1 Va. Dec. 522 | Va. | 1883
delivered the opinion of the court.
The petitioner, Virginius Johnson, was duly elected treasurer for the city of Petersburg, at the regular election held for said city on the fourth Thursday of May, 1879, for the term of three years, commencing on the first day of July, 1879, and qualified and entered upon the discharge of the duties thereof, and continued therein, and enjoyed the emoluments thereof for the full period for which he had been so chosen.
At the ensuing regular election for said city, held on the fourth Thursday of May, 1882, E. W. Couch was duly-elected by the qualified electors of. said city, to succeed said Johnson in said office of treasurer, for the term of three years, beginning on the first day of.-July, 1882, and being so elected, qualified and
The contention thus arising was brought to this court for determination upon a petition for a writ of mandamus to restore the petitioner to said office, from which he claimed to have been wrongfully ousted. The case was decided by this court on the 19th day of December last in an elaborate and well-sustained opinion delivered by Judge Staples. His opinion holds that
Such was the opinion of the court; hut in the judgment thereof, entered of record, the petitioner, Johnson, was declared to be entitled to hold the office of treasurer for the city of Petersburg “until his successor should be elected and qualified.” As the law does not authorize a special election, the effect of the language above quoted would be to continue the petitioner in said office for the full term of three years from the first day of July, 1882. It is claimed hy the respondent, Judge Mann, that the petitioner cannot so hold; that petitioner's regular term expired with the 30th day of June, 1882; that said office is vacant for-the reasons before stated; that the- petitioner, having been restored to said office, is entitled to hold it only until his successor is qualified; and that he, as judge of the hustings court of said city, is, hy virtue of the charter thereof, entitled to fill said vacancy hy appointment.
. Upon the single point thus in controversy, and arising solely out of the character of the. judgment entered hy this court on
So clear and explicit is it in the general plan and scope of our constitution, that the design of its framers was not only carefully to classify all officers, but that each class, as near as may be, should go in together and out together, that the most casual reader cannot fail to be impressed with the fact. If, indeed, there was ever room for doubt on this subject, that doubt was overthrown, and the fact established beyond all cavil by the decision of this court in the case of in re Broadus, &c., 32 Graft. 782. In delivering the unanimous opinion of this court in that case, in referring to a class of officers (county judges), Judge Moncure says: “The judges elected for the last term ceased to he judges at the end of that term, except, that under section twenty-five aforesaid, they are to continue to discharge the duties of their offices after their 'terms of office have expired, until their successors have qualified.” In the same case, not dissenting, but adding to the weight and conclusiveness of Judge Moncure’s opinion, Judge Christian says: “It might often happen that, from some unforeseen cause or accident, the legislature could not, from mere physical impossibility, elect all the county judges before the 1st day of January, there being about eighty in all. And this manifest difficulty would often arise, that while their terms of office all expired on the 1st day of January, each one would hold over one year longer than the term fixed by the constitution. I think it plain that Judge Minor could only hold until his successor qualified, and not until the regular term of office of such successor commenced, which was postponed by the accidental circumstance, that he was elected after the 1st day of January, instead of before that day. Waddill was certainly Minor’s successor, for he had been appointed by the legislature, which was by the constitution invested with the power of appointment.” Now, inasmuch as the sixth section of the fifth chapter of the charter of the city of Petersburg—an act of the general assembly of Virginia,
Again, in the Bland and Giles county case, 33 Grat. 450, (Judge Christian delivering the opinion of this court, in speaking of the tenure of office of a county, judge, says: “ An office is terminated proprio vigore by resignation, expiration of term and removal by competent authority.” The sixth section of chapter five of the charter, before referred to, confers upon the hustings court power to remove, for cause, upon notice, the mayor, city treasurer and various other officers of the corporation, and all of the vacancies thus created, except that in the office of mayor, are required by said section to be filled by said hustings court. A vacancy in the office of mayor must be filled by the common council. When we consider the large sums of money annually received and disbursed hy a city treasurer, the great importance that attaches to every official station, the absolute necessity for promptness, that economy and security of life and property may be attained, and that these depend, in a crowded city, to a very large extent, upon official fidelity, we can but admire the wise prudence in the distribution of power and patronage, as manifested in this and similar charters for the government of cities.
