Farrel v. Pingree

Boreman, J.: At the general election held in August, 1884, one Robert P. Harris was elected to the office of county treasurer of Weber county, under a statute which established the office, and provided that the term of office of the county treasurers should be four years and until their successors should be elected and qualified. Subsequently, on the 11th day of March, 1886, nearly two years after Harris’ election, the — 446 — statute was amended by “striking out the word ‘four,’” and “substituting tbe word ‘two’ in lieu thereof.” At tbe general election in August, 1886, tbe defendant (Pingree) was elected to tbe office of treasurer of said county for tbe term of two years, upon tbe theory that Harris’ term bad expired at that time, under the statute as amended in tbe preceding March. Harris, having been elected for a term of four years, bad two years yet to serve at that date, unless tbe amendment of March 11, 1886, bad deprived him of tbe two years subsequent to the date of Pingree’s election. Pingree entered upon tbe discharge of tbe duties of tbe office under bis election in August, 1886, although Harris bad not resigned, nor been removed from office. In February following, tbe date of Pingree’s taking tbe office, Harris died. No one was appointed after Harris’ death to fill tbe office, but Pingree continued in it. . At tbe general election in August, 1887, tbe plaintiff was elected to said office, received bis certificate, and was duly qualified to enter upon tbe discharge of tbe duties of tbe office, demanded tbe possession of tbe books, papers, and insignia of tbe office from tbe defendant, who was then in possession of them. Tbe defendant having refused to deliver them up to him, tbe plaintiff brought this action, and upon tbe bearing of tbe case, tbe judgment being for the plaintiff, tbe defendant appealed to this court. We learn from tbe appellant’s brief that be claims tbe judgment of tbe lower court to have been erroneous, for tbe reason that tbe enactment of tbe 11th of March, 1886, operated at once as a vacation of tbe-office then held by Harris, saving to tbe occupant tbe right to bold tbe office until bis successor should be elected and qualified. Tbe language of tbe brief is “that tbe effect of tbe amendment of March 11th, 1886, striking out tbe wordij'four,’ was to repeal the terms of office of all county treasurers then in office, so far as any term of years then unexpired might be, and simply to leave them to continue in office, or bold over until their successors should be elected and qualified.” And tbe defendant further contends that, upon this theory, tbe fixed term of Harris expired at the — 447 — taking effect of the amendment or repeal, on the 11th of March, 1886, and that therefore Harris could only hold until his successor should be elected and qualified, after that date, which he claims took place at the August election of 1886, when the defendant was elected to the office, and thereafter' qualified. There was no vacation of the office, in express terms by the enactment of the 11th of March, 1886. The question then arises, was there such á vacation by implication? There was no repeal of the act creating the office. The amendment dealt only with the length of the term of office. It left all the residue of the statute intact, and in full force. If the legislature intended to vacate the qffice, that intention must clearly appear before a court is warranted in saying it exists. The defendant claims that such intent is shown in the enactment declaring that the old statute “is hereby amended by striking out the word ‘four.’ ” But all that the striking out clause vacates is the word “four.” .Nothing else is pretended in the act to be vacated. That word is dropped out of the statute, but the office is not dropped out. It is left to stand as it stood before. The word “four,” being repealed, stricken out, and the residue of the statute being allowed to stand, Harris would have found himself, upon the adoption of the amendment, on the 11th of March, 1886, in an «office, the term of which had no end. His term would have been lengthened, instead of lessened, by the repeal or “striking out the word ‘four;’ ” and there could have been no sort of ground for saying that under such circumstances any one else could have, by any election or appointment, a better right to the office. He had been duly elected to it nearly two years prior to that time, had not been removed, nor had he resigned, and the office had not been abolished. Only the time limit had been removed. But the true rule of construction is to take the whole of a statute, and consider all of its parts together, and not to take a fraction, and consider that by itself. The amenda-tory enactment of the 11th of March, 1886, not only contained the words “striking out the word ‘four,’ ” but it also contained the words, “substituting the word ‘two’ in — 448 — lien thereof.” The striking out and the substitution were simultaneous acts. With the word “two” in place of “four,” we are to consider the effect of the change. There is no authority or sound reason for holding that such amendment took effect as of August, 1884, nearly two years prior to its enactment. The defendant contends that although the statute took effect on the day of its passage, yet that it related back to the August of 1884, the date of Harris’ election. We are at a loss to know why this is so. The amendment says nothing whatever about the enactment relating back two years, or any other time, prior to its passage, and we see nothing in the amendment upon which to .hang- an inference of that nature. We are not justified .in adding to a statute something that the legislature never .intended, or had in contemplation, in enacting the statute.' The legislature had the power to have said so; but we are not now considering the power of the legislature, we are simply considering whether they had exercised that power. The statute, with the interpretation sought to be placed upon it by the defendant, would be clearly retroactive. No court will hold a statute to be retroactive when the legislature has not said so, and there is no reason why it should be so, and where the statute is easily