Toney v. Harris

JUDGE LEWIS DELIVERED THE OPINION OP THE COURT. Appellant instituted this action to prevent an alleged usurpation by appellee of the office of judge of the Louisville Law and Equity Court, and to recover of him the possession thereof, the petition and amended petition, to which a general demurrer was sustained, containing substantially the following statement of facts: — 462 — That J. G. Simrall was, on the first Monday in August, 1884, elected to that office for the full term of six years, but having resigned, appellee was by the Governor appointed January 1, 1886, to fill the vacancy thus created until the general election on the first Monday in August of that year, and, thereupon, entered upon the duties of the office, and still claims the right to hold it. That, at the general election held at the last-named date, appellant was a candidate for election by the voters of Jefferson county, including the city of Louisville, to said office for the residue of the term, and his candidacy, as well as the fact there would be an election for that office then held, was fully advertised in the newspapers of the county, and by cards and posters. That the qualified voters of said county took notice of the law requiring such election to be held, and had actual notice it would be held, and voted for appellant as a candidate for said office, their votes being -regularly recorded in the several poll-books used at said election. That, in due time thereafter, the county board appointed by law to examine the poll-books and ascertain the correctness of the summing up of votes, made out certificates of the number of votes given in that county for appellant for that office, he being the only candidate, which show that he received 18,580, and that none were given to any other person. That one of said certificates was transmitted to the Secretary of State at the seat of government. But the board for examining-returns of elections for State and district officers, composed of the Governor, Attorney-General and Auditor, refused to make out and deliver to appellant a certificate of his election to said office, upon the ground, — 463 — stated in a written, communication filed with the petition, that the office in question is exclusively within the. gift of the voters oí Tefferson county, and, consequently,, the county board of examiners is alone authorized to-give a certificate of election in such case. It is further stated that, subsequently, he received a certificate of election from the county board, and, thereupon, qualified, and demanded of 'appellee the possession of the office, which he refused to surrender, and yet. wrongfully and illegally withholds from appellant. In an amended petition it is stated that the Governor, although actually informed more than six weeks-prior to the first Monday in August, 1886, that a vacancy existed in said office, refused to issue a proclamation for an election on that day to fill such vacancy, and the sheriff of the county, by reason thereof, did not give official notice that an election for that purpose-would be then held. It is further stated that appellant requested the Governor to issue to him a commission as- judge of said court for the remainder of the-regular term, but he refused to do so. The special relief prayed for is judgment against appellee for' the surrender to appellant of the office, together with the books, records, franchise and emoluments appertaining thereto. And the final judgment of the lower court was, that the action be dismissed, and for the recovery by appellee of his costs. Tire two sections of the Civil Code applicable to this-case are as follows : “ Sec. 483. If a person usurp an office or franchise, the person entitled thereto, or the Commonwealth, may prevent the usurpation by an ordinary action.” — 464 — “Sec. 487. A person adjudged to have usurped an office or franchise shall be deprived thereof by the judgment of the court, and the person adjudged entitled thereto shall be placed in possession thereof ; but no one shall be entitled thereto unless the action be instituted by him,” etc. The attitude of appellant being that of plaintiff, to recover “he must, as the plaintiff in every other case must do, show a legal title to that which he demands.” (Justices v. Clark, 1 Mon., 82.) And the question directly presented to us by this appeal is whether, assuming the facts stated by him to be true, he is entitled to the office. But, to decide that question, it becomes necessary to ascertain the true meaning of certain provisions of the statutes relating to the office, about which the.parties differ, and, if construed as it is contended on behalf of appellee they should be, to also decide as to their validity. Hence, whether the case be determined one way or the other, we will have to' indicate our views in regard to appellee’s title to the office, and it is proper to state his counsel have requested that we do so. The commission filed with the petition shows that appellee was appointed by the Governor for the residue of the term of six years, and not, as alleged by appellant, until the August election in 1886. Appellant admits that he has neither a certificate of election from the State board, which, we think, is alone empowered to give it, nor a commission from the Governor. And whether the possession of either is indispensable to enable him to' maintain this action, we will now consider. The first was refused under a misconception, as it seems to us, of the statute. — 465 — It is true section 2, article 5, chapter 33, General Statutes, provides that' the county board ior examining poll-books shall give a certificate of election of the person who has received at an election the highest number of votes for an office exclusively within the gift of the voters of the county. But manifestly that provision was intended to apply only to what are treated in the Constitution and statutes as county offices, and not to what is called a district office, that it generally requires the voters of two or more counties to fill. This is made clear by section 6 of the same article, which makes it the duty of the State board