92 Ala. 636 | Ala. | 1890
Lead Opinion
The office of Commissioner of Agriculture is not provided for by t-he Constitution. It is the creature of statute. Before the act of February 18, 1891, the Commissioner was appointed by the Governor, under section 130 of the Code of 1886. Its provisions are, “ The Commissioner of Agriculture is appointed by the. Governor, and holds office for the term of two years, and until h'is successor is appointed and qualified.” Under this statute the Governor, on September 1, 1889, appointed R. F. Kolb to tíhe office. Kolb qualified and entered upon the duties of the office. He was in the discharge of its duties when the statute hereafter copied was enacted, and remained in office without molestation, until the expiration of two years from the date of his appointment.
On February 18, 1891, the act was approved “ To make the office of the Commissioner of Agriculture elective.” Sess. Acts, p. 1213. Its provisions are :
§ 1. “ That the office of the Commissioner of Agriculture be hereby declared an elective office, and that at the gene
§ 2. “ That all laws and parts of laws in conflict with the provisions of this act be, and the same aré hereby repealed.”
At the end of two years from Kolb’s appointment — bo-wit-,. September 1, 1891 — the Governor appointed H. D. Lane to-the said office of Commissioner, who gave the bond and took the oath prescribed by law, and was commissioned as such. He thereupon made a demand in writing on Kolb of “ the moneys, papers, books, and other property belonging to the office of Commissioner of Agriculture.” This demand was refused, and the present proceedings were then instituted for the recovery of the same. The probate court decided that Lane was not entitled to recover, and dismissed his petition. From that decision the present appeal was-taken.
There is no issue of fact presented by the record, but the-determination of the issue before us depends on the proper interpretation of the statutes. Appellant contends that by the terms of the statute of February 18, 1891, the Governor’s right of appointment is not displaced until the time fixed for holding the first election — August, 1892.- The appellee takes issue on this claim, and contends that the Governor’s power of appointment was taken away, eo instanti> by the approval of the later statute.
No general power of appointment has been conferred on the Governor of Alabama, either by the Constitution or by statute. It is not one of the inherent, executive functions, and hence unless the power to appoint is expressed in some statute, it does not exist. So, in this case ; unless the power of appointment conferred by section 130 of the Code remains of force until August 1892, the time for holding the first election under the act of February 1891, the appointment of Lane was without authority and is void.
When an office is not provided lor by the Constitution, but is the creature of statute, there is no element of contract between the officer chosen and the public, or constituent body which confers the office. Being created, and its functions and emoluments conferred, by the legislature, the same body may abolish if, take away or reduce its functions and emoluments, or make any change its wisdom or caprice may suggest, not inhibited by the organic law. — Mechem Pub. Officers, § 465. In Prince v. Skillin, 71 Me. 361, it is said that, “ All offices, except when legislative authority is
The inquiry, at what time the act of February 18..-1891, went into practical operation, is the pivotal question in this case. In ascertaining the meaning of a statute, as of most other writings, the first law of interpretation is that we must search for the meaning in the words employed, assisted, if necessary, by the facts and conditions which existed at the time of the enactment of the statute, or the-making of the contract we are called on to interpret. Intention is not a subject, of proof, in the ordinary sense, but must be gathered from the language employed, and the attendant facts. These, it must be conceded, furnish the safest guide to the end sought for — the ascertainment of the intention with which the act was done. Attendant facts, as well as consequences, may be looked to in the interpretation of statutes. — Endlich on Interpretation of Statutes, §§ 2-15, 251, 258, 264 ; Huffman v. State, 29 Ala. 40 ; Sutherland on Stat. Con., § § 238, 323.
