59 Barb. 198 | N.Y. Sup. Ct. | 1871
At the general election held in ¡November, 1869, the electors of the State adopted a substitute for the sixth article of the constitution of 1846, to go into effect on the 1st day of January, 1870. It is known as the judiciary article.
By the 15th section it is declared that “ The existing county courts are continued, and the judges thereof in office at the adoption of this article, shall hold their offices until the expiration of their respective terms. Their successors shall be chosen by the electors of the counties for the term of six years.” In section 13 it is declared, “ But no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age.” As this section and the previous sections relate to courts other
The decision in this case must depend upon the constuction to be given to the language used in the 15th section, as above quoted, in connection with the facts of the case.
There was no vital force in this article, until the 1st day of January, 1870, and article 6 of the constitution of 1846 was in full force up to the moment when it was superseded by this- new judiciary article. By section 14 of, article 6 of the constitution of 1846, it is declared that “there shall be elected in each of the counties of the State, except the city and county of New York, one county judge who shall hold his office for four years.” It was under this provision of the constitution of 1846,-and the statutes relating to the subject, that the electors of Niagara county proceeded at the general election of 1869, and elected the defendant a county j udge, for four years; the term to commence on the 1st day of January following. Was the defendant “in office” within the meaning.of the new judiciary article at the time it became the fundamental law ? All language in constitutions, statutes and other instruments is used in reference to some subject matter, and it is always to receive a fair construction with the view of effectuating the intention of the body or person employing the language.
It was not intended by the new judiciary article to overthrow or disturb what had been lawfully done under and in pursuance of the constitution and laws previously existing. It is not doubted that the defendant was lawfully elected at the election in November, 1869, but the claim is that he
He had a right, on receiving notice of his election, to take and file the oath of office. (1 R. S. p. 119, § 21.) He is, in the statute, styled an officer. He may take the oath of office within fifteen days after the commencement of his term of office. • (Id.) • Here the statute distinguishes between “the officer ” and “ his term of office.” In'short, by turning to this “article third,” “of oath of office, and official bond,” (1 R. S. 118,) it will be seen that the persons elected or appointed to any civil office or public trust embraced in the chapter, are mentioned as officers; they are referred to by the title of the office, to which they have been elected or appointed, as.the Governor, Chancellor, Justices of the Supreme Court, Justices of the Peace, &e. “ All officers elected by the people * * * shall enter on the duties of their respective offices on the 1st day of
How I have thus referred to the language used in statutes as some guide or aid in ascertaining the sense in which the words in the new judiciary article were used— the judges “in office at the adoption of this article.” In my opinion the defendant was, in contemplation of the new judiciary article, in office when that article was adopted— became law. The point made by the relator is very sharp and technical, and, if it is to prevail, then the action of the electors at the election in 1869 is to be annulled. As I have already said, the electors were authorized to do all they did do; and more, it was their duty to do what they did. The constitution of 1846 was in .full force, requiring them to elect a county judge for four years. They had no authority to elect for a lodger term. They had authority to elect a person of any age above majority. They could have elected one whose age, at the time of the election, was more than seventy. What then? Such person, I suppose, could have taken the oath of office, but “ the last day of December next after he shall be seventy years of age,” would have come before the term -of office would commence, and' the county would be without a judge. Hothirig of the kind was contemplated by the convention; but it was. intended to preserve all that had been lawfully done in the way of filling the office of county judge, and the language used, “in office,” was general, andfitly chosen, in view of language that had been used in the statutes, to which I have referred, and, in common parlance, to include the case when one had been lawfully and properly elected. It is not said the judges whose terms of office have commenced shall hold their offices until the expiration of their
Can it be asserted that there was any moment of time, • when this new judiciary article was in force, that the defendant was not in office ? Clearly not. The most that can be claimed is that the commencement of the term of office, and the beginning of the authority of the new constitutional article were simultan eous. It may then, I think, be safely averred that the official term of the defendant commenced at the time the constitutional provision became operative. And if it is necessary to hold that he was not in office until the term of office commenced, it may be safely held that he was in office when the new constitution came into effect. But these views or suggestions, fin my own opinion, .have relation to a question quite too narrow. The case has a broader'base. The rights of the
defendant are to be found in the constitution of .1846, as continued in the new constitutional judiciary article. It was not intended to interfere with any right acquired to the office of county judge, prior to the coming into effect of the new judiciary article, and the provisions, therefore, in section 13 of the article relating to age can have no application to this case. It can be applied only to judges or justices who are appointed or elected under and in pursuance of the new constitutional article.
