there may have been an interval of time of greater or less extent between the expiration of. the prior term and the date of his appointment.
In arriving at a correct conclusion in determining which of the foregoing positions is correct, we must be guided by the established rules pertaining to the construction of statutes — that like a will or contract it is to be read and construed as a whole, recourse being had to all its parts rather than to any particular clause where the meaning is doubtful, or where by giving a particular clause full effect it would conflict with other clauses. And in the construction of statutes it is held to be the duty of
Hence, the act of 1880 is to be read and construed not as standing alone, but in the light of the instrument which it sought to amend. That instrument is the act of incorporation; and only so much thereof is altered or repealed as is inconsistent with the act in question. This act in express terms changes the manner of appointment of the city marshal, deputy marshal and policemen. Formerly the appointment was the joint act of the mayor and aldermen ; by the amendment, these appointments are vested in the mayor, the confirmation in the aldermen. The tenure of certain offices is changed. The act provides that " the city marshal shall hold his office for the term of two years, and the remainder of the police force shall hold their office for the term of three years, providing, however, that the first year after this act shall take effect, one-third in number, as near as may be, of said police force, shall be appointed for the term of one year; one-third in number, as near as may be, shall be appointed for the term of two years, and one-third in number, as near as may be, shall be appointed for the term of three years, and there shall be appointed each year thereafter one-third in number, as near as may be, of said police force.”
It is evident, when we consider the language of the amendment in connection with the act of incorporation, that one of the objects to be attained, besides a modification in the manner of appointment, was that the terms of office of city marshal were to consist of consecutive periods of two years following each other in regular order, the one commencing when the other ends, instead of annual terms of one year each as before the passage of this act.
The purport of the statute in question is to promote the efficiency of the police force of the city. That force consists of
If we were to give any other construction to this statute in relation to the commencement and duration of the terms of office of the marshal and the policemen, the terms of service of the appointees might soon become such as to entirely destroy the
Thus the case of State v. Mayor of Laporte, 28 Ind. 248, was a proceeding to determine the right to an office. The city charter provided that only one councilman, of the two from each ward, should be elected every two years, for a term of four years. It was contended that the terms were four years whether from a general election or a special election, and that they were not necessarily distinct and consecütivé with periods of two years intervening. But the court held otherwise, saying: " If the provision that all officers elected at any special election shall hold their offices until the next general election on the first Tuesday in May, is held to include councilmen, it must result, that from special elections to fill vacancies occurring in that office, the two councilmen- from the same ward will often be elected at the same general election, for the full term of four years, and regularly thereafter at the same date, thus defeating the object of the legislature, which was to avoid an entire change in the representation of any ward at any regular election.”
In the case before us, the statute, it is true, does not designate any definite point of time from which the terms of the several offices therein mentioned shall commence. Yet the evident purpose of the statute requires, for the police force at least, that a definite time be fixed from which the several terms shall begin to run, and when so fixed that the individuality of such terms be adhered to, and that, as in the case last cited, they follotv each other in consecutive order. The act of incorporation expressly provides when the terms in relation to all subordinate officers shall begin. It provides that the city council shall annually, on the third Monday in March or as soon thereafter as convenient, elect and appoint for " the ensuing year.” It provides that all
We cannot presume that the legislature intended to disturb, further than was necessary, the existing order of things, or to change the already existing provisions in regard to the beginning of the terms of service in force when this act was passed, and in no way repealed by it. Not only the ordinances ordained and published prior, as well as subsequent to this enactment, recognize the commencement of the municipal year as we have stated, and definitely fix the first day of April as such commencement. These ordinances do not appear to be inconsistent with the constitution and laws of the state, or with the charter which contains a general grant of power to pass all such by-laws as may be necessary to the well being and good order of the city. Cooley, Cons. Lira. 194; Dillon, Munic. Corp. (2d ed.) § 250.
The construction we have here given in relation to the commencement and duration of the terms of these offices, has been received and acted on by all parties interested, from the adoption of this statute to the time when this controversy arose. Such, also, appears to have been the understanding of the petitioner, as well as those who made and confirmed the appointment, as is shown not only by the records of the board of mayor and aider-men, wherein his nomination and confirmation are stated to be "for two years from April 1, 1884, to April 1, 1886,” but also from the language of the petitioner in his official bond, in which he states that he " has been appointed and elected city marshal of the city of Lewiston for the term of two years, beginning on the first day of April, A. D. 1884, and ending April 1, A. D. 1886.”
