13 Conn. 119 | Conn. | 1839
The questions arising upon the facts in this case, were presented to this court, not so much on account of any doubts in the mind of the Judge before whom the writ was returnable, as because it was requested by the counsel for the prisoner, and because of the importance of the result; as in one event, it might affect the service of process almost throughout the state, and leave most of the counties destitute of any executive county office^
The questions we propose to consider, are, whether the act of May, 1838, was constitutional, and the elections under it valid ? For, with the views we have taken of that act, it will become unnecessary to consider what effect the act of May
The objections are, that the legislature could not remove the sheriffs then in office, in the manner they attempted to do, and so there was no vacancy to be filled ; and if they could, that the legislature of 1838 could not prescribe the manner of filling it. As the last objection, if well founded, would make it unnecessary to consider the other, this will first be considered.
The objection is, that as the amendment giving the election of sheriffs to the people, also directs, that such election shall be made, in such manner as shall be prescribed by law, the Assembly must derive their power from this amendment; and as the act of May, 1838, was prior to the final adoption of the amendment by the people, it was prior to the existence of power in the Assembly, and so the act was void: in other words, that the amendment was a grant of power to the Iegis-
Is there, then, in the amendment itself, any thing limiting or restraining the power, which the legislature otherwise possesses upon this subject ? The election is to be conducted in such manner as shall be prescribed by law. It is claimed, that these words must be so construed as to limit this power to some legislature to be convened after this amendment is consummated : in other words, that the phraseology of this amendment is such as to take from the legislature the power they before possessed upon this subject, and confine it to some future legislature. It would seem, that if those who proposed such an amendment intended thereby to take from the legislature an existing power, they would have used language somewhat more explicit; more especially, when no possible object can be discerned for such a limitation.
But when we find, that similar language had been inserted in an amendment very recently adopted, to which a practical construction had been given, it would greatly strengthen this view of the case. In May, 1835, the house of representatives proposed an amendment that the electors might vote for Governor and other state officers successively, (as they must, by the constitution of 1818,) or for any number at one time; and the General Assembly shall have power to enact laws regulating and prescribing the power of voting. In May following, the General Assembly, by the constitutional majority, sanctioned this amendment, and submitted it to the people; and at the same session, that legislature passed a law to go into effect, if this amendment was adopted, regulating the manner of voting,
In addition to this, taking into view another fact, that the Assembly, who, by an immense majority, ratified this amendment, and submitted it to the people, was the same body who also passed the law in question; and that with all these facts before them, this amendment was adopted by the people ; there cannot remain a particle of doubt as to the intent.
The inquiry then remains, whether the words used are such as to counteract this intent ? Sheriffs shall be appointed by the people, “ in the manner which ¿shall be -prescribed by law\ not in the manner which a future legislature, of even any legislature shall prescribe; but in a manner which shall be prescribed by law. Now, when wfe consider, that a constitution generally only settles principles, and leaves the details to be settled by ordinary legislation, we could hardly expect, that in such an amendment any particular legislature should be pointed out to whom the details were to be committed, or that the great object was to be defeated, by minute criticism upon words. The great principle is clearly settled. The people are to elect the officer. The manner is left for ordinary legislation ; and whether the words used are, in the manner which shall be prescribed by law, or in the manner which the law shall prescribe, or in the manner prescribed by law, it seems to us it means substantially the same thing.
The constitution of the United States provides, that the times, places and manner of choosing senators and representatives shall be prescribed by the legislatures of the several states. Now, suppose after the adoption of the constitution, by this state, and before nine states had adopted it, the legislature had passed an act providing for the times, places and manner of choosing such officers, could it have been seriously contended, that an election holden under such act would be void?
So too, when the amendment of the constitution of the United States relative to the choice of president, was pending, and also an election of president, Congress passed an act, providing, that whenever that amendment should be adopted, the secretary of state should give notice to the executive of every state, who should notify the electors of his state; and these electors were to vote, in the mode thereby prescribed. But as this ratification might not be known in season to all the electors, it was also provided, that in such cases, the electors might vote in conformity to the original constitution, and also in conformity to the amendment; and when the votes were counted, those certificates only should be opened, which contained the votes given in conformity to the constitution, as it was in force ou the day fixed by law, at the time of the meeting of the electors. Act of March 26th, 1804.
Another objection to this act, was, that when the votes were given for sheriff, or we^£|directed to be given, the office of sheriff was not vacant. If by this it is intended there must be an actual vacancy existing, before an election can be had for the office, it is opposed to the course of practice in our country, and is almost inconsistent with the continued organization of our government. Most of our state officers, legislative, executive and judicial, have been appointed with reference to a vacancy soon to happen. So too have been our senators
It is said, that the removal of a public officer is an executive act; and that the executive could not remove in anticipation of his successor; and therefore, the Assembly of 1838 could not remove, to take effect in June, 1839. The boundaries between executive and legislative powers are frequently very nice and indistinct. The late Ch. J. Marshall says: “ The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law. But the maker of the law may commit something to the other departments; and the precise boundary of this power is a subject of delicate and difficult enquiry, into which a court will not enter unnecessarily.” Wayman v. Southard, 10 Wheat. 46.
It is said further, that as sheriffs are to hold their offices for three years, the legislature cannot pass a general law abridging their term of office. It is certainly true, that as the constitution declares, that sheriffs shall hold their offices for three years, the legislature cannot, by a general law, limit the term of office of sheriffs to a less time. But is the law in question of that character? The same instrument, which says, that sheriffs shall hold their offices for three years, also declares, that they shall be removable by the General Assembly. The tenure of their office, then, is three years, unless sooner removed by the General Assembly. In this case, the legislature, in pursuance of the power thus reserved to them, declared, that these sheriffs, holding their offices by the election of the legislature, should continue to hold them for what they deemed a reasonable time after the alteration in the constitution for a new election had elapsed; and that after the 1st of June, 1839, they should hold them no longer. Is not this a removal to take effect at that time? The objections are, that it is too general, and is like a law to abridge the term of office; and is to operate only at a future time.
■It is to be remarked, that it is not a law regulating the term of future sheriffs. It acts only upon those who were then in
Upon informations at common law, filed against two or more, the court may exercise a discretion, whether all shall be tried at the same time, or whether separate trials shall be allowed. Here, removals may be made, at the discretion of the legislature ; and can this court say, that because in the excise of that discretion, two or more were ejected, by one act, any constitutional provision is violated ? That each case had received the consideration to which it was entitled, the court is to presume, unless one common reason existed equally applicable to all. But were it otherwise, the Assembly having the j power of removal at their discretion, this court could not en-j quire whether that discretion had been exercised upon properf consideration. Should the president, of the United States,\ by one instrument, under his hand, signify his pleasure to remove the collector and the surveyor of a particular port, would that circumstance have any effect upon his act ? Could it be doubted, that they were effectually removed ? The reasons ; which operated might be very different, in the two cases ; hut-as the constitution had given the power, and had not prescribed the mode, it must be presumed, that those officers who could j be entrusted with the power, might safely be entrusted with the \ manner of removal.
Another objection was, that the removal was not legal, because the act was to operate at a future time. We believe nothing is more common, where a removal from office is made, in cases other than those founded upon misconduct, that it should be prospective. It is matter of convenience to the incumbent and to his successor. When in May, 1835, the commissions of all the notaries public were revoked, the time was fixed to the 20th of June then following. And in the case of the removal of the sheriff of Litchfield county, some
We, therefore, advise, that the prisoner should not be discharged.
The other Judges were of the same opinion.
Judgment for defendant,