People ex rel. Aylett v. Langdon

8 Cal. 1 | Cal. | 1857

Lead Opinion

Murray, C. J., delivered the opinion of the Court—Burnett, J., concurring.

The act creating the office provides, that the officer shall hold his office for two years, and until his successor is appointed and qualified.

It will be observed, that at the date of Langdon’s appointment, the term of Reid had expired. Immediately upon the appointment of Langdon, a proceeding was instituted to determine the rights of the parties to the office; Reid contending that he was entitled to continue in office, until his successor was elected and qualified by the Legislature. This question was fully considered in the case of “ The People v. Robert K. Reid,” July Term, 1856, in which it was held, that the law creating the office had limited the term of the incumbent to two years, and that the words “until his successor shall be appointed and qualified,” were not intended to extend the term indefinitely, but to prevent an interregnum in the office, by authorizing the old incumbent to act as a de facto officer until such time as the appointing power, or the power to fill vacancies, could act on the subject.

The appellants now contend, that after Reid's term expired, the Governor had authority to fill the office for the whole term, and second, that the Governor had power to fill a vacancy in the office until the end of the unexpired term.

I shall consider the second proposition first in order. The tenth section of the act provides that, “ if any vacancy shall occur in the office of resident, or assistant-physician, such vacancy shall be filled for the unexpired term by appointment of the Governor." The eighth section of the fifth article of the Constitution of this State provides, that when any office shall, from any cause become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill the same by granting a commission, that shall expire at the end of the next session of the Legislature, or the next election by the people."

In the case before us, the law has provided for filling the vacancy, by appointment for the balance of the unexpired term. Waiving the question, whether the Legislature could constitutionally provide for filling a vacancy beyond the period when the appointing power could act upon the subject of the vacancy, it becomes of the first importance to ascertain what is meant by the words “ unexpired term;’’ whether they relate to the office or officer. The counsel for the appellant has very ingeniously assumed that the legal term, of the office is two years; that the term commenced to run from the date of Reid’s commission, and that there was a fraction 'of the term at the date of the defendant’s appointment.

This is a mere petitio principii. If it is to be taken for granted, that the Legislature has fixed distinct terms for the office, which commence and terminate on particular days, then the case of the relator is at an end.

The error of the argument, in my opinion, consists in assuming that the term of the office, and of the officer, are one and the same, when in point of fact, there may be no term in an office, but a term in the incumbent. In other words, that there are no fixed periods whereby a term, as apart from the officer, begins and leaves off. To. illustrate the distinction more fully, the term of the office of Judges of the Supreme and District Courts is fixed at six years. These offices become vacant at a particular point of time, and if no jierson is appointed or chosen to fill them at the time provided, he who is afterwards elected only takes the remainder of the unexpired term of the office.

In the act under consideration, there are no words employed, which, even by implication, would warrant us in assuming that the Legislature intended to create distinct terms in the office of resident-physician, as contradistinguished from that of the officer, or that any term commenced running in the office, except from the induction of the incumbents, but, that they simply intended to provide for the duration of the office of the incumbent. For the purpose of ascertaining the intention, let us look for a moment at the practical workings of the construction contended for by the defendant. Reid was elected on March twenty-seventh, 1854. Now, admitting that the term of the office commenced running from that date, it must expire on the twenty-eighth of March, 1856. If, then, the Legislature which was the appointing power, and which was in session, and in a situation to act, failed by some accident to elect before the thirtieth, such election would be void, and after one hour, or one day of the new term had commenced, even although the Legislature was in session, the Governor would have the right to appoint for two years, minus the day, or hour that had expired. Or again, the Legislature may fail to agree in an election; will such failure be construed to deprive the succeeding body of a power of appointment which they have reserved to themselves ?

