78 N.Y. 403 | NY | 1879
It was suggested on the argument that an early decision of this case is desirable, to enable the electors of Niagara county to fill the office of county judge at the ensuing election, if the decision should be adverse to the defendant. We have therefore given the case as full an examination and consideration since the argument, as the limited time intervening would permit.
LEVI F. BOWEN was elected county judge in November, 1873, and entered upon the duties of his office January 1, 1874. He arrived at seventy years of age in November, 1878. The defendant was elected county judge at the general election of 1878, and entered upon his duties January 1, 1879. The question is whether theterm of Judge BOWEN expired on the last day of December, 1878, by reason of his having before that arrived at the age of seventy, or whether that circumstance created a vacancy, to be filled in the way provided by law.
If his term expired the election of the defendant in the fall of 1878 is conceded to have been regular; if not, it was unauthorized.
Article 6, section 15, of the constitution provides: "The existing county courts are continued, and the judges thereof in office at the adoption of this article, shall hold their offices *405 until the expiration of their respective terms. Their successors shall be chosen by the electors of the counties, for the term of six years."
Article 6, section 13, provides: "But no person shall hold the office of judge or justice of any court, longer than until and including the last day of December next after he shall be seventy years of age." It has been held that this provision applies to county judges (People v. Gardner,
These expositions are entitled to great weight, as they evince the sense in which the language was understood at the time. It is not unlikely that the Legislature was composed of some of the same persons who composed the constitutional convention. At all events the discussions in and out of the convention were then fresh, and the Legislature would naturally be governed by considerations similar to those which actuated members of the convention. This construction is in harmony with the views expressed in the convention. The disability of age was considered when the question of the extent of the term was under consideration, and in fixing long terms for judicial officers, it was deemed wise, instead of prohibiting the election of those who were too old to serve the full period, to limit the term in such cases to the length of time they could serve. The weight to be given to contemporaneous construction is well expressed by MARCY, J., in People v. Green (2 Wend., 274). He says: "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 propounded."
The same doctrine has been frequently reiterated. (Coutant v.People, 11 Wend., 513; People ex rel. Williams v. Dayton,
This precise point has not been before this court, but inPeople v. Gardner (supra), FOLGER, J., in delivering the opinion of this court said: "It is palpable that the intention of the convention was to place this limit of age upon the comparatively very extended term which they adopted, and to guard against the possible evil which the lengthened term had alone suggested as possible." This construction was also adopted by the secretary of State, in giving notice of an election in 1878, and acquiesced in by the relator as well as the defendant in taking an active part in the election as a candidate. With this weight of authority legislative and *407 judicial, we should not feel justified in giving the clause a different construction, unless it clearly appeared to be erroneous. It may be true that there was not the same reason for applying this limitation to the term of a county judge who could hold only six years, as to judges of the Supreme Court, and Court of Appeals, whose term is fourteen years, but as the language of the constitution clearly includes them, the same construction must be applied to them.
It is unnecessary to inquire why county judges were excepted from the ninth section of the act of 1870, as the only effect of it is to leave them to be chosen according to previous laws which provide for their election at the general election previous to the expiration of their term, and the question comes back when that occurs. A term of office is a fixed period prescribed for holding the office. The causes which create a vacancy to be filled by appointment are uncertain, unknown, and contingent, but the term is made certain by specification. The limitation of age is as certain as the specification of the number of years, and the Legislature has provided record evidence of the fact for the purpose of making the period known. In the case of Judge BOWEN it was as certain and as well known that he was elected for a term of five years, as if that period had been specified in the constitution, and to distinguish it from a cause which creates a vacancy, he was permitted to hold until the commencement of the political year after the disability occurred, presumably for the purpose of enabling the electors to fill the office at the previous general election in the same manner as if the full term had expired. Criticism has been made upon the different expressions used in the clauses of the constitution. One is that county judges shall be chosen "for the term of six years," and the other that no person shall hold the office longer than he attains the age of seventy. But the language has the same legal meaning. They both prescribe the period of holding the office. Collating the two clauses the substance is that a county judge shall hold his office for six *408 years unless before that period expires he attains the age of seventy, in which case he shall hold the office only until the last day of December succeeding the time when he arrives at that age. Both clauses relate to the term of office, and apply equally to all persons, but the term may be shorter for some than others, depending upon a known and certain event. To this extent it is personal, but it is not personal in the sense that an officer may vacate his office upon the happening of those unknown and uncertain events which constitute vacancies in office.
The authorities cited in behalf of the appellant are not applicable. The constitution might have been more explicit, but for the reasons thus briefly expressed, we are of opinion that the election of the defendant was valid, and it follows that the judgment must be affirmed.
All concur.
Judgment affirmed.
