In re Pringle

OPINION OP THE COURT BY WATSON, J. (Quarles, J., dissenting.) In a petition for a writ of mandamus before a circuit judge-of tbe first judicial circuit it was alleged that petitioner was appointed clerk of the third division of the circuit court of the-first judicial circuit by the Honorable Thomas B. Stuart, third judge of said court, on December 7, 1911; that petitioner duly qualified as such clerk and since said last mentioned date has held said office and is 'entitled to receive the income, profits and emoluments thereof and particularly a salary at the rate of $125 per month from said December 7; that James Bicknell is the duly elected and acting- auditor of the city and county of Honolulu, Territory of Hawaii, whose duty it is as such auditor to issue to petitioner warrants upon the treasurer of the city andj county of Honolulu for the payment of such salary; that said Bicknell has refused to issue to petitioner warrants upon the city and county treasurer for the payment of his salary. The prayer is for an alternative writ of mandamus directed to said auditor commanding him to issue the warrants or to appear and show cause why he should not do so. An alternative writ issued, to which respondent made return alleging that on the first day of July, 1911, the three judges of said first circuit court duly constituted, appointed and commissioned one V. M. Harrison; — 559 — a clerk of tlie circuit court of said first judicial circuit under and by virtue of the provisions- of Act 84 S. L. 1911, and the said Harrison was thereupon assigned for duty as clerk of the said circuit court in the division presided over by the third judge thereof (at that time the Honorable W. J. Robinson), and thereafter the said Harrison performed his duties as such clerk, under such assignment, until the seventh day of December, 1914, without any hindrance or interruption whatsoever; that on the seventh day of December, 1914, the Honorable Thomas B. Stuart, the duly appointed, qualified and acting successor in office to said W. J. Robinson, third judge of said circuit court of the first judicial circuit of the Territory of Hawaii, acting alone and without the concurrence or acquiescence, as respondent is informed and believes and upon information and belief alleges the fact to be, of the first and second judges of the said circuit court of the first judicial circuit of the Territory of Hawaii, or either of them, attempted to discharge and remove the said V. M. Harrison as clerk of said court, and on said seventh day of December, 1914, likewise acting alone and without the concurrence or acquiescence of the said first and second judges of'said court, or either of them, attempted to appoint the petitioner, Clarence D. Pringle, to the said office of clerk of the circuit court of the first judicial circuit of the Territory of Hawaii, and that the attempted discharge of Harrison and the attempted appointment of Pringle were and are null and void for the reason that the said acts were not performed by the three judges of the first circuit court, or at least by a majority of the three; that Harrison has never resigned his office and has never been discharged therefrom except, as stated, by Judge Stuart, and that he is now and at all times since said attempted and purported discharge and removal has been ready, willing and able to perform the duties of said office, as to all of which the said third judge was fully informed and advised, but that he is and has been since said December 7, 1914, prevented from performing said duties or any of them by the said third judge and — 560 — by petitioner; tbat by reason of tbe foregoing facts petitioner is not entitled to the relief asked, and respondent in bis said return prays tbat tbe alternative writ and the proceedings bad be dismissed. To tbe return and answer so filed by respondent petitioner interposed a demurrer, tbe grounds of wbicb, as relied on in this court, being (a) tbat tbe answer and return do not sbow wherein tbe discharge of Harrison and tbe appointment of Pringle are null and void; (b) that tbe answer and return do not sbow any legal cause why petitioner should not have tbe relief prayed. Tbe demurrer was joined in and tbe respondent was permitted to amend bis return and answer by attaching thereto a copy of Harrison’s commission as follows: “to all to whom these presents shall come, GREETING: Be it known, Tbat having full faith and confidence in tbe honesty, integrity and ability of V. M. Harrison, and by virtue of tbe power aid authority vested in us by law, we Henry E. Cooper, Eirst Judge, Wm. L. Whitney, Second Judge, and W. J. Robinson, Third Judge respectively, of tbe Circuit Court of tbe Eirst Judicial Circuit of tbe Territory of Hawaii, by these presents, do constitute, appoint and commission said Y. M. Harrison a Clerk of tbe Circuit Court of tbe Eirst Judicial Circuit of tbe Territory of Hawaii, under and by virtue of Act 84 of tbe Session Laws of 1911, at tbe salary of $100 per month, to bold and occupy said office and to receive and enjoy tbe income, profits and emoluments thereof or connected therewith, with full power and authority to do and perform any and all acts and things and to perform and discharge any and all duties set forth and described in or under tbe Constitution and laws of tbe United States and tbe laws of tbe Territory of Hawaii wbicb are now in force or wbicb may hereafter be enacted relating or appertaining to or concerning such office or the incumbent thereof. In witness whereoe, we have hereunto set our bands and tbe seal of tbe Circuit Court of the First Judi — 561 — (seal) cial Circuit of the Territory of Hawaii, at Honolulu, Territory of 'Hawaii, this 1st day of July, A. D. 1911. “Henry E. Cooper, Eirst Judge, “Wm. L. Whitney, Second Judge, “W. J. Robinson, Third Judge.” The honorable circuit