Let us suppose that the Legislature had elected some one in the place of Reid, one month after his term expired, from what period of time would the commission of the new incumbent, have dated—from the expiration of the two years that Reid was authorized to hold, or from the date of his election. Most certainly from the latter, for the law says the officer shall hold his office for two years. Now, if there was a term in the office, and the party had not been elected until one month after the expiration of the old term, it is evident that he could not hold but one year and eleven months, instead of the two years that the law says he shall.

In the case of Shelby v. Johnson, the Supreme Court of Texas (a case very similar to the one under consideration,) use this language : “ When the incumbent is removed by death, the office becomes vacant and returns to the appointing power. It cannot either in reason or the nature of things, be affected by the nature of the deceased, unless the creative law carries out a definite and precise period for the beginning and termination of the term of the said office, whether the same has been holden by one or more incumbents.” When we come to consider that the Legislature have retained in their own hands the appointment of this officer, I think, that the conclusion is irresistible, that the language of the twelfth section was not designed to apply to the unexpired term of the office, but of the officer or incumbent, and that where the office has become vacant by reason of the expiration of the term of the incumbent, and the failure of the Legislature to elect, that then the general law of the State defining vacancies in office, and the mode of filling the same, would govern.

By adopting this construction, both acts can be upheld, and any apparent or real incongruity reconciled.

Again, the office of resident-physician was created on the seventeenth of May, 1853, and the Legislature adjourned on the nineteenth of May without electing an officer, and after said adjournment the Governor appointed Reid, who was elected the twenty-fourth -of March, 1854. How, adopting the reasoning of the defendants, and how stands the case upon this state of facts ? According to their view, as soon as the Legislature adjourned without electing, a vacancy occurred in the office. The term must have commenced running from the nineteenth of May, and as Reid was not ajipointed until after this period, he was appointed to fill the residue of the term which would expire the nineteenth of May, 1855, but the Legislature elected him in March, 1854. How this election, made more than one year before a vacancy would occur, and in derogation of the rights of a succeeding Legislature, which might claim that they affine were competent to elect this officer, was either legal or void. If legal, then Reid held until the nineteenth of May, 1855, by virtue of his appointment by the Governor, and two years more by his election, which would make his term expire on the nineteenth of May, 1857, so that there was no vacancy in the office at the date of Langdon’s appointment, and Aylett, the relator, having been duly elected by the Legislature to fill the next term, would be entitled to the office.

If, on the other hand, the Legislature of 1854, had no power to forestall the Legislature of 1855, by electing the officer, and said election is void, then Reid's term, as the appointee of the Governor, expired on the nineteenth of May, 1855, from which point of time a new term commenced running, which would expire May 19, 1857. Langdon having been appointed (as contended for) on the twenty-ninth of April, 1856, was only appointed for the balance of the unexpired term, which ended on the nineteenth of May, 1857, and the relator having been elected March 13, 1857, is entitled to the office. So that if we adopt the argument of the defendant, he has, by his own showing, lost his case. But, we decided, in the case of Reid, that there was a vacancy in the office, and this decision could not have been made if we had been of the opinion that there was a term in the office, other or apart from that of the incumbent. This construction has been given to the act by two Legislatures, and if the case were a doubtful one, this legislative exposition would be entitled to consideration.

We are satisfied that there is a substantial difference between the term of an office and the term of the officer, or incumbent, and that the twelfth section of the act under consideration applies to the unexpired term of the officer. Adopting this as the true construction, there is no difficulty whatever on this branch of the case, for a vacancy may exist in an office for which there are no terms fixed by law. This, as before remarked, may occur from a failure to elect or appoint. In such cases, it is made the duty of the Governor to grant a commission to fill such vacancy until the appointing power can act. The power to fill a vacancy and the power to fill an office are distinct and substantive powers.

