Territory of New Mexico ex rel. Ma. Sandoval v. Albright

OPINION OF THE COURT. McFIE, J. In deciding this case in the court below, the learned judge who tried the cause, held that, section 3 of chapter 27, Laws of 1903, and section 1, chapter 19, Laws of 1903, in effect, declared the office of assessor of Bernalillo county vacant. In construing these sections the court arrived at the conclusion, that it was the intention of the Legislature to declare that office vacant and therefore, although those sections do not contain a declaration to that effect, the court was of the opinion that those sections should be given, the effect of such a declaration. We cannot concur with the trial court in this conclusion. The facts admitted by the pleadings are, that the relator Jesus Ma. Sandoval, was elected by the people of Bernalillo county at a general election held on the fourth day of November, 1902, to the office of assessor of the county; that he duly qualified on the first day of January, 1903, and entered upon the discharge of the duties of the office; that the term for which he was elected was two years from the date of his qualification, and that he did not resign, vacate or abandon the office voluntarily. It must be 'conceded therefore that Mr Sandoval was still the assessor of that county, unless the Legislature by the acts referred to declared the office vacant in express terms or clearly intended so to declara That the Legislature did not so declare in express terms, will not be denied, therefore we must examine the legislation involved with a view of ascertaining what the. intention of the Legislature was, in relation to the office of assessor of Bernalillo county, that being the only office directly involved in the case. Chapter 27, Laws of 1903, is an act for the creation of, and government of the new county of Sandoval. It is not reasonable to take the view, that by such legislation it was the intention of the Legislature to deprive officers, elected by the people of the old county of offices held by them, and against their will and consent, unless such legislation necessarily has the effect of vacating such offices. The old county does not become a new county by the withdrawal of some of its territory; its organization remains the same, and only such changes can, of right, be made, as necessarily result from the formation of the new county. In such case, legislation relating to those holding office in the old county, should not be given the effect of declaring such office vacant, unless the intention to do so is manifest. Nothing should be left to the realm of doubt or inference, for, as was said in the case of Territory v. Ashenfelter, 4 N. M. 147, removal from office “deprives the possessor of a valuable private right.” Section 3, chapter 27, simply provides for the election by the people of two county commissioners, one probate judge-and one assessor for the county of Bernalillo, as the same will be constituted after the taking effect of the act creating Sandoval county, and further provides for the giving of notice for such election and how the returns shall be made. There is not one word in that section declaring those offices vacant, nor is there such in the entire chapter, for that matter. This omission is very significant, inasmuch as it clearly indicates that the Legislature was acting upon the assumption and theory that the creation of the new county of Sandoval necessarily created a vacancy in the offices of all such officers of the old county as resided within the geographical limits of the new county. This seems to be a much more reasonable interpretation of the act, than that the Legislature intended to single out certain officers and declare their offices vacant in the midst of their terms, without any reason being assigned, as an exercise of a purely arbitrary power. In support of the construction given this act by the learned judge who tried the cause, reference was made to the case of Territory v. Van Gaskin, 6 Pac. 30. In this case the Supreme Court of Montana sustained a legislative act making appointments to fill vacancies, but by reference to- the act under consideration in that case, it will be found, that the act in terms declared the offices of the former commissioners vacant and then proceeded to fill the vacancies. The act was as follows: “That the offices of county commissioners of the county of Custer be, and the said offices are, hereby declared to be vacant, and no official duty shall be performed by the persons constituting the present board of county commissioners, except to make reports . . . and that William Van Caskin, George M'. Miles and Thomas J. Ryan are hereby appointed commissioners of Custer county.” The Legislature of Montana first declared the offices vacant, and then filled them by direct appointments., The Legislature of this Territory, however, did not declare the office of assessor of the old county vacant, but provided in one act for the election by the people of an assessor, and by a subsequent act, two days later, that the county commissioners should appoint an assessor for Bernalillo county. It is difficult to account for the failure of the Legislature to declare a vacancy in the office of assessor, except upon the theory that the Legislature was of the opinion that the holder of