10 Cal. 38 | Cal. | 1858
Lead Opinion
Terry, C. J., concurring.
The defendant was duly elected Comptroller at the election of 1855; and, within the time required by law, qualified and entered upon his office, which he has continued to hold ever since. At the election of 1857, the defendant and J. W. Mandeville were candidates for the office—the latter receiving the highest number of votes. On the 16th day of August, 1857, Mandeville received from the President of the United States a commission of Surveyor-General of California, took the oath of office on the 6th of September, entered upon his office on the 9th, and notified the proper department at Washington of his acceptance of the commission on the 15th. The election took place on the 3d of September; and Mandeville never qualified or claimed the office of Comptroller. On the 28th of April, 1858, the Governor, regarding the office as vacant, appointed the relator, and the appointment was confirmed by the Senate. The relator, having properly qualified, demanded possession of the office, which demand being refused, he brings this suit.
The only question presented for determination is, whether there was a vacancy in the office at the time of the appointment of the relator. And this question involves the consideration of two points:
1. Was Mandeville disqualified at the time he received the highest number of votes for the office ?
2. Conceding-that Mandeville was eligible, is the defendant entitled to hold the office until his successor is elected and qualified?
In considering the first point, it must he conceded that the office of Surveyor-General is a “lucrative office,” and the office of Comptroller an “office of profit,” under the twenty-first section of the fourth article of the Constitution of this State. It must also be conceded, that if Mandeville held the federal office at the date of the general election in 1857, he was ineligible to the State office. But to constitute the “holding” of an office within the meaning of the Constitution, there must be the concurrence of two wills—that of the appointing power and that of the
The decision of the Supreme Court of the United States in the case of Marbury v. Madison, (1 Cranch, 137,) is not opposed to this view. In that case, it was held that the power of the Executive over an officer not removable at will, ceased the moment the power of appointment had been exercised; and that the power was exercised when the last act of the President had been performed by annexing his signature to the commission.
If these views be correct, Mandeville was eligible, and was duly elected Comptroller; and, as a matter of course, the defendant was not re-elected to the office, and can not claim to hold it on that ground.
We come now to the consideration of the second point. By the second section of the fifth article of the Constitution of this State, it is provided that “the Governor shall he elected by the qualified electors, at the time and places of voting for Members of Assembly, and shall hold his office two years from the time of his installation, and until his successor shall be qualified.”
This language is exceedingly plain and explicit. The Governor holds his office for two years, and also holds Ms office until his successor is qualified. The term of the office is fixed at two years, certain, with a contingent extension. When this contingency happens, this extension is as much a part of the entire term as any portion of the two years. The language of the Constitution is just as clear and express that the Governor shall hold his office until his successor is qualified, as it is that he shall hold it two years from the time of his installation. These two provisions are both contained in the same sentence, closely connected by the copulative conjunction; and both relate to the term for which this officer shall hold his office. (Com. v. Hanley, 9 Barr, 513.)
But the provisions of the sixteenth and seventeenth sections
The Constitution itself clearly defines the sense of the phrase “vacancy of the office of Governor,” as used in the sixteenth section, by specifically enumerating, in the succeeding section, the instances which devolve the duties of the Executive upon the Lieutenant-Governor. It will be seen that all the instances mentioned are such as can only occur after the term of the Governor has commenced to run. It is only after the installation of the particular incumbent that any one of these contingencies can happen. And the very same contingencies which devolve the duties of Governor upon the Lieutenant-Governor, will devolve them upon the President of the Senate in proper cases. When the Constitution clearly enumerates the events that shall constitute a vacancy in a particular office, we must suppose all other causes of vacancy excluded; especially when this construction can lead to no injurious consequences. Even when a statute assumes to point out certain exceptions to a general rule of its own, a Court can not say that other exceptions were intended, though not mentioned. (Lee v. Evans, 8 Cal. Rep., 431.)
This construction makes the different provisions of the Constitution consistent and harmonious, and renders it most improbable that the office of Governor should ever be without an incumbent. If the Governor elect should fail to qualify, from any cause, the Governor would hold over until his successor be elected and qualified. So of the Lieutenant-Governor, as his term of office is the same. (Article 5, section 16.) And by the provisions of section eighteen, of the same article, the manner of electing a Comptroller, and the term of his office, are the same as are prescribed for the Governor and Lieutenant-Governor. If the Comptroller elect fail to qualify, from any cause, the Comptroller holds over until his successor is elected and qualified. If the failure of the Governor elect to qualify creates no vacancy in the office, but a mere extension of the term of the particular incumbent, neither does such a failure on the part of the Comptroller elect create a vacancy in that office.
