Bry v. Woodrooff

Martin, J., delivered the opinion of the court. [562] The defendant, is appellant from a judgment ordering a peremptory mandamus against him, for the delivery of “ the office of president of the board of public works, and all the papers, books, documents, plans, &c., thereunto belonging,” to the plaintiff. The question turns upon the legality of the plaintiff’s appointment to the office he claims. It was created by an act of the legislature, approved the, 10th of March, 1837, the second section of which directs, “ that the governor, as soon as may be after the passage of this act, and every two years thereafter, shall nominate and appoint, by and with the advice and consent of the senate, a president of the board of public works.” No appointment, however, took place under this act until after the adjournment of the legislature; and afterwards, to wit, on the 18th of April, 1837, the governor gave a temporary commission to the defendant. On the 12th March, 1838,- his nomination was submitted to the senate and approved, and he received a commission accordingly. On the 12th March, 1839, the plaintiff, with the advice and consent of the senate, was appointed, and his commission expresses that he is “ to go into office on the 18th of April, 1839, at which time the commission of the present incumbent will expire.” On the 30th April, the defendant having refused to surrender the office, the plaintiff made application for a mandamus. The judge a quo, after having heard the parties, ordered a peremptory mandamus, and the defendant appealed. The inferior court was of opinion that the legislature had directed the appointment to be made every second year afLer the 10th of March, 1837- It does not appear to us that the court erred. The word “ thereafter,” in the second section of the act cited, can have reference to two periods only, viz., the date of the act, or that of the first appointment under it. The commission of the plaintiff assumes, that the date of the first appointment was the 18th of April, 1837. The defendant admits this, but he contends that the office is biennia], and its duration is to be reckoned from the 12th [563] March, 1838, the date of his second appointment. The counsel for the plaintiff urges that the defendant’s first appointment must be disregarded, as unconstitutional, the governor having filled the vacancy, which did not happeu in the recess of the legislature. Our learned brother of the inferior court has been of opinion that the governor may fill all vacancies that exist in the recess. In this he thinks himself supported by an act of the legislature passed the 12th September, 1812. 1 Moreau’s Digest, 18. This is a question of great importance, and we have been prevented from examining it by the consideration that it is not necessary to be acted upon in the present case. The legislature has not expressly made the tenure of the office under consideration biennial. It has said nothing of the tenure, but has spoken only of the appointment, which it has required'to be made biennially. We have therefore to consider, only, whether the appointment is to take place in every second year, on the 10th of March, the day of the date of the act; the 18th of April, the date of the defendant’s first commission ; or the 12th March, 1838, the date of his second commission. The judge a quo correctly concluded that the duration of the office is to be reckoned from the 10th of March every second year, because this date is a certain one, and any other must be sought by computation, and be liable to variation. The word “ thereafter,” in the act,, refers to its first antecedent, to wit, the passage of the act. The judge a quo correctly observes, that in offices for terms of years it is important that they should have a fixed date of commencement and termination. The want of it, as to various important, offices, was remedied by the act approved the 11th of February, 1825, making these offioes expire on a fixed day periodically, according to their duration. 1 Moreau’s Digest, 19. It is, therefore, ordered, adjudged and decreed, that the judgment of the inferior court be affirmed, with costs.