There must be judgment for the defendant.
Judgment accordingly.
Judgment being entered, the plaintiffs appealed to the general term.
I. The defendant was elected in ¡November, 1869, to fill the vacancy left by Judge Lamont; which term expired on the 31st of December, 1869. Is there any provision of law under which he could have been elected for a full term ? Section 8 of the general election law directs that the “vacancy” shall be supplied at the next election after the happening thereof. This was a “ vacancy”—not an “ expiration of term.” The statute (tit. 6, § 34,) declares and defines what are “vacancies”—such as “death, resignation, removal,” &c.
. II. If the defendant was elected for a full term, then the constitutional limitation of age applies; and his term expired on the 31st day of December, 1870. (Const. art. 6, § 13.) 1. The limitation applies to county judges. The prohibition in section 13 means exactly what it says—that “no person shall hold the office of justice or judge of any court” beyond the time there mentioned. The language is clearly not intended to be confined to the justices and judges before mentioned. If that had been intended, it would have been expressed. If the words “of any court” had been omitted, it would have been barely possible to limit the prohibition to the justices and judges before mentioned; but with those words, it cannot be so limited. In short, it is an absolute prohibition—so clear, so plain, so positive in its terms, so significant of its intent, and so imperious in its character, that it cannot be disregarded. The object of the language employed was to make the prohibition cover the judges of every court; and such is clearly the legal effect. The reason of the prohibition applies equally in every case. The necessity, or supposed necessity, for the prohibition, applies as well to the judges of one court as to those of another. The prohibition applies to judges of any court; and necessarily, to county, judges. Section 13 has also received a legislative construction, to this effect, in the act of March, 1870, requir
2. But it is claimed that the defendant can - hold under the following provision of section 15 of the judiciary article : “ The existing county courts are continued, and the judges thereof in office at the adoption of this article, shall hold their offices until the expiration of their respective terms. Their successors shall be ^chosen by the electors of the counties for the term of six years.” How the article was, in point of fact, to be submitted to the people for their “adoption,” or rejection, on the day of the general election in Hovember, 1869, and it was then either adopted or rejected. It was in this sense that the term “ adoption” was used in section 15; it is the literal as well as the liberal sense; the term was used with reference to its ordinary meaning and popular application. But, in the most technical sense, the article was certainly adopted when the State canvass was completed, in December, 1869. (Real v. The People, 42 N. Y. 270.) In any point of view, therefore, the defendant was “ in office” under his appointment, and not under his election, at the “ adoption” of the article. He was not “in office” under both at the same time. A person may be elected to office and not be in office. He does not go “into office” until his official term commences, and is “in office” thereafter, and not before. Where a term is four years, can one be said to be “ in office” longer than the four years ? An officer elect may be called an officer in the statutes, but nevertheless he is not in any sense “in office” until his term actually commences. One person may be elected to an office, while another, at the same time, is holding it, and is actually “in office.” Section 15 had reference to judges holding office and “in office” at the time of its adoption. The defendant was elected at the same time the article was adopted by the votes of the people, and went “ into office” at the same
If it should he held, however, that the defendant was “in office” under his election instead of his appointment, when the article was adopted, still the limitation of age applies. Nothing, can be clearer than the meaning and intent of section 15. “ The existing county courts ” were “ continued,” additional j urisdiction was conferred upon them, the judges were to hold six years; but the judges in office at the adoption of the article were to hold only “ until the expiration of their respective terms;” that is, the four years terms ; they should not hold the six years terms; and the constitutional prohibition should apply to both the judges of four years terms and six years terms— to the judges then in office, and thereafter to be in office; the prohibition is absolute, and takes effect