In the case of The People v. Fitch, 1 Cal., this Court say: “ The right of the Legislature to elect and control the State Printer, cannot be defeated by any inference in favor of the appointing power of the Governor.” Again, in the case of The People on the relation of Byder v. Hizner, this Court uses this language : “ It would seem that the evident intent and whole spirit of the Constitution of the State was to limit the patronage of the Executive within very narrow bounds. This is seen from the fact that the only office created by the Constitution in which the Executive constitutes any part of the appointing power, is the office of Secretary of State. This is further shown by the provisions of the eighth section of article fifth, which limits the duration of an appointment of the Governor, in eases of vacancy, to the next election by the people, or the next session of the Legislature, except when a different rule is specially provided by statute. The power to fill vacancies had to be vested in some department of the Government, and the Constitution was compelled to vest it in the Executive, because the only department that could be properly and efficiently charged with such a duty. But the Constitution carefully limited this power to fill vacancies for the time only, and when the appointing power for the whole time can act, the appointment of the Executive for the time being ceases.”

If the Court is correct in its former opinions, as to the theory of our Constitution, and the policy which it was the intention of its framers to establish, then every intendment and implication of law would be in favor of the appointment of the relator, unless the language of the statute under which the defendant claims was most clear and explicit. It is true, that the language of some of the opinions of this Court would seem to establish that there was no difference between the term of an office and of its incumbent, but the question was not made in any former case.

Having thus disposed of this point, we will now consider the first proposition: that the Governor had power to fill the office for the whole term.

^ The appellant contends that, under the third article, and the sixth section of the eleventh article of the Constitution, the Legislature have no power to elect an incumbent to an office. The third article provides for the distribution of the powers of government between the executive, legislative, and judicial branches of the government, and forbids those charged with duties belonging to one, from exercising functions appertaining to another department. Under this provision, it is urged that the Legislature may create the office, but cannot elect the officer; that it would be exercising power belonging to the executive branch of the government, or to the people. Unhappily for the argument, there is no fourth branch of the government recognized, by the third article of the Constitution, which is represented by the people, and if there is any encroachment upon any other department, it must be upon the Executive.

The power to fill an office is political, and this power is exercised in common by the Legislatures, the Governors, and other executive officers, of every State in the Union, unless it has been expressly withdrawn, by the organic law of the State. That it has not been by our Constitution, there can be no doubt: First, because there is no clause’that would warrant such a construction : and, Second, because there are several that would forbid it.

But it is said that this power is taken away by the sixth section of the eleventh article, which provides that “all officers, whose election or appointment is not provided for by this Constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the Legislature may direct.” Much stress is laid upon the word appointed, as used in this section. This is mere hyper criticism; the former decisions of this Court have substantially settled this point. The word appoint was probably used as a more comprehensive term to convey the idea of a mode of constituting or designating an officer, whether by election or otherwise. In fact, the words “ elect and appoint ” seem to have been regarded as synonymous by the Convention.

The third section of the sixth article requires the first Legislature to elect Supreme Judges, and the fifth section of the same article provides that the District Judges shall be “ appointed by the joint vote of both houses.”

It would be useless to pursue this argument further; this power has been always exercised by the Legislature, and never before denied. It is not prohibited by the Constitution, and according to the theory and spirit of our institutions, is safer when exercised by the immediate representatives of the people, than when lodged in the hands of the Executive.

From the foregoing, our conclusions aro: First, that the Governor had no power to appoint for the full term; Second, that the commission of the defendant expired as soon as the Legislature elected the relator; and, Third, that the relator is entitled to enter upon, and discharge, the duties of the office, for the full term of two years from the date of his election.

Judgment affirmed.

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Concurrence Opinion

Burnett, J.

I concur with the Chief Justice in confirming the decision of the District Court, and generally in the positions taken by him. In any view that can be taken of this casé, I think the relator entitled to the office. The only difficulty with me arises from the language of the twelfth section of the act creating the asylum, which is as follows :

“ If any vacancy shall occur in the office of resident-physician, such a vacancy shall be filled for the unoxpired term by appointment of the Governor.”

