State ex rel. Ives v. Choate, 11 Ohio St. 511

State ex rel. Ives v. Choate

11 Ohio St. 511 | Ohio | 1842

Lead Opinion

Birchard, J.

The constitution of this state authorizes the gen•eral assembly to create new counties and to change or alter the boundaries of old ones. The only limit to this power is a prohibition against creating a new county of less, or the reduction of an old county to less, than an area of 400 square miles. There is nothing in the instrument whatever that further restricts this right -of the general assembly, and it is not necessary to hold, nor should it be held, by any implication that does not force itself irrresistibly upon the mind, that this convenient power of modifying the limits of counties is to be restricted beyond the letter of the constitution itself. It is a prerogative belonging to the sovereignty •of the state, and no sovereignty can be presumed to have parted with any power essential to the public welfare, nor can *it be adjudged to have parted with it, without express and unequivocal evidence showing the fact affirmatively.

This being the law, how stands the case of the defendant? He had been elected and commissioned as an associate judge of the •county of Huron, for a term limited by the constitution to a period of seven year if so long he behaved well, and if so long he resided in the county for which he was so elected.

The words of the constitution are (art. 3, sec. 3), “ There shall be appointed in each county, not more than three nor less than two associate judges, who, during their continuance in office, shall reside therein.”

What, then, is the effect of the commission which was granted to defendant, Choate? Did it authorize him to claim the office of judge for Huron county after his political connection with that community had ceased? Could he act as a conservator of the peace therein? The constitution is mandatory, “he shall reside therein.” No one could contend that a voluntary removal was *438not a forfeiture and resignation of his office. Indeed the legislature of this state have, by express enactment, declared that it shall be so held. Can it make any difference when this removal is effected by the exercise of a constitutional right of the general assembly and by an act of omission in the officer? It seems to us it can not. It is, however, alleged that this rule will enable the legislature, at any time, by a general law, to oust from office, without the form of impeachment and in violation of the spirit of the constitution, many associate judges and any president judge of this state, by changing the limits of the counties and of the circuits in which they severally reside, so as to place their residence in some other county or circuit. Arguments of this nature, which assume the possibility that a co-ordinate branch of government will wantonly violate its plain duty, ought to be held of little weight in a court of justice where the legal presumption obtains that every legal functionary will faithfully observe the obligations of duty imposed upon him by his oath of office. The-general assembly, if it should ever attempt to violate a measure, as the argument supposes, could not effectually ^accomplish the object. The judges would, in all cases, be able to defeat the scheme by a seasonable removal within the newly prescribed limits of his county or circuit. So, in this case, had Choafe preferred to retain his office, he could have changed his residence after the passage of the act attaching Milan to the county of Erie. This he neglected to do at the time; neglected to do when the special court was called requiring his official attendance; neglected to do so at the May term of the court, and still neglected up to the 2d day of August.

We are of the opinion his right to the office of associate judge of the county of Huron was forfeited, and that he is guilty of the-usurpation and intrusion with which he stands charged in the information.

Our next duty is to ascertain the rights of Abijah Ives. Section 3 of the statute (Swan’s Stat. 770) requires us to pass upon his rights. He has received a regular commission as an associate judge of Huron county, and has been duly qualified, which is ample evidence of his right to claim and exercise the duties of that office, unless there is something in the case agree'd showing that the general assembly transcended their powers in going into-the election in the manner stated. It is contended that no elec*439tion could have been legally held at that time, inasmuch as no vacancy had then occurred, and none could have been legally anticipated. If the facts were clearly such as the position assumes there would be, doubtless, greater difficulty in the case than wo now have to encounter. It is certain, from the agreed case, that at the time of the' election the general assembly had no reason to expect that a vacancy would be prevented by the removal of the defendant within the newly-prescribed limits of the county. We may presume that the members of the two houses understood the tenure of office, and the condition on which it was held by the defendant, Choate. If so, they knew that without such removal by him there would be a vacancy ; and, if so, it -would be but an ordinary exercise of their power to provide for it.

^Whatever may have been the practice of other states, wo know that, from the earliest history of Ohio, it has been the practice of the general assembly to provide lor vacancies that are likely to happen during the term of office of the persons composing their own body. Three of the members of this present court have held judicial offices on appointments thus made, and, indeed, the bench of the Supreme Court has scarcely ever been filled without one or more of its members holding his commission in virtue of such an appointment, and we have yet to learn that the right has been seriously questioned. A practical construction of the power conferred by the constitution — so frequently exercised by the general assembly — so long acquiesced in, and which is coeval with the instrument itself, ought not to bo questioned for slight reasons. We feel bound to consider it correctly settled that the legislature of this state has the right, at its regular session, to fill an elective office in all cases where a vacancy is to happen prior to the ensuing annual meeting of the general assembly.