judge thereupon reserved to this court the question “whether or not this circuit court should, as the pleadings now stand, sustain the demurrer interposed by the petitioner to the return and answer heretofore filed by the respondent.” In answering the reserved question it becomes necessary to inquire what powers in relation to the appointment of clerks are delegated to the circuit judges, and more particularly to the judges of the circuit court of the first judicial circuit, by the laws of this Territory, with a view of determining whether a judge of the fiirst circuit court, acting alone, has power to appoint and remove the clerk or clerks who are to serve in the particular division of the court presided over by him, or whether such power is vested by law in all of the judges of that court as a body, to be exercised by them collectively. The statutes of Hawaii nowhere designate the term for which a clerk of the circuit court shall be appointed, and it is conceded by both counsel for petitioner and respondent that the tenure of office not being fixed by law the power of removal is incident to the power of appointment, and the term of office will continue during the pleasure of the appointing power. This is in accord with the general rule. Field v. Girard College Directors, 54 Pa. 233; Mechem on Public Officers, §445: The statute under which the clerks of the circuit courts are appointed is section 1680 R. L. 1905, as amended by Act 54 S. L. 190Y, as, further amended by Act 84 S. L. 1911. This — 562 — section, as so amended, is section 2314 R. L. 1915, included in chapter 134 under the title “Clerks,, stenographers and interpreters.” This section reads: “Section 2314. There shall be a clerk of the supreme court and as many deputy clerks and assistant clerks as the business of the supreme court shall require, appointed and removable by the justices of the supreme court. The clerk of the supreme court shall be ex-officio clerk of all the courts of record of the Territory, and as such may issue process returnable in all such courts. , “There shall be as many clerks of the circuit courts as may be necessary, appointed and removable by the judge or judges thereof, as the case may be.” Prior to the amendment of 1911, section 1680, as amended by Act 54 S. L. 1907, made provision for the appointment of court clerks as follows: “Section 1680. There shall be a clerk of the judiciary department and as many deputy clerks and assistant clerks as the business of the department shall require, whose salaries shall be fixed by the legislature. The clerk of the judiciary department shall be appointed by the justices of the supreme court, and shall be ex-officio clerk of all the courts of record of the Territory, and as such may issue process returnable in all such courts. He shall have supervision and direction of the deputy and assistant clerks, but shall not be held responsible for their acts or omissions. Pie shall have charge of the records, moneys and business in the central office in Honolulu and shall supervise and direct the mode of keeping accounts and records. “There shall be two or more deputy clerks of the first circuit who shall be clerks of the supreme court and of the circuit court of the first circuit. Of these, two may be appointed and removed by the chief justice of the supreme court, and one by each of the circuit judges of the first circuit. “There shall also be one deputy clerk for each of the other circuit courts appointed and removable by the judge thereof. “There may also be one assistant clerk appointed and removable by each circuit judge with like power and duties of the deputy clerks, and each assistant clerk so appointed by a circuit judge shall be ex-officio bailiff for the court of the circuit judge by whom he shall be appointed. — 563 — “Any deputy clerk or assistant clerk may be removed by tbe •supreme court for inefficiency or misconduct.” From a reading of tbe law as it stood prior to tbe amendment of 1911 it will be seen that two of the clerks of the first -circuit (or deputy clerks as they were called at that time) were also to act as clerks of the supreme court, these two to be appointed and removed by the chief justice of the supreme court; also that specific provision was made for the appointment by each of the judges of the first circuit court of one clerk and an assistant clerk, the latter of whom should be “ex officio bailiff for the court of the circuit judge by whom he shall be appointed.” In the law of 1911, which is now in force, and which amended the act of 1907, the word each is nowhere used, but in the place thereof it is enacted that “There shall be as many clerks of the circuit courts as may be necessary, appointed and removable by the judge or judges thereof, as the case may be.” Under this provision it is contended by counsel for petitioner that in a ■circuit where there are more judges than one each of such judges may appoint and remove his clerk, that is, the clerk who is to serve in the particular division of the court presided over by him, and in support of that contention counsel relies most strongly, if not exclusively, upon the report of the judiciary committee of the house of representatives upon house bill No. 74 ■of the legislative session of 1911, which bill afterwards became law as Act 81, S. L. 1911. In that report, which appears on page 262 of the house journal, session of 1911, the following language is used: “This bill was drawn primarily in view of the reconstruction of the present judiciary building, for in that building provision will be made for each court being able to care for its own records. But it is a matter which has been favorably considered by the judges affected for some time. Under the proposed bill each judge will have power to appoint or remove his own clerk. Each clerk shall have charge of all the