to give certificates ■of the election of judges of the circuit court, considered in connection with section 28, chapter 28, which requires “a circuit court” to be construed to mean any court of similar jurisdiction, either criminal, ordinary or equitable. But we do not think the refusal of the State board to .give the certificate should defeat appellant’s recovery; for the essential fact that he received the highest number of votes given for the office has been duly ascertained by the board, whose duty it is to examine the poll-books and sum up the votes. The commission was refused by the Governor upon the ground, stated by him in a communication filed with the petition, that there was not a legal election for judge of the Louisville Law and Equity Court on the first Monday in August, 1886, because no vacancy existed in that office to be then filled by election. And it is now contended, that as appellant had no commission as judge of the court when he demanded possession of the ^office, he is not entitled to sue for and recover it. — 466 — The power and duty of the judiciary to decide upon the validity of an act of the Governor, as well as of a law of the General Assembly, when involved in the determination of a controversy properly before a court for adjudication, necessarily results from the division of the powers of the government into three distinct departments, and has frequently been exercised by this court in cases similar to this. In the cases of Justices v. Clark, 1 Mon., 82, Bruce v. Fox, 1 Dana, 447, and Page v. Hardin, 8 B. M., 648. the decision of the Governor that a vacancy in office existed, and his act in attempting to fill it, were directly before this court for revision, and in each one it was decided no vacancy existed, his act was invalid, and the person appointed by him was not entitled to the office. In the last named case the relative powers and duties of the two departments are defined in the following language: ‘‘ When by the Constitution or the law the Governor has a discretionary power, or when on any ground his act is made conclusive as to all rights involved, it is of course not within the province of a court to inquire into the propriety or impropriety of his act. Such a power controls all rights which it may affect; and a properly authenticated act done in pursuance of it, cannot be questioned, for the reason there can be no legal right coming in conflict with it. Rights dependent upon a discretionary power cannot exist in opposition to it, but terminate at its will. The question, however, whether there is such a power in a given case, or whether any particular act or power is of the character referred to, is a judicial question whenever the right in litigation before a judicial tribunal depends — 467 — upon it, and requires its decision. If any office be held at the will of the Governor, the appointee could not complain of the violation of any legal right by the revocation of his appointment, however sudden or groundless. But if the Governor were to attempt to displace any officer at his mere will, he might undoubtedly make the question in a legal contest with a proper party, whether the Governor had such power, and whether his right to the office was terminated. The question of right on his part, and of power on the part of the Governor, would be the same. And as he might unquestionably assert his right by appropriate legal remedy, the question of power would necessarily be brought within the cognizance of the court. And so any power claimed or exercised by the Governor may be brought in question before a judicial tribunal, if it be relied on and material, either in opposition to any right asserted by legal remedy or in support of it. “ Such we understand to be the operation of the judicial power and the law in the protection of individual rights under a constitutional government. The judiciary pretends to no direct control over the action of the Legislature or the supreme executive. But it may decide upon the validity of the acts of either affecting private rights. And, by a writ of mandamus, it may coerce a ministerial office, though of the executive department, to the performance of legal duty for the effectuation of a legal right. It must decide all questions essential to a determination of the rights of the parties in a judicial proceeding coming properly before it.” The plaintiff in that case was the Secretary of State, whom the Governor had attempted to remove from — 468 — office, and the defendant was the Auditor. But the decisive question was one of right on tho part of the plaintiff, and of power on the part of the Governor. There his act, which this court decided invalid, was, as it is here, in opposition to a right “asserted by logal remedy.” But if the position of counsel be correct, it results that, although the decision of the Governor upon the legality of an election is not, nor can be, under our form of government, conclusive against the right of a person claiming an office in virtue of such election, still he may, by withholding the commission, not only deprive the claimant of it, but prevent any inquiry or determination by a judicial tribunal as to his title. Section 15, chapter 81, General Statutes, provides that the officers named therein, including' judges of the circuit, criminal and common pleas courts, chancellors and vice-chancellors, shall have commissions issued to them by the Governor. But it was not intended thereby that the possession of a commission should be a condition of the right to maintain an action for any such office. • Section 2, article 11, chapter 33, provides that each officer elective by the voters of a judicial district, “ shall enter upon the discharge of the duties of his office after the commencement of his term, as soon as he receives his commission.” If the decision by this court should be in favor of appellant, it would be regularly followed by a judgment placing him in possession of. the office, and depriving appellee of it, which judgment the court would unquestionably have the power to enforce. But whether — 469 — appellant could then, according to a fair construction of the