People ex rel. Gallup v. Green

2 Wend. 266 | N.Y. Sup. Ct. | 1829

By the Court, Marcy, J.

This case involves the construction of that provision in the constitution of this state which relates to the office of sheriff. The eighth section of the fourth article declares that sheriffs, &c. shall be chosen by x the electors of the respective counties, once in every three years, and as often as vacancies shall happen; they shall hold no other office, and be ineligible for the next three years after the termination of their offices ; and the governor may remove them at any time within the three years for which they shall be elected. These are all the provisions of the constitution having a direct bearing on the subject now before us. There is no express designation of the term for which sheriffs shall hold their offices, but it is fixed at three years by the strongest implication.

The question now under consideration does not arise on the application of these provisions to ordinary cases, but to a case somewhat varying from them, yet such as the framers of the constitution must have foreseen would very frequently happen;' and it is therefore reasonable to infer, that if they intended that persons elected to fill vacancies in the office of sheriff, happening before the expiration of the term of the previous incumbent, should hold for a shorter period than the general term, they would not have left that intention to be evolved by ingenious distinctions and dubious inferences.

By the general provision, elections for sheriffs are not to be held oftener than once in every three years, except in cases of vacancy. In what part of the constitution is it declared, or from which of its provisions are we authorized to infer an exception, in the case of a person elected to an office, vacant by the death, resignation or removal of his predecessor 1 Why shall he not hold as long as he would have done, if elected at the end of a full term ? It is the designation of the stated period for the election, that fixes the term of hoiding, and this designation is applied to every election. Ap- ' ply the language of the constitution to a single county; to that of Cayuga for instance; it is, that the sheriff of this county shall be elected once in every three years, and as often as a vacancy shall happen. A vacancy did happen by the death of Hughes, and without the latter clause of the foregoing sentence, no election could have been held, until three years from the previous one; but I cannot infer from this clause, any restriction upon the term of Green the successor of Hughes. ■ It does not express or imply that he is to serve out only the residue of Hughes’ term. Green was' elected, as I understand the provision, to fill the vacant office, and not merely to serve out the vacant term of his predecessor. I am inclined to think that a diversity of opinion on this subject has arisen, from different applications of the term “ vacancies,” in the section of the constitution which we are now considering. It has been sometimes applied to the office, as contradistinguished from the term of service, and at others, to the term of the office. I understand it as applicable to the office alone. When Green came into the office, he took it with all the rights, powers and incidents belonging to it, under any circumstances; one of which was a tenure of three years. The case of sheriffs has been assimilated to that of senators, who are declared by the constitution to be chosen for four years; but those chosen to fill vacancies hold only for the residue of the unexpired term of their predecessors. This limitation to the holding does not result from the fact that they are elected to fill vacancies, but from other parts of the constitution from which it is necessarily implied. The provision classifying the senators, and vacating the seat of one from each district in every year, could not be carried into effect, if a senator elected to fill a vacancy'were to hold a full term of four years. But permitting a sheriff to hold for three years in case he is elected to fill a vacancy, is not like the case of a senator, incompatible with any other part of the constitution.

To support the position taken for the relator, we have been referred to the proceedings of the convention which framed the constitution, and to the acts of three legislatures, which have had this subject before them. The first proposition in the convention relative, to sheriffs, was, that they should be appointed annually, be ineligible after four years, and incapacitated to hold any other office at the same time. (N. Y. State Convention, 160.) This, it will be recollected, was the precise tenure of the office of sheriffs under the old constitution. To this proposition an amendment was offered, that they should be chosen by the electors of their respective counties once in every three years, and as often as vacancies should happen; should hold no other office, and be ineligible for the next three years after the termination of their offices respectively. (N. Y. S. Con. 384.) There was, in the convention, very considerable opposition to choosing sheriffs at a popular election, and the mover of this amendment, when he submitted it, remarked that he should be opposed to that mode of election if it was to be annual; and that he was in favour of it, because three years were given for the duration of the office, and during the three next years the officer was rendered ineligible. Although there was not any thing in the debate on this proposition, nor in the circumstance of an addition to it, providing for a removal of a sheriff “ at any time within the three years for which he shall be elected,” clearly evincing the views of the convention on the question under consideration, yet we see that frequency of election was regarded as an objection to this new mode of choosing sheriffs, and the term of office was three years ; we shall therefore be most likely to conform to the intentions of the convention, by giving a construction to the constitution which will avoid the objection of frequent elections. We find nothing in the proceedings of the convention to authorize us to set up, by construction, an exception to the general limitation of three years.

Great deference is certainly due to a legislative exposition of a constitutional provision, and especially when it is made almost contemporaneously with such provision, and may be supposed to result from the same views of policy and modes of reasoning which prevailed among the framers of the instrument expounded. I am not aware, however, that the relator can urge upon us a legislative construction of the section we are now considering, which has not been recalled or questioned by a subsequent legislature.