immediately; “but no person shall hold the office of justice or judge of any court longer than until and including the- last day of December next after he shall be seventy years of age.” The reason and spirit of the prohibition, as well as its express words, apply equally to judges of any 'term, and judges of any court. The only sound and sensible construction that can be placed upon the prohibition is simply this : the limitation of seventy years applies, without any reference to the question as to how or when the incumbent obtained the office; the prohibition is an absolute one under all circumstances, subject to no exceptions, reservations, conditions or restrictions whatever, and the constitutional limit is reached, and the “expiration of their respective terms” has been arrived at,- on the 31st of De
The learned judge before whom this case was tried, in his opinion, places his decision wholly upon the question whether the defendant was “ in office” under his election at the time the judiciary article took effect, and not at the time of its “ adoption,” as mentioned in section 15. The question, as to either time, however, is wholly immaterial in the view of the case here presented. The learned counsel for the defense will not permit themselves to look at more than one section of the article, and that is the one under which they would continue the defendant in office. The learned judge seems to have fallen into the same error. They will not rise to the contemplation of both sections together, giving force and effect to each, consistency to both, and harmony to the whole.
The learned judge, in his opinion, says that the prohibition would annul the defendant’s election. Hot at all. It was competent, however, for the constitution to have
III. The relator was regularly and legally elected. 1. If the defendant’s term expired on the 31st of December, 1870, then there was a county judge to be elected in his place; and the people had a right to elect his u successor” at the preceding general election, to fill the office for the political year to -commence on the 1st of January, 1871, and for such term as the law prescribed. This is not a case of vacancy, but an expiration of term. It is not one of the cases of vacancy mentioned in the statute, where' vacancies are defined. (§ 34.) If it had been intended to be left to operate as a vacancy, the limitation of the term would have been at just seventy, whenever that might happen; but it is' expressly provided that the incumbent shall hold until the last day of December next thereafter, so that the term shall regularly expire at the close of the political year, and thus enable the people to elect a “ successor” at the preceding general election. The object of the statute requiring certificates of age to be filed with the Secretary of State, is for the same purpose. The exception of county judges, in the act of March, 1870, in regard to elections, only shows the looseness of legislative enactments. It is meaningless, and does no harm. It has reference to expiration of term, not only by reason of age, but by effluxion of a' full term. It does not say they shall not be elected at the preceding election, but makes no provision that they shall. County judges are, therefore, left to the provisions of the previously existing election law. The same law (for it has not been repealed) under which the successors of every county judge have
2. If the defendant’s term expired at the close of the political year,' so that there was a county judge to be elected in his place, then the election was valid, whether any notice was .given by any public officer or not. The case- -of the People v. Cowles, (3 Kern. 350,) is conclusive on this 'point. There is nothing in this case which takes it out-of the principle on which Cowles’ case was decided. Johnson, J., there says, (p. 359,) “even where notice is prescribed, no one supposes that the omission to give it will vitiate the election.” Even Wright, J., dissenting, puts it'upon the aground of a sudden vacancy, and not an expiration of term with the political year; in which case, he says, 'the electors are presumed and bound to know the law, and when the term will expire, and act accordingly; that notice in such case is probably not necessary. Here the defendant’s age was known for nearly a year previous, and discussed'by both parties, and by his political friends before their convention. They took their stand upon it with full knowledge. The fact upon which depended the ' question of expiration of term, to wit, the defendant’s age, was well known, even if the political nomination of the
3. “ It is the election, and not the certificate of the canvassers, that gives the right' to an office.” (See People v. Cook, 4 Seld. 67 and cases there cited.)