In construing a statute, we should not, unless compelled thereto by unbending language, reach the conclusion that the legislature intended to do an act which would lead to public inconvenience or detriment, to a suspension or failure of official functions, or to a defeat of the object they must have had in contemplation. “ It is always to be presumed that the legislature intends the most beneficial construction of their acts when the design of them is not apparent..”' This was the language of the distinguished Chief Justice Parsons in Richards v. Dagget, 4 Mass. 534. In Somerset v. Dighton, 12 Mass. 383, the court said, “ In some cases the letter of a statute may be restrained by an equitable construction ; in others enlarged ; and in others the construction,
It is said that when words are plain and unambiguous, there is no room for construction. That is true in the sense-intended, but it has limitations. All words spoken in one’s own tongue may, in one sense, be said to be plain anfl unambiguous. It is when combined into sentences that they enter the field of interpretation, and the attendant facts, the consequences then become important factors. We can not. admit there is any inflexible rule, that when words, on their face, and construed by themselves, appear to have a plain meaning, there is then left no field of operation for the doctrine of construction. Nothing is perhaps more frequently misunderstood than language often is, which, at first blush, appears to be plain, if considered by itself. The subject, the occasion, the surroundings and the end to be .accomplished must be steadily kept in view. Language, though plain and unambiguous when considered by itself, has a very different, intent and meaning when employed in certain supposable conditions, from that we would readily accord to it, when expressed with other surroundings and aims. Language is, at best, an imperfect vehicle of thought. Wills and other important documents prepared by the greatest legal and judicial minds of the world, have perhaps given rise to as great contrariety of interpretation, as any other subject of juridical contention. How, then, can we say of any statute which undertakes to modify or change the existing state of things, that we can safely arrive at the intention of the lawmaking power, without considering the status or condition of things to which it relates ? How can we arrive at the
Pursuing the methods suggested, the chances are greatly multiplied that we will be conducted to the goal sought for by all legitimate inquiry — -the ascertainment of the legislative intent. All rules of interpretation are framed with a view to that end. We think the language of the statute we are considering falls very far short of reaching that high standard, which precludes all inquiry into the intention with 'which it was enacted.
But if we are mistaken in our proposition, and the natural interpretation of the statute we are considering be so clear as prima faoie to bar all outside inquiry, this is not absolutely coñclusive. All members of the legal profession will •recall the illustration, stated to be drawn from the jurispru■dence of ancient Rome, which Sir William Biacksfone gives, when considering the rules of statutory interpretation. A Roman edict or law had denounced a heavy penally against any one who shed human blood in the streets of the city. An epileptic fell in a paroxism in the street and blood-letting was resorted to for his relief. The question was, whether this was a violation of the penal law. It was plainly 'within its letter, but was declared not to be wilhiu its spirit. I cite from memory, without assuming to be verbally accurate.
The language of the act of February 18, 1891, is “That the office of Commissioner of Agriculture be hereby declared an elective office.” This speaks in the present tense; and in-as-much as statutes, under our system, go into immediate operation, unless a different intention is expressed, it is held by my dissenting brothers, that the enactment of the statute operated a total repeal of section 130 of the Code of 1886. Let us inquire to what results this would lead, if we must •adopt this construction.
Section 130 of the Code is, as we have said, in the following language: “The Commissioner of Agriculture is appointed by the Governor, and holds office for the term of two years, and until his successor is appointed and qualified.” The most pronounced effect would be to declare that the then incumbent of the office would be ascertained to be -in without any existing authority of law. The office itself,
Even if the repeal of section 130 of the Code be held not to oust the incumbent until the end of his term of two years, the office would become vacant at that time — ¡September 1, 1891. This because, first, the repeal of section 130 would carry with it the repeal of the last clause of that section — Ihe ■clause which declares that the appointed incumbent shall continue in office “until his successor is appointed and qualified.” We have no general provision of that kind, constitutional or statutory, applicable to offices in this State. In the second place, there could as the majority holds, be no special election ordered to fill the office, because the act of February 18, 1891, which it is claimed repeals section 130 of the Code, expressly declares that the election of Commissioner of Agriculture shall be held “at the general election in 1892, and every two years thereafter.” This is the latest expression of the legislative will, and we think necessarily implies that there can be no election till that time.
A third consequence of declaring that section 130 of the Code was instantly repealed by the approval of the act of February 18, 1891, and of the contention of appellee that he rightfully holds over under his appointment of September 1, 1889, until his successor is elected and qualified in August 1892, would be to declare not only that a repealed statute ■secured to him this privilege, but that it secured it to him without an official bond of binding obligation. We say, without a binding official bond, because we approve and will adhere to the doctrine declared in City Council of Montgomery v. Hughes, 65 Ala. 201. We there said, in effect, that the purpose of such clause is to guard against a possible hiatus or interregnum between the termination of one incumbent’s term and the qualification of his successor. This was and is intended to secure continued service in the office, and lasts for only a reasonable time. It was not intended to extend the liability of bondsmen to a term for which they had not contracted to be bound, even though the legislature expressly sanctioned such extension. To enlarge the binding effect of a contract previously entered into, is not alone without the scope of legislative power as to the sureties. It is void as to the principal himself if done without his
There are decisions not consistent with some of the principles declared in City Council v. Hughes, supra. Com. v. Hanley, 9 Penn. St. 513; State v. Lusk, 58 Mo. 333; People v. McIver, 68 No. Car. 467 ; State v. Howe, 25 Ohio St. 588; 18 Amer. Rep. 321; People v. Tilton, 37 Cal. 614. None of these authorities hold that the liabilities of bondsmen can be increased by legislative enlargement of the official term. We think that, on the main point, the case of City Council v. Hughes rests on impregnable grounds, and we will follow it.