last named section, enter upon the discharge of the duties of the office, without having received the commission, is a question it is improper to discuss, because we are not permitted to presume that the Groveroor, whose duty it is to take care that the laws be faithfully executed, would, in such a case, leave the law creating the office in question suspended. We will now proceed to the discussion of the validity of, and construction to be given to, the act of March 26, 1872, creating the vice-chancellor’s court, the name of which was subsequently changed to that of the Louisville Law and Equity Court, and the amendatory act of May 15, 1886. The first and ninth sections of the act of 1872, the only two necessary to quote, are as follows: “ Section 1. There shall be elected at the next general election of the qualified voters of Jefferson county, and every six years thereafter, a vice-chancellor of the Louisville Chancery Court, who shall hold his office for the term of six years, and shall receive the same compensation and have the same qualifications as the chancellor of said court.” “ Section 9. This act shall take effect and be in force from and after its passage ; and until the next general election the vacancy existing, as well as' all vacancies hereafter occurring, shall be filled by appointment by the Governor.” The act of May 15, 1886, is as follows : “An act providing for filling vacancies that have or may hereafter occur in the office of judge of the Louisville Law and Equity Court. — 470 — “ Section 1. That vacancies in the office of judge of the Louisville Law and Equity Court shall be filled at the same time, and for the same period, of vacanies, and in like manner, and on like occasions, as vacancies in the office of the Jefferson circuit court. “ Section 2. But this act shall not apply to, or in any manner affect, the term of the present incumbent of said office of judge of the Louisville Law and Equity Court. u Section 3. This act shall take effect from and after its passage.” It is argued for appellant it was intended by section 9 of the act of 1872, that in case of a vacancy in the office occurring at any time after the first Monday in August, of that year, when the first election under the act was held, it should be filled for the residue of the regular term unexpired by an election at the general election in August next thereafter, and that the Governor has no power to fill a vacancy for a period extending beyond a general election; and that the object and effect of section 2, of the act of May 15, 1886, was to leave the act of 1872 thus construed in force until the first Monday in August, 1886, at which time an election to fill the vacancy for the residue of the term was duly held, and appellant was legally elected. On the other hand, it is contended for appellee that, by section 9 of the act of 1872, the Governor was empowered to appoint and commission appellee to fill the vacancy caused by the resignation of Judge Simrall, for the whole of the unexpired term of six years, which he did do January 1, 1886. And that the meaning and object of the proviso contained in section 2 of the act — 471 — of May 15, 1886, was to leave the right of appellee to the office thus defined unaffected. The latter clause of section 9 is somewhat awkwardly drawn, but, in our opinion, the construction of appellee is the correct one. The words “until the next general election,” connected by the conjunction “and” with the preceding clause declaring when the act should take effect, we think relate to a particular period of time, beginning at the passage of the act and ending at the next or nearest general election thereto, during which it was the intention, “the vacancy existing” by operation of the act itself, should be filled by appointment. To make them apply to vacancies occurring after the termination of that period requires not only a transposition of the words of the sentence, but the substitution* of “mc7¿” or “any vacancy” for vacancies.” It therefore follows that the length of time for which the Governor is empowered by that section to fill the vacancies occurring after the first election under the act is the whole of the term unexpired when an appointment is made. Such is the natural import of the language in reference to such vacancies, unaccompanied, as we think it is, by any qualifying words. And as the section manifestly was not intended to be construed in connection with, nor made subservient to, the provisions of the Constitution and existing statutes relating to the circuit and Louisville chancery court, such must be regarded as its meaning. The act was thus construed by the predecessor of the present Governor, who made an appointment to fill a vacancy in the office for two years, the legality of which — 472 — the Legislature by an act passed in 1884, continuing the-appointee in office to the end of the regular term, seems to have recognized. And section 1 of the act of May 15, 1886, we think, shows the same legislative construction. It is, however, argued by counsel of appellant, that such a construction renders so much of the act as relates to filling vacancies unconstitutional, and the-court should, therefore, if possible, so construe section 9 as to make it harmonize with the Constitution. If a statute be fairly susceptible of two constructions, that one in harmony, rather than the one in conflict with the Constitution, should be adopted. And if there-be a reasonable doubt on the subject of the validity of a statute, it is the duty of the court to hold it to be constitutional. But a court is never justified in perverting the true meaning of a statute to avoid deciding-upon its constitutionality, nor for any other purpose. It seems to us, however, that the application of the-rule would not benefit appellant more than appellee, because if section 9 be construed either way contended for, it is liable to the same objection. Section 1, article 4, of the Constitution, is as follows: £ £ The judicial power of this Commonwealth, both as to matters of law and equity, shall be vested in one supreme court, to be styled the Court of Appeals, the courts