State ex rel. Watson v. Cobb

| Kan. | Sep 15, 1863

By the Court,

Kingman J.

This is an information in the nature of a quo-warmnto filed by the Attorney General of the State, upon the relation of John H. Watson, inquiring of the respondent, Nelson Cobb, by what authority he holds and exercises the office of Chief Justice of this State.

The facts are agreed upon, and are as follows:

Thomas Ewing, jr., was duly elected Chief Justice for six years, from January 29th, 1861, and having been commissioned and sworn in, entered upon the duties of his office.

James H. Lane, (a senator of the United States from the State of Kansas,) was on the-day of-, 1862, appointed by the Secretary of War, a Recruiting Commissioner.

On the-day of-, 1862, and more than thirty days prior to the general election of 1862, said Lane appointed Thomas Ewing, jr., an assistant recruiting commissioner, and said Ewing immediately and more than thirty days prior to such election, entered actively upon the work of raising recruits for the volunteer service of the United States.

The members of the 11th Regiment Kansas Yolunteers, prior to the 15th of September, held an election, and certain persons were voted for by the members of said regiment, and those persons receiving the highest number of votes for the respective offices, were declared elected. In this way, said regiment elected its company officers. Afterwards, the persons so claimed to be elected company officers, voted for a colonel, and Thomas Ewing, jr., received the highest number of votes for that office, and the persons so elected company officers afterwards received commissions from the Governor of Kansas, according to their rank and grade. On the 35th of September, 1862, Lane, by letter of that date, appointed Ewing colonel of said regiment, and Judge Ewing immediately thereupon, entered upon the duties of the office of colonel .qf the 11th Regiment Kansas Volunteers. h’’

And the same day, Ewing, was by the mustering officer for the District of Kansas, upon said letter of appointment and the endorsements thereon, mustered into the service of the United States as colonel of said regiment, and at once entered upon the discharge of the duties of that office, and was recognized as colonel by the officers of the District of Kansas, and the army of the frontier.

Judge Ewing did not resign the office of Chief Justice, (unless the facts herein stated constitute a resignation,) until the 20th day of October, 1862, and on the 28th day of November, 1862, his written resignation was received by Gov. Robinson.

No commission as colonel was issued to Judge Ewing until Nov. 28, 1862, nor had he any authority to act as colonel other than his eTection as aforesaid, and his appointment by - Lane, and his being mustered into the United States service as colonel of the 11th Regiment of Kansas Volunteers.

On the 5th day of November, 1862, a letter was addressed to Col. Ewing by Edwin M. Stanton, Secretary of War, stating that Ewing had been by the President appointed colonel of the said 11th regiment, to rank as such from the 9th day of November, 1862.

At the general election in 1862, John EL Watson received more than a majority of all the votes cast for Chief Justice.

The Board of State Canvassers which assembled on the 22d day of December, 1862, did not canvass the votes for Chief Justice, but the State officers elected in 1862, who. by law compose the Board of Canvassers, did on the 24th of January with all the forms prescribed by the statute, canvass the votes and declare “Watson elected Chief Justice.

There was no proclamation in regard to an election for Chief Justice to be held on said 4th day of November, 1862.

On the 28th of December, 1862, Gov. Robinson appointed and commissioned Nelson Cobb as Chief Justice in due form of law, to fill the vacancy occasioned by the retirement of Judge Ewing. Afterwards Cobb qualified by taking the oath of office, has ever since and still is, acting as Chief Justice.

The commission issued to Judge Ewing as colonel as aforesaid, was dated November the 28th, by which he wras to rank as colonel as aforesaid, from Sept. 1st, 1862.

Upon this statement of facts, the relator claims,

1st. That more than thirty days prior to the general election in 1862, Mr. Ewing who was the Chief Justice, and whose term was unexpired, accepted and held an office under the authority of the United States, and that such acceptance and holding was under the constitution -of this State, a vacation of the office of Chief Justice.

