4 Wyo. 133 | Wyo. | 1893
This is a motion or an application on behalf of the Board of the County Commissioners of the County of Johnson to direct the Attorney General to cause proceedings in the nature of quo warranto to be instituted in this court for the purpose
It appears from the application, duly verified, that said William S. Metz was appointed by the Governor to the office of judge of the Fourth judicial District of this State, and that such appointee has duly qualified and is now assuming to perform the functions of such office. This application is claimed to be authorized by a section of the Revised Statutes which provides that the Attorney General or a prosecuting attorney when directed by the Governor, the supreme court or the legislature shall commence the action in the nature of quo warranto against a person who usurps, intrudes into, or unlawfully holds or exercises a public office, civil or military, within this State. Secs. 3092 and 3094, Rev. Stat. Wyo. And it is sought to have this court direct that such action be commenced against the said William S. Metz. Some objections were made in the argument as to the propriety and legality of this application and as to the jurisdiction of this court to allow the writ to run to one claiming to be a district judge, as it was contended that such an officer is not a “State” but 'a “district” officer within the meaning of various constitutional provisions, óur original jurisdiction in quo warranto being limited to State officers (Const. Wyo., Art. V, Sec. 3), but as ■the matter was finally submitted on the question of the validity of the law under which said William S. Metz was appointed and his office created, we shall pass upon these questions without determining the other points raised, upon which we express no opinion.
1. The statute challenged in this proceeding is entitled “An act to define the judicial districts of the State, and prescribing the time for holding the terms of the district court in the several counties of each judicial district.” It was approved by the Governor February 9, 1893, at which time it took immediate effect. It is assailed as a violation in its body and title of the constitutional inhibition that “FTo bill, except general appropriation bills and bills for the codifica
It is the duty of the courts when called .upon- to declare an-act of the legislature unconstitutional, which has been'passed with all the forms and ceremonies' requisite' to give it force, to approach the question with great caution and to consider it with the utmost care and deliberation.. 'Before an act'of the legislature is pronounced void, it should appear that there has been a clear and palpable: 'evasion of the constitution: The judiciary ought to accord to the legislature as much purity of purpose as it claims for itself; as honest a desire -to obey the constitution; and also a high capácity to. judge of its meaning. Ewing v. Hoblitzelle, 85 Missouri, 64-70, citing a number of Missouri cases. The objections should be grave and the conflict between the act and .the constitution palpable, -before the judiciary should disregard or 'annul adegislative enactment upon the sole ground that it embraces more than one subject, or when it contains but one' subject, on.the ground that it
In construing this • constitutional provision,- the' supreme court of Colorado in the case of In re Breene, 14 Colorado, 401, say: "First, that.it is mandatory. Sueh is the view- expressly declared by this court,, and, with but two or three exceptions, adopted elsewhere. Railroad Company v. People, 5 Colo., 40; Wall v. Garrison, 11 Colo., 515. Second, that it should be .liberally and reasonably interpreted, so as to avert the evils against, which :it is aimed, and at the sdme time avoid unnecessarily obstructing legislation. Clare v. People, 9 Colo., 122; Dallas v. Redman, 10 Colo., 297. Third, that it embraces- two mandates, viz.: one forbidding the union in the same legislative bill.of separate and distinct subjects, and the other commanding that the subject-treated of in the body of the bill shall be clearly expressed in its title., • Each of these mandates is designed to obviate flagrant evils connected with the.adoption of laws., .The former prevents joining in the same act. disconnected and incongruous matters. The purpose of the latter .is thus tersely and forcibly stated in Dorsey’s Appeal, 72 Pa. St., 192: ^Another purpose was to give information -to the members, or others interested, by the title of the bill, of.-the contemplated legislation; and thereby to prevent the passage of unknown and alien subjects, which might be coiled up in the folds of the bill.’ The provision undoubtedly deals with legislative procedure; but -obedience thereto directly results.in advising the people of the contents of bills that -have become laws. It is quite as important to the official or the. private citizen that he .have the highest facilities for- knowing the existing law, as that he have oppor
There is no incongruity in the subjects of this act which are but satellites of the comprehensive subject of defining the judicial districts of the State. - The legislature had the right to increase the number of such districts to four and the number of. judges to four, and the only limitation- imposed by the- fundamental law in the increase of judicial districts, ■ is that the number of districts and district judges shall not exceed four until the taxable valuation of property in .the State shall exceed one hundred million of dollars. Const. Wyo., Art. V, Sec. 22. The provision for the Fourth District and a- fourth judge are all matters immediately and intimately- connected with and incident to the division of the State into judicial districts. Before the passage of- this act, there were three judicial districts, and under the territorial regime there were but three. The constitution provides that “until otherwise provided by law” there shall be three judicial districts, which were temporarily defined in that instrument. Art. V, Sec. 19. They were defined anew thereafter, but their number was not increased by Oh. 52 of thé Session Laws of 1890-91, those
It was insisted in the argument that the act should have been directed solely to the organization of the Fourth J udicial District, but although this would have been a proper and distinct subject of legislation, such action on the part of the legislature would have rendered necessary other enactments to fix the additional terms of court provided for in the act.