‘We have copied the act approved February 18, 1891, in full. It is not in torm an amendment of section 130 of the Code. It, in terms, repeals “ all laws and parts of laws in conflict with ” its provisions. We take it that all will admit this clause accomplishes nothing. The same result would follow if it had been omitted. It repeals, and only repeals laws or parts of laws in conflict with it, and a late legislative enactment always does that. Enactments that are m conflict, or inconsistent with each other, can not both be the law at one and the same time. The later enactment, being the latest expression of the legislative will, is the law; and declaring a rule of action different from that previously prescribed, necessarily displaces and repeals older laws. But, ■whether expressed, as in the statute we are construing, or implied ex necessitate rei, the repeal is only co-extensive with the conflict, or ¿incompatibility.
The caption of the act of February 18, 1891, is in the following language : “To make the office of Commissioner of Agriculture elective.” It contains but one subject, which is clearly expressed in the title. Cons, of Ala., Art. IV, §2. All the affirmative provisions of the statute are strictly in line with the caption. It declares that the office of Commissioner of Agriculture is hereby made elective, “and at the general election in 1892, and every two years thereafter, there shall be elected one Commissioner of Agriculture, whose term of office'shall be two years.” The legislature had but one controlling purpose — to change the mode of selecting the incumbent of the office. That thought was dominant in their minds, and they gave expression to it. But as no general election would be held under our constitution until 1892, no State election could be held to fill the office until 1892, unless the legislature chose to order a special election for the purpose, and they made no such
The whole of section 1 of the act being one continuous sentence, containing only commas in its punctuation, and 1he first half of the sentence making the office elective being connected by the conjunction “and” with the latter part which fixes the time for holding the election, it can not be inferred or supposed that it was intended that the first part should go into immediate effect, and the last suspended until seventeen months afterwards. We know of no rule of interpretation, either of law or grammar, by which one continuous sentence, relating to one single subject, joined together in all its parts by the copulative conjunction, can be so severed as to make one operative presently, and the other postponed, in the absence of express direction to that effect. The principle of interpretation which requires us to give some operation to every clause of a statute, if we can, finds no practical field of operation in the statute we are construing. There is but one sentence, and what is termed a second clause, is only the concluding member of the sentence. The first member makes the office elective, and the second declares when the election shall be held. Beyond this, the statute is silent. The legislature knew there would be a vacancy at the end of the then incumbent’s term. If the intention was to put the statute into immediate practical operation, why did they not make some provision for filling the vacancy they knew would occur ? They expressly ordered an election for 1892. Why were they silent as to an election in 1891 ? Should we not presume that this was intentional ? A specific provision in a statute controls a general provision. Felt v. Felt, 19 Wis. 193; Endlich on Int. of Statutes, §399. Why should not the specific provision, ordering an election in 1892, control the general legal intendment, that statutes take effect from the date of their enactment, unless otherwise directed ? Is not the conclusion strong that it was intended to be otherwise directed in this case ?
To this we answer,
First, such language in a statute would be very unusual, and on its face would bear the semblance of incompleteness. We can not suppose the legislature would enact a solemn statute in such unusual terms. Second, if the enactment had been in that form, it would have been difficult, if not impossible to determine whether or not the intention was to create an additional Commissioner of Agriculture, or to convert the former office into an elective one. What is called by our dissenting brothers the first clause, is the only part of the statute which shows that it refers to the office then and theretofore known as the Agricultural Commission. Its language is “ that the office oí Commissioner of Agriculture be hereby declared an elective office.” The definite article, the, individualizes the subject, and shows the legislature referred and intended to refer to the officer then known as the Commissioner of Agriculture. The word “hereby” imparts no additional meaning to the statute. It means bjr this act, or by this statute; nothing more. The statute would receive, and necessarily receive the same interpretation — accomplish the same result — without it, as it does, or can do with it. Suppose, instead of the language employed, the legislature had said, Be it enacted that the Commissioner of Agriculture, whose office is by'this act made elective, shall be elected at the general election in 1892, and every two years thereafter, &c. Could a different interpretation be put on the language supposed from that properly applied to the statute as it is ? And would any one contend that the words, “ by this act”, had the effect of putting any part of the statute in practical operation, before the time fixed for doing the first practical act under it? We apprehend there could be but one negative answer to these questions.
