21 Colo. 218 | Colo. | 1895
delivered the opinion of the court.
The foregoing are all the specific provisions of the constitution which we deem necessary to set out in full, though others will be referred to in the appropriate place.
We premise by saying that this court has already passed upon a case similar to this, and has given to the provisions of the constitution applicable to the case at bar a construction which, if adhered to now, settles this case in favor of respondents.
If we followed our own inclinations, we would refrain from an extended opinion at this time, and content ourselves by referring with approval to the able opinion by Mr. Justice Elbert in the former case. But the decision in that case was given in response to a request from the governor of the state, under the authority which he has by amended section 3 of article 6 of the constitution, and in one sense may not be as binding a precedent as if rendered in a case litigated’by opposing parties. Yet, as a matter of fact,’ an inspection of the files and record in that case shows that, while the proceeding was ex parte, the principal or only brief was filed by the judges then holding office and claiming that their term continued for the full period of six years, which contention is the same as that now urged by the relators.
Most elaborate and exhaustive arguments, both oral and written, and a number of voluntary opinions given by distinguished and able members of the bar of this and other states, have been presented for our consideration, and, considering the premises mentioned, the importance of the question involved, the great public interest which the case carries, and the fact that a precedent should be established in a case where unquestionably both sides appear and the issues involved are fully presented, we have concluded to give to it more consideration than otherwise we would be disposed to do.
The theory of respondents is that only such judges as are elected at the regular sexennial election for district judges hold for the full term of six years, and that those elected at any other election hold only from the time of their election until said regular sexennial election occurs, and until their successors are duly elected and qualified.
The propositions into which the arguments of counsel for relators may be conveniently divided are as follows:
First. Under the provisions of the constitution which are involved in this case, section 15 was applicable only to those district judges who were elected at the first general election in 1876 (and when section 15 is mentioned in this opinion reference is had to that portion thereof relative to the expiration of the term of office of district judges). Thereafter the conditions were such that nothing could arise upon which the section might operate, and therefore its usefulness and purpose were at an end.
Second. Under said original provisions, section 15 still may be considered applicable to all district judges who were elected at any time, especially as section 29 expressly makes mention of unexpired terms in the office of district judges.
Third. But after sections 12,14 and 29 were amended, the uniformity in the election of district judges which was contemplated and intended by article 6 before any amendments were adopted, was destroyed, fractional or unexpired terms in the office of district judges abolished, and section 15 repealed by implication.
However inconsistent may be the arguments of different counsel for the same party to a suit, if any position assumed is sound it is the duty of the court to select the true and reject the false. This reference is pertinent at the outset, because it will be observed that these four propositions do not altogether harmonize, and the numerous arguments made by the different counsel, and by those who have favored us with their briefs, are not always in harmony as to every contention urged. Our reference, therefore, in this opinion to the arguments advanced by counsel must not in every sense be taken to include all of the counsel for relators. Unless thus understood, it might appear that the same able counsel were presenting inconsistent and self-contradictory arguments on the same proposition, and thus be subject to the charge of inconsistency.
The foregoing is the chronological order, and perhaps the logical order, in which these propositions naturally present themselves.. The second and third propositions might properly be included in one statement, and while it will not be possible to keep entirely distinct the first three propositions in the discussion, yet by reason of the conclusion which we have.reached it will best subserve our purpose first to consider the second and third propositions in one general discussion, and then in the main to consider the two remaining propositions in at least a partially separate treatment.
From this fact relators would draw the inference that this limitation upon the power of the general assembly to act only once within the period of six years indicated a recognition in this section of the applicability of section 15 to the terms of office of all district judges whenever elected ; but when by amended section 14 all restriction as to time was removed from the legislature, and authority given to increase the number .of judges at any session, and as often as it might see fit, this clearly indicated an opposite or contrary recognition, to the effect that section 15 was no longer applicable to any future election. But even a casual reading of the original section will dispel any supposition that original section 14, of itself, was a recognition of any uniformity in the election of district judges. As the sessions of the legislature, under the constitution, come in the odd numbered years, and the regular sexennial election for district judges in successive periods of six years from the year 1876, under the old section, when the legislature provided for an increase of judges, the first election thereof, after the taking effect of the act creating the new office, could not, in the ordinary course of legislation, well be contemporaneous with the said sexennial election. Of course, under the amended section, there eould be no identity as to time in such elections.