From the agreed case, it appears that Ives’ election was held on March 14,1840, and that a resolution passed both houses declaring a vacancy, which bears date on the 17th day of March. There is this discrepancy in dates. It is, however, easily accounted for by persons familiar with the proceedings of legislative bodies. The election always appears to have been held on the true day. The journal, kept by the clerk, alone shows when the two houses assemble and'go into an election by joint ballot. This jouimal can not show a date varying from the true one. Not so with a joint resolution or a law. The date affixed to them is the date of the *440signatures of the presiding officers,, and, in most cases, is of necessity two or three days subsequent to the action of the two houses. "We may suppose that, in this case, the resolution dated the 17th day of March, declaring a vacancy in the offices of the two associate judges of Huron county, actually passed on the morning of the day of the election and before the election was held; and wo think that, as to the right of Ives, we ought so to presume, on the principle that the official ^acts of legislative bodies are to be considered legal until the contrary appears. This, then, would avoid all objection to the claim of Ives. But, it maybe said that this reasoning will defeat a proposition, above stated, recognizing the right of a former incumbent to retain his office, by a removal in a reasonable time, within the limits of the county, as established by the act of the 6th of March. The objection would bo well founded if .the joint resolution were to be held conclusive of the fact of an election to forfeit the office, as regards the rights of Choate; but we do not hold that the legislature, any more than a court, could conclude his rights without giving him a hearing. He would, undoubtedly, be allowed to controvert the resolution and overthrow the presumptions arising from it, by proving facts inconsistent therewith. In this inquiry nothing growing out of the resolution has been allowed to prejudice his claim. His rights have been passed upon wholly independent of it, and have been considered and adjudged, as we trust they would have been if such a resolution were wholly disconnected with the cause. This was all he had a right to require at our hands, for it left his own claim to be decided upon its own merits; and those merits show a forfeiture of office by him. It matters not to him how the general assembly acquired a knowledge of the intended and actual forfeiture at so early a period, nor is it material for us to inquire. Since we have ascertained the fact that such a forfeiture occurred, it does not behoove us to hold that the legislature erred in making the discovery before us, and that, therefore, the election of Ives is void.

Judgment of ouster'against Choate, and judgment for Ives.

The same judgment was rendered in the case of the State, ex rel. Sears, v. Somers, upon a similar state of facts. Judge Lane dissented in both cases, and delivered the following opinion:

Dissenting Opinion

*Lane, C. J.,

dissenting. The justice of the opinion of the *441■court, in these cases, does not rest on the ground that a vacancy •is created in these offices, from the simple operation of the act of ■the general assembly leaving the defendants without the county ■of Huron, by a change of the county lines. Such a doctrine, which would subject the tenure of office of all judges in the state, ■whose functions are territorial, to the will of a majority in the legislature, would be too gross- an abandonment of the slender judicial independence which the constitution has endeavored to ■secure. It is, therefore, not necessary for mo to show that a case cited by the plaintiff’s counsel, 21 Wend. 563, has no application. That case has no bearing upon the question of constitutional protection ; it relates to a public office, created by statute, and liable to modification by the same authority, and it decides nothing, except that where the existence of a public municipal corporation is terminated by lawful'authority, and two new ones are substituted in place of the old, that an officer in the old corporation is not an ■officer in the new one.

Neither does the opinion of the court, in the case before us, depend upon any implied resignation. The statute of 1805, Swan’s Stat. 611, section 3, which provides that a judge who “removes his residence ” beyond the limits within which his duties are to be exercised, “shall be considered as having resigned and vacated his office,” expresses the condition which the constitution annexes to his office, and under which he accepts it, and it specifies the act which affords evidence of resignation. But it is an act done by him, not a mere omission; an act visible, notorious, and provable, by which third persons will not be misled, and whose effect can not be mistaken by himself.

And it is not a point of difference among the members of the court that a judge may lose his right to his office from a noncompliance with this constitutional condition of residence. It is not doubted that a judgment of ouster might justly be pronounced against a judge who fails to keep his residence within the county for which he is elected, after notice of a change of ^limits, and a reasonable time and opportunity to conform to his duties.

But the present opinion of a majority of this court involves the affirmative of the following propositions: That these defendants, after the change of the boundaries of Huron county, unreasonably neglected to take their residence within it; that, in consequence of their neglect, and without judicial proceedings, their offices be*442came vacant, so that the election of the relators, on the 14th day of March, was valid. It is to these propositions I am unable to lead my mind to assent.