But the construction we have given the Constitution is not only supported by the language of the instrument, but by its general scope and spirit. The executive officers are elected by the people, and under an elective system it is more proper that
It is contended that if the defendant can hold over until the election and qualification of his successor, that then he must hold for another full term. But is this true ? The Constitution provides that the executive officers, except the Secretary of State, shall be elected at the time and places of voting for members of Assembly. It is true that the “Act concerning Officers” (Wood’s Digest, 557, sections 2 and 5,) provides that these officers shall be chosen at the general election of 1851, and every second year thereafter. But this provision can not change the Constitution, by annexing restrictions to that instrument which impair the right of the qualified electors of the State to choose their own officers. These officers hold for two years from the time of their installation in office, and until their successors are qualified. There is no fixed day upon which the term must commence and end. The event upon which this depends is contingent, and may happen at a later period in each year. The term must run two years, and may begin later in the year, at the commencement of each new term. (The People v. Langdon, 8 Cal. Rep., 1.) The case is different with respect to District and Supreme Judges. They hold their offices from a day certain, and for a fixed period, and not until their successors are qualified. (Article VI, sections 3 and 5.)
Our conclusion is, that the defendant is entitled to hold the office until his successor is elected and qualified, and that this successor may be elected at the general election of the present year, and when qualified will hold his office for the term of two years, and until his successor be qualified.
Judgment reversed, and the case of the relator dismissed.
Dissenting Opinion
The question presented for determination is this: was there a vacancy in the office of Comptroller at the time of the appointment of the relator ?—and this involves the inquiry as to the effect of the commission received by Mandeville.
The twenty-first section of the fourth article of the Constitution provides that “no person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under the State.” To the office of Comp
As we hold that Mandeville was eligible, we refrain from the expression of any opinion whether, if he were ineligible, the votes given for him should be thrown out as so many blanks, and Whitman declared elected, as contended by counsel. Much argument may be had against the propriety of a rule which would, in a popular government, give an office to a person who was clearly not the choice of the people, as shown by the election. (See State of Wisconsin v. Giles, 1 Chandler, 117; opinion of the Judges of the Supreme Court of Maine, in answer to the questions propounded by the Governor, 38 Maine Rep., 597.)
The question then recurs, was there a vacancy in the office at the time of the relator’s appointment ? Mandeville, by his election, had a right to the office, but he never qualified or claimed it. He accepted the appointment under the federal government, and continued in office under that appointment until after the expiration of the period within which he was required to qualify
But it is urged, by the distinguished counsel of the defendant, that there could be no vacancy, because Whitman was the legal incumbent of the office at the time of the relator’s appointment, and the opinion of the late Chief Justice, in People v. Wells, (2 Cal., 204,) that a vacancy can only be said to exist when the office has no legal incumbent to discharge its duties, is cited as conclusive of the position. The existence of an incumbent and a vacancy in the same office, at the same time, is only impossible when the office is of the same term. There is one office, but there are different terms in which it is to be held. It may be filled for one term, and vacant for the succeeding term. It is the evident intention of the Constitution that certain State offices shall be filled by periodical elections by the people, recurring at stated intervals, but in case they remain unfilled from any cause, that temporary appointments shall be made by the Governor, which shall expire at the first subsequent general election, when the earliest action of the people on the subject can be invoked. The Constitution limits the term of the office of the Comptroller to two years, but that there may be no interregnum between the expiration of his term and the entry of his successor, it also provides that he shall hold until his successor is qualified. That successor is to be designated in one of two ways : in the first instance, the designation is to be made by the people, but if that fails to fill the office, then the designation is to be made by the Governor. There is no difference between a vacancy occasioned by the failure of the person elected to qualify, and a vacancy occasioned by his resignation immediately after qualifying, if any other view could be sustained, it would follow that Whitman would hold for the entire term for which Mandeville was elected, and though acknowledged to be an able and efficient officer, the construction, once adopted, would in other cases lead to the most deplorable results. For many of the most responsible and important offices in the State there can be no election, except to fill a vacancy, or for a full term, and if a vacancy can not exist by a -.failure of a person to qualify, whether such failure arise from death, acceptance of an appoint
Whitman was the legal incumbent only of the office of his own term, which was prolonged that no interregnum might exist by reason of the vacancy in the office for the term for which Mandeville was elected. That vacancy ceased by the appointment and qualification of the relator, who thereupon became entitled to take possession and enter upon the duties of Comptroller.
The above was written some weeks since, and handed to my associates, who have arrived at a different conclusion. After a careful perusal of their opinion, I do not perceive any reason for changing the views I had previously expressed. The construction adopted by my associates appears to me to be in conflict with the former decisions of this Court, the spirit of the Constitution, and the statutes of the State. (People v. Mott, 3 Cal., 502 ; People v. Reid, 6 Cal., 288, Act concerning Offices, § 30.)