In all other respects amended sections 12 and 14 are as they were in the original sections, and no support for relators’ theory can be drawn from the amendments to. either section.
In our view, the only amended section that furnishes any
It will be observed that the new section omits the clause of the old as to unexpired terms, and from this it is said (which is undoubtedly true) that some intention must be imputed to such omission. By a most ingenious argument relators claim that in making this omission the intention of the people when the amendment was adopted clearly was to do away with all fractional terms in the office of district judge and make all elective terms therein a full term of six years. For, say relators, if there had been the intention still to preserve a fractional term, it would have been easy to express that desire by retaining the provision to that effect, or by the employment of language similar thereto in meaning.
But the object of this amendment has been considered by this court in the case of People ex rel. Livesay v. Wright, 6 Colo. 92, where it is said: “ Under this repealed section (29), whenever a vacancy occurred in any elective judicial office, and the unexpired term exceeded one year, it became necessary to call and hold a special election to fill the vacancy. The chief, if not the only, object of the amendment, was to obviate the expense and inconvenience of such special elections.”
If such was the object, and the only one, as it seems to us it was, then there was no intention on the part of the people in omitting the language in question, such as is ciaimed by relators. Under the original section, if the vacancy was for less than one year, it was filled by appointment ; if for more than one year, by election. The unexpired term of a district judge referred to in original section
This being so, when section 29 was amended for the objects stated above, there was no longer any reason for retaining the words “ when the unexpired term does not exceed one year.” The unexpired term of such office was not intended to be destroyed, but it would exist thereafter as well as before whenever an election was held at any other time than at the sexennial election. The amendment, therefore, was made not to abolish fractional terms, but to do away with special elections, and thus change the manner of filling vacancies in a term, and by so doing the continued existence of a vacancy and fractional and full terms was recognized.
II. Much of what has been elsewhere said is applicable to the first proposition, but we proceed now to a separate consideration of the same. By laying special emphasis upon section 12 as entirely disconnected, relators insist that every term of a district judge who is elected to the office must be for the full term of six years. Of course, this applies to the district judges elected at the first election. Section 15, say the relators, applies only to such judges, or if it does not, then section 12 must, in certain cases, be qualified and limited.
But we say that these original sections must be construed together. It is conceded by all the counsel that fractional terms still exist in the office of supreme judges, but section 7 of article 6 expressly provides that the term of office of a supreme judge shall be nine years, except as otherwise provided in that article. The only exception therein provided is as to the judges elected at the first election in 1876, who, by virtue of section 8 of article 6, are so classified that one shall go out of office every three years. That this latter section may be so allowed to operate, section 7 is qualified whenever a supreme judge is elected to fill a vacancy in the term, or in the office, of any supreme judge. The reason for this concession is so well stated in the case of Simpson v. Willard, 14 S. C. 208, that we quote it in full.
First, however, we should state that, prior to this decision, the same court had held that whenever one is elected to fill a casual vacancy in the office of clerk of the court of common
“But in the case of a casual vacancy in the office of justice of the supreme court, whether chief or associate, the rule is different, because the provision fixing their term of office at six years must, necessarily, be qualified by that other provision in the same section which requires that they shall be so classified as that one of them must go out of office every two years; otherwise, this latter provision would be entirely defeated. ■ Hence, in filling a casual vacancy in the office of justice of the supreme court, it must be so done as not to.disturb this essential feature of classification stamped upon that tribunal by the constitution. Manifestly this can only be effectually preserved by filling casual vacancies for the unexpired term only.”