Let us further suppose that until the enactment of the statute approved February 18, 1891, there had been in this State no such office as that of Commissioner of Agriculture, but the duties of the office, as now prescribed by law, had either not been formulated and assigned, or had been vested
To hold a special election for a State office would cost the State a large sum. The legislature knew this. They must not be presumed to have intended any thing detrimental to the State, or tending to its great inconvenience, unless by their express command they leave us no latitude of interpretation. Is the statute before us of that class ? It mentions only one date — the time for holding the general election in 1892. It is silent on the question of filling the office until that time. We must suppose the legislative mind took in the situation, and that it was manifest that the statute being enacted would create a vacancy at the - expiration of the incumbent’s term, or that he would hold over eleven months, until his-successor was elected and qualified. We can not indulge the presumption that the functions of this important office were intended to be left dormant and without an incumbent for eleven months. They, then, must have expected and intended, either that the Commissioner in office should hold over, or that the statute theretofore in force which made the office appointive, should remain in operation until August 1892, or that the intervening term of eleven months should be filled by special election. They could not have intended a special election, for reasons which we think we have shown. The provisions of the statute repel that interpretation. Expresswm facit eessare taciturn. Can we presume that because they made no such provision, they intended, at once, to so far repeal section 130 of the Code as to take away the Governor’s power of appointment, yet leave it in force and unrepealed to the extent that the incumbent shall continue in office, without bond, until his successor is elected at the general election in 1892, and qualifies pursuant thereto ? Does the language of the statute show that the legislature intended this?. Does not the language of the statute force the conclusion that the intention
We have attempted to show that the interpretation contended for would lead to results at once unreasonable, and, in theory, at least, opposed to the public welfare. The opposite view gives the legislature credit for an intention to inflict no inconvenience or hardship, but to conserve the public interest. ~We have thus the alternative presented to us of following an asserted legal intendment, not expressed in words, which tends to public inconvenience and detriment, or, of declaring that the legislature intended the best conservation of the public interests, and expressed that intention by postponing action under the law until August 1892.
We have contended that the express direction to elect the Commissioner of Agriculture at the general election in 1892, is an implied inhibition of the right to elect before that time. Our dissenting brothers claim that the effect of this argument, if carried to its logical results, will be to deny all right to fill that office by special election for all time. This, because the statute, after directing the election to be held in 1892, adds the words, “ and every two years thereafter.” This we conceive to be an entire misapprehension. There was, until this enactment, no general law declaring this to be one of the elective State offices. The command of the statute we are considering is, that the Commissioner shall be elected “ at the general election in 1892.” If the statute had stopped there, there could have been no subsequent election to the office, because no provision would have been made for it. And a serious question might have arisen, as to the length of the term of the office. The super-added direction to elect every two years thereafter, was necessary to place this office in line with the bulk of the State executive offices, filled by popular vote. That was its purpose,'that the extent of the direction. Being made elective and the elections ordered every two years, and at the same times as the elections of other State officers take place, the consequence
Certain decisions of other courts are relied on in support of the proposition, that section 130 of the Code was immediately repealed by the approval of the act of February 18, 1891. The strongest cases cited are those from Illinois. In that State there is a constitutional provision' that “no public act of the General Assembly shall take effect, or be in force, until the expiration of sixty days from the end of the session at which the same may be passed unless, in case of emergency, the General Assembly shall otherwise direct.” The first case which seems to have arisen under this provision is Wheeler v. Chubbuck, 16 Ill. 361. In that case, as we gather from the opinion, the contention was that part of a statute, less than the whole, became operative before the expiration of the sixty days, by force of a certain expression found in the act. This contention did not succeed. As we understand the ruling of the court, it is rested on two grounds, viz : First, the uniform practice of the Illinois legislature, whenever it was intended to fix a different time from that named in the Constitution for the statute to take effect, to express that intention directly in the statute itself. Second, that this intention, to be effective, must embrace the whole statute, and not a part of it. The principle involved arising, as it did, out of a constitutional provision — a law which the legislature could not change — this, it would seem, should rightfully have exerted some influence. Speaking of the practice of the Illinois legislature, the court said: “Wherever it is designed that a law shall go into force before the -expiration of the sixty days, we universally find a separate clause at the end of the act, of the following purport: ‘This act to take effect and be of force from and after its passage.’ I find one hundred and twenty-seven acts, passed at the same session of the legislature, terminating with substantially the same distinct and unequivocal clause. There is one, ■declaring by a separate and distinct clause, also at the end of the act, that it should take effect on the first day of August. There are two in which it is declared, in a similar way, that they should take effect on the first day of April;
The later case of The Board of Supervisors v. Keady, 34 Ill. 293, is rested oil the authority of the older case of Wheeler v. Chubbuck, and is not distinguishable from it in the principles it declares. We think each of these decisions is eminently sound, when applied to the constitutional principle involved and the facts of the cases before the court. And the cases cited from Missouri and New York we fully approve. None of them, as we understand them, are opposed to the principles herein above declared.