susceptible of another and reasonable construction. The general rule, as found in the books, is even stronger than we have stated. It is laid down in Broom’s Legal Maxims that “laws .should be construed as prospective, and not retrospective, unless they are expressly made applicable to past transactions, and to such as are still pending.” Broom, Leg. Max., 34. And Cooley states the doctrine very definitely, as follows: “And it is a sound rule of construction that a statute should have a prospective operation only, unless its terms show dearly a legislative intention that it should operate retrospectively.” Cooley, Const. Lim., 456. See, also, Potter’s Dwar. St., 164; Ely v. Holton, 15 N. Y., 595; State v. Newark, 40 N. J. Law, 558; People v. Haskell, 5 Cal., 357; State v. Ferguson, 62 Mo., 77; Kelsey v. Kendall, 48 Vt., 24; Smith v. Auditor General, 20 Mich., 398; Peters v. Massey, 33 Grat., 368; — 449 — Rutherford v. Greene’s Heirs, 2 Wheat., 203; In re Tuller, 79 Ill., 99, 22 Amer. Rep., 170; U. S. v. Arredondo, 6 Pet., 733; Dash v. Van Kleeck, 7 Johns., 477, 5 Amer. Dec., 291. It being clear, therefore, that the legislative intent that the amendment should be retrospective, does not appear, it is settled by an overwhelming weight of authority that the enactment of the 11th of March, 1886, had no retrospective or retroactive effect, hut its operation is entirely prospective. The well-nigh two years that Harris had held the office of county treasurer could not; therefore, be counted as part of the two years’ term of office provided for in the amendment. The two years contemplated in the enactment were some two years to begin at a time subsequent to its passage. The amendment found Harris in office. It did not vacate his office, nor abolish it. The amendment, if made applicable to him at all, simply told him that thereafter he could hold the office for two years. The word “thereafter” would, of course, mean after the amendment should go into effect, which would occur when there had been a publication of the enactment. Comp. Laws, p. 78, sec. 2. He would therefore be entitled to hold the office under the amendment, if it could apply to him, for the period of two years after publication of the amendment; and the time of such publication does not appear, nor is it material, as no doubt the publication took place shortly after its passage, and prior to the general election in August, 1886. But as we have seen if the amendment be at all applicable to Harris, he was under it authorized to hold the office two years following the enactment; and, consequently, the election of the defendants to the office at the general election in August, 1886, and before such two years had expired, was unauthorized by law. But the statute was in no way applicable to Harris. He held his office under a statute which had not been repealed nor had it in any manner been modified, except that the term of office after its passage was to be two instead of four years, as theretofore. No reference was made to the cases of persons then' in office. The statute was wholly prospective, and related to terms of office in the future. — 450 — People v. Haskell, 5 Cal., 857; Cooley, Const. Lim., 456. In tbe well-considered case of Peters v. Massey, 33 Grat., 368, the court of appeals of Virginia laid down this doctrine in plain terms, and the contest in that case was in some respects similar to that in the case at bar. Two cases are referred to by the defendant, the one in Tesas, and the other in California, as being of a contrary character. The Texas case of Wright v. Adams, 45 Tex., 134, simply states the rule that where the duration of the term of office is a question of doubt or uncertainty, the shortest time is to be adopted. In the case at bar, the term of office is not a question of such uncertainty or doubt as was contemplated in that case. The principle inculcated by that decision was that where the statute has left a blank unprovided for by definite enactment, and there is a doubt as to whom such blank should be allotted, the rule should be that it should follow the policy of making the terms of office at the shortest periods which the convenience of the public will permit. It cannot, as we take it, be made to apply when the term of office is ascertainable from the statute under the ordinary rules of construction. If the ordinary rules of construction shall have been applied, and yet the matter is in doubt, the court must resolve that doubt in favor of the people, and adopt that rule that contemplates a reference of the election back to the people at the shortest period consistent with the public convenience. The California case of People v. Brenham, 3 Cal., 477, was a case such as we have described. The charter of San Francisco provided that the first election under it for city officers should be on the fourth Monday of April, 1851, and thereafter annually at the general election for state officers. The latter was then held in September, and at the first general election, in September of that year, the relator was elected mayor. The defendant (Brenham) refused to yield it up. The statute had made no definite provision as to whether the term of the mayor that had first been elected should hold on until the first general election, or to the next thereafter. No general rules of construction could solve the doubt, and the court was at sea, Under such circumstances, the court — 451 — held that the best rule to follow was that which was the established policy of the state, and it was to adopt the shortest period. These two cases cited by the defendant do not affect the general doctrine that the statute must be construed as prospective in its operations, and not retrospective. With that doctrine, which is so well settled, to guide us, the true intent of the legislature is made manifest, and there can exist no such doubt or uncertainty as to require the court to adopt, as a last resort, another rule, which is not to be called into requisition, except when a question of policy, and not a rule of law, is to govern in the interpretation of a statute. We find no errror in the action of the court below, and the judgment is therefore affirmed. Zane, C. J., and Henderson, J., concurred.