The same reasoning applicable to such a vacancy in the office of a district judge under our constitution is equally pertinent. Section 15 expressly provides that the term of office of all district judges who are elected shall expire on the same day. This provision cannot be preserved unless district judges who are elected to fill a vacancy created by the resignation of an incumbent of an existing office, or those who are appointed to fill a newly created office, or who are elected at the first election after the creation of a new office or a new district, in the one case, hold for ah unexpired term, full or fractional, as the case may be, and, in the other, for a fractional term only.
III. By counsel on both sides much learning has been displayed, and many fine distinctions drawn, as to the meaning of “ term,” “office,” “incumbent,” “ term of office ” and “vacancy,” but we consider the discussion neither very important nor helpful. It is sufficient to say that “ term of office ’
In this connection the position assumed by relators as to this branch of the case is as follows:
(1) Where, as counsel express it, a new office is created by tire legislature, and there is given in the act creating the office authority for the filling thereof by an appointment at the hands of the governor, to hold until the next general election, when the governor makes the appointment he acts as the agent of the legislature, and not by virtue of the authority vested in him by amended section 29 of the constitution, which latter provision gives him the power only to fill “ vacancies” in the office of a district judge. The office, say relators, exists as soon as the act takes effect, but as elective offices (except only in case of designated vacancies) are to be filled by election by the people, the term of the office does not begin until an incumbent occupies it under an election. The holding of the appointee is no part of the term of the office, but a sort of nondescript.
(2) If, however, the time between the taking effect of the act, when the existence of the office begins, and the first election is a vacancy to be filled by the governor under his constitutional prerogative, then, when he makes the appointment, the vacancy is completely filled, and the first election thereafter is to fill the office for a regular or full term thereof.
Under the conclusion reached by us upon the third general proposition, it does not become necessary fully to discuss or determine these somewhat metaphysical questions. It really is not material what appellation should be given to the holding of one who is appointed to fill an office empty by the resignation or death of a former incumbent, or to the holding of one elected to the office at the first election after a new office has been established, as the successor of, and at the expiration of the holding of, an appointee. Whether
The tenure of office, or the holding, of such appointee and such incumbent, under election, is necessarily fixed by such conclusion. The holding of the appointee by the express provisions of the act creating the office is limited to the next ensuing election, and the holding of the one elected thereat, as a successor of such appointee, by the construction which we have placed upon amended sections 12 and 15, is only until the next ensuing sexennial election ; so it is immaterial what designation is given to such holding, so long as the length of the term of both is necessarily fixed for such length of time, as we have elsewhere herein declared.
In amended section 29 there is no specific provision as to the character' of the holding of one elected to succeed an appointee to fill a vacancy; but, as we have said, the construction placed upon amended sections 12 and 15 necessarily gives rise to a full and fractional term in the office of a district judge, and makes such holding of the appointee a portion of a fractional term, and the holding of the one elected to succeed the appointee a holding for the balance of such fractional term, or a holding of the entire portion of such fractional term, whenever such election is nob the regular sexennial election.
But, if necessary, it might well be established, in the absence of the construction which we have placed upon amended sections 12 and 15, that the term of the appointee in such case is the filling of a vacancy, under the principle established in the case of The People ex rel. Tucker v. Rucker, 5 Colo. 455, and that the holding of an incumbent under the
At the risk of some repetition, which cannot well be avoided, our position can be made clearer by a comparison of the status and tenure of office of judges of the supreme and county courts with those of the district courts. Precisely the same provision exists in amended section 29 for filling vacancies in the office of supreme and county judges as for district judges, and the appointee in such case holds for the same time and under the same conditions, and there is the same absence from the section of any designation of the holding of judges elected as successors of the appointee. If, however, the vacancy in the one case is completely filled by the appointee at the hands of the governor, the same result follows as to each of the other two.
