27 Del. 416 | Del. Super. Ct. | 1913
delivering the opinion of the court:
The issues of law presented by the pleadings in this case arise out of an act of the General Assembly of 1911 (Chapter 78,
Volume 26, Laws of Delaware), entitled “An act to establish the State Live Stock Sanitary Board,” which among other things provides:
“That a board is hereby established to be known as the State Live Stock Sanitary Board. The board shall consist of the members of the State Board of Agriculture as the said board is now constituted and as it may be constituted hereafter, and a veterinarian who shall be a competent and qualified person and a graduate of a veterinary college in good standing, to be appointed by the Governor for the term of three years. * * *
“That this act shall take effect ten days after approval by the Governor. * * * ”
The Attorney General of the State of Delaware, in an action instituted on behalf of the State of Delaware against one Justus R.
The respondent, by his plea, as warrant for the use and assumption by him of the office, franchises and privileges of a member of the said board, declared that before using and assuming the same, to wit, on the tenth day of April, 1911, he was appointed and commissioned by the Governor of the State of Delaware a member thereof.
The state, by its replication, replied in substance that the respondent, at the time he was appointed and commissioned, did not possess the qualifications for the office required by the statute, in that he was not then “a graduate of a veterinary college in good standing.”
To the replication the respondent demurred generally.
For want of further particularity in the pleadings, it must be assumed, as a necessary implication, that the particular membership of the board to which, the respondent was appointed and commissioned by the Governor was that of veterinarian, as that is the only appointment to the board which the Governor is authorized by the law to make, the other members being members by virtue of their incumbency of other offices.
It is contended, however, even if the replication is bad, that the court must look back of it and lay its hands upon the first faulty pleading, and that the plea is bad in that it simply states the fact and time of the appointment and commission of the respondent and does not show his legal and requisite qualifications for the office he claims rightfully to hold.
As graduation from a veterinary college is a prerequisite to the Governor’s authority to appoint the respondent to the office to which he makes claim, so it is a prerequisite to his right to hold the office and should be stated in the plea. We are of opinion that a plea that relies simply upon the appointment to office and the commission thereunder, without showing the appointee’s qualifications to receive such an appointment and accept such a commission, is bad.
It appears that the act establishing the State Live Stock Sanitary Board, was approved by the Governor on April 6, 1911, the act, by its terms, went into effect April 16, 1911, and the appointment was made during the interim on April 10, 1911.
Against the proposition that the law speaks from the date it goes into effect and not from the date of its approval, when the two dates do not coincide, there has been cited by the respondent but one authority. This authority is People v. Inglis, 161 Ill. 262, 43 N. E. 1103, and in the relation of the time of appointment to the date of the enactment of the law and the time at which it went into effect, is much like the case before us, and while the judge deciding the case made a distinction between the existence of a law and the time at which it went into effect, he upheld an
The leading authority upon this subject is an opinion, unanimously concurred in by the judges of the Supreme Court of Massachusetts, of which Mr.. Justice Shaw was Chief Justice, rendered in response to certain questions proposed to them by the Governor of that state, for the purpose of guiding him in making certain judicial appointments to a new court established by a statute to take effect on a certain date in the future. Supplement to 69 Mass. 600, 606, 607, 608. The opinion of the judges upon this subject is as follows:
“ ‘VI. Can the judges of the Superior Court for Suffolk County be appointed before the first Tuesday in October next?’
“6. In answer to the sixth question, we are of opinion that the judges of the Superior Court for the County of Suffolk cannot be appointed .before the first Tuesday, which will be the second day of October next.
“The act to establish the Superior Court of the County of Suffolk, being the statute of 1855, c. 449, was passed on twenty-first May last, and the last section provides that the act shall take effect on and after the first Tuesday of October next. It is a general rule that all statutes take effect and go into operation at and from the time of their passage, unless a different time be prescribed by the statute itself, or by some general law in force at the time of its enactment, fixing the time at which it shall go into operation. By Rev. Sts. c. 2, § 5, every statute, which does not prescribe the time, shall take effect on the thirtieth day next after it is passed. But when any statute does itself prescribe the
“Nor does it, in our opinion, make any difference that no negative words are used, as, for instance, on such a day, ‘and not before.’ This is well illustrated in both particulars by the case of Commonwealth v. Fowler, 10 Mass. 290. By St. 1811, c. 137, passed February 25, 1812, the County of Hampden was established. By the last section, it was enacted that ‘this act shall take effect and be in force from and after the first day in August next.’ The provision was general, and there were no negative words. A judge of probate, sheriff and other officers having been appointed before the day fixed for the statute to take effect, it was held that such appointments were made without the authority of law and were void.
“These are some of the principal reasons upon which we have
We find no deviation from the principles stated in this opinion in any case submitted to us or in any case found by us in the research which we have made in addition to that made by counsel in this case. On ,the contrary we find this principle uniformly followed. Commonwealth v. Fowler, 10 Mass. 290; Rhodes v. Hampton, 101 N. C. 629, 8 S. E. 219; State v. Meares, 116 N. C. 582, 21 S. E. 973; State v. Peelle, 124 Ind. 515, 24 N. E. 440, 8 L. R. A. 228; Iriquois County v. Ready, 34 Ill. 293; People v. Johnston, 6 Cal. 674; Miller v. Rister, 68 Cal. 142, 8 Pac. 813; Santa Cruz, etc., v. Kron, 74 Cal. 222, 15 Pac. 772; Rice v. Ruddiman, 10 Mich. 125, 135; Price v. Hopkins, 13 Mich. 318.
There is a distinction, however, recognized by the authorities, between an appointment to an office not in existence because of the postponed operation of the statute, and an appointment to an office that is in existence, but in which there is at the time no vacancy. As the latter situation is not before us we have given no consideration to the law relating to it.
Upon both contentions made against the plea, judgment is directed to be entered against the defendant. Upon the election of defendant, judgment of respondeat ouster.