Brady v. Howe

Simrall, J., delivered the opinion of the court. This was a proceeding by information in the nature of quo warranto, challenging the right of the respondent, William W. Howe, to the office of chancery clerk of Panola county, and ex officio clerk of the board of supervisors. Two specific grounds are set forth in the information why the respondent does not legally hold the office. First. That he was neither legally elected nor appointed thereto. Second, That while treasurer of Panola county, during the — 615 — years 1872 and 1873, he unlawfully retained to his own use, and for his own benefit, large sums of money, to wit: $55432 of the ■common county fund, and $1,605.63 of the school funds of the county, for which sums of money he is still liable, and has never accounted for and paid over, etc. To the first assignment, the respondent filed an answer; to the second, he demurred. In .the answer, the respondent states that there was a vacancy in the office of chancery clerk * * * caused by the death of the incumbent John C. Harrison, who had been duly elected, and that respondent was appointed to the vacancy by Hon. J. N. Campbell, chancellor of the 10th district, on the 16th of November, 1874. Harrison was elected for four years, from the 1st of January, 1872; his term would have expired on the 1st of January, 1876. The term of Hon. J. F. Simmons, as chancellor, expired on the 3d of June, 1874. On the 17th of July, the same year, the office being vacant, the lieutenant governor (on account of the absence of the governor), acting as governor, reappointed ■Simmons, and issued to him a commission, which was received by Simmons on the 18th of July, who qualified according to law on ■the 20th of July, and notified the acting governor of his acceptance, and asked and obtained leave of absence until the 10th of of October, which was granted. Simmons left the state the 23d of July, and did not return until the 3d of October. In August, 1874, Governor Ames revoked the appointment of Simmons, and so notified him. The regular term of the chancery courts in' the district begun in Tallahatchie county the first Monday of October. The term in Panola county was the second Monday. J. N. Campbell presided at both terms. It is said, first, that the appointment of Campbell is void, because there was no vacancy, the office having been already filled by Simmons, who was appointed by the lieutenant governor. What is the constitutional mode of filling the office of chancel — 616 — lor? Chancellors shall be appointed in the same manner as the “judges of the circuit court,” art. 6, sec. 17. Judges of the circuit court shall be appointed by the governor, with the advice and consent of the senate. Art. 6, sec. 11. The appointing power is placed in the governor and senate. The initiation, that is, the selection of the person is with the governor, but the appointment must be with the advice and consent of the senate. If there were no other provision on the subject, it would not be doubted that the appointment by the governor alone would not confer a right to the office. “ All vacancies not provided for in this constitution shall be filled in such manner as the legislature may prescribe.” Art. 5r sec. 18. If, however, the constitution has provided a mode of filling vacancies in particular offices, that is the exclusive mode, and the legislature has no power to prescribe any other. To the same effect is sec. 7 of art. 12. “ In all cases not otherwise provided for in this constitution, the legislature may determine the mode of filling all vacancies in all offices.” The 21st section of art. 6 furnishes an instance where the constitution itself prescribes the manner of filling vacancies in county offices, viz.: the board of supervisors ■“ shall order all county elections, to fill vacancies that may arise in the offices of their respective counties.” So also does the fifth section of sixth article: “All vacancies that may occur in (supreme court) from death, resignation or removal, shall be filled by appointment, as aforesaid; provided, however, that if any vacancy shall occur during the recess of the legislature, the governor shall appoint a successor, who shall hold his office until the next meeting of the legislature.” If the constitution is silent, the manner of filling vacancies is remitted to the legislature. It is very manifest that the senate shares with the governor, in the duty and responsibility of filling the judicial offices of the-higher courts, and, since the judges of the supreme, circuit and chancery courts, hold for a definite term, the constitution intends — 617 — that the appointments of the respective judges to their appropriate terms of nine, six and four years, shall be participated in by the senate. ’ That purpose is carried out by section 106 of the code (1871): “ The governor shall fill, by appointment, with the advice and consent of the senate, all offices subject to such appointment under the consiitution and laws, when the term of the incumbent is 'about to expire." He shall do this in advance of the expiration of the term, so that the senate may, with him, do its duty under the constitution, in advising and consenting to the appointment. He must select such time, before the expiration of the term, for making the appointment, as that he may obtain their concurrence. The meaning is (since the senate only convenes periodically, unless by extraordinary convocation of the legislature), the governor shall make his nomination to that body, at a session immediately preceding the expiration of the term. That satisfies the intent of the words “about to expire.” The idea is, that if the term of the judicial officer will come to an end before the next regular session of the senate, then the nomination shall be made to the body in session just before, or preceding such ending of the term. That is necessary in order that the appointment to a full term may not be made without the consent of the senate. The same idea is kept up (of requiring the concurrence of the senate) in the other clauses of the statute. “ And also by the approval.of the senate, all such vacancies occurring from any cause during the session of that body.” Clearly the governor cannot appoint to a vacancy which happens during the session of the senate, without its concurrence unless, as provided in the last clause of the section, it took place during the last five days of the session; nor can he fill a vacancy