" In construing statutes applicable to public corporations,' remarks Redfield, J., in Sherwin v. Bugbee, 16 Vt. 444, " courts will attach no slight weight to the uniform practice under-them, if this practice has continued for a considerable period of time.” It was upon this principle that the court in State v. Severance, 49 Mo. 401, held "that the cotemporaneous construction of a city ordinance adopted by all parties interested in. its enforcement, although not controlling, is, in doubtful cases, entitled to great weight.” State v. Cook, 20 Ohio St. 259.
In the examination of the question before us, we have looked directly to the legal merits of the case. But there is another-ground which is decisive, against the petitioner and brings, us to-the same conclusion.
The office to which the petitioner seeks to be restored is. actually filled by another, claiming under a legal appointment,, admitted and sworn and exercising the functions of the office-under color of right. In such case, the appropriate remedy of the petitioner in the first instance, if entitled to any, is by quo warranto, and not by mandamus alone. In this case, the petitioner is virtually attempting to oust an actual incumbent, and to-place himself in an office the title to which is in controversy and, which cannot be tried in a proceeding of this kind. The general-, and well nigh universal rule is that mandamus is not an appropriate remedy to try the title to an office as against one actually in possession under color of law. The decided weight of authority,, both in the English and American courts, is in support of this, doctrine.
In Dane’s Abridgement, the rule is thus stated: " But if the-office be already full by the possession of an officer de facto, no writ will be granted to proceed to a new election, until the person in possession has been ousted on proceedings in quo warranto.”
A careful examination of the decisions both of the English and American courts will not fail to convince the most doubting mind that the general current of authority runs in the same direction, and that the exceptions to the rule are rare and not well founded. A few of the very many authorities bearing directly upon this rule are given,— enough when examined to authenticate the assertion that the rule is too well settled to be denied. King v. The Mayor of Winchester, 7 A. & E. (34 E. C. L. 81); The Queen v. The Mayor of Derby, 7 A. & E. (34 E. C. L. 135); King v. The Mayor of Oxford, 6 A. & E. 348 (33 E. C. L. 89); Frost v. The Mayor of Chester, 5 E. & B. 538, (85 E. C. L. 536), Coleridge, J: "A mandamus goes only on the supposition that there is no one in office, for the purpose of restoring a party to office or to cause an election to be held.” The King v. The Mayor of Colchester, 2 T. R. 259; The Queen v. Phippen, 7 A. & E. 966 (34E. C. L. 263);
That there have been exceptions to the rule is true. But upon what principle the exceptions have been founded, where there has been an actual incumbent, exercising the functions of the office, and being in under color of right, the decisions themselves fail to afford any satisfactory answer. In Maryland and Virginia, the courts have held that in such cases mandamus would lie. Thus in Dew v. The Judges of the Sweet Springs Dist. Court, 3 Hen. & Munf. 1, it was held that mandamus was the best remedy. So in Harwood v. Marshall, 9 Md. 83, the court of appeals of Maryland, came to the conclusion that resort to quo warranto as preliminary to mandamus was not necessary on the grounds of delay growing out of the use of the process, citing in support of its decision the case of Strong. Pet. 20 Pick. 484, a case more-generally referred to as an exception to the rule than any other-authority. But an examination of that case shows the fact-that it.
It is the opinion of the court upon the best reflection we have
Writ denied, with only one bill of costs for respondents.
Dissenting Opinion
I dissent from the reasoning of the opinion. The act of March 16, 1880, provides that the city marshal of Lewiston shall be appointed by the mayor, by and with the advice and consent of the aldermen, and "shall hold his office for the term of two years,” and that "all acts and parts of acts inconsistent with this act are hereby repealed.”
The language of this act, touching the tenure of the marshal, is substantially the same as that in the constitution, declaring the tenure of various state officers. Art. VI, Sec. 4, provides, that "all judicial officers shall hold their respective offices for the term of seven years from the time of their respective appointments.” Sec. 5, "Justice of the peace and notaries public shall hold their offices during seven years, if they so long behave themselves well.” Sec. 7, "Judges and Registers of Probate shall hold their offices for four years commencing on the first day of January next after their election.” Sec. 8, "Judges of Police and municipal courts shall hold their offices for the term of four years.”
In case of vacancy in airy of these offices, it has been the custom for the new officer to hold for a full term.
This court declared, that a person, elected to the office of Register of Probate made vacant during the term, should hold for the full term of four years. Opinion of the Justices 61 Maine, 602.
The act of 1880 is "clear and unambiguous,” and provides that "the marshal shall hold his office for the term of two years.” No good reason exists for departing from the plain meaning of the statute, especially, when it expressly repeals all acts inconsistent with its provisions. Its title purports "to promote the efficiency of the police force,” which is not likely to flow
I concur in the result, upon the ground that mandamus does not lie to eject an officer de facto, performing his duties under color of right.