The legislature of 1822 passed the general election law, to carry into effect the provisions of the amended constitution on that subject, but gave no exposition of the section on which the present question arises. They did not provide for any special election, except for members of congress, nor for filling any vacancy in the office of sheriff, happening before the close of a term for which the late officer was chosen. The succeeding legislature supplied this deficiency, and declared that “ all officers elected to fill a vacancy, should hold their respective offices until the next general election for such officers, and others are elected and qualified in their stead, except otherwise removed.” (Sess. Laws, 1823, 419.) This law has been presented to us as a legislative construction of the constitution in favor of the relator, and I think it should be viewed in that light.

In the recent revision of the statute laws of this state, great care was taken, not only by the revisors but by the legislature, to reduce them to system, to remove their ambiguities, and make them conform to the provisions of the amended constitution. The clause in the act of 1823, which contains a view of the constitution similar to that taken by the relator, is not found in the report of the revisors, nor was it, either in form or substance, as I conceive, introduced by the legislature into the chapter regulating elections. If the construction for which the defendant contends is not corroborated by these facts, they at least destroy the force of the argument for the relator derived from the act of 1823. It was said on the argument, that though the revised statute concerning elections was not as explicit as that of 1823, yet a similar exposition of the constitution was deducible from it. The eighth section of title 1, ch. 6, provides, “ That all vacancies in the office of representative in congress, senator, justice of the peace, sheriff, &c. shall be supplied at the general election next succeeding the happening thereof; but when the term of service of any such officer will expire at the end of the year during which the vacancy in his office shall occur, no person shall be chosen to supply such vacancy, but the usual election shall be held for a new officer, to hold during the constitutional term.” It has been supposed that the expression “ constitutional term,” in this section, means a term of service necessarily commencing on the 1st day of January, and that it applied to the tenure of office of each description of officers mentioned therein ; but this cannot be so, for the constitutional term of a representative in congress commences on the 4th March. The effect of this section is only to dispense with special elections, and provide for filling vacancies happening during the year, at the general election for that year; and in case the term of service of any officer would expire before the close of the year, a successor to the last incumbent is to be chosen in the same manner and to the same effect as if no vacancy had happened. Although the notion that there is a triennial term for each sheriff in the state, commencing and expiring on the same day, and that sheriffs chosen to supply vacancies are only to hold to the end of the current triennial term, may derive some countenance from the concluding clause in this section, yet it is very slight, and altogether insufficient to authorize a belief that the legislature which revised the election laws intended to express its concurrence in the views of that of 1823.

The language of the clause under consideration is some- ' what different from that used in designating the tenure of the officers appointed by the governor and senate or by the legislature, and from this an inference has been drawn in favor of a triennial term ; but I apprehend that peculiar phraseology may be accounted for without supposing a studied variance, with a view to authorize the construction contended for in support of the present application.

We have before seen that the first proposition made to the convention relative to sheriffs was similar to the provision in the old constitution. The term of service was not fixed, otherwise than by regulating the period of appointment. The amendment to this proposition pursued the same phraseology, but gave the choice to the electors of the counties, and extended the period from one election to another, to three years, instead of leaving it one year, as it was under the former constitution. It also provided for an election within three years, in cases of a vacancy. If the peculiar language of this section, which is supposed to warrant the construction put upon it by the relator, may be traced, as I think it can be, to the provision in the old constitution relative to sheriffs, the received construction of that provision may help us to a correct interpretation of the clause derived from it in the new constitution.

The old constitution declared that sheriffs should be appointed annually; and it was the conceded construction of this provision that a sheriff, coming into the office while the term of his predecessor was unexpired, held not for the residue of that term, but for an entire year.

Most of the state officers are declared to be chosen for three years ; and it is not pretended that a person chosen to fill a vacancy-in one of them, would be limited to the unexpired term of his predecessor. Whence the difference between a sheriff, elected to supply a vacancy, and the secretary of state or attorney general, chosen under like circumstances 1 Though a different mode of expression is used to designate the duration of - their respective offices, one is not thereby rendered less certain than the other. There are no provisions of the constitution that call for a rule of construction in relation to the tenure of persons selected by the legislature to supply-vacancies different from that which is to be applied to sheriffs and clerks chosen by the electors.

In relation to the argument derived from supposed inconveniences, I would observe that it can have no weight where there is no doubt. If this, however, was a case in which it was proper to be influenced by such considerations, those presented to us do not appear to be of a very decisive character. Nearly all of the inconveniences that were represented as likely to be burdensome to the people, and embarrassing in the discharge of the duties of this office, on the supposition of a decision against the claims of the relator, are removed by the existing statute regulating elections.

I am of opinion, upon a full view of the subject, that the defendant took the office of sheriff of Cayuga for three years, and that the election of the relator is void.

Motion denied.

In consequence of the indisposition of the Chief Justice, and of Mr. Justice Sutherland, during the latter half of this term, no decisions were made in causes argued at the last term.