The section reads that vacancies in all of the offices shall be filled by appointment. But relators wish to confine this language to the one office of district judge, but say that it is inapplicable to the office of supreme judge or county judge because, in the former case, of another provision of the constitution, viz. section 8 of article 6, which provides for a classification of the office of the supreme court judges so that one judge shall go out of office every three years, and in the case of county judges, by reason of section 22 of article 6, which provides that at the general election in 1877, and every three years thereafter, there shall be elected' at the general election a county judge, except as otherwise provided in article 6; which sections, relators contend, necessarily restrict and limit this particular provision of amended section
We think this is true, and we think it equally true that the same limitation is put upon this same provision of amended section 29 by reason of that part of section 15 which requires that the terms of all the judges of the district court elected in the several districts throughout the state shall expire on the same day; and that in each case, if amended section 29 is to be taken with the limitations imposed by sections 8 and 22, so that the fractional or unexpired terms, as the ease may be, still exist in the case of supreme and county judges, so section 15 still operates and has that effect necessarily upon the term of office of a district judge, which by section 12 is fixed at six years.
But, say relators, while we concede that, were it not for amended section 29, section 15 would have that effect upon original section 12, yet as sections 12, 14 and 29 have been amended, they must be taken as the latest expressions of the will of the people; and if, to give them and each of them full effect, some of the provisions of the constitution as originally adopted must yield, then such construction must be placed upon them by this court.
We concede the rule of construction urged, and that, if there is a necessary conflict between these sections as amended and section 15 of the constitution as originally adopted, the latter must yield. There are, however, other rules of construction equally as binding, one of which is that each provision of the constitution, both original and amended, should, if possible, be so construed as to avoid any conflict between the different parts of the constitution. Another rule is that effect must be given, if possible, to every provision and every clause and all of the language of a constitution, if possibly this can be done. If harmony can be preserved, that construction which will accomplish that result is to be preferred to that construction which will necessarily bring conflict.
But relators concede that amended section 29 does not repeal by implication either section 8 or section 22 of article 6 ; and we hold for a reason equally potent that it does not in that regard affect, or by implication repeal, section 15.
In the case of an appointee to a vacancy in the office of supreme or county judge, he holds only till the next ensuing general election. At that election, if not the regular election recurring in the one case once every nine years, and in the other every three years, the one elected holds, not for the full period of nine years in the one case or three years in the other, but only till the expiration of that term during which the vacancy occurred. If the vacancy, however, in the office of a district judge is thus filled, the relators still insist that
If, however, we concede that amended section 29, being later in time, repeals section 15 in so far as the latter purports to limit the full term of six years provided for in amended section 12, so, also, does it repeal sections 8 and 22 in so far as concerns the requirement in the former section that supreme judges shall retire one every three years, and in the latter section that a county judge shall be elected once every three years; but we hold that neither section 8, 22, nor 15 is thus repealed by implication. These four sections of article 6 can be made t'o harmonize, and neither of the other three can be said to be repealed by implication by amended section 29.
Repeals by implication are not favored; and we'must not
It is as rational and as logical thus to harmonize amended sections 12 and 29 with section 15 as it is to harmonize amended section 29 and section 7 with sections 8 and 22. If amended section 29 conflicts with section 15, it certainly does with sections 8 and 22, and being the latest in time, sections 15, 8, and 22 must give way in so far as they are inconsistent with the later expression of the will of the people.
But, we repeat again, relators disavow any such contention as to such an effect of amended section 29 upon sections 8 and 22, and we hold that there is no such conflict with section 15.
Again, the relators urge with much earnestness that this court should not put upon section 12 a construction that will in any conceivable case be a limitation of the term of office of a district judge therein fixed at six years, even though such limitation would not affect the length of the term when the election comes at the regular sexennial election. They strenuously insist that no construction shall be made that would qualify or limit this clause, “ whose term of office shall be six years,” which, they assert, is the strongest in the whole group. Just why it is the strongest we are not told, except the mere fact of the assertion. Possibly it is the strongest in the section; but we certainly can perceive no reason why it is any stronger than that portion of section 15 which declares that the terms of all district judges elected shall expire on the same day, or of section 7 which provides that the term of supreme judges shall be nine years.