We might stop here, and, for the reasons already stated, simply declare in the language of the statute, that the office of
The provision of the constitution mainly, if not solely, relied on by counsel for the petitioner, is the twenty-fifth section of the sixth article. It simply provides for the holding over by the incumbent after the expiration of his term, until his successor shall qualify. The plain unequivocal import of this section of the constitution is, that when the regular term expires, the office becomes, in the eye of the consitution, vacant, but with authority to the incumbent, already qualified, to continue by virtue of such previous qualification, made effective for the purpose by the constitution, to discharge the functions of the office until he is succeeded in the way preferred by the people, as pointed out in the constitution made by them, and in the laws made in pursuance of that instrument. The petitioner filled out his regular term; and under the constitutional provision being considered is, to prevent the evils which would flow from either an accidental or designed failure to qualify on the part of the person elected to succeed him, enabled to go on in the discharge of the duties appertaining to the office, not his office, so far into the succeeding regular term, as the time when his successor, legally selected, shall he fully equipped as an officer to take charge of the office and perform its functions. '
That this is the correct view, the peculiar character of our constitution in classifying its officers and prescribing regular terms for each class sufficiently attests. And this view is abun
So much for the argument attempted to be drawn from the constitution. Let us next look to the authorities urged by counsel for the petitioner as sustaining their view. The first and main one relied, on is that of the Commonwealth v. Hanley, 9 Penn. State R. 513. That is a very strong case for the petitioner, especially if we permit ourselves to look only to the syllabus and certain very strong expressions of the judge delivering the opinion—expressions not warranted, we think, by the language there and then being construed; and more especially if we forget that we are construing not the constitution of Pennsylvania but of Yirginia.
The syllabus of that case is: “The death of the person elected to fill the office of clerk of the orphan’s court, before he has qualified himself according to law, does not create a vacancy, but the incumbent who is authorized to hold the office, until his successor shall be qualified, holds over.”
The language of the judge deciding that case, most relied on by counsel for the petitioner, is this: “ It will be observed that the terms on which alone the governor can appoint, are a vacancy in the office, and that there can be a vacancy in an office when there is a person in possession, whom all acknowledge to be rightfully in possession, having a perfect right to exercise all the powers and duties of the office, and to receive and enjoy all its emoluments, is a position difficult to comprehend. It is an abuse of terms to say that at the time the gov
Strong as this language is to show that no vacancy exists where there is a person rightfully in possession, and entitled to hold on until his successor is duly qualified (for such is, or was, the language in part of the Pennsylvania constitution), it in no ■particular meets the demands of the petitioner’s case under the constitution and law of Virginia as will presently be shown.
Let us next look to the language of the Pennsylvania constitution, which was construed in the case of the Commonwealth v. Hanley, and then to the case thereunder made by the relator, and then we will be able justly to discriminate between that case and this. The Pennsylvania constitution says: “They (certain- officers, including the one then in question) shall hold their offices for three years, if they shall so long behave themselves well, asid until their successor shall he duly qualified.” The obvious meaning of this provision is, that such officers cannot hold for less than three years, if they so long behave well and choose not to resign, although on the happening of certain contingencies, they may hold for a longer period.
•Let us now look to two brief paragraphs in the same opinion which adhere to the spirit and letter of the constitutional clause the judge was construing. They are:
1. “The fundamental error which lies at the root of the whole case of the relator, consists in the assumption that, according to the spirit of the constitution, the tenure of county offices is strictly limited as to time, viz., three years, and that any extension of the time arises only from the exigency of the case, and must he strictly construed.
2. “ The relator assumes that the respondent was elected and commissioned only for three years, hut this is a mistaken view of the constitution, and is only made plausible hy obliterating several important words from, the constitution.”
The case made by the relator in Pennsylvania can be readily ap
The office of public printer had been established by an act of the general assembly of that state, passed.in March, 1845. The second section of the act directed that a public printer should be elected at the then present session of said general assembly, and at every regular session thereafter, by the joint vote of the two houses. The third section directs that the president of the senate and speaker of the house of representatives shall furnish the person elected with a certificate of his election, and he shall within ten days after receiving the same give bond, take the oath of office, and shall at the time provided in the act enter upon the discharge of the duties of the office, and if he fail to do so, his office shall become vacant. The fifth section provides that the public printer, to he elected at each session of the general assembly, shall hold his office for two years, commencing on the 1st day of May next thereafter, and until Ms successor shall he elected and qualified; and the public printers thereafter elected shall hold office for two years, and until their successors shall be elected and qualified. The sixth section provides, that if the public printer should die or resign, or if from any other cause the office should become vacant, the governor shall appoint a public printer, who shall give bond and qualify, and shall hold his office for the same time that the printer in whose stead he shall he appointed would have held.