The title is one that was employed in former legislation on the same subject by both territorial and State legislatures. For this reason, it is insisted that no notice was given by it to the legislature and the people by reading it, of the formation of a new district. We think this is not tenable. The defining anew of the districts would put any one interested either in the bill during its course in each house and before the Governor on the inquiry as to whether the number of the districts were defined anew, as well as the defining anew of the former districts. In reading the title of the act, we have already indicated that it was a sufficient guide to one desiring to know the number and territorial extent of each district. It was said in argument that the word “define” has a technical and common meaning and is used to make clear and definite what was before uncertain or obscure and relates to something that had a prior existence; hence in defining the judicial districts of the State, it must be assumed that the legislature would do no more than to re-define or rearrange existing districts and not create a new one. This word so frequently used in legislation and generally in the titles to acts has been construed by the courts to have a broader meaning and is not used exclusively in the sense of making clear and certain what was before unintelligible, ambiguous or uncertain. It is
2. It is further claimed that the act is unconstitutional because it provides for the appointment and not the election of a judge of the Fourth Judicial District.
While there is an express provision for the filling of a vacancy in the office of justice of the supreme court in the judiciary article of the constitution, by appointment of the Governor, the appointee to hold the office until the qualification of a successor to fill the unexpired term, who is elected at the next succeeding general election; there is no such special provision for filling a vacancy in the office of judge of the district court, but it is clear that a general provision appearing in Section 7 of Article 3, controls. It reads: “When any office from any cause becomes vacant, and no mode is provided by the constitution or law for filling such vacancy, the Governor shall have power to fill the same by appointment.” The statute before us provides for filling the vacancy created by it, in the formation of the new judicial district, by the appointment of the Governor, and that- such appointee shall hold the office until the qualification of his successor to be elected at the next general election for judges of district courts. This provision in so far as it relates to filling the newly created office by appointment seems to us to be valid and not hostile to the constitution. While the judges of district courts created in the constitution are to be elected and were elected at the first State election in 1890 for full terms, there is nothing appearing expressly or by implication in the constitution providing that the vacancy in such office may not be provisionally filled by, appointment, without resorting to a special election to fill it. Indeed, the constitution provides clearly for the temporary or provisional appointment to fill the vacancy in Section 3 of Article 7, supra, and it further provides that no district judge can be removed from his office by the increase or change in the boundaries of judicial districts during the term for which he may have been elected
3. Although it was claimed with much vigor in the argument on behalf of the relator, that there could be no vacancy in the new office until once filled by an incumbent thereof, we think the converse of this provision is too clear for discussion. An old office is vacated by death, resignation or removal. An office newly created becomes ipso facto vacant in its creation. State v. Askew, 48 Ark., 89, citing a large number of cases. Throop on Public Officers, Sec. 132; Meacham on Public Officers, Sec. 431.
Upon the argument counsel for relator contended that the legislature could not in any event authorize the appointment by the Governor of a judge of the Fourth Judicial District to hold until the next election for district judges, to be held in the year 1896, but only until the qualification of a successor to be elected at the next general election which will occur in November, 1894. It is unnecessary for us to decide this point. It is sufficient in this inquiry to decide that the incumbent of the office is legally in office at the time this application was made and at the time of this hearing.
Mention was made in the argument of the existence of Section 2 of Chapter 62 of the Session Laws of 1890-91, which was not repealed by the act under consideration, and that if a valid law it would bring within its operations the judges of all the districts except the fourth. It provides that the several judges of the First, Second and Third Judicial Districts shall, with their successors, act in their respective districts, hold the terms of the district courts therein, and for each other when the regular judge is disqualified or unable to act. No such provision appears in the new act. The constitution provides (Art. Y, Sec. 11) that “the judges of the district courts ‘may’ hold courts for each other and ‘shall’ do so when required by law.” It is unnecessary to pass upon this question in this proceeding, whether the unrepealed Section 2 of the old act applies to the judge of the Fourth Judicial District and compels him to hold courts for the other judges,
The motion is denied.