Taft v. Adams

The decision was made on the 19th of February. Shaw, C. J. This is understood to be an amicable proceeding, to try a question of great practical importance, upon which controversies have arisen in several counties, respecting the validity and construction of a statute passed last year, changing the times of election of county commissioners, and the tenure of the commissioners then in office. This is a class of officers, having the pecuniary concerns of counties, and the general administration of county affairs, under their jurisdiction; it is important, therefore, as well to their own security and satisfaction, as to all others whose rights are affected by their acts, to ascertain, whenever a doubt is suggested on the subject, whether they are legally chosen and entitled to the offices which they actually exercise or claim to hold, and are legally clothed with the powers which the law confers on such officers. We have therefore given the sub — 130 — ject the earliest attention. The obvious policy of this change was, that this board for the administration of county affairs, embracing many subjects of great importance to the community, should be so constituted as never to be without some experience ; and by annually choosing one for the term of three years, one new member only would come in at one time, whilst the ether two would be conversant with the practice of the board in previous years. It appearing, by the facts stated in the petition and admitted by the answer, that the office of the respondent has been expressly vacated by the terms of this act, and the petitioner chosen in his place, it would seem necessarily to follow, that if this act is valid and constitutional, and capable of being carried into effect, according to its terms, the' petitioner is duly elected and entitled to the office. It is suggested as one obvious objectionable feature in this statute, that it takes away from a party an office, to which he had been duly elected, according to the existing law, for a term of years, before the expiration of that term. But this forms no objection to its constitutionality. Where an office is created bylaw, and one not contemplated, nor its tenure declared by the constitution, but created by law solely for the public benefit, it may be regulated, limited, enlarged or terminated by law, as public exigency or policy may require. The administrative powrers and duties, now held and exercised by county commissioners, have been placed under the jurisdiction of many different courts, officers and magistrates, since the adoption of the constitution, by changes of the law. They were originally vested in a court of sessions, composed of all the commissioned justices of the peace for the county, afterwards transferred to special courts of sessions, courts of common pleas, with and without the aid of special justices, and ultimately vested in the county commissioners. Their mode of appointment or election has been fixed, their tenure of office established, their powers restrained or enlarged, by the operation of successive laws, and at each of these changes many of those who were previously in office, for certain or uncertain terms, were necessarily divested of those offices. These changes by force of law have been acquiesced in. — 131 — And we are of opinion that the act in question, changing the time and mode of choosing county commissioners, and which seems to have been warranted by a long course of precedents, in regard to a class of officers nearly analogous, was not beyond the constitutional authority of the legislature. But it is in that respect only, that we consider its validity. We cannot go into the considerations of policy and expediency upon which it is founded; these are wholly for the legislature. But although it has not been distinctly insisted in the argument, that this act is unconstitutional, yet it has been urged that, as it is unjust and injurious in its operation, it requires to be rigidly scrutinized; and that, looking at the whole act, it is so uncertain in its provisions, and so defective in its practical directions, that it cannot well be carried into execution, and is therefore void for uncertainty. It becomes therefore necessary to examine the statute with some care. The argument is, that by the St. of 1854, e. 77, no sufficient provision is made for returning and examining the votes, recording and declaring the result, and giving notice to the persons chosen of their election. The provision, § 3, is substantially as follows: “ At such annual election, there shall be one county commissioner chosen in the manner prescribed in the fourteenth chapter of the revised statutes for the election of county commissioners, except so far as such manner is changed by this act; such commissioner to hold his office for the term of three years, and until a successor is chosen and qualified in his stead.” When one statute thus refers to another, to avoid the prolixity arising from a repetition of all the provisions of the act referred to, it must be construed with this qualification, that the provisions of the act referred to shall be applied in all those particulars, in which they can be applied without leading to absurd results; and if they cannot be applied in all particulars, they shall be applied as nearly as possible consistently with the provisions of the new act. The fourteenth chapter of the revised statutes was a public act, relating to the choice of a well known body of public officers; all