Such was the case of The State v. Lusk, as stated by the judge who decided it. In all essential particulars it is the Pennsylvania case of the Commonwealth v. Hanley over again. It is plain that, like the latter, the peculiar language under construction controlled and even forced the decision as made. It was idle to say that the office of public printer was vacant, because
■ The people of Virginia, through their constitution and laws made in pursuance thereof, have spoken their will in their way. In their constitution they have declared that for every city or town having a population of five thousand, there shall be elected by the qualified voters, among other officers, one city or town treasurer, whose duties shall be similar to those of county treasurer, and shall hold his office for a term of three years. Section 18, article 6. By the twenty-first section of said article it is declared that all regular elections for city or town officers shall be held on the fourth Thursday in May, and that the officers elected shall enter upon their duties on the first day of July succeeding.
Next we have a statute, enacted by the legislature, which declares that the failure of any corporation officer to qualify in the time prescribed by law for the commencement of his term of office, shall vacate his office. Section 9, chapter 153, acts 1874-5. And then we have the charter of the city of Petersburg, enacted in obedience to the constitution, by which the judge of the hustings court for said city is invested with full power to supply the vacancy declared hy law. These constitutional and statutory provisions are clear and explicit; they need no argument to enforce their obvious meaning; together they constitute an argument in themselves, in every respect complete. It is idle to argue that it is an abuse of terms to say an office is vacant when a person is rightfully in possession and discharging all the functions thereof. It is enough to reply, it is thus written in the law.
The office of treasurer for the city of Petersburg exists; it is a constitutional creation; it is temporarily occupied by a sort of locum tenens, a person designated by the constitution, and thereby enabled to discharge the duties of the station or place until the coming of his successor, appointed and qualified as prescribed by law.
The eighteenth section of article six, before cited, declares that the duties of a city treasurer shall be similar to those of county treasurer. County treasurers are required to be elected by popular vote; and in case a county treasurer should fail to qualify and give bond, all must admit that his office would, for that cause, become vacant, and that the outgoing treasurer could hold over only until the county court should appoint, and that such appointee would only hold until the next regular county' election, which would necessarily occur before the next regular
As to the other authorities, outside of Virginia, relied on hy counsel for the petitioner, it is only necessary to say they all, like the Missouri case just commented on, follow in 'the wake, and turn upon the construction of language, either constitutional or statutory, like that in the case of the Commonwealth v. Hanley.
But it is insisted that the case of the Commonwealth v. Drewry, 15 Grat. 1, is- conclusive authority in this case for the petitioner.
• That case arose under a statute passed hy the legislature in 1856, to extend the then current term.of sheriffs from the first day of July, when the term would expire, to the first day of January succeeding. That act was passed under the constitution of 1851. This court held that act not in violation of the constitution then in force.
There is no statute under our present constitution extending the term of any office, and it might well he a matter of grave douht whether the legislature could, under the present constitution, exercise any such power. This circumstance is sufficient to show that that case can have no influence as authority in the case under consideration.
As to the case of ex parte Lawhorne, 18 Grrat. 85, it only decides that the twenty-fifth section of article six of the constitution applies to all state officers, and the governor, whose term has expired, holds over until his successor is qualified. It can have no application to the question here.
Thus far the argument has been drawn from a comparison-of the constitution and laws of Virginia with those of the other states. Let us now turn to the view of this case contended for hy the respondent, and see if it can he sustained hy additional authority. In McCrary on Elections, section 286, it is said: “If the official'term of a public officer is limited to a given number of years, of course, at the end of sirch term, unless a successor has been chosen and qualified, the office becomes vacant. • Hence
It must be borne in mind that we are construing the constitution and law of Virginia. It was well said by the counsel, who closed the argument for the petitioner, that in this controversy is involved the very life and existence of important provisions of the constitution. This is true; and it is the duty of this court, whenever any question affecting either the constitution, or any law made in pursuance thereof, is brought to its attention, to give full force and effect to every provision of the instrument, for every word therein is material and essential to the healthful existence of every other. It is the authority for all we lawfully enjoy. It is the foundation upon which the whole superstructure rests. Its mandates must be obeyed. Feeling keenly the responsibility attaching to the discharge of a duty such as this, it is gratifying after the most careful investigation to see that no authority, in or beyond the limits of the commonwealth, stands in the way of the unambiguous language we are called upon to construe ; that the obvious meaning is so clear that there is no room for doubt, and that in -this case, at least, there is a safe refuge for every lover of the constitution in the salutary rule that, where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature shall be intended to mean what they have plainly expressed, and consequently no room is left for construction.
With these views, and for the reasons stated, this court is of opinion, and so declares, that the judgment entered in this cause by this court on the 19th day of December, 1882, is erroneous, in so far as it declares the relator, Johnson, entitled to
Former judgment amended and aeeirmed eor respondents.