2d. That a vacancy having thus occurred undérthe constitution and laws of this State, it should have been filled at the general election in 1862, and as the relator received a majority of all the votes cast at such election for Chief Justice, that therefore he is entitled to the office and to the interposition of this Court to oust the respondent.

The respondent holds the office by virtue of an appointment by the governor of the State, and claims

1st. That without regard to the time when the vacancy occurred there is no constitutional authority for holding an election to fill such vacancy,—that it could be filled only by appointment by the governor, and

2d. That the vacancy did not occur more than thirty days prior to the general election of 1862, and that therefore under any construction of the constitution, no election could be held for filling the office.

Although technically, this is-a proceeding between the State and the respondent, yet practically, under the provisions of our statute, it is instituted for the purpose of trying the right to this office between the relator and the respondent, and unless under the facts and the law, the relator can make good his title, then he is not.entitled to the judgment of this Court in his favor.

The record and the argument present two questions for consideration:

1st. Is there any constitutional and legal authority for filling a vacancy in a judicial office by election, and

2d. Did a vacancy occur in the office of Chief Justice more than thirty days prior to the general election in 1862.

If either of these propositions is answered in the negative, then the relator is not entitled to the office he claims.

If it should appear that there is-no sufficient authority for filling a vacancy in a judicial office by election, then any inquiry as to the time when. the vacancy occurred in this case, will be unnecessary. We will therefore first see what is the law for filling vacancies in judicial offices.

The constitution provides for the filling of its judicial offices by election, and that “ in case of vacancy in any judicial office, it shall be filled by appointment of the governor until the next regular election that shall occur more than thirty days after such vacancy shall have happened.” Seo. 11, Art. 3. The general principle is that the judiciary are elective. The exception made to meet possible necessities, is by appointment to fill vacancies, but that appointment is expressly limited and must expire at the next regular election that occurs more than thirty days after the vacancy shall have happened. Thus showing that it was the intention to limit the exceptional method of selecting the judiciary so far as w’as consistent with a deliberate exercise of the mode of filling the office by the usual mode of election.

It is claimed that the term regular election means the election held at the proper time for filling the next regular term of the particular office vacant.

If this is the meaning of that phrase in that connection, then it is an end to this controversy, for then the right of the respondent to hold the office under the appointment of the governor until the expiration of the full term for which Mr. Ewing was elected can not be doubted.

The term regular election is used in the constitution in this instance only. The general election is defined by Sec. 2, Art. 4, as the annual fall- election, and it is the use of the word regular instead of general that has given rise to most of the difficulty on this point.

The constitution has provided that one class of its judiciary—that is, justices of the peace shall be elected at the township elections in March by declaring justices of the peace to be township officers. No definite time is fixed for the election of the other portions of the judiciary, but it may well be inferred that it was intended they should be elected at the general election at the same time as other district and State officers. This is the view taken by the Legislature, and' they have provided accordingly in the law.

To have used the word general in designating the election at which the gubernatorial appointment should expire, would have produced" confusion by making the appointee to the office of justice of the peace hold till the November election while his successor could only be elected at the March election. This inconvenience was avoided by using the word regular instead of general, which had received a definite meaning. The word regular means conformable to an established rule, law, or principle, and the exact literal signification of the phrase “ next regular election,” is the next election held conformable to established rule or law.

The constitution provides for two such elections in each year,—one in March and one in November,, Each of them are regulár elections because each is in conformity with the established rule laid down in the constitution. At the March election justices of the peace are to bo chosen; at the November election judges of the district and justices of the Supreme Court are to be chosen. So that the next regular election is the one next occurring at which the particular class of judicial officers is tó be chosen.

To give to the clause the construction claimed by the respondent, would be not only violently to change the whole structure of the section by making the word regular describe the term for which the officer was elected instead of the election at which the appointment .expires by limitation, but it makes all that part of the section after the words regular election, meaningless, for the words “ that shall occur more than thirty days after such vacancy shall have happened,” neither add to nor limit-the meaning of the clause should it receive the interpretation claimed.

It is one of the-fundamental canons of interpretation that if possible a law shall be so construed as to give to each part some meaning, and this' rule would be violated by giving the clause such a construction as would give no meaning to the latter part of it.