The constitution of Massachusetts contains the following clause: “Each branch of the legislature, as well as the governor and council, shall have authority to require the opinions of the justices of the supreme judicial court, upon any important questions of law, and upon solemn occasions.”
The legislatures of the years 1854 and 1855 proposed amendments of their constitution, which were voted on and adopted in May, 1855. Proclamation was duly made of their adoption, and they thereby became parts of the Constitution of Massachusetts. Those amendments made a radical change in the mode of electing certain State officers, yet, under its provisions, it was not possible to elect those officers, to serve during the year 1856. No provision had been made to meet the emergency, and if the election could not be held under the then displaced clauses of the old constitution, those offices must remain vacant for the year 1856. The governor and council propounded, inquiries to the justices of the supreme judicial court, to obtain their opinions
The following question was also asked : “ Terms of office at present appointed, but by said articies made elective, expiring, can new appointments be made by Governor and ■council, and for what term shall said officer be appointed ? ” •and was answered as follows : “ In case the terms of office of any of the said officers, who hold the .same by appointment of the Governor and council, shall expire before the said offices shall be filled by election pursuant to said articles of amendment, and the laws made pursuant thereto, we are of the opinion, that new appointments can be made by the Governor and council, and for such terms respectively as they would have been appointed for under the constitution and laws as they existed when said ■amendment was adopted, subject only to be sooner determined by the election and qualification of other persons to the same offices, conformably to these articles of amendment, and the laws made pursuant thereto.” — People v. Wilson, 72 Nor. Car. 155; Plumstead Board of Works v. Spackman, Law Rep. 14 Q. D. 878.
It was contended in argument before us, that when (he act to make the office of Commissioner of Agriculture elective was pending before the legislature, an amendment was ■offered, providing thq,t the incumbent then in office should ■continue in office until his successor was elected at the gen
While we do not consider it a legitimate subject, of inquiry in the case we have in hand, it is gratifying to know that in arriving' at our conclusions, we do not run counter to what appears to have been the intention of the legislature.
There is no disagreement among the members of the court-on the proposition that the office of Commissioner of Agriculture was vacant on or from September 1,1891. We differ as to the manner of filling the vacancy. The majority of the-court hold that in the appointment and qualification of H. D. Lane the statutes then of force were conformed to. It-follows, that, in our opinion, the petitioner was and is entitled to the office, with all that pertains to it; and we, therefore, reverse the judgment of the Probate Court.
The decision in the court below was pronounced on the-pleadings. We can not certainly know that no issue of fact can or will arise in the future progress of the case. We therefore remand the cause for further proceedings in the Probate Court.
Dissenting Opinion
Dissenting opinion of
The facts and status of the case are sufficiently stated in the opinion of the court rendered by the Chief Justice.
Section 130 of the Code reads as follows :
“ Appointment of Commissioner and term, of offiee. — The-Commissioner of Agriculture is appointed by the Co ver nor,, and holds office for the term of two years, and until his successor is appointed and qualified.”
The act of February 18, 1891, is as follows : “An act to»
There is nothing in the latter act which expressly or impliedly extends the term of office fixed by section 130 of the Code. In the case of City Council of Montgomery v. Hughes, 65 Ala. 206, the words, “and until his successor is appoint ed and qualified,” employed in section 130, supra, were judicially construed and declared. It is there held, that the •clause “was intended to cover the reasonable time which may be necessary for his successor to qualify.” This decision was rendered many years prior to, and was in force at, the time of the passage of section 130 of the Code, in which the same words are used. It is the law, that the substantial reenactment of a statute, which has received a known, fixed .judicial construction, is a legislative adoption of that construction. — 3 Brick. Dig’., p. 719, § 16, and many authorities cited to support the text. The same rule must apply to the use of words which have been judicially declared. Whatever construction may have been given to these words in ■other States, it is not an open question here. We are bound to presume the legislature re-enacted them as judicially construed.’
The term of an incumbent holding by appointment under section 130 of the Code was limited to two years from the day of his appointment, and a reasonable time thereafter, for the appointment and qualification of his successor. Whether the term of the incumbent continued until the expiration of the two years to which he was appointed, or was immediately terminated by the act of February 1*, 1891, is the difficult question in this case.
