3 Mich. 598 | Mich. | 1855
By the Court,
Among the well settled rules of construction of statutes, are these: 1st, the natural import of the words of any legislative act, according to the common use of them when applied to the subject matter of the act, is to be taken as expressing the intention of the Legislature, unless the intention
The natural import of words is that which their utterance promptly and uniformly suggests to the mind — that which common use has affixed to them; the technical, is that which is suggested by their use in reference to a science or profession — that which particular use has affixed to them; and when the natural and technical import unite upon a word, both these rules combine to control its construction, and indeed, it is difficult to understand how any other signification than that which they suggest can be affixed to it, unless upon the most positive declaration that a different one was designed.
Now the word attorney, when used in connection with the proceedings of courts, and the authority to conduct business in them, as well as when employed in a general sense with reference to the transaction of business usually and almost necessarily confided to members of the legal profession, has a fixed and universal signification on which the technical and popular sense unite. The legislator and the judge, the lawyer and the layman, understand it alike, as háving reference to a class of persons who are by license constituted officers of courts of justice, and who are empowered to appear and prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are devolved by law in consequence. That the natural and technical im-port of the words- or title prosecuting' attorney are identical,
Before the adoption of our present constitution, I apprehend it was never supposed, nor would it for a moment have been contended, that any person who was not an attorney at law was eligible to the office of prosecuting attorney. Indeed, I am not aware that it was ever the subject of doubt, and this uniform understanding of the public, and the uniform practice of the government corresponding with such public understanding, is and should be held of equal force and obligation with judicial or legislative construction. By the constitution of 1835, art. 7, § 3, it was provided that-there should be an attorney general for the State, and a prosecuting attorney for each of the respective counties, who should be appointed by the governor by and with the advice of the Senate, and whose powers and duties should be prescribed by law. No instance occurred, to my knowledge, in which, under that constitution, any person was ever appoint-ed to either of these offices who was not an attorney at law, and it would have been held an abuse of his office had any Governor attempted any such thing. ■ In addition to such popular, and it may be added, executive understanding, we have that of the Legislature also, as to the import of these words. By the Revised Statutes of 1846, chap/14, §§ 53,60, • the duties of this officer are prescribed; and among other things he is required to appear and prosecute causes, whether civil or criminal, in which the State or county is a party, in all the courts of his county, and he is made the legal adviser of the county officers. By the same statute, chap. 95, §§ 26, 27, it is enacted that no person shall practice as an attorney, &c., -unless licensed; and the same laws substantially existed at the time of the adoption of that constitution,-and the re
Have the people, by the new constitution, attached any different signification to these words, or taken this officer out •from under the operation of chap. 95, § 26, of the Revised Statutes? "We think not. The power to confer this office was always primarily in them. By the old constitution they delegated it to the Governor and Senate; by the new,
But we are not without further legislative aid in solving this question. By sec. 13 of the schedule to the new constitution, it was made the duty of the Legislature, at their first session after its adoption, to adapt the existing laws to its provisions, as far as might be. In the discharge of that duty, the Legislature of 1851 did not repeal § 60 of chap. 14, and § 11 of chap. 15, of the Revised Statutes, and we' may therefore presume they did not deem their provisions inconsistent with the constitution./ By those of chap. 14, court's are now, as they were before, required to appoint some other attorney at lano to discharge the duties of the office of prosecuting attorney for the time being, where the necessity for such appointment shall arise. Now it would naturally be supposed that this pow’er of appointment, so far as eligibility of persons was involved, would be as broad as the power of election, and that if the Legislature supposed the one to havé been enlarged, it would have enlarged the other also — ór would at least have stricken out from the statute the word
The Legislature of 1851 discharged this duty by an amendment of the Eevised Statutes, providing for the election of one circuit court commissioner, and retained the section prohibiting the election of any one but an attorney and counselor at law to the office. (Sess. L. 1851, p. 209.) Now if the. power to elect a prosecuting attorney is construed to do away with all previously required qualifications, and open the office to general competition, why should not the power to elect “ one or more persons ” have the like effect in this latter case ? The truth is, that if the Court may be regarded as imposing disabilities or annexing qualifications, by holding in this case that the disabilities existing and qualifications required before the adoption of the new constitution were retained by it, much more may the Legislature be obnoxious to the same charge, in the provision concerning circuit court commissioners. Yet no one will contend that the framers of the constitution could for a moment have lost sight of existing laws relative to the latter officer, or contemplated an abrogation of the qualifications then required by •existing laws, and so necessary to the execution of his duties.
In both cases they considered' and acted upon the office as they found it, and intended to do nothing more than to make it •elective. "When the nature and extent of the duties conferred
We concede, to the fullest extent, that it is not in the power of the judiciary, or even the Legislature, to establish arbitrary exclusions from office, or annex qualifications thereto, when the constitution has not established such exclusions nor annexed such qualifications. But it is begging the question to assume that the act of construing the constitution has this effect. Now. the framers of a constitution are presumed to have a knowledge of existing laws, and of their construction and the mode of their administration, and to act in reference to that knowledge as much as legislators are, and in this light we construe both constitutional and statutory law. The question we are required to solve is, what was the intention of the people in reclaiming by the constitution' the-power which had been delegated, and if we find that it was. before delegated to be exercised in a particular manner, orín view of any especial qualifications required to be possessed by the beneficiary, and especially if there had been a universal popular, as well as legislative construction, as old as the government, of - the manner of, and the limitation to the exercise of such power, are we establishing arbitrary exclusions from this office, or annexing any qualifications thereto,, by holding that the power was resumed to be exercised in the-same manner it always had been, and. subject to the same
But it is urged that if the license to practice as an attorney- and counselor at law is a qualification of eligibility to the-office of prosecuting attorney, it -must necessarily he a continuing qualification, and it is said “ the power which makes, an attorney at law can unmake him. The courts can degrade a man from the profession — throw him over the bar — - and we are asked, when the lawyer goes over, does the prosecuting attorney go" over too ?” A fair answer to this question and proposition is, how has it been heretofore ? The, construction of the constitution to which we have arrived, i can by no possibility change existing laws or established practice in. this respect, while a contrary one might, and almost necessarily would have such an effect.
But it is not true that the courts make and unmake attorneys. It is the lavf which does this, and courts are in this, as in any other respect, the administrators of that law.
"We have not been unmindful of the delicacy of this question, nor regardless of the rights of the people to exercise-the electoral right untrammelled by any conditions or restric-. tions, except such as are self-imposed. But such conditions^ and restrictions, when established, are to be enforced, as welb; as the right itself. That there were such self-imposed in the-instance before us, we cannot doubt, and were it a balanced question, we should not hesitate to solve it .in such manner-as to protect the public interests, and especially to preserve the criminal jurisprudence of the State from possible utter-prostration.