the office resided in the new county, and that the passage of the act creating the new county, rendered the assessor of Bernalillo county ineligible to hold the office to which he had been elected. That this was the view taken by counsel for the respondent when the answer , was prepared, appears from the following paragraph of the answer: “Further answering, this respondent alleges that by virtue of an act entitled ‘An act to create the county of Sandoval,’ approved March 10, 1903, there was created the county of Sandoval in the Territory of New Mexico', and that the said relator at the time of the creation of said county of Sandoval was and has been for a long time and many years previous thereto', a resident of the portion of Bernalillo county which was incorporated into and made the county of Sandoval, and that by virtue of the passage of said act creating the county of Sandoval, the said relator became and was and still is a resident of the said county of Sandoval and not of the county of Bernalillo, and, therefore, the said relator ceased to be upon the passage of said act a resident of the county of Bernalillo and was disqualified from exercising the duties of the office of assessor of the said county of Bernalillo to which he had' therefore been elected.” If then, the Legislature did not intend to declare a vacancy but only intended to provide an officer to fill a vacancy believed to exist as a necessary result of the passage of the act creating Sandoval county upon the theory that residence in the new county disqualified the assessor from continuing to hold his office, the effect is the same as if the Legislature had no power to declare or fill a vacancy. It does not,seem necessary or profitable in this case, to consider the question of the power of the Legislature, for the reason, that, however adequate the power of the Legislature might be, if the Legislature did not see fit, nor intend, to exercise the power to declare the office of assessor of Bernalillo county vacant by the legislation enacted the legal right of the incumbent elected by the people of the county is not affected by the legislation and no vacancy existed, to be filled either by election or appointment.. Providing for the election or appointment of a successor for a legally qualified incumbent of an office is of no effect whatever so far as the incumbent is concerned prior to resignation, abandoment or expiration of the term for which he was elected neither of which occurred in this case, as is admitted by the pleadings. Respondent’s counsel insists however, that because the relator, Sandoval, resided within the geographical limits of Sandoval county and was not a resident of Bernalillo county wherein he was elected, that the legal effect of the enactment of the law creating Sandoval county, was to disqualify him for holding the'office to which he had been elected in Bernalillo county, and that the passage of that act ipso facto created a vacancy in the office for which a successor was provided. In our opinion, this position is not well taken either as to the disqualification of Sandoval or the creation of a vacancy in the office of assessor held by him, at the time the laws referred to were enacted. An examination of our statutes fails to dsiclose any provision requiring residence in the county as a qualification for holding the office of assessor. In section 5 of the organic act, it is provided, that members of the council and house of representatives shall reside in their respective districts, and section 6 provides: “And be it enacted that every free, white male inhabitant above the age of twenty-one years who shall have been a resident of said Territory at the time of the passage of this act, shall be entitled to vote at the first election, and shall be eligible to any office within the said Territory; but the qualifications of voters and of holding office, at all subsequent elections shall be such as shall be prescribed by the legislative assembly.” The Legislature is, by this section, clothed with power to create the office of county assessor, and prescribe as one of his qualifications for office, that he shall reside in the county for which he is elected to serve. The office of county assessor in New Mexico was created by act of 1884. Section 772 to 775 inclusive, Compiled Laws of 1897, appear to embrace all the provisions of our laws in regard to that office, and the qualifications, manner of selection and tenure of that officer, except as to the .filling of vacancies. There is no residence qualification provided for. Section 664, Compiled Laws of 1897, provides for the filling of vacancies in county offices, except that of county commissioners, and does provide, that in filling such vacancies the person appointed shall be a resident of the county. The manner of filling vacancies in county offices, was changed by chapter 2, Laws of 1901, the power being vested in the Governor, but this act does not include a residence qualification. Section 3, chapter 27, also provides that the officers to be elected shall reside in the county of Bernalillo, but chapter 49 does not so provide. At the time the legislation in question was enacted, there was no statutory provision for a residence qualification applicable to the office of county assessor, and the- court should not engraft upon the statute by construction, a qualification which the Legislature, with full power to act, has seen fit to omit. We are thus logically led to the conclusion that, even if it was admitted that Sandoval had been for years and was still residing in what would become Sandoval county when the act took effect, that fact would neither disqualify Sandoval from holding his office nor have the effect of rendering the office vacant. The Legislature acted upon a mistaken view of the law, the result of which was to provide for the election of an officer to an office not vacant, but which, on the contrary, was in the possession of a legally elected and qualified incumbent. In the case of Postmaster General v. Eai’ly, 12 Wheat. 