The act cannot operate prospectively so as not to interfere with the term of the then incumbent, and operate immediately, so as to take away at once the appointing power ol the Governor. In our opinion,, there is no escape from this conclusion, if the act is fairly and impartially construed, ■giving to all its parts some force. If the operation of the act was immediate, so as to make the office at once elective, it took from the Governor the power to appoint, and at the ¡same time, it terminated the term of the then incumbent,
All courts and text writers of recognized authority, so far as we have examined, hold that when a statute is expressed in ambiguous terms or words, or so framed that it is of doubtful meaning, in arriving at the legislative intent, it is proper to consider the result intended, and consequences to follow its construction; and any construction of a statute of this character, which will defeat its operation, or lead to an absurd conclusion, or injuriously affect the public welfare, as far as possible ought to be avoided. The same authorities, with equal unanimity, recognize that this rule of construction does not apply, and is wholly inadmissible, when the statute is free from ambiguity, when the legislative intent is clearly expressed, and the statute can have but one meaning and purpose. Otherwise, under the rule, courts, instead of donstruing the law, will exercise a supervisory and controlling power over the policy of legislation.
The opinion of the Chief Justice, to our minds, proceeds on the assumption, that the consequences to flow from an act are always to be looked to in arriving at its meaning. That this can not be done where the language of the act is plain and unambiguous, is amply demonstrated by each of the cases cited and relied on by the Chief Justice. Thus in Somerset v. Dighton, 12 Mass. 383, it was doubtful on the words of the acr,, whether it was intended to operate retrospectively, and the court held, on the familiar rule, that statutes are not to be taken as operating in the past, unless the intention to have them do so is manifested by the most clear and unequivocal expressions; that, it being doubtful whether such intent existed, there beingno clear expression ■of it, the statute operated prospectively only, to avoid results which would flow from the contrary construction, never questioning, however, that had such intent been ■clearly expressed, the consequences of executing it could not be looked to. So with the case of Smith v. People, 47 N. Y. 330. The opinion there proceeds expressly on the ground that the language of the act and of another act in pari materia exhibited, in some degree, a legislative intent to limit the effect of an otherwise broad provision, ‘‘sufficient to create a reasonable doubt as to the true meaning of the act, and justify the looking outside of the act for other legitimate evidence of the intent.” The case of Stewart v. Keemle, 4 Serg. & R. 72, involved an act confessedly obscure in its own terms. And in Hoke v. Henderson, 4 Dev. L. (N. C.). referred to particularly by the Chief Justice, the
It is quite true, that in the case of Board of Works &c. v. Spackman, L. R. 13 Q B. 758, relied on by the Chief Justice, Brett, Master of the Rolls, held that the consequences might be looked to in construing a statute which is plain and unambiguous, since, as he argued, the legislature could not be said to have meant what it had clearly expressed, and he proposed to give a meaning to the act in consonance with his views as to what the law should have provided ; but his associates on the Queen’s Bench, Bowen and Pry, constituting a majority of the court, repudiated this doctrine in toto, held precisely the contrary, and judgment went accordingly.
It would seem that no better or additional authorities, than those relied on and quoted from by the Chief Justice, are needed to put our position in this regard beyond the pale-cf controversy; but we cite, without further comment, the following, each one of which is directly in point to the proposition. that when the terms of an act are plain and unambiguous, they must be so expounded and executed, wholly regardless of the court’s views as to the inconveniences, or even absurdities, to result from giving effect to the statute according to its terms. — Sutherland on Stat. Cons., § Abbey v. Dale, 73 E. C. L. Rep. 390; Douglass v. Freeholders, 38 N. J. L. 214; Rex v. Commissioners, &c., 6 A. & E. 7 ; Clark v. R. R. Co., 81 Me. 477; Dudley v. Reynolds, 1 Kan. 289; Bartlett v. Morris, 9 Port. 268; Maxwell v. State, 89 Ala. 150.
It would be an unsafe innovation, beyond judicial discretion, to use a rule of law, intended as an aid to interpret-
Let us apply these ascertained and universally recognized principles to the statute under consideration. The act provides that “The office of Commissioner of Agriculture be hereby declared elective.” It would be difficult to express the legislative intent in clearer and more unmistakable language. These words admit of but one construction, and that is, the office of Commissioner of Agriculture is thereby ■declared elective. The act further proceeds, “and that at the general election in 1892, and every two years thereafter, there shall be elected one Commissioner of Agriculture, whose term of office shall be t wo years.” We have examined the language as a whole, and the words used separately, and have been unable t,o discover, in either view, anything ■suggestive of a doubt or ambiguity. It does not occur to us, that the office of Agricultural Commissioner could be declared elective, and provision made for his election at the general election m 1892, in more simple, unambiguous and intelligible language. We take it, that there can be no doubt or confusion as to the meaning and purpose of tbe act.
Is there any doubt as to the time when the act shall go into operation ? We will test this contention also in the light of settled rules of construction, based upon sound principles of law as declared, not only by the decisions of this court, but those of the Supreme Court of other States.
