19 Am. Dec. 722 | Va. | 1829
This case presents the question, Whether a contract is legal, by which a sheriff contracts, that another shall exercise the duties of his office, and have all the fees, privileges and emoluments of it, and, in consideration thereof, shall pay to the sheriff a gross sum, unconnected in any manner with the fees of the office? This question depends on our statute, which prohibits the. sale of any office, or deputation of office, Sic. touching the administration or execution of justice, or the receipt or payment of the public revenue, or any clerkship in a court of record; subjects the persons offending to penalties and disabilities; and pronounces all such bargains and sales, bonds, covenants, &c. utterly void, &c. provided, that nothing in the act shall be so construed as to prohibit the appointment, qualification and acting of any deputy clerk or deputy sheriff, who shall be employed to assist their principals in the execution of their respective offices. 1 Rev. Code, ch. 145. p. 559. This act is taken from 5 and 6 Ed. 6. c. 16. with some difference as to the eotent of the law, and also with the exception, that the english statute has no such proviso as ours.
That the enacting part of this law extends to the office of sheriff, is most dear, both from its words and the excep
To this reasoning, I cannot assent. There seem to me several insurmountable objections to it. In the construction of statutes we are told from high authority, that “ when the words are doubtful and uncertain, it is proper to inquire what was the intent of the legislature; but where they have expressed themselves in plain and clear words, it is very dangerous for judges to launch out too far in searching into their intent.” In the. enacting clause, the statute prohibits, in the strongest and clearest terms, the sale of certain offices, and deputations of offices; among these, the office of clerk is expressly named, and that of sheriff so described, that the law embraces it just as clearly as if it had been named. The proviso says, that nothing in the act shall prohibit the appointment, qualification and acting of any deputy clerk or deputy sheriff How can we understand the appointment, qualification and acting of deputy clerics and sheriffs, to mean the sale of the deputation of these offices ? does appointment mean sale? can there be no appointment but by a sale ? When the law uses words of known and settled meaning, we must give them that meaning. The word appointment is one of frequent use and determinate
This construction not only violates the plain language of the law, hut the nature of a proviso also; the office of which is not to repeal the enacting clause, but to modify it. The legislature is not to be supposed to intend to contradict, in the latter clause of a law, what they had enacted in a former ; but to limit and explain the general words of the enactment. And this explanation is often out of abundant caution, excepting from the operation of the law, expressly, cases which by fair construction would not have come within its range. But here you make the law say, “ no sherifi or clerk shall sell the deputation of his office; provided, nevertheless, that nothing in this act shall be so construed as to prohibit a sheriff or clerk, from selling the deputation of his office. If the legislature had used these words, the courts could not, have helped it: but is it right to make them speak thus, by a construction which violates the palpable meaning of the words it has used ? and this, on the ground solely, that the proviso, will be inefficient, unless you give it this extent?
But if we must look for the intent of the legislature, what was the general object of this law? .It is entitled, “an act against the buying and selling of offices.” The preamble to the english statute, from which ours is taken, states the objects to be, to avoid corruption he. and to the intent, that persons worthy and meet to be advanced to the place where justice is to be administered, or any service of trust executed.
It was also contended, that the history of sheriffs, traced from the earliest annals of the state, adds strength to the opinion, that the proviso intended to legalize a sale of the deputation of the office; by shewing, that this office was intended to pass in rotation through the magistracy of the counties, as a reward for their various services; which would be frustrated, unless they could farm their offices out, as it was well known, that both from their age, when the office usually came to them, and from their personal unfitness in many cases, they could neither execute the office themselves, nor superintend its execution. And for these positions, the laws of the colonial government and of the state, and the practice under them, were referred to.
Let us first look to the laws. I deny that, by them, the office was either directed to pass in rotation, except for a short time, or given as a reward. There is in 1 Hen. Stat. at large, p. 224. an extract, taken from a manuscript book, stating, that in 1634, the country was divided into eight shires, &c. And it is added, “ And, as in England, sheriffs shall be elected to have the same power as there.” This is the first notice of sheriffs in our laws. In the same volume, p. 392. (anno 1655) it is enacted, “that the commissioners (justices) of every county, shall recommend three or more to the governor and council, who shall elect such sheriffs, out of those so recommended, as they &c. shall think most meet and fit for the place.” The first act I can find, confining the office of sheriff to justices (then called commissioners) is in 1660-1, 2 Hen. Stat. at large, p. 21.