The phrase “ any vacancy,” is broad and general, and without any express restriction; and at first would seem to embrace every vacancy, whether occasioned by the failure of the appointing power to act, or by the happening of some event after the commencement, and before the termination of the term. When I drew up the opinion in the case of The People v. Mizner, I was under the impression that this was the correct construction. The question was not at all material to the determination of that case, and therefore did not receive full consideration. But in the present case, it becomes material, for the purpose of determining when the term of the relator commenced.

There would seem to be no doubt of the power of the Legislature to create the office, to designate the term, and the mode of filling all vacancies, however occasioned, and also to fix the duration of the appointment to fill the vacancy. In a word, the office being one purely of legislative creation, the Legislature had full power over the entire subject. The Legislature, then, had the perfect right to enact, that all vacancies in this office should be filled by the Governor for the unexpired term; and by the term, I understand the period of two years, for no other term is mentioned by the act, and the language must refer to the term as defined by the act itself.

The whole question is one of statutory construction. What did the Legislature mean by the word vacancy, as used in the act? What definition, if any, had the Legislature previously given of this word ?

It would seem that there are only three classes of offices created by the Constitution and statutes of this State: 1. When the office is held at the pleasure of the appointing power. 2. When the term commences upon a day certain, and runs for a definite period. 3. When the duration of the office is designated, but the commencement of the term is dependent upon an event that may or may not happen upon a particular day.

So far as my opportunities for examination have enabled mo to judge, this classification is correct, and this case must fall under either the second or third class.

It would seem to be true, that in all cases where it was intended that the term of the office should run independent of the incumbent, that a day certain has been designated when the term should commence; and this, taken in connection with the prescribed duration of the term, determines the period of its termination. By the Constitution of the State, Judges of the Supreme and District Courts, hold their offices from a day, and for a term certain. And by the provisions of the act concerning offices, Comp. Laws, 239, the Clerk of the Supreme Court, Superintendent of Public Instruction, County Judges, clerks, sheriffs, coroners, assessors, treasurers, surveyors, recorders, and district attorneys, all hold their offices in the same way. But the Govern- or, Secretary of State, Comptroller, Treasurer, Attorney-General, and Surveyor-General, all hold their offices for a given period, which runs from the time of their installation in office.

If, then, the Legislature, in reference to those offices, each term of which was to be of the same duration, and each to commence running from the same period of time, and all the terms, except the first, to succeed each other in the same fixed order, has been so careful as to specify the exact day for their commencement, it would seem to follow, that the same express designation of the time for the commencement of each term of this office, would have been made, had the intention been the same. But there is no specific time designated; and, if, notwithstanding this fact, we hold that the time was intended to be fixed when the first and all succeeding terms should commence running, what day shall we assume ?

The act creating the office was passed on the seventeenth of May, 1853, and took effect from and after its passage. The office itself was then in existence from the passage of the act, and if the term commenced running at any fixed period, that period was the day when the act took effect; for if the first term of the office did not commence at the passage of the act, but upon the happening of some subsequent and uncertain event, then there was no specific period for its commencement intended by the Legislature. If, then, the commencement of the first term was not fixed, but was made dependent upon a subsequent event, uncertain as to the time when it might occur, it follows that the commencement of the second, and all succeeding terms, must depend upon the recurrence of the same uncertain event. The language of the statute applies equally to the duration and the commencement of all the terms; and as the same duration is designated for the first and all succeeding terms, so the same commencement must also appertain to all. The statute makes no distinction between any of the terms, either as to their duration or commencement. Whatever rule, therefore, we adopt for the first, must equally apply to all succeeding terms. The office, from the tenor of the act, was intended to exist for an indefinite time, and the succession of many terms must have been contemplated.

If, then, the commencement of the first term was the passage of the act, then each succeeding term would commence on the same day of the same month. But if the first term only commenced to run upon the happening of a subsequent event, uncertain as to the time when it would occur, then each succeeding term would depend for its commencement upon the happening of the same uncertain event. For example, if the first term only commenced running from the election of Doctor Reid by the Legislature, then the commencement of the second term would be when his successor should be elected; and this rule applies to all the offices of the State, falling under either the second or third class. The terms of the offices belonging to the second class must succeed each other in a regular and fixed order, while the terms of offices of the third class may succeed each other irregularly. For example, each Governor holds his office for two years from the time of his installation; and, therefore, the commencement of the term of his office, does not absolutely depend upon the time when the term of his predecessors commenced to run. While his term of office may not commence at an earlier period of the year, it may commence later.