records pertaining to his respective court.” On page 380 of the senate journal for 1911 appears the re — 564 — port of the judiciary committee of the senate on house bill No. 74, which reads in part as follows: “This bill is in line with the policy of separating the clerks of the supreme court from the clerks of the circuit courts, is in accord with the ideas of the administration and is considered by this committee as a desirable measure.” There is nothing in the report of the senate committee, which was adopted, to indicate that the senate, when it acted on house bill No. 74, had any intention of providing in the bill that each judge of the circuit court should appoint his own clerk. The only fact that concurrently appears from a reading of the two reports is that the measure was enacted for the purpose of separating the clerks of the supreme court from the clerks of the circuit courts and enabling each of such courts, that is, the supreme court and the circuit court, to appoint its own clerks. This purpose was clearly effected, and as to this there is no question. We are unable to adopt the construction sought to be placed by counsel for petitioner on the statutory provision, as to do so would be to ignore and fail to give effect to the words “by the judge or judges thereof, as the case may be.” It is a cardinal rule of statutory construction that the courts are bound, if possible, to give effect to all of its parts, and no sentence, clause or word shall be construed as unmeaning or surplusage if a construction can be legitimately found which will give force to and preserve all the words of the statute. Lyman v. Maguire, 17 Haw. 142, 145; Attorney General v. Road Co., 2 Mich. 138; State v. Fontenot, 36 So. 630; Hagenbuck v. Reed, 3 Neb. 17; Opinion of the Justices, 39 Mass. 571. The use of the words in the alternative “by the judge or judges thereof, as the case may be,” is obviously made necessary by the fact that in the circuit court of the first judicial circuit there are three judges, while in each of the other circuits there is but one judge. As we view it, the amendment of 1911 is substantially a provision that the clerks of the various circuit courts shall be appointed and removable by the judge or — 565 — judges of such courts respectively. It takes away from the chief justice of the supreme court the right to appoint any of the clerks of the first circuit court, 'segregates the duties of such clerks from those of the clerks of the supreme court, and, as applicable to the circuit court of the first judicial circuit, confers upon the judges of that court the power to appoint and remove as many clerks as may be necessary. In our opinion the language of the statute is clear that in a circuit where there are more judges than one the clerks shall be appointed and removable by the judges of the court, acting conjointly. This view results also from a consideration of the legislation beginning with the judiciary act of 1892. Our view, that under the amendment of 1911 the clerks of the first circuit court are to be appointed by the judges of that court, acting conjointly, is evidently in accord with the construction placed upon the statutory provision by the judges of the first circuit court who were in office on July 1, 1911, the date that the amendatory act went into effect. This is evidenced by the fact that the commission issued to Mr. Harrison as a clerk of the first circuit court, dated July 1, 1911, and hereinabove set out in haec verba, was signed by the first, second and third judges of said court. While this contemporaneous construction which the law received soon after its enactment is not controlling, it is entitled to and should receive weight. 2 Lewis’ Suth. Stat. Const., §472. Assuming that this court may in a case where the language of a statute is ambiguous and its meaning is doubtful examine the legislative journals to ascertain the intent of the lawmaking body we are of the opinion that there is no such ambiguity in the act of 1911 as to justify or require a reference to the legislative records. The language used in the report of the judiciary committee of the house, “under the proposed bill each judge will have power to appoint or remove his own clerk,” is not warranted by anything found in the bill itself, and if the legislature intended this they have signally failed to express such intention in the language used. Certainly the legislative record should — 566 — not be resorted to for tbe purpose of creating an ambiguity wbicb does not exist upon a bare reading of the statute itself. As was said in tbe case of Duncan v. Combs, 131 Ky. 330, 115 S. W. 222, 224, 225: “Tbe statute, as enrolled, must be accepted as tbe law, and, where it is plain and unambiguous in its terms and not uncertain in its meaning, no necessity arises, in construing same, for calling in aid tbe journals of the respective bouses or other extraneous matter. Tbe journals might be used, as might other evidence, in construing an ambiguous statute, but not to give a statute, unambiguous in its terms, a meaning other than that wbicb its language plainly imports.” See also Webber v. Ry. Co., 97 Fed. 140; Water Commissioners v. Brewster, 42 N. J. L. 125; Lake County v. Rollins, 130 U. S. 662, 670. Tbe vice of tbe contention advanced by counsel for petitioner, that in a circuit court where there are more judges than one each of such judges may appoint his clerk, is demonstrated by tbe language of tbe statute, wbicb provides for tbe appointment of clerks, not of tbe circuit judges but of the circuit courts. It is provided in clear and unambiguous language that such clerks (that is, tbe clerks of tbe circuit courts). shall be “appointed and removable by tbe judge or judges thereof, as tbe case may be.” As was said in tbe case of The People v. Mobley, 1 Scammon (Ill.) 214, 221, where a