By giving however to the word regular its just meaning as above indicated, the last part of the clause has full and due weight, by extending the limitation not to the next regular election only, but to the one that shall occur more than thirty days after the vacancy shall have happened.

We think it plain that the -true meaning of this clause of the section is to limit the time for which the appointment of the governor is to run, which in the case before us is to the next general election, occurring more than thirty days after the happening of the vacancy.

In this we are happy to agree with the executive and legislative branches of tho government, each of which have acted on the same construction of .the clause we have given to it.

The constitution makes no positive provision for an election to lili a vacancy in a judicial office, but as we have seen, it is expressly limited to the time for which the governor can appoint. The mode of filling the vacancy then after the appointment expires, will be found by implication, or looked for in such legislation as may have been based on Section 19, Article 2d of the constitution, which gives the legislature power to provide for the filling of all vacancies not otherwise provided for in the constitution. J3y virtue of this power the Legislature has provided that such vacancies shall be filled at the proper time, by election. Seo. 39, page 500, Qomp. Laws.

This brings us to the second question.

Did a vacancy occur in the office of Chief Justice more than thirty days prior to the general election in 1862 ?

To determine this question requires an examination of the constitutional provisions aifecting the case. The last cifrase of Section 13, Article 3 of the constitution, is as follows:

“And such justices or judges shall receive no fees or perquisites, nor hold any other office, of profit or trust under the authority of the State or United States, during the term of office for which said justices and judges shall be elected, nor practice law in any of the courts of the State during their continuance in office.”

It is clear that it is not the intention of this provision to prescribe rules by which the existence of a vacancy in any of the judicial offices named is to be ascertained. Even after a removal from or resignation of office, the justices and judges named are still plainly and unequivocally bound by the constitutional inhibition until the expiration of the term for which they were elected. The disqualification attaches to the individual and not to the incumbent of the office. The object sought to be accomplished by this provision, is that our high judicial officers may be removed as far as possible from the temptation to use the power and influence of their positions and authority for their own advancement. To prevent their minds from being distracted from their legitimate duties by ambitious hopes and struggles for preferment, to raise them above those political and partisan contests so unbecoming the desired purity, impartiality and calmness of the judicial character. Its effect is to prevent the acceptance of any. other office by a judge or justice the term of whose judicial office has not expired, and to render such acceptance void. The entire scope and object of this provision are so widely different from those applicable to members of the .Legislature or to executive offices as to clearly show by a comparison. Section 5, Article 2, uses this language:

“ If any person after his election to the Legislature be elected or appointed to any office under the United States, his acceptance thereof shall vacate his seat.”

Section 10, Article 1, is as follows:

“No member of Congress or officer of the State or of the United States, shall hold the office of governor except as herein provided.”

One can not examine these several provisions without perceiving at once that the purpose of the judiciary clause is to prevent a vacancy by the acceptance, or holding of any other office during the term for which the incumbent was elected, while the purpose of the provision for, the Legislative and executive offices is to create a vacancy in case of their acceptance of certain specified classes of offices.

If the governor of the State while in office be elected as one of the justices of the Supreme Court, his acceptance of the latter position would vacate at once the former; but if one of the justices of the Supreme Court should be elected governor for a term, any part of which was included in the term for which he was elected justice, he would be held ineligible to the office of governor, and if he should intrude into the office, would be subject to ouster by judicial proceedings. In such a case in proceeding against such person, the showing that he was elected to and was acting in that office would be no defence, because the constitution absolutely prohibits him from holding that office, and the attempted defense would be based upon a palpable violation of a fundamental law of the State.

His title .and right to the office of justice would not be directly affected by his acceptance of the office of governor. He would still remain in his judicial office because the acceptance of the other office would be'illegal, void and of no effect.

The ineligibility of the “justices and'judges” attaches to them as individuals, and not merely in office, and extends not only while they hold office, but during the term for which they are elected.