If the first term commenced running either at the date of the act, or upon the adjournment of the Legislature,- on the nineteenth of May, 1853, then any appointment that the Governor could make in the recess of the Legislature, and before the election of Dr. Reid, in March, 1854, must have been for the unexpired term. And as the Governor, under the act, had the sole power to appoint for the unexpired term, the Legislature had no power to elect Dr. Reid for the same period.

But if the first term did not commence to run until the election of Dr. Reid in 1854, then there was no part of an unexpired term existing before that election, which the Governor could fill by virtue of the twelfth section. If, then, the Executive could fill the office by appointment, between the date of the act, and that of the election of Dr. Reid, it must have been under the provisions of the eighth section of the fifth article of the Constitution. As the Executive constituted no part of the appointing power to fill this office for the whole term, and, as he constituted the sole power to fill vacancies, it follows, that any appointment he could have made before the election of Dr. Reid, must have expired, either at the end of the term, or at the end of the next session of the Legislature. For upon any theory we may please to adopt, the Governor could only appoint to fill a vacancy; and such appointment must terminate, either at the time designated by the act, or by the Constitution.

If, then, we take the theory to be true, that the term did not commence to run until the election of Dr. Reid, it is clear, that any appointment made by the Governor anterior to that election, could not have been made under the twelfth section of the act. And from the same premises it follows, that either there was no vacancy in such a case, and the Governor, therefore, had no power to fill it, or there may be a vacancy not contemplated by the act. In other words, the vacancy in such case was a vacancy as defined by the Constitution, and not by the statute.

In what sense, then, did the Legislature use the word vacancy ? It is certain, that, whatever vacancy was contemplated by the act, was expressly directed to be filled for the unexpired term by the ■ appointment of the Governor. From this, it is equally certain, that the term must be running before such a vacancy could exist; and, it would seem also certain, that such term could not run apart from the officer, unless we assume some designated day upon which it commenced.

To ascertain the meaning of a writer, in the use of a certain term, his previous definition of that term, if he has given one, will be very strong, if not conclusive proof of the sense in which he uses it. So, in reference to the sense in which the Legislature may employ a certain term, the best method is to look to the sense in which it has been previously employed by that body. The sense of the term, as used in the Constitution, will not constitute so good an index to the intention of a statute as the usage of the Legislature itself.

In the act concerning offices, passed April 28th, 1851, article six, section thirty, the word vacancy has received a legislative definition, and as there defined, it means only a vacancy occurring by the hapening of some event during the term, such, for example, as death, or resignation. So far as I have been able to ascertain the fact, this is the only sense in which the term was ever used by the Legislature, before the passage of the act creating the asylum.

The conclusion is, that in this act the term vacancy is used in the same sense in which it had been previously employed by the Legislature. By the act it was made the duty of the Legislature to elect a resident-physician, and it seems never to have entered into the contemplation of that body, that there would be a failure to elect in the mode prescribed, and for that reason no provision was intended to be made for such a contingency. There being no provision in the act itself for filling such a vacancy, the eighth section of the fifth article of the Constitution will apply, and under its express provisions the commission granted to Langdon must have expired upon the adjournment of the last Legislature. Had the Legislature elected a successor to Dr. Reid, and had the office afterwards become vacant during the term, and the vacancy had been filled by the appointment of the Governor, such appointment would have been for the unexpired term. This office, I think, falls under the third class I have mentioned; and the term never runs apart from the officer, and only commences running from the date of his election. And under the Constitution of this State, there may be a vacancy in an office before the particular term begins to run.