established by this Constitution, and such courts inferior to the supreme court as the General Assembly may, from time to time, erect and establish.” There being no express provision in the Constitution in regard to either the manner of selecting or the qualifications of judges of the courts authorized by that sec — 473 — tion to be erected and established, nor as to the mode’ of filling vacancies in such offices, the question arises-whether as to any, or either of these matters, there are implied limitations and conditions of the exercise of the power by the General Assembly. For if so, they are as obligatory as if they had been expressed. For the sure and true interpretation of the organic as well as a statute law, it is useful to look to the occasion and necessity of the law, the mischief felt and the remedy had in view. “And then the office of all the judges is always -to make such construction as shall' suppress the mischief, advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro prinato commodo, and to add force and life to the cure and remedy according to the true intent of the makers po'o bono publico.” It seems to us that it is only necessary to look at the radical and complete change made by the present Constitution in the tenure and mode of filling offices, from the former system, to be convinced that it was the intention of its framers, who but obeyed the sovereign will, that all judicial offices, from the highest to the lowest grade, whether expressly named therein or' thereafter to be erected and established by the General Assembly, should be filled by election by the people,, and in no other way. In Speed, &c., v. Crawford, 3 Met., 207, decided in 1860, is the following language: “To curtail the power of appointment to office'by the Executive, and to extend the elective • principle, was one of the leading objects of the authors of the Constitution. This purpose was not more distinctly manifested in the expres — 474 — sion of public sentiment which, led to the call of the convention, than it has been in the provisions of the instrument itself. * The great object in the change of •the system was to refer to the people the choice of their officers of all grades and classes, whether State, district, county, city or town offices. That choice was to be made through the instrumentality of an election.” j. To except from the application of the elective principle judicial offices which the General Assembly is 'authorized to erect and establish, would destroy the consistency and harmony of the Constitution, and to that extent defeat what was manifestly a controlling object of its adoption, and we are, therefore, bound to conclude, if so intended it, would have been plainly indicated. The only exception or even modification to be found, and inferentially the only one intended, is in •section 10, article 6, which does not relate at all to judicial offices. That section is as follows: “The General Assembly may provide for the election or appointment, for a term not exceeding four years, of such other county or district, ministerial and executive offices, as shall, from time to time, be necessary and proper.” But it'is useless to argue farther to prove what is so plain, and has been so universally accepted as true since the formation of the Constitution. If, then, judicial offices created by statute must be filled in the mode prescribed by the Constitution for filling those named therein, it would seem to follow that by it, and not by statute law, are the qualifications of the officers to be determined. Otherwise, there might exist different qualifications for judges of courts having the same general jurisdiction, or the — 475 — anomaly be presented of higher qualifications being prescribed for a judge of the circuit court than for the judge of a statutory court of superior jurisdiction. -For the courts which the General Assembly may by section 1, article 4, establish, are not required to be of less or even the same jurisdiction as the circuit court, but inferior only to the Court of Appeals. And the Legislature under that section established the ■Superior Court, and invested it with jurisdiction of appeals from judgments of the circuit court. By what rule, then, are the qualifications of judges of statutory courts to be determined % In Rudd v. Woolfolk, 4 Bush, 355, the principal ■question involved was as to the construction of section 28, article 4, of the Constitution, which is as follows : “The General Assembly shall provide by law for holding circuit courts when, from any cause, the judge shall fail to attend, or, if in attendance, can not preside.” And this court said: “The circuit courts being of general, common law, equity and criminal jurisdiction, all the statutory courts having general jurisdiction of either of these branches may be said to be carved out of it, and, therefore, substantially and for every legal and constitutional purpose circuit courts, whatever may be their designation by name or cognomen. * * Looking at the evils to be remedied and the objects in view, we can hardly suppose the convention attached more importance to the name than the jurisdiction of the court. Therefore, we construe the meaning of this clause of the Constitution as con — 476 — ferring power to provide by law for tlie election of special judges for any court carved out of tlie jurisdiction of the circuit court, because pro tanto it is a circuit-court, although called by another name.” A person to be eligible, under the Constitution, as judge of the circuit and Louisville Chancery Court, must be a resident of the district in which he is elected two years next preceding his election, at least thirty years of age, and have been a practicing lawyer eight years. But he may be eligible to the office of judge-of the county, city or police court, or as justice of the peace, without any previous practice or experience-as a lawyer, if he is over twenty-one years of age, and shall have been a resident in the county or district in which he is chosen one year next preceding his election. It is, therefore, clear it was not intended to give to the General Assembly the power to prescribe