It was also contended, that though the sale of the sheriff’s office be not permitted by law, yet it has been the general idea, that it was so, and the universal practice to farm it out; and that this common error makes it lawful. I cannot assent to this position. The sale of the deputation of this office is expressly forbidden by the statute, unless the proviso excepts it. I have shewn it does not. Here, then, we have the statute law prohibiting the sale under a severe penalty, and declaring the bond given as the price of it void: and we have the law of common error, holding the sale and the bond good. Which shall we follow? We cannot servo two masters. To me it seems, that we can know no law but that derived from the law-making power; and that, in opposition to such laws, error, however common, however hoary, can impose on us no obligation. We ought, in such cases, to examine the law thoroughly, and see clearly, that the common opinion is erroneous, before we decide : but, having done this, and finding that we must either violate the law or correct the error, I cannot conceive how we should hesitate in our course. And this, I think, has been the opinion of this court. No error could be more prevalent, than that one bond would answer for the two years of the sheriff’s office; but this court did not, therefore, shrink from correcting it. It was equally the general opinion, that you might fine a sheriff, toiies quoties, for failing to return an execution; and this was the constant practico: the question, however, at length came before this court, and the error was corrected.' It was said, in the argument of the case of Werrdck and MdMnrdo. also, that the opinion and
It was also said, that if we decide, that a deputation of the office of sheriff for a sum in gross, is a sale, it will have no other effect than to add four words to the bargain, and make the price payable out of the profits. What consequences may follow our decision, is not, as I conceive, the exact question before us. That question is, whether by such deputation for a gross sum, the law is violated which forbids a sale ? If it be, we must say so, though the heavens should fall. That such deputation is a sale, was admitted as settled law; and the cases proving it are too numerous to cite. The law, then, pronounces the contract void, and all bonds given under it. If this law may be easily evaded, that can be no reason for our refusing to execute it, though a proper ground for amendment by the legislature.
Upon the whole, I think both bonds, that of the deputy and of the sub-deputy void; and that the motion being on them, cannot be sustained; and, therefore, that the judgment of the court below should be reversed.
This case presents the question, Whether the respective contracts between M’Kinney and Gillingwaters, and the latter and Sailing, were void under our statute prohibiting the buying and selling of offices ?
That statute relates to all such offices, or the deputations of them, or of any part of them, as in any wise touch or concern the administration of the executive government, or the administration or execution of justice, or the receipt or payment of the public revenue, or any clerkship in a court of record ; and prohibits all persons to bargain or sell the same, or to receive or take any thing directly or indi
This statute was taken literally from that of the 5 and 6 Ed. 6. c. 16. with the exception of the proviso in our act in respect to deputy clerks and sheriffs, and of offices touching the administration of the executive government, which are not in the english statute, and of many offices embraced in that which are not touched by our act, none such existing here. The settled construction of the english statute, is, that whenever the agreement is that the deputy shall do all the duties, and receive all the emoluments, of an office, the profits of which are uncertain, and depending upon fees, and shall in consideration thereof pay, or agree to pay, a gross sum to the principal, it is a sale prohibited by the statute.
There can be no doubt but that the enacting part of the Statute extends to the office of sheriff, which emphatically touches and concerns the execution of justice, and the receipt and payment of the public revenue. The only question is, Whether the deputation of that office is wholly excepted out of the enacting clauses by the proviso ?
The literal terms of the proviso import, that only the case of a deputy employed to assist the principal in the execution of his office, and not one employed to do the whole of its duties, is intended to be excepted from the operation of the enacting clauses. Yet, if the proviso was expunged from the act, the employment of a deputy to do the whole of the duties, would not be prohibited. And it is contrary to the nature of a proviso to enlarge the operation of the enacting clauses! To employ a deputy to do the whole business of the office, paying him a fixed sum, or giving him all its emoluments (except a given sum to be paid by him out of them), as a compensation for his services, would, therefore, be the employment of a deputy to assist his principal, within the meaning of the promo. But there was no occasion for any proviso, to except such a case from the enacting clauses, since without the proviso, the case would not fall within the prohibitions of the statute. The only case in which a deputation of the office could come within the enacting clause, is that where the deputy paid or agreed to pay for it, a gross sum, at all events, and independently of the amount of the fees : and if the proviso does not except such a case, it has no effect whatever. For, in that case, the statute would, in respect to the deputation of the office of sheriff, read in effect thus: No sheriff shall sell the deputation of his office, provided, however, that this shall not be
It was argued, that the offices of clerk and sheriff, and deputations of them, being embraced within the enacting clause, especially that of the former, which is mentioned by name, a construction which would exempt the deputations of them from the operation of the statute, would give to the proviso, not the effect of modifying the general provisions of the enacting clause, but of taking from its operation intirely, one of the cases at least which was embraced by it in express terms, that of the office of clerk of a court of record. A particular attention to the frame of the act, which follows literally that of the english statute, in which there is a proviso excepting.certain offices, will shew, that such would not be the effect of that construction. It begins with prohibiting the sale of any office or offices, or the deputation of any office or offices, or any part or parcel of any of them, or the receiving money &c. for any office or offices, or the deputation of any office or offices, or of any part or parcel of any. of them, or for a vote in appointing to any office or offices, or the deputation of any office or offices, or any part or parcel of them; and then describes the offices, as being those only which shall in any wise touch &c. The general object of the act being to prohibit the sale not only of offices of a particular description, but the deputation thereof, or of any part thereof, with only two exceptions, not of the offices, but of their deputations only, the most simple method was to announce, in the first instance, a general prohibition.
These considerations would incline me strongly to the opinion, if we were not to look beyond the terms of the statute itself, that the sale of the deputation of the offices of clerk and sheriff, was not embraced by the statute. Other circumstances lead to the same conclusion.