As the learned judge before whom this cause was tried, makes no question as to the election of the relator, but puts his decision, in his opinion, wholly upon another ground ; and, in fact, concedes the regularity of the election, the point will not be further extended.
The case presents two principal questions : (1.) Is the defendant entitled to the office, and if not, then (2.) Is the relator entitled to it.
First. We claim that the defendant is clearly entitled to the office.
I. The defendant having been duly elected to the office in 1869, for the term of four years, commencing January 1, 1870, and having duly qualified, he was, in the language of section 15 of the new judiciary article, which took effect that day, “in office at the adoption of” that article, and consequently by the same section he was continued in office until the expiration of the term for which he was elected. 1. The term, “at the adoption of this
2. But if the words “ at the adoption,” in section 15 means when the article was ratified by the election in 1869, then the “adoption” was not complete until the State canvass in December 1869, (Real v. The People, 41 N. Y. 270,) and the defendant’s election was completed by the county canvass on November 9, 1869. The county •canvass must uecessarily precede the State canvass, as the
II. The office of county judge did not .become vacant by reason of the defendant having become 70 ye'ars of age on February 9, 1870. 1. It is suggested that the disability of age, created by the last clause of section 13, does not apply to county judges. The provisions of section 13, preceding this last clause, and of-the whole of section 12, referred to in. section 13, relate exclusively to judges of city' courts and justices of the Supreme Court; and although the language of the clause creating the disability is general, it should not be extended to include officers not previously referred to. A county court'or county judge is not previously mentioned in the article. It will not be claimed that the disability applies to members of the court for the trial of impeachments, composed of the president of the senate, (Lieutenant Governor,) senators and judges of the Court of Appeals. (Art. 6, § 1.) And yet the members of that court are, in every sense of the word, “judges.” If the clause of section 13 creating the disability is to have the broad application contended for, it will include not only the Lieutenant Governor and senators, but justices of the peace, justices of sessions, surrogates, judges of inferior courts of cities and villages, &c. The judges referred to in sections 12 and 13 are to hold office fourteen years, and county judges six years. There is, therefore, not the same reason for applying the restriction to the latter as the former.
III. But, it is insisted that this limitation of age does' not apply to county judges in office when the judiciary article took effect, or was adopted. 1. The provision creating the limitation is general, while the provision as to continuing the judges in office, at the adoption of the article, is restricted in its application. If the two provisions are in conflict, then the one. which is restricted in its application must prevail. The two provisions should be
Second. Should it be held that the defendant’s term of office has expired, yet the relator is not entitled to the office.
I. Mo election of county judge could be had in 1870. 1. The defendant was duly elected under the constitution of 1846, for four years, which would not expire until December 31, 1873, and if by disability of age, his office expired on December 31,1870, yet there was no law authorizing an election in 1870. The only law providing for filling the vacancy, is the act of May 8, 1847, (Sess. Laws of 1847, vol. 1, p. 264, § 6,) and that act provides that the vacancy “shall be supplied at the general election next succeeding the happening thereof.” The defendant was rightfully in office until January 1, 1871, consequently no vacancy existed when the relator claims he was elected. 2. The expiration of the full term of an office, the death of an incumb.ent, his removal from the State, &c., or his removal from office for misconduct, are all matters of public notoriety, and of which the public are bound to take notice; but an individual’s age is known to but few; is a matter of which the public cannot know, and is to be ascertained by proof. Suppose the defendant did not admit he was 70 in 1869, and yet a few, say half a dozen