148, Chief Justice Marshall in delivering the opinion of the court said : “It is true that the language of the section indicates the opinion that jurisdiction existed in the circuit courts rather than intention to give it; and a mistaken opinion of the Legislature concerning the law does not make law.” In the matter of John Herson, 39 Maine 481, the court said: “It is said that the intention of the Legislature ta confer such a jurisdiction is clearly ascertainable from the provisions of the act, and that such intention should be made effectual. The intention of a legislative body is by the law regarded as a rule for a court to determine what construction the language which the Legislature has used should receive. But no rule of construction is known, or admitted, by which a clearly perceived defect, or omission in legislation to accomplish an important purpose in criminal law, has been, or can be supplied by inferring it from language used for another purpose not suited nor intended to supply that defect. Even in the construction of wills, in which the intention of the testator is to be pre-eminently the guide of the court, that intention can not, however clearly discoverable, be made effectual, if there be found in the will no language used by which the object can be accomplished.” In District of Columbia v. Hotton, 143 U. S. 27, the court said: “It is contended, however, that by the act of January 31, 1883 (22 Stat. 412, c. 41; Sup. to Rev. Stat. (2 Ed.) 397), Congress recognized said section 354 as a still subsisting law, and that that consideration should compel a reversal of the judgment below. We are not impressed with this contention. “But even if Congress had supposed that that section was still the law, when as a matter of fact, it had been repealed, it would make no difference in this consideration.” So in this case, we find no language in the act which can reasonably be held to declare a vacancy in the office of assessor of Bernalillo county, nor does the mistaken opinion of the Legislature as to the legal effect of the passage of the act creating Sandoval county create such vacancy, nor render Sandoval ineligible to hold the office. Chapter 49, Laws of 1903, became a law March 13, 1903, or two days after the approval of chapter 27. This latter act amends section 3 of chapter 27 by direct appointment of T. C. Gutierrez and Severo Sanchez county commissioners of Bernalillo county and provides that when qualified, the board shall appoint an assessor and a probate judge for Bernalillo county. Section 2 provides for the division of Bernalillo county into commissioner districts. There is no provision in this act declaring the office of assessor of the old county vacant, but simply for the appointment of an assessor. All that had been said, therefore, concerning section 3, chapter 27, is equally applicable to this amendatory act. The method of selecting an assessor was changed from an election by the people to appointment by the board of county commissioners. If the people had no legal right to elect an assessor for that county, the board of county commissioners had no legal right to appoint, and if such appointment was made, there being no vacancy, the appointment was of no legal effect, as the former incumbent, Sandoval, had a superior title to the office by reason of his election, qualification, possession of the office, and the fact that his term had not expired. Where districts or counties are divided by legislative enactment, officers required to reside in the distinct or county in which they were elected, have a right to retain their offices by establishing their residence so as to remain in the old county, and a reasonable time allowed them to do so, even after the taking effect of the act. In the State of Ohio, article 3, section 3, of the Constitution provided that: “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.” In the case of State of Ohio etc. v. Choate, 11 Ohio 513, the question of the effect of county division upon the tenure of office of these judges was under consideration, and in deciding the case the court said: “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 coordinate 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 Choate 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 nis official attendance; neglected to do so at the May term of the court, and still neglected up to the second day of August.” In the case of Norwood v. Holden, 45 Minn. 313, the court said: “It seems that it was assumed that if the relators had, by reason of the redistricting, become disqualified