In Illinois the constitution provides that “no public act of the General Assembly shall take effect, or be in force, until the expiration of sixty days from the end of the session at which the same may be passed, unless, in case of emergency, the General Assembly shall otherwise direct.” On the 27th day of January, 1853, the legislature of that State passed an act providing “that from and after the first day of March next, it shall not be lawful,” &c., to allow sheep and swine to run at large in certain named counties. The “first day of March next,” after the passage of this act — the legislature having adjourned meantime — was within the sixty days which the constitution required to elapse before the acts of that session went into operation, unless the General Assembly should otherwise direct. It would seem, at first glance, that this act did contain such direction, in that it, in terms, made •acts done within that time unlawful. But the Supreme Court of Illinois held otherwise, in the following language :
In his attempt to meet and parry the overwhelming reasoning and force of these authorities, the Chief Justice laid great stress upon the fact “that the principle involved aros’e out of a constitutional provision, a law which the legislature could not change.” The Chief Justice gave no reason, nor cited any authority why a constitutional provision should be more binding or construed differently in this respect, than an act of the legislature, and we think none exist. Furthermore, the Chief Justice, speaking for the majority, fully concurs with the opinions delivered and conclusions-reached in the cases of Andrews v. St. Louis Tunnel Co., 16 Mo. App. 229, and In re Howe, 55 N. Y. S. C. 235, (s. c. 112 N. Y. 100), upon which we rely. He says : “And the cases cited from Missouri and New York we fully approve.”' Now, in those cases, no constitutional provision was involved. On the contrary, the rule fixing the time for statutes to take-effect in each of those States is declared by a general statute,, as in Illinois it is declared by the Constitution, and as in Alabama it is declared by the decisions of this court, handed down in the first years of our Statehood, and always since adhered to and acted on; and in the New Tork case, which, the Chief Justice “fully approves,” it is expressly declared-that whether the rule arises “from a usage, a Constitution, or a general statute,” statutes will become operative at the time fixed by it, unless a different time is clearly expressed • in the particular statute, and that the legislative intent to fix a different time can not be inferred or arrived at arguendo from the mere fact that some provisions of the act take effect at a time other than that prescribed by the general-rule. The rule is essentially the same in Alabama. In the case of the State v. Click, 2 Ala. 26, it was held that a penal.
It can not be contended that the .statute under consideration itself fixes a time expressly when it is to take effect. The language used is such as we would expect to find, and such as is generally employed, when the intention of the legislature is to make it effective from and after its passage. It is the opposite of that used, and which we would expect to find, in an act intended to become operative only in futuro.
Concede for the argument, that the first clause of Section 1, “That the office of Commissioner of Agriculture be hereby declared an elective office” if standing alone, would give the act immediate operation, and that the latter clause, to-wit, “and that at the general election in 1892, and every two years thereafter, there shall be elected one Commissioner of Agriculture,” if alone, would show that the intention was to defer its operation until the time of the general election in 1892. We would then have two clauses in the same section seemingly at war with each other, as to the time when the act was to take effect. The rule of construction in such cases is clearly ascertained and declared. A statute must be so construed, if possible, as to give, some effect to. every clause, and not to place one portion in antagonism to another. A construction, which leaves to a sentence or clause of a statute no field of operation, should be avoided, if any other reasonable construction of the language can be given. — Lehman v. Robinson, 59 Ala. 219, and authorities cited; Ex parte Dunlap, 71 Ala. 73.
To hold that the latter clause of the act has the effect to defer the operation of every part of the act until the election in 1892 simply annuls the first clause and leaves it no field of operation.
Is not the true and better rule that declared in the Illinois, Missouri and New York cases, supra, where it is held, that
The constitutional amendment providing for the election of eight executive councillors contained in itself a provision that the legislature should re-district the State into eight council districts, before any election could be held to fill the office of councillors, and under the law, the regular session of the legislature, authorized to perform this duty, could-not meet until the following January. The amendment further provided that five of these councilmen, with the Governor, should count the votes to see who were elected as councillors under the new law. It will thus be seen that the act itself continued in the office of councilmen the then incumbents. So, in regard to the election of sheriffs, &c. The article provided for legislative action, before an election could be held to fill these offices. The fourth article, which provided for the election of Secretary, Auditor, &c., required no further legislation, and in this respect its provisions are
The opinion of the court in this rests upon an untenable foundation. It labors to show that the first clause has no ■effective force or meaning. It refers to the conjunction •■“ and ” as connecting the first part of the act which declares the office to be elective, with the latter part, which fixes the time for holding the election, and summarily disposes of it by the statement, that no rule of law or grammar would authorize the construction that one part was to ■operate presently, and the other to be postponed. We assent to the conclusion, and as the whole acc is to go into operation at the same time, the question, whether the first part which is to take effect at once, under the general rule, ■or the latter part, which becomes operative later, and effects
The predominating intent of the act of Feb., 1891, is to make the office elective. The title shows this. The terms of the act are that the office be “ hereby declared elective,” and these words are as potent as if the act had used the term “ from and after the passage of this act.” The field of operation for this clause is to make the office elective from the date of the act, and not in the future, because that, field would be occupied by the latter clause in the absence of the first clause. This construction has no effect on the time fixed for the election of the Commissioner, which is. only provided for in the latter clause of this act. It comes; fully up to the rule declared in 59 Ala , and II Ala., supra, stated in a former part of this opinion, giving each clause a field of operation, and not placing one part in- antagonism-to another. The contention that such a construction is objectionable, because it gives the act a retroactive effect, is-not tenable. Any person who accepts a public office, accepts it Gum onere.
