31 P. 807 | Idaho | 1892
At the regular biennial election of 1890 the plaintiff was elected to the office of probate judge for Logan county for the two years next following the first day of January, 1891. He regularly qualified as such on the thirteenth day of January, 1891, and entered upon the discharge of his duties as such officer. On the third day of March, 1891, the legislature of Idaho passed an act, by the terms of which they created the counties of Alta and Lincoln out of the territory theretofore comprising the counties of Alturas and Logan. At the time of the passage of the act referred to, Bellevue was the county seat of Logan county. By the provisions of said act the town of Shoshone was made the county seat of Lincoln county, and thei town of Bellevue was included within the boundaries of the county of Alta. Immediately following the passage of the said act organizing said counties of Alta and Lincoln, the governor of the state, in accordance with the provision of said act, appointed various persons to fill the several offices of said counties of Alta and Lincoln, so as aforesaid organized by and under said act of March 3, 1891, and among others appointed the plaintiff probate judge of said Lincoln county. Plaintiff accepted said appointment, and at once qualified as such officer. The board of commissioners of Logan county, refusing to recognize the validity of the act of March 3, 1891, immediately on the acceptance by the plaintiff of the appointment of judge of probate court of Lincoln county, and his qualification as such officer, and on the-day of March, 1891, appointed the defendant probate judge of Logan county, and installed him in said office. Proceedings were instituted to test the validity of said act of March 3, 1891, which resulted in the declaring of the same unconstitutional by the supreme court of the state. (People v. George, ante, pp. 72, 108, 26 Pac. 983, 27 Pac. 680.) Upon the announcement of such decision, plaintiff made demand of the defendant for the possession of said office of probate judge of Logan county, which was refused by defendant; and he continued to hold, and still does hold, said' office, and performs the duties and functions thereof. Plaintiff brought action in the district court under the provisions of
The case comes to us upon a bill of exceptions presenting quite a number of exceptions to evidence, findings and instructions; but, having carefully examined the record, we conclude that, for all the purposes of this decision, the questions may all be resolved into one: Did the plaintiff, by accepting from the governor of the state the appointment of probate judge of Lincoln county, thereby abandon, forfeit or resign the office of' probate judge of Logan county? Or, to state it differently, did the acts of the plaintiff create a vacancy in the office of probate judge of Logan county on the-day of March, 1891, the date of defendant’s appointment and investiture? Abandonment is largely a question of intention, and it is clear, from ■all that is presented by the record, that it was never the intention of plaintiff to quit or give up the office of probate judge of Logan county.
It is claimed by the respondent that the appellant neglected to perform the duties of the office to which he was elected during a period of three months prior to his bringing this action, and therefore that the office became vacant, by operation of the statute, but the record shows that within the period required by the constitution the appellant duly qualified and entered upon the performance of the duties of his office. It is also conceded in the argument that, soon after he so entered upon his duties, he appointed the defendant in this action clerk of said court, and placed the records thereof in his care and keeping, and from that day until the present time the said defendant has, by force, and against the will of this plaintiff, kept possession of said records and said office, although possession thereof was repeatedly demanded; and now, having wrongfully and unlawfully seized said office, and wrongfully kept possession thereof, he (the defendant) alleges that plaintiff has neglected to perform his duties therein, and that, therefore, said office was vacated by plaintiff, thereby seeking to take advantage of his own wrong. The court that would sustain
But it is contended by counsel for respondent that plaintiff, by accepting the appointment of probate judge of Lincoln county, forfeited the office of probate judge of Logan county, In support of this contention, we are cited to numerous authorities which seem to establish the rule that the acceptance, by the incumbent of an office, of another office or position, incompatible with that already held, amounts to an abandonment or forfeiture of thé first. This rule seems to have the sanction of authority and principle. But does the case of the plaintiff fall within the rule? He was regularly elected to the office of probate judge of Logan county, qualified and entered upon his duties as such. His office was abolished by the act of the legislature creating Lincoln county. The act of the legislature was the law until it was pronounced void by the proper tribunal. To hold otherwise would be to abrogate the first duty of the citizen — obedience to the law. To hold otherwise would be to encoprage every person to whom a law is distasteful or burdensome to disobey or set it at naught. While we recognize, with becoming deference, the high authority cited by counsel, which says that, “when a statute is adjudged to be unconstitutional, it is as if it had never been” (Cooley’s Constitutional Limitations, 222), we are unwilling to assent to the sweeping application claimed therefor by counsel for the respondent. If any and every person “invested with a little brief authority” is permitted to defy the law, “village Hampdens” will be as thick as autumnal leaves in Vallombrosa.
We have been unable to find a case parallel with that under consideration. A law had been passed by the legislature with all the required constitutional formalities, and, as said by Judge Breese in People v. Salomon, 54 Ill. 46, it “became, by its own intrinsic force, the law to every public officer in the state, and to all the people.” Again, in the same case, the same learned judge uses this language, “To the law every man owes homage — the very least, as needing its care; the greatest, as not exempted from its power. To allow a ministerial officer to decide upon the validity of a law would be subversive of the great objects and purposes, of government; for, if one
The plaintiff was acting entirely in an individual capacity when he accepted the appointment of probate judge of Lincoln county. The positions of the plaintiff and the defendant were entirely different. The plaintiff accepted the law as it came to him, clothed in all the insignia of legality. The defendant as-> sumed to question the constitutionality of the law, refused obedience to it, and accepted an appointment to an office which, as the law then stood, had no existence. Say the supreme court of Texas in Sessums v. Botts, 34 Tex. 335: “It is believed that any citizen of the state, whose interests are affected by an act which he believes unconstitutional, may, by pursuing a legal course, test the constitutionality of a law, or, if ho chooses, may wholly disregard that act as law; but in that case he acts at his peril, and, should the act of which he complains be decided to be law, then he, must suffer the consequences of a bad judgment or a perverted will. It is, therefore, deemed advisable for every good citizen to obey whatever may be promulgated by the law-making power as law until the same shall have been passed upon by the courts of the country in a legitimate and proper manner. If this, then, is the duty of the citizen, and he obeys or submits to whatever has received the legislative sanction as law, then he should be protected in that obedience, or at least he should not be deemed guilty of laches, and his rights sacrificed to those who are ready to usurp the province of the judiciary, and declare for themselves what is and what is not law.” In the same case the court, in commenting upon the passage from Cooley’s Constitutional Limitations, above cited, say: “We are not willing to construe the quotation from Cooley’s Constitutional Limitations, in the same light as the learned counsel for the plaintiff in error appears to have done. It is true that, when an act has been declared unconstitutional, then it is as though it had never been; but we do not think that the author, in the text, or the cases cited by him, intended to announce the doctrine that, an unconstitutional law could be no protection to officers or citizens before the same had been passed upon and judged invalid.”
Numerous exceptions were taken by the appellant to the instructions to the jury given by the court, and to those refused to be given; but as these questions cannot again arise, under the conclusion we have reached, it is unnecessary to pass upon them.