But while we are asked not to place any limitation upon the full effect of these words in amended section 12 in their
But giving to the respective arguments equal merit as abstract propositions, it is the duty of the court to give to these different sections that construction which will most nearly produce that harmony and uniformity in the election of district judges which appears throughout article 6 to have been the desire of the framers of our organic act. The least friction will ensue by holding that the provisions of amended section 12 as to the length of the term must give way to,section 15 in all cases where the election of a district judge occurs at any other election than at the one or ones at intervals of six years beginning with the first general election in this state for district judges. In other words, after, as well as before, the adoption of the three amended sections named, the term of office of a district judge is, first, for the full term of six years, whenever he is elected at the so-called sexennial election, and thus section 12 is given full expression; seoo7id, when he is elected at any other election he holds only till the next sexennial election, and section 12 is restricted by section 15.
In this connection we deem it fitting to notice one argument most ably and skillfully urged upon us at the hearing. We were reminded that to the federal courts judges are appointed by the president to hold for life or during good behavior. In many of the older states at first, and in some of them still, judges are appointed by the governor or the legislature with the like tenure of office. When the members
When this method was adopted and the other rejected, some of the advantages which attended long terms secured by appointment were preserved by inserting in the constitution provisions for a reasonably long term of office, and this notion, we are told, doubtless actuated the framers of our constitution, as appears from their address to the people:
“Experience having shown frequent changes of the judiciary to be unwise and detrimental to the public interests, long terms are prescribed for the judges of these courts. The judges of the district courts will be elected for six, and those of the supreme court for nine .years; and after the first election they ma.y be elected on a different dajr from that on which an election is held for any other purpose, thus taking judicial elections out of the arena of party politics.”
(It will be observed that this address refers to six years for district judges and nine years for supreme judges; and while the discussion would be more appropriate elsewhere in this opinion, the insertion of this extract here gives us .the opportunity to reply to the argument of relators that when the address speaks of the term of district judges as six years this is an additional reason for supposing that it was intended to apply to a district judge whenever elected. The address, however, speaks of the term of a judge of the supreme court as nine years, but even relators would concede that this language cannot be taken to support the con
We realize the potency of this argument as to the duty of courts to execute the intention of the people in adopting a constitution, and recognize that in case of serious doubt extrinsic aids of different kinds — the condition of affairs existing at the time of the adoption of the constitution, the practice theretofore prevailing, and even arbitrary, rules— may be resorted to in construing a constitution; but where on consideration of the language of the various parts of the instrument the interpretation is plain or the construction imperative, we must exclude all such extrinsic aids, even though in a given case the construction may be in some respects different from what we believe may have been the intention of the people in adopting it.
But we do not have to go to any such length in this case. We must suppose, if the intention of the people was to interfere with the harmony and uniformity in the election of district judges, which even a casual reading of article 6 reveals must have actuated them, that such intention would have been clearly manifested by language unambiguous and explicit, and that they would not deliberately have destroyed such harmony and uniformity which'they had evidently been at such pains to create, by providing that a district judge whenever elected should hold for a term of six years, when, if so holding, it is impossible for any effect to be given to the provisions of section 15. They certainly would not have left to doubtful inference so important a manifestation of that intention, aird we cannot believe that any such effect, in any case, should be given to any provision of amended section 29 in the absence of a clause coupled therewith containing an express repeal of that portion of section 15 in question. We are not concerned with the wisdom of this desire for uniformity, nor with its alleged unimportance as compared with the advantages of a reasonably long term of office. The intention is present in the constitution, and we must respect it and carry it out, if possible.