its provisions remained in — 132 — force, except so far as they were altered and changed by the act of 1854. In some important respects, this did effect a change; it provided for an election every year, instead of once in three years; it directed the choice of one commissioner, instead of three; and transferred the election from April to November. In most other important particulars, c. 14 of the Rev. Sts. remained in force. It provided for the issuing of warrants, the balloting by voters, the returns of votes by selectmen to the clerk’s office; and it constituted a board of examiners, charged, amongst other public duties, with that of examining and declaring the result of such votes, issuing a new warrant in case of no choice, or to fill a vacancy; all this remained unchanged by St. 1854; and these regulations are all applicable to the choice directed to be made by the latter statute. When it is said in this statute, that county commissioners shall be chosen “ in the manner prescribed in the revised statutes,” we think this expression means not only the warrant for a meeting, and balloting by the voters in towns, but extends to all the other provisions necessary to give effect to the choice; such as returning, examining and declaring the votes, so as to make a complete election to the office. But the point ultimately and most strongly relied on, to show that the St. of 1854 is irreconcilable with the Rev. Sts. c. 14, and therefore cannot be carried into effect, arises from the consideration of § 18 of c. 14 of Rev. Sts. which directs that the examiners shall meet on the Tuesday next succeeding the second Monday of April, and examine the returns; and hence it is argued that it would be absurd to suppose the legislature intended that the election should be held on the second Monday of November, and that the votes should be examined on the second Monday of April; and so that there is no intelligible or practical provision made for counting and declaring the votes. To estimate this difficulty, it is necessary to examine the provisions of the Rev. Sts. a little more in detail. Section 17 directs how the meetings shall be'called and held, the ballots taken, counted and declared by the selectmen, in open town ■meeting, and a record thereof made by the selectmen, who shall — 133 — within seven days transmit a copy of such record to the clerk of the court of common pleas, who shall transmit the same to the board of examiners. In fact, he is one of that board, as constituted by § 38 of the same chapter. The things to be doné then, and the order in which they are to be done, are these: The election on the first Monday of April; sevén days allowed to selectmen to make returns; the meeting of the examiners on the day next after the time allowed for such returns, which must necessarily be eight days from the election. This is the substance of the direction. So by a subsequent section, when a vacancy is to be filled, the examiners are to issue their warrant, the like proceedings shall be had, and the examiners shall, within eight days, examine the returns. Here, as the time of the election is an uncertain day, the time for the meeting of the examiners cannot be fixed by naming the day of the week, as in the former instance ; but as it cannot be till the expiration of the seven days allowed for the return of votes by selectmen, and must not exceed eight days, it must be the day after that fixed for the returns, and therefore bears the same relation to the day of election, as that of the first, though necessarily expressed in different words. We agree with the respondent that the legislature did not intend to change thé day of election to November, and leave in force the provision that the examiners were to meet to receive the returns in April. The examination and declaration of the votes as soon as may be after they are given, consistently with the allowance of a reasonable time for town officers to return the votes, is so immediately connected with, and incidental to the election, that we have no doubt that the change of time for the election earned the change of time for the examination with it. But we think, taking the provisions together, the time for the examination is fixed with reasonable certainty. The election is still to be held on a certain Monday fixed by the constitution. Seven days are still allowed for the returns of the votes to the clerk of the court of common pleas, who is one of the examiners. By an analogy, which cannot easily be mistaken, we think the Tuesday of the next succeeding week to that on the Monday — 134 — of which the election is held, or in other words, eight days from the election, is the day for the examination* On the whole, the court are of opinion that this act was not void for uncertainty; that the respondent, having been legally superseded by the election of the petitioner, is no longer entitled to hold the office of county commissioner for the county of Worcester; and that the petitioner, having been duly elected and returned, according to the provisions of this statute, is entitled to enter upon and hold the office. Footnotes [*] By St. 1855, c. 3, passed on the 30th of January 1855, “in all fut ire elections of county commissioners, the board of examiners in the several counties whose duty it is to examine the returns of votes, shall meet and discharge the duties required by law as to such elections, on the first Wednesday of the month next succeeding the election of any such officers.”