constitutional provision relating to tbe appointment of circuit court clerks was under consideration: “If * * * the power of appointment should be regarded as personal to tbe judge it would necessarily attach to every judge immediately upon bis appointment, and upon tbe happening of a vacancy in tbe office of judge tbe clerkships * * * would also become vacant; and upon tbe same principle, when circuit judges should change circuits, as by law they are authorized to do, tbe office of clerk would become vacant by such exchange * * * because tbe judge presiding in tbe circuit court of a county is for tbe time being the judge of that court; and if tbe clerk is tbe officer óf tbe judge, and not of tbe court or law, be would have to be appointed upon every such exchange, and until — 567 — an appointment was made the administration of justice would he suspended. Such a construction * * * it is believed, is not warranted, and would in its consequences be fraught with great inconvenience to the public.” By Act 68 S. L. 1913 it is provided: “Section 2. The several counties and city and county shall pay the expenses of their respective circuit courts and the salaries of the following officers of such courts, as required hy such courts, to the extent of the following amounts,” etc. Provision is then made for the payment of salaries to eight clerks of the first circuit court, including a chief clerk and an assistant chief clerk. Of these eight clerks, whose salaries are so provided for hy statute and directed to he paid by the city and county of Honolulu, the chief clerk and assistant chief clerk are and have been since the passage of the act assigned for duty in the outer or main office of the court, while of the remaining six two are assigned for duty in the respective court rooms of each of the three judges. At the argument counsel for petitioner took the position that under the act of 1911 the two clerks who are assigned for duty in the main office of the court might well be appointed by the three judges, acting conjointly, but then, as now, he contended that the clerks who are assigned for duty in the various court rooms are appointahle and removable by the individual judges respectively. We find nothing in the statute which differentiates the manner of the appointment of the clerks employed in the particular court rooms from that of the clerks assigned for duty in the main office. In the well considered case of State Treasurer’s Settlement, 70 N. W. 532, it is held that where authority is conferred by law upon three or more persons to execute a public trust (in that case the approval of the bonds of state depositories) the act of a majority is binding if all were assembled to deliberate or had notice and opportunity to be present, unless the statute expressly requires the concurrent action of all. See also Mechem on Public Officers, §572; Merchant v. North, 10 Ohio St. 252. Applying the foregoing principles we are clearly of the opin — 568 — ion that under the provisions of section 2314 R. L. 1915 the appointment or removal of clerks of the first circuit court requires the presence, actual or constructive, of all the judges and the concurrent action of a majority. Erom what has been said it follows that in our opinion the appointment of petitioner by the third judge of the first circuit court, acting alone, and likewise the removal of Harrison by said third judge, acting alone, were without authority of law and void.' Finally it is contended by petitioner that it is sufficient to enable him to maintain his action for compensation that he was a clerk de facto and that his title to the office cannot be questioned by respondent in this proceeding. This very question was presented and, we think, correctly decided in the case of Dolliver v. Parks, 136 Mass. 499, 500, where the court said: “While the acts of an officer de facto are valid, so far as they concern the public or the rights of third persons who are interested in the things done, and his title to the office cannot be inquired into collaterally, yet when he sues in his oto right, to recover fees which he claims are due him personally, by virtue of his office, his title to the office may be put in issue; and, to recover, he must show that he is an officer de jure. In such a suit no rights of the public or of third persons are concerned. The question of title to the office is directly raised; and he can recover no benefit to himself from an office he holds de facto only.” In Stott v. City of Chicago, 205 Ill. 281, the rule is laid down as follows: “An officer seeking to compel payment of compensation by mandamus must show that he is an officer de jure and not merely an officer de facto.” Where a statute provides that an officer shall be appointed in a certain way, if such officer is appointed in- a way different from that provided by statute, and acts, he cannot recover for his services as an officer de facto. Phelon v. Granville, 140 Mass. 386, 5 N. E. 269. The salary of an office follows the title. Macfarlane v. Damon, 8 Haw. 19, 38; People v. Tieman, 30 Barb. (N. Y.) 193, 195. When an individual claims by — 569 — action the office, or the incidents to the office, he can only recover upon proof of title. Possession under color of right may well serve as a shield for defense, but cannot, as against the public, be converted into a weapon of attack to secure the fruits of the usurpation and the incidents to the office. Dorsey v. Smyth, 28 Cal. 21, 26. The fact that the petitioner, Pringle, was acting in good faith in claiming the office does not give him the right to recover. Comstock v. Grand Rapids, 40 Mich. 397. J. Lightfoot for petitioner. F. ~W. Milverton (Thompson & Milverton and J. ~W. Cathcart, Gity and Gounty Attorney, on the brief) for respondent. Por the reasons stated the reserved question is answered in the negative.