So that, without reviewing those eases, and thereby prolonging this opinion, already too long, and with full recognition of such cases as declare a doctrine different from that which we announce in this case, and conceding their applicability in the states and under the constitutions where they were promulgated, at the same time we insist that they cannot be recognized as authority in this state for the reason that our own constitution must be our guide, and it essen
Y. But in addition to what we have already said, there remains to be considered last, but of great importance, what was referred to in the beginning of this opinion. This court, in the case In re Election of District Judges, 11 Colo. 377, in principle has passed upon the very question at issue here. We are not unmindful of the rule that the maxim stare decisis is applicable in its fullest sense only where property lights are involved. The doctrine, however, applies to constitutions as well as to statutory law, or to any other kind of law. The only question is as to what extent in a given case shall the doctrine be allowed to prevail ? The following from Thompson on Negligence, vol. 2, p. 1005, substantiallj’ accords witli our view of the rule:
In the case of Schultz v. Pacific R. R. Co., 36 Mo. 13, the court gave to the statute of that state a construction different from what it had theretofore received from the same court, and Judge Thompson, commenting on this, says:
“Perhaps on a question of this kind a law writer ought not to say anything. We feel constrained, however, to express the opinion, notwithstanding the deference which is due to the learned and accomplished judge who delivered the opinion in the Schultz Case, that when the question was before the court for the first time, a contrary conclusion from that arrived at would have been more in conformity with the rule of statutory construction that the legislature will not be held to intend a repeal of the settled rules of the common law, unless the language employed by it clearly imports such an intention. But a rule of construction which certainly did not do violence to the terms of the statute having been agreed upon by a unanimous bench, and acquiesced in by successive legislatures for eleven years, its abrogation by the judicial bench, by a decision which necessarily had the effect of a retroactive law, .operating upon all pending suits and upon all existing injuries, was an indefensible violation of the rule of stare decisis. We think that the eon-*242 dueling observation in the dissenting opinion of Henry, J., should have had sufficient weight to restrain the action taken by the majority of the court: ‘ While that decision (referring to the Schultz Case) strictly was not made a rule of property, yet the doctrine of that case has so long prevailed as to be- . come a recognized law of the land; and if it work any injustice, or contravene public policy, it is better for the legislature to remedy an evil by amending or repealing the law, than for this court to do it by judicial construction.’ ” 2 Thompson on Negligence, p. 1005.
While the decision in the 11 Colorado is not as binding upon this court as it might be if thereby a law or. rule of property had been established, yet it has been the unquestioned law of this state now for more than seven years. It is well considered, well conceived, concise, and based upon reason. Aside from this, district judges have been elected and have gone out of office according to its holding. The people in their party conventions have yielded to it their obedience. The executive and legislative departments of the government have followed it, and calls for elections have repeatedly since that time been made to comply with its rule. The relators themselves have acquired whatever rights they may have to this office long since this decision was announced, and, as evidenced by the manner in which they entered upon the discharge of the duties of their office as soon after their elections as they could conveniently qualify, have indicated, and by their retiring from office and submitting to an-election before the expiration of six years from the time of their election, again have recognized its controlling authority.
To be sure, relators are probably not technically, or otherwise, estopped to question the soundness of this decision, if it is wrong, but such recognition by them is one, among many other circumstances, to show that all classes of our people have given their assent to this case.
Before, as well as since, this decision was announced; the legislative and executive departments of the government have recognized that the .rule which it announced was the
Constructions of /the constitution by the legislative and executive departments of government, particularly by the legislature, and when made contemporaneously with the adoption of the constitution or soon thereafter, weigh strongly with the courts. Of course, we know that the construction of the constitution by all the people and by every other department of the government is not absolutely controlling with the courts; it is only the construction which the latter themselves declare that ultimately prevails and is decisive; but all these constructions made by members of these coordinate departments of government, acting under oath and from the desire, as we must assume, to do their duty, are persuasive reasons and do have weight with the courts, in reaching their conclusions, greater or less, depending upon the circumstances of the particular case.
For the reasons given above, we have no hesitation in declaring that the respondents are entitled to the office of district judges in the second judicial district of this state; and in accordance with such conclusion the proceeding instituted by the relators is dismissed at their costs.