2 Ark. 260 | Ark. | 1840
delivered the opinion of the Court:
The defendant, in support of his demurrer, insists that a commission from the Governor to Hawkins is indispensable to his legal right to enjoy, hold, and exercise the office in question; that he never having obtained such commission there was a vacancy in the office which the Governor possessed the legal and constitutional right to fill, notwithstanding Ms election thereto by the Legislature, as stated in the replication ; and that the Governor, in the exercise of his constitutional. power and duty, having determined the existence of a vacancy in said office, and proceeded to fill the same by appointing and commissioning the defendant, his authority derived therefrom cannot legally be questioned, controverted, or annulled; because the exercise of such power by the judiciary, or any other co-ordinate department of the government, must, in its consequences and effect, destroy the independence of the Executive, and divest that department of its constitutional powers; and upon these principles the defendant mainly, relies, but also denies that there was any law in force by which the Legislature was authorized to elect a Commissioner of Public Buildings when Hawkins was elected to fill that office.
These positions and principles are controverted by the attorney for the State, who insists that the matters as set forth in the replication and admitted by the demurrer to be true, conclusively show that there was no vacancy in the office in question when the defendant was appointed and commissioned thereto by the Governor, and therefore the Executive possessed no power whatever to make such appointment.
The matters of the replication pleaded by the State in avoidance of the warrant shown by the defendant, so far as they are well pleaded, the law, in,the present attitude of the case, regards as being admitted to be true, and the simple question of their legal sufficiency to avoid or invalidate the right exhibited by the defendant is presented for the consideration and judgment of the court. But it is facts only, and not inferences or deductions of the pleader therefrom, set forth in the pleading, that are to be taken as true; and such inferences and deductions, though imprudently, or needlessly and improperly stated, must, according to the uniform and well established principles of law and practice, be altogether disregarded as irrelevant and impertinent; and the allegation in the replication that the act of the Legislature approved March 3d, 1838, entitled “an act providing for the appointment of Commissioner of Public Buildings,” was a law in force on the 11th day of December, A. D. 1838, when the Legislature elected Hawkins to that office, is, in the opinion of this court, embraced within this rule, and although positively averred, it must be regarded as an inference or conclusion of the pleader, rather than a matter of fact, necessarily and properly stated in the pleadings, because it is the province and imperative duty of the court to know the law, (and the law presumes every court to have a knowledge of all laws,) which of necessity includes a knowledge of the time at which the law commenced and took effect; for no enactment of the Legislature can be operative as law until such force is imparted to it in some method recognized or admitted by the Constitution or laws, existing at and previous to the time when it becomes obligatory as a rule of civil conduct.
And from the view which we have taken of the facts presented by the pleadings, we have no doubt, that it is our first duty to ascertain and determine whether the statute aforesaid, approved on the 3d day of March, A. D. 1838, had the obligation of law on the 11th day of December, 1838, when the Legislature elected Hawkins in the manner therein mentioned.
For it must, in our opinion, be conceded that if no such election was authorized by law, it must be x’egarded as an idle, inadvertent, and unauthorized proceeding, not vesting in the person who received the majority of votes, and was declared duly elected, any legal right to the office, which by law must have been filled by an Executive appointment. The Legislature, like every other department of the government,'is bound by the law, and if the law then in being vested the power of appointment to the office in question in the Executive department, no other department could in any mariner legally make the appointment; and there can be no doubt that the Governor possessed the power of appointing the officer in question until the statute of the 3d March, 1838, took effect, which divested him of that right, and vested the power in the Legislature. This office is created by statute, and the Legislature possessed the power of abolishing it altogether, or directing by law in what manner it should be filled; this latter power had been exercised when the office was created, and the appointing power conferred upon the Governor, which it was his right and duty to exercise, until the law imposing that obligation upon him was repealed. That it is now repealed, and the power of appointment vested in the Legislature, there can be no doubt, but the question is when was it repealed? Every one must admit that the repeal was concurrent with the taking effect of the statute of the 3d March, 1838. But when did this statute take effect? By statute approved November 18th, 1837, and in force from that day, it is declared that « none of the statutes that may be passed during the present session of the General Assembly, shall take effect, and be in force, until the Governor shall issue his proclamation declaring that such statutes are printed and ready for delivery, unless a different day shall he expressed in the statute” and another section of the same statute declares that «it shall be the duty of the Governor, as soon as the statutes that may be passed during the present session of the General Assembly are printed, to issue his proclamation in accordance with the provisions of the preceding section.” Rev. Stat, of Ark. 699.
That it was competent for the Legislature to prescribe the time when these enactments should take effect and be in force, as law, there can be no question, and that the time was prescribed by the statutory-provisions above quoted; where no time is expressed in the enactments* of that session, their taking effect is made to depend upon a contingent event in the future, that is, upon the issuing of a proclamation by the Governor, and to this rule there is but a single exception, and that is where the time is expressed in the act. This statute, in relation to the enactments of that session, abrogates the previous law on this subject, and prescribes a time different from, and inconsistent with the time previously prescribed by law; it establishes a new rule, but is not on that account less binding, and until it is repealed or superceded by some act of equal obligation, furnishes the criterion by which it must be determined when the statutes passed at that session acquire the efficacy and obligation of law; and such must be the case if the act is even to be regarded as of a local or temporary nature, because, under the provision of law above quoted the time at which the enactments of that session shall take, effect does not, in any respect, depend upon the character of its provisions; whether they are of a public, general, and permanent nature, or of a private, local, and temporary nature, they are, we think unquestionably subjected to the same rale which, as before remarked, could only be modified, suspended, or abrogated by some act of Legislative authority possessing every sanction necessary to impart to it the force and obligation of law. The act of the 3rd March, 1838, entitled “ an act providing for the appointment of Commissioner of Public Buildings,” and the act aforesaid, approved November ,18th, 1837, were passed at the same session of the Legislature, and the rule prescribed by the latter expressly applies to and suspended the operation as law of the provisions of the former, until the contingency happened upon which they were to be enforced, upon the Governor’s issuing his proclamation for that purpose, or the law suspending their operation was so far repealed by some subsequent act of the Legislature possessing the force and obligation of law, as to give them such force prior to and without the Governor’s proclamation being issued, neither of which being done until the 11th day of December, 1838, (the day on which the replication alleged Hawkins was elected by the Legislature Commissioner of Public Buildings,) the statute in question, approved 3rd March, 1838, had not, on that day, acquired the force and obligation of law, and the election of Hawkins, by the Legislature, to fill that office, was inadvertent and illegal, and did not confer upon him any legal right whatever to the office he was so elected to fill, nor can the facts set forth in the replication, by any form of pleading them, avoid or invalidate the right exhibited by the defendant’s plea, because they fail to show any legal incumbent of the office in question when the defendant was appointed thereto, and therefore the replication is, in the opinion of this court, insufficient in law to maintain the proceeding against the defendant.