Nor is the principle changed when the office emanates from another authority. The constitutional inhibition remains the same. It is still the law which governs the courts of this State—an unchanging and unbending rule from which there is no.escape.

■ It is true that as a government the State of Kansas has no control over the eligibility or qualifications of officers of the United States. If one of the judges of the State accepts an office under the United States and that government permits him to perform its duties and receive its emoluments, it is a matter over which the tribunals of the State have no control; but when the legal question is properly presented, it becomes their duty to declare the law, and that law is not changed by the want of power to follow its violation into another jurisdiction. It still remains the fundamental law of this State, governing its courts and furnishing the rule for its guidance.

While we cannot interfere with the tenure of office which the United States may prescribe for its officers, it is clearly within our province to declare what effect the acceptance of such an office will have on the tenure of an officer of this State, and when that is declared by the constitution, courts Lave no other duty than to apply in cases properly before them.

Yiolation of law by an officer or misconduct in office do not of themselves work a vacation of office though they may be causes for removal.

Taking fees is prohibited to judges; yet the taking of a fee by a judge would not vacate his office, though it would be a good ground for his removal.

We think, therefore, that it is manifest that this constitutional provision does not provide for a vacancy or in anyway prescribe a rule for the ascertainment of one. Now, is there any other clause in the constitution bearing upon the question as it is presented ? And as it is only in that instrument that the tenure of the judicial office can be found, we reach the conclusion that the mere acceptance of an office under the United States does not of itself vacate the office of judge.

If, however, our reasoning oh 'this point should fail in convincing any mind, an inquiry into.the question of fact disclosed in the record, will lead to the same conclusion so far as the final disposition of this caseis- concerned. That is that under any view of the law, Judge Ewing had accepted no office under the United States previous to the 26th day of October, 1862.

Ilis resignation on that day shows that up to that time he considered himself as holding the office of chief justice, and as not having previously by any act of his resigned the office either by doing so expressly or by implication.

Did he in law hold an office under the United States ?

An office in this country can only be created by law.

A deputy recruiting commissioner under Janies H. Lane is not an officer known to or recognized by either State or national laws.

The appointment by Mr. Lane, “ recruiting commissioner,” of a colonel in the volunteer service of the United States, is without the shadow of warrant of law.

The regiment was not raised under the militia laws of this State,, and the pretended election of Judge Ewing by the company officers, was a proceeding not known to the law, and a mere nullity.

The effect of mustering Judge Ewing into the service of the United States, could not be to make him an officer of the United States. If so, it would be in the power of a mustering officer to create officers without the intervention of the President, or any other legally constituted appointing power.

It is apparent therefore, that none of the alleged facts from which it is claimed that Judge Ewing held the office of colonel, had any legal effect whatever.

An officer is defined as “ one who is lawfully invested with an office.”

Judge Ewing could not accept an office wffiich wnts not tendered to him by some- authority having the legal right to make such tender.

In contemplation of law he could not become an officer by his own acts or on his own motion. If he was an officer he was .legally entitled to hold and enjoy the office. Yet after the appointment and mustering in of Judge Ewing, and after he had entered upon the discharge of his military duties, if the President or Governor had exercised the power conferred upon them by law and appointed another man to the office of colonel of the 11th regiment, the person so holding the commission, would have been clearly entitled to the office.

The letter of the Secretary of War of the date of 5th November, 1862, notifying Judge Ewing that he had been appointed colonel to rank as such from the 9th day of October, is conclusive evidence of the fact that the President by no act of his had appointed him colonel prior to the 5th November, and of the further fact'that neither the President or Secretary of War intended to recognize him as colonel prior to the 9th day of October.

If ho was an officer prior to that time his appointment at that timé was a nullity.

We do not propose to inquire into the responsibilities and rights of a person exercising the duties of an office without sufficient authority. Such a discussion is foreign to the questions involved in this case and would be useless.

Sufficient is shown that up to a period less than thirty days prior to the general election in 1862, Judge Ewing did not rightfully and by virtue of any competent authority hold an office under the United States.

Wherefore judgment is given for the defendant in this case, and against the informant John H. Watson for costs*.