from talcing their seats on the board in January, this created vacancies which the chairman of the boards of town supervisors were authorized to fill. But this was a mistake, for it would not be one of the events the happening of which would create a vacancy, under the provisions of Gen. St. 1878, chap. 9, sec. 2.” In Minnesota at the time this case was decided, the statute provided that a commissioner “shall, at the time of his election be a resident of said district, and shall reside therein during his continuance in office.” The court held that changing the boundaries of a district after election did not have the effect of disqualifying the officer. State ex rel. O’Connel v. Nelson, 34 Pac. 562; State v. Swearengen, 12 Ga. 23; State v. George, 23 Fla. 585. It is alleged in the information, and admitted in the answer, that the respondent, was appointed on the twenty-third day of March, 1903, and that he demanded and took possession of the office upon the same day. Section 16 of the act creating Sandoval county provides that the act shall not take effect until the fourteenth day of April, 1903. Therefore, at the time the respondent was appointed and attempted to take possession of the office, the county of Bernalillo- was in the same condition as when the relator was elected, and the county of Sandoval was not in existence. There had been no change of boundaries, and even if a residence qualification existed, Sandoval resided in the county for which he was elected. Prior to the taking effect of the act creating the new county — thus changing the boundaries of the old — it is untenable to contend that a vacancy existed by reason of the act creating the new county, and that Sandoval was thereby disqualified from holding the office of assessor in Bernalillo county to which he had been elected. We are, therefore, of the opinion that the appointment of the respondent, prior to the taking effect of the act creating the county of Sandoval was unauthorized and of no effect, even if it were true that the creation of the new county, ipso facto, vacated the offices of all those officers of the old county residing within the boundaries of the new county when created. No vacancy existed in the office of assessor of Bernalillo county, the relator’s title to that office remained unimpaired and the attempt of the respondent to take possession of the office on the twenty-third of March, 1903, or about twenty days prior to the taking effect of the -act creating the new county, was without warrant of law and was a usurpation in law as against the superior title of the relator who was the rightful incumbent and in the lawful possession of the office. Section 3 of the act creating Sandoval county, provides for the election of an assessor and three other -officers by a vote-of the people of Bernalillo- county as the same will be constituted after the new county is -created, but by the terms of the act this election was to be held on the fourteenth day of April, 1903, the date upon which the act took effect. It is clear, that at the time this act was passed the Legislature understood that no vacancy would exist in the office of assessor of the old county prior to- the taking effect of the act creating the new county. It is somewhat strange, to say the least, to find the same Legislature, two days later, passing an amendatory act (chap. 19, Laws of 1903), providing for the appointment of an assessor for Bernalillo county by the board of county commissioners thereof on the tenth day of April, 1903, four days prior to the division of that county. To sustain this legislation' upon which the appellee relies, it is necessary to hold that the power to remove and appoint county -officers, is vested exclusively in the Legislature, unlimited by act of Congress. Whatever may have been the power of the Legislature, upon this subject, prior thereto, since the enactment of the act of Congress approved July 30, 1886, and the act amendatory thereof, approved July 19, 1888, express limitations have been placed upon the power of the Legislature to regulate county affairs, which in our opinion renders the position above stated unmaintainable in this action. We do not deem a discussion of this question necessary to a decision of. this case, and as it will necessarily be more fully considered in the decision of the case of the Territory on the relation of Thomas J. Curran et al. v. Thomas C. Gutierrez and Severo' Sanchez, which is a companion case involving the validity of the same acts of the Legislature under consideration in the present case, we will refrain from any further reference to the subject here. From the views above expressed it follows that the demurrer to the answer should have been sustained in the court below, and that the court erred in rendering judgment quashing the quo warranto proceedings and dismissing the cause. The judgment of the court below is reversed and the cause remanded with directions to reinstate the cause and proceed in accordance with the views expressed herein. Mills, C. J., concurs; Parker, and Pope, JJ., in the result. Baker, A. J., having heard the case below, took no part in this decision but files herewith reasons in support of decision below. Mann, A. J., not having heard the argument in this court, did not participate in this decision.