II. The election of the relator was invalid, by reason of the total failure to publish or give notice. thereof. 1. The theory of our elective system is, that the majority of the electors shall designate, or elect the persons,'or officers, who shall administer the affairs of government, such choice to be made' at certain times, and in certain places convenient to the electors; and to render it absolutely certain that every elector' shall. know, not only the time and place, when and where the election is to be held, but the particular offices to, fill which he may vote, the law requires the Secretary of State to transmit to a county officer of each county, a notice specifying, among other things, the offices to be filled at the next election, (1 B. S. 420, 421, §§ 1-5, 5th ed.,) and such county officer is to have the notice published in every newspaper in his county, weekly, until the election, and to deliver copies thereof to officers of each town and city in the county. (1 B. S. 422, § 14, 5th ed.) In this case there was an entire failure to give any notice. In fact, not one in ten of the electors of one political party, had the least intimation that a judge was to be, or could be, elected. To treat what was done in this case as a valid election, would be a mockery of the elective system. In Beal v. The People, (supra,) it is held that the canvass of the votes given at an election is a part of the election; that the canvass is necessary to complete the election, and much more should the giving the notice be regarded a necessary part thereof. Is not the giving the notices a condition precedent to the election, the same as the giving of notice to the members of any official body, of a meeting of that body, is a con-, dition precedent to such meeting? With regard to filling, by election, vacancies created otherwise than by expiration of the term of office, the statute requires them
The opinion just given in the case of The People ex. rel. Clark v. Norton,
The language of this provision is as follows: “ But no person shall hold the office of justice, or judge, of any court, longer than until and including the last day of December next after he shall be seventy years of age.”
This language is certainly sufficiently broad and comprehensive to produce the result contended for, and would be conclusive against the defendant, but for other provisions in the same article. By section 15 it is provided that the existing county courts shall be continued, “ and the judges thereof in office at the adoption, of this article shall hold their offices until the expiration of their respective terms.” And by section 12, relating to the New York Common Pleas, the Superior Court of Buffalo, the City Court of Brooklyn and the Superior Court of New York,it is provided that “the judges of said courts in office at the adoption of this article are continued until the expiration of their terms.” And so, also, section 6 provides that' the existing Supreme Court “ shall be composed of- the justices now in office, who shall be continued during their respective terms.” The language used in these sections is equally broad and unqualified with that used in section 13. In regard to each court therein specified, the provision is that the judge or justice in office at the adoption of that article, shall hold until the expiration of his term, without respect to age or any other circumstance .or condition. The provisions of section 13 on their face appear to be incompatible with those of the other three sections referred to, and if all are to be literally interpreted, th'ey cannot stand together, and all be carried out according to their respective terms. But there is, in truth, no
I am clearly of the opinion that the limitation or prohibition in respect to age in section 13, was not intended to apply, and does not apply, to justices and judges in office at the adoption of the judiciary article as part of the constitution. By applying the familiar principle of construction embodied in the maxim noseitur a sociis, by which the meaning of a word or term may be known by'reference to the neighboring words, this is rendered entirely clear. A familiar instance of limiting the application of general words, upon this principle, is found in the ease of Chapman v. Forsyth, (2 How. U. 8. 202,) in giving construction to a former bankrupt act of congress. The act prohibited the discharge of bankrupts from debts created by defalcation as a public officer, executor, administrator, guardian or trustee, or " while acting in any other fiduciary capacity.” It was argued that these general terms embraced all other cases of trust besides those specifically enumerated. But the court held that the classes of trusts enumerated being all special trusts, and the general words, having been used in connection with them, could not be extended so as to embrace ..all trusts of every grade and class, but must be confined to all other trusts belonging to the same class with those enumerated. Many other cases might be citecj^ of the same character, but this is sufficient to illustrate the principle.
This limits the application of the general w;ords, “no person,” in section 13, to the class of justices and judges previously enumerated in the same section. The other sections, before referred to, provide for a different class of justices and judges, who are to hold but the terms for which they were elected. But section 13 creates a new
Talcott, J., having been elected at the general election in 1869, expressed no opinion.
Mullin, P. J., and Johnson and Talcott, Justices.]
Ante, p. 169.