the qualifications of the judge of a statutory court having the same general jurisdiction as tlie circuit court, but that they should be regulated by the provision of the Constitution applicable to the latter,- and such has been the uniform legislative construction since the establishment of the first statutory court in -1865. If, then, in harmony with the obvious design and general structure of the Constitution, judges of such courts must be elected, and belonging to the same class,, erected for the same purpose, and invested with the-same dignity and power, must have the same qualifications as a judge of the circuit court, the logical conclusion is that vacancies being equally within the reason of the Constitution, must be regarded as likewise — 477 — within the Constitution itself, and, therefore, intended to be filled in the same manner as vacancies in the office of circuit judge are directed to be filled. Section 26, article 4, is as follows: “If a vacancy shall occur in the office of judge of the circuit court, the Governor shall issue a writ of election to fill such vacancy for the residue of the term: Provided, That if the unexpired term be less than one year, the Governor shall appoint a judge to fill such vacancy.” The same provision is made as to a vacancy in the office of judge of the Court of Appeals. And at the first session of the General Assembly after the adoption of the Constitution, it was enacted that the day appointed for filling a vacancy in the Court of Appeals or in a circuit court, shall be within six weeks after the Governor receives notice of a vacancy, except that when a vacancy occurs there is not time to give the requisite notice before the proper first Monday in August, a special election shall be ordered to take place on a day within six weeks after such Monday, and such is now the law. But in case of every other judicial office named in the Constitution, except the Louisville Chancery Court, the power to provide by statute the mode of filling vacancies is given to the General Assembly. It seems to us unreasonable that the framers of the Constitution ever intended the Legislature to have, or contemplated it would attempt to exercise, any more discretion as to the mode of selecting or qualifications of judges of such courts, or as to filling vacancies, than is given in respect to the circuit court. To contend they did is to assume that while explicitly providing — 478 — that judges of the circuit court should be elected by the people, they intended to give to the Legislature discretionary power as to the mode of selecting judges of statutory courts of equal dignity and importance. While it was regarded essential to prescribe as qualifications a certain age, knowledge and experience in the practice of law for a circuit judge, power was purposely given to the Legislature to dispense with such qualifications as to judges of statutory courts, upon whom might be imposed precisely the same duties; and while it was deemed necessary to provide for promptly and speedily filling vacancies in the office of circuit judge by election, such vacancies in the office of judges of other courts of the same class were left to be filled by appointment for the residue of the term unexpired,, without regard to the length of time. In our opinion, the power attempted to be conferred on the Governor by section 9 of the act of 1872, is a plain evasion of the true intent and meaning of the-Constitution, and cannot be sanctioned as a precedent without marring the design, defeating the purpose, and violating the fundamental principles of the Constitution. For if it may, in this instance, be violated upon the ground of the inconvenience of popular elections, other and repeated encroachments may be expected to follow. If we are correct in these views, it results that section 2 of the act of 1886 is likewise invalid. And as the first section of that statute is but a mere re-enactment of the provisions of the General Statutes on the subject of filling vacancies in the office of circuit judge, alike applicable to the office of judge of the Louisville — 479 — Law and Equity Court, it follows that, neither before nor after the passage of that .act, could the vacancy we are considering be filled at any other time than that fixed in the proclamation or writ of election issued by the Governor, and that an election for that purpose cannot be legally held at all without such proclamation. To make the election of an ofiicer of government legal, there must be a time fixed for holding such election, either by law or by the officer empowered by law to do so. If it was not so, there could be neither a fair, orderly or free expression of the popular choice. If one candidate for an office and his friends may, without authority of law, prescribe the time for holding an election to fill a vacancy, his opponent may as well fix another and different time. For neither by the Constitution nor statute is the first Monday in August prescribed as the day in course for holding an election to fill a vacancy in the office of judge of the circuit or other courts of the same class, and such election, therefore, can be legally held on that day only when appointed by a writ of election. To sanction an election held without lawful authority is to countenance confusion, tumult and unfairness. A proposition so plain needs no citation of authority to support it. We. are, therefore, of the opinion that the facts stated by him in his petition do not show in appellant a legal title to the office. Having incidentally, yet necessarily, expressed our views as to the title of appellee to the office, it is proper to add that, in our opinion, his appointment — 480 — by tlie Governor was, under section 9, article 3 of the Constitution, legal. And though the Governor had no power to make the appointment for the whole of the unexpired term, nor under that section longer than the time required by law to be fixed by proclamation for filling the vacancy by election, appellee should be held and regarded as judge de jure, and his official nets valid until his successor is elected and qualified. Judgment affirmed.