It appears to me a sufficient objection that no such case is made by the pleadings. The prosecuting attorney avers the defendant unlawfully exercised his office from the 19th day of March to the-filing the information. Had he stopped there, the defendant must-have shown his authority. The State v. Commercial Bank et al., 10 Ohio, 541. But he.proceeds to disclose the specific ground of forfeiture, viz: “ That by the extending the limits of the county of Erie, the defendants became the residents of Eric county,, and are non-residents of Huron county, by reason whereof the aforesaid office of associate judge became vacant.”

No notice of the law, no neglect to remove, no opportunity to comply, is shown; but the forfeiture is claimed in pleading to have become absolute by the bare extension of limits. It is to this cause of forfeiture that the defendants have plead; and it is to this case of forfeiture which the counsel, on both sides, have argued, and it seems gratuitous to decide- a case which neither counsel have contemplated, and which lies not within the record»

But, passing over this question of pleading, I can not see how these offices could have become vacant on March 14, 1840. The vacancy must have existed on that day, because the election of the relators could not be holden valid unless a vacancy existed then, for an election to fill an office not vacant is void. 1 Kent’s Com. 224; The State v. Constable, 7 Ohio, 1; 2 Bac. Abr. 20; 2 Term, 280; Ang. & Ames on Corp. 65, The only known exception is *the usage of our legislature to provide for the termination of an office, which must, of necessity, happen .before its next session, by limitation of time, and, for obvious reasons, has never been held to extend to a contingent vacancy.

Now a lawful public officer, whose doings affect third persons, who holds a commission under the broad seal, is not to loso his title by a bare private,' perhaps secret, act of omission. The tenure of such an office has never before been held determined, without the intervention of some proceeding of an analogous public nature,, as a judgment in quo warranto, or, in some cases, by a writ of supersedeas, or discharge. Dyer, 155, 198, 211; 9 Co. 98; Co. Lit. 233; Cro. Car. 60, 61; 1 Sid. 81, 134; 3 Co. 44; 1 Roll. Abr. 580; 3 Mod. 335; 3 Lev. 288; The State v. Bryce, 7 Ohio, 82. His sit *443nation is similar to the holder of a franchise. In both casos, although the forfeiture is incurred, no right is lost, until declared by some judicial or other public proceeding; Rex v. Corporation of Carmarthen, 2 Burr. 869; Commonwealth v. Union Insurance Company, 5 Mass. 230; Terrett et al. v. Taylor, 9 Cranch 51; Trustees v. Hills, 6 Cow. 23; Slee v. Bloom, 5 Johns. Ch. 366; 16 Serg. & Rawle, 140; State Bank v. Indiana, 1 Blackf. 267; and in both cases the reason is the same-to give the officer a day in court, to answer for his neglect, and to afford evidence to him, and to all the world, where the right is. I regard this rule as affording the most abundant reason for holding the election of the relators, or the 14th of March, void, for want of a vacancy.

Yiewing the case, however, upon its broadest merits, what is the act by which the defendants incurred a forfeiture as early as the day on which their places were supplied by the relators. An office is one of the kinds of incorporeal property, an estate in the lawful owner, the possession and tenure of which are governed by rules as definite and as well settled as those which regulate the ownership of other kind of property. Its lawful owner is not to lose it except by lapse of time, or by his own express consent, or from some fault, negligence, or misconduct. Now what have these defendants done * which they ought not; or, what have they not done which they ought? Choate lives on a tri-weekly post route, 114 miles distant from Columbus; Somers at a distance of 130 miles, near a post-office, at which the mail is received once or twice each week. The law altering the county limits was passed on March 6, 1840; the election of the relators occurred on the 14th day of March. The interval of time between these events, excluding the day of passing the law, the day of election, and Ihe intervening Sunday, is six days. It was the duty of the defendants,, as soon as the passage of the law was made known to them, to have made their choice whether they would remove their residence, and to complete such change within a reasonable time; but no forfeiture would accrue except from such neglect to remove, and the legislature would have no pretense to regard the office vacant until such neglect was made known to them. It may not be easy to define what precise time the law would adjudge reasonable. The case most analogous, is the law requiring clerks of new counties to keep their offices at the seats of justice within six months after they are established. It should be at least such a *444length of time as would permit the master of a household conveniently to make the change; and he must be a very strict constructionist who would exact the speed with which a man would fly from his enemy. The very statement of the case, therefore, involves knowledge of the passage of the law, the opportunity of •choice, convenient time to change one’s residence, and information communicated to the legislature, that such removal had been neglected. Is this interval of six days, such reasonable time, within which all these things may be presumed to have ocurred ? Why, •there was not sufficient time to send from Columbus to take a deposition. There was only time enough to send a letter to Choate and secure bis answer by mail. There was not time to communicate, by the ordinary course of mail, with Somers. There was barely time for a man to ride to them from Columbus, and return, on a good horse, with good weather and good roads. I can not persuade myself, therefore, that these cases call for so swift a judgment.