4 Blackf. 116 | Ind. | 1835
The board of commissioners oí Irankhn county, at its May term, 1833, made the following order:— “ It appearing to the satisfaction of the board that the office of recorder for the county of Franklin and state of Indiana is vacant, in consequence of the removal of John Hedley the late incumbent of said office, the board appoints, &c.” From the decision of the board, an appeal was taken to the Circuit C'duft, and that Court was moved to set aside and quash the proceedings of the commissioners on the following grounds: 1. That the board of commissioners had no authority to declare the office vacant. 2. That the board of commissioners had no jurisdiction or power to appoint a recorder for said county. 3. That the said John Hedley had no notice of the examination of the said matter, and that no charges were exhibited against him. Several errors are assigned as having been committed by the Circuit Court; the principal bf which is, its having rendered final judgment on overruling the motion to set aside and quash the proceedings of the board of commissioners.
We will examine the several points which have been made by the plaintiff in error, pursuing the order in -which they were presented.
1,-The most serious question that has been discussed, relates to the constitutionality of the act which authorises the board of commissioners in their respective counties, in which “ the office of recorder shall become vacant by death, resignation, removal, or otherwise,” to appoint some suitable person to fill the same, who shall continue in office until the time of the next general election. Stat. 1832, p. 263.
The filling a vacancy in an office until the period of the next general election, does not seem to be opposed to the constitutional requirement that such officer should be elected. The exercise of this power is essential to prevent great and obvious injury to the community. The preservation of the records is secured, and the duties of the office performed. The vacancy is to be filled by an appointment, not for seven years, the consti
The exercise of the power by the legislature, of authorising vacancies in offices to be filled by appointment until the next general election, is not confined to the office of recorder. It extends to sheriffs and coroners, each of which officers the constitution requires to be.elected by the qualified electors in each county; yet the legislature has from its first session, required the governor to fill vacancies in those offices which may have occurred “ by death, resignation, removal from office, &c. until the next general election, and until a successor be duly elected and qualified into office.” It is true, that the exercise of this latter authority, if not warranted by the constitution, would not sustain its exercise in the case of the recorder. But the cotemporaneóus exposition of a constitution, or of a law, is entitled to great respect; and Courts, when such exposition has been judicial, rarely feel justified in departing from it. Such exposition by the legislative branch of the government, though not obligatory upon a co-ordinate branch, the judiciary, must be viewed by the latter with great respect; and when concurring legislative expositions for a series of years, unquestioned and undenied, are adduced in support of the constitutionality of an act, they afford, at least, strong and persuasive arguments in its support.
We are satisfied, that upon this point there has been no violation of the constitution, and that the power given to the boards of commissioners could well be executed.
2; It is said that the board had no authority to declare the office vacant.
By the statute, it is expressly made the duty of the board
The third point, from the view taken of-the case, would seem to be disposed of, and will therefore receive only a passing notice. From the positions assumed in this opinion, it must follow that the board could not create a vacancy, but only act when one had occurred. To have itself preferred charges against the incumbent of the office, or to have permitted the exhibition of charges, would have been an assumption of the power of determining their-truth or falsehood, and rendering a judgment upon such finding. This, we have seen, it was not in the power of the board to do; consequently notice was not a legal right.
We think, that none of the reasons urged to the Circuit Court, were sufficient to set aside or quash the proceedings.
We have now reached the proceedings in the Circuit Court, and shall proceed to examine the principal error assigned. The case was taken to the Circuit Court on appeal, and it is a fair construction of the statute authorising the appeal, that it
The judgment is affirmed with costs.
Accord. Rev. Stat. 1838, p. 470.