A public State office is not property, and no one has a vested right in it against the State. Every office of purely legislative origin continues by legislative permission. The incumbent holds as a mere tenant at will of the creative power. Before the expiration of his term, his compensation may be reduced, or cut off entirely. The office itself may be vacated or abolished. Courts may
Possibly this opinion should not be extended further, but we have considered the argument in' connection with the general statutes of the State in regard to filling vacancies by a special election, and, if we- are correct, in our conclusion, the argument ab inconvenient! is excluded for another reason.
There is no general provision in the statutes by which an Agricultural Commissioner could have been elected at a general election. It was, therefore, necessary to provide by statute for such election. There was a general law which provided for a special election, if “any vacancy occurs in any State or county office filled by election of the people, not •otherwise provided for.” — Sub-div. 4 of § 359 of the Code of 1886. This section does not-provide that the vacancy is to occur from any particular cause, or before or after there has been an election. The language is “any vacancy not otherwise provided for.” That the office of Agricultural Commissioner is and has been a State office, from and after its creation by the legislature of i 882-3 is not controverted; and if we are correct in the conclusion that the statute which declared the office to be elective went immediately into operation, a vacancy in a State office necessarily occurred, and there being no law otherwise providing for the filling of such vacancy, it is covered by the express language of section 359, sub-div. 4, of the Code. It was not necessary, therefore, for the legislature to provide by statute for filling the vacancy, which occurred from making the office elective. If the statute of February 18, 1891, had, in express terms, made provisions for filling the vacancy caused by its enactment, as provided by the general law for holding special elections to fill vacancies, it would not be contended that the vacancy could be filled in this way, and it would tend strongly to show that the act was intended to go immediately into effect. Construing the act of February 18, 1891, giving full force and effect to every clause in connection with the general law which fully provides for filling vacancies which occur in State offices not otherwise provided for, and which rendered further legislation unnecessary in this respect, we can not escape the conclusion, that the special election law does apply, and that, under its provisions, the
The only other ground of objection- to our position in this regard is that it will cost the State a large sum of money to hold a spe'cial election. This argument applies with equal force, if it has any force, to the filling of vacancies occurring subsequent to the first election.
If, as stated in the opinion of the Chief Justice, it will cost the State a large sum to hold a special election, (of which there is no evidence in the record) to fill a vacancy under the special election-law, is that to be used as an argument to control the meaning of a statute which expressly and clearly declares the office to be elective ? Every authority cited precludes the argument when it is attempted to apply the rule to such a statute as this. It is far better that the principle of law which we contend for, be preserved as a safe-guard against encroachments on the will of the people, than to concede to the courts the power to raid the legislative department and defeat their will, under the pretext that there is a doubt as to the meaning of the statute, a doubt which finds existence purely in the assumption that its plain intention leads to unnecessary expenditure of a large sum of money. For these additional reasons we hold the argument ab inconvenienti falls to the ground, No more inconvenience or injury would result to the public welfare, than is liable to result at any time from a vacancy caused by the death or
Our conclusion, after laborious research and most careful examination of all the authorities, is that the office of Commissioner of Agriculture was vacated by the act of February 18, 1891, and the only authority to fill the vacany is by a special election.
We do not regard any action or indication that might be found in the journals of the two Houses of the General Assembly as proper to be considered in this connection; and we have neither investigated nor permitted them to exert .any influence in forming our conclusions as to the intention of the legislature.
Whether since the vacancy occurred, the office has been filled by a de facto officer is not before us, and is not considered. See Cary v. State, 76 Ala. 78, and auhtorities cited. It follows, that, in our opinion, the judgment of the lower Court should be affirmed.