One of these is to be found in the history of the office of sheriff in Virginia. Until 1655, sheriffs were elected. An act was then passed, directing that the justices of the peace in each county (then called commissioners), should nominate three or more, out of which the governor and council should commission one as sheriff. In 1660, it was enacted, that the office should be conferred upon the commissioners in succession. And so the case remained until 1705; when it was enacted, that no person but a justice of the peace should be appointed sheriff, and that the county courts should annually nominate three justices, one of whom should be commissioned, and that a sheriff might be continued for two years and no longer, the former laws, from 1657 downwards, having prohibited any sheriff, or under-sheriff, to serve for more than one year. In 1710, a heavy penalty was imposed upon any one, who was commissioned, and refused to act. This penalty was, from time to time, gradually moderated and finally dropped at the revisal of 1792.
Although the laws subsequent to 1705, imposed upon the county court and executive, no obligation to nominate and
Another circumstance entitled to some weight, is, that the statutes of 4 Hen. 4. c. 5. and 26 Hen. 6. c. 10. which expressly prohibited a sheriff to farm (that is to sell the deputation of his office), were in force here, when the legislature were engaged in the business of re-enacting such of the british statutes, as it was thought fit to adopt into our
If, however, these circumstances are not sufficient to justify the conclusion, that, upon the literal construction of the statute the sale of the deputation of the office of sheriff, is excepted from its provisions; still the construction is so doubtful, and the practice in question has so long prevailed, and is so extensive, and the consequences of holding it illegal so extensively ruinous, that if there be any case, to which the maxim communis error facit jus can apply, this is surely one. That maxim has been held in England to sanction practices even expressly against the statutes: Clay v. Sudgrave, 1 Salk. 33. Walton v. Spark, Comb. 321. Herbert v. Binion, Roll. Rep. 223. East Ind. Company v. Skinner, Comb. 342.
If this practice were held to be illegal, and the original contract of deputation held to be void, all collateral contracts of indemnity, or otherwise founded on it, as their consideration, would also be void, and the parties subjected to the high penalties imposed by the law; and, in both respects, very great numbers of persons would be involved: while such a decision would have no effect whatever in preventing the future mischief, which might arise from the practice; since it would only serve to admonish the parties of the necessity of adding to the terms of their contracts, four words
Upon the whole, I think the contract between M’Kinney and Gillingwaters was valid; and that between the latter and Sailing, whether valid or void, can in no way affect M’Kinney, since he was not privy to it. All that we can infer from the facts in the record, is, that M’Kinney having sold the deputation of his whole office to Gillingwaters, the latter substituted Sailing to a part of it, and M’Kinney at his instance admitted the latter as his deputy; he giving surety to M’Kinney, to indemnify him against any loss arising from his acts as deputy, and not to Gillingwaters to indemnify him. Sailing was therefore bound to see that the revenue collected by him was paid into the treasury, so as to indemnify the high sheriff, and paid it over to Gillingwaters at his own peril. The judgment should be affirmed.
Coalter, J. and Cabell, J. concurred.
I do not think it of any importance, to inquire into the history of the shrievalty in Virginia, or to ascertain from it, when and whether it was a valuable office, or in what degree it was intended as compensation to the magistrates of the counties; as very little if any light is to be borrowed from those topics, to illustrate the construction of our statute against buying and selling offices, passed in 1792, and which (with the exception of the 4th section) is a copy of the 5 and 6 Ed. 6. then in force here. That it was the practice to sell the deputation of the office of sheriff, either for a gross sum, or a sum to be paid out of the fees of the office, at the time the act of 1792 was passed, there can be no doubt. The first section of that act disables the persons holding the offices therein described, from holding them.
The first section of the act plainly interdicts the buying and selling a large description of offices, including that of deputy sheriff; an office which, it must be admitted, it was the practice to sell, under the existing restrictions upon the abuse of the power, not altogether applicable to other offices, viz. the control of the law, which requires an oath to be taken by the deputy sheriff in open court, and of the court also, which might for good reasons object to his qualification. And to except this office from its operation, and also that of deputy clerk, was not so violent an outrage on the whole policy of the first section as seems to be supposed. To insist, that the proviso means only to except the sale of such office for a sum to be paid out of its fees, would be to give it no effect; as such sale was not within the first section of the act. It was known to the legislature, when the act was passed, to have been so decided by the english judges, on the statute 5 and 6 Ed. 6. from which it copied the section. But the proviso, in its terms, is not susceptible of such an ineffectual construction of its meaning : in it is employed the very language of the first section. It is not to be so construed, as to except the naked appointment &c. of any deputy clerk or deputy sheriff, no appointment of either being prohibited by the first section (but on the contrary indirectly provided for) unless made for fee, reward &c. In terms, too, the proviso applies to the third section, which makes void all bargains, sales &c. Its terms are, that nothing in this act contained (including all its sections) shall be so construed &c. plainly, I think, excepting from the act, the operation of the third section also on bargains, sales &c. entered into for the office of deputy sheriff.
The decision in the case of Noel v. Fisher, in this court, if it can have any influence, is favourable to this construction of our act. That decision was on the english statute, from which the three first sections in our statute are substantially
Judgment affirmed.