caused by the refusal of the senate “ to confirm any appointment or nomination.” Only when it is impracticable for the senate to unite with the governor, does the constitution and statute intend that the governor alone can make an appointment. The statute regulates the subject on that theory. First, if the office is about to be vacant by — 618 — expiration of the term, the governor must send his nomination to the senate for its advice and consent. The impending vacancy will occur at a time certain, and is in no manner contingent. Second, if the vacancy, from any cause, takes place during the session of the senate, an appointment must be made by the governor and senate, unless it is covered by the last clauses of the section. After these specific directions, the section contains these general words : “ And he (the governor) shall also appoint for all vacancies occurring from any cause in such offices during the vacation of the senate, and also all other vacancies not otherwise filled by law.” “But such appointments shall be reported to the senate within ten days, after the commencement of the session for their approval,” etc. The preceding clauses had provided for two specific cases, to wit: First, “ when the term was about to expire.” Second, all such vacancies occurring from any cause during the session of the senate “ whether by the ending of the term, or from casualty of death, resignation,” etc. After these specific directions, then follow the general words above quoted, introduced by-the adverb “ also,” which are designed to meet all other instances of vacancies than those enumerated. After the constitution had declared that judges shall be appointed by the governor and senate, what other effect can the 13th section of the 5th article have, than to authorize the legislature to prescribe how a vacancy, which happens before the term is out, shall be filled. Certainly it was not designed to limit or abridge tbe full and complete right of the senate to participate with the governor in conferring the office. The general clause in the statute may be paraphrased thus: Since vacancies occurring in certain defined circumstances shall be filled as herein specifically directed, and since vacancies may arise in the vacation of the senate from several causes, as death, resignation, or from whatever cause it was brought about, if it has not been specially provided for in the preceding parts of this statute, then the governor may appoint, etc. When the statute had al — 619 — ready enacted that the governor, with the advice and consent of the'senate, must fill a term about to expire; it would be unreasonable to construe the succeeding clause as partially repealing or modifying it, when the general language can have a full meaning and application, to a large class of vacancies brought about by contingencies. Construing the 18th section of the 5th article as giving power to the legislature to regulate the filling of vacancies, whether arising from expiration of the term or from casualty, and giving to the several parts of the section 106 of the Code, such a rendering as will make it a harmonious unit; this rendering of the statute makes all the parts agree with each other, and conform to the letter and spirit of the constitution. First. A term of the chancellor, which will expire in the vacation of the senate, must be filled by a nomination by the governor to the senate, and a confirmation at the session preceding its termination. Second. Vacancies which arise from the ending of the term, or from casualty during the session of senate, must be then filled by the governor and senate, unless a vacancy (from contingent cause alone, perhaps), occurs during the last five days of the session. ' Third. If the senate refuses to confirm an appointment or nomination, the governor shall not fill such a vacancy in vacation, unless it happened within five days before the senate adjourned. But vacancies occurring in any other than these enumerated modes may be filled by appointment in vacation, which includes only such vacancies as happen in the recess of the senate, from casualty,'as death, resignation, etc. Since the constitution refers it to the legislature to regulate the filling of vacancies, where the constitution itself has not indicated a mode, it follows, that the appointing power must pursue the mode pointed out in the statute. Was the appointment of the chancellor in the 10th district made in accordance with the constitution and statute? The term of Chancellor Simmons expired on the 2d of July, 1874. The — 620 — constitution, in words so plain that there is no room for construction, declares that chancellors, like circuit judges, shall be" appointed by the governor, with the advice and consent of the senate. The statute regulating the subject so that there may be concurrent exercise of the power, enacts, in- effect, that at the session of the senate just preceding the end of the term, the appointment of the successor shall be made by the governor and senate. To have conformed to the law, the governor ought to have asked the advice and consent of the senate to. an appointment, at their session-next preceding the 2d of July, 1874, when the incumbent’s term expired. What was the effect of the respective appointments made by the lieutenant-governor and governor in vacation? Lieiit. Governor Davis, during the absence of the governor from the state, and while he was discharging the executive functions, on the-day of July, 1874, appointed the Hon. J. F. Simmons, chancellor, the office being then vacant. The 17th section of the 5th article js to the effect, “ that when the office of governor shall become vacant by death or otherwise, the lieutenant governor shall possess the powers and discharge the duties of said office.” * * “ When the governor shall be absent from the state * * the lieutenant governor shall discharge the duties of said office * * until the governor be able to resume his duties.” Ia the first named contingency, the office is absolutely devolved upon the lieutenant governor. In the second, the duties of the office are temporarily to be performed by the lieutenant governor. There is nothing in the language or in the reason for the provision, which would confer part of the duties only upon him. The words are “ duties of the office.” That is all of them. If there had been an enumeration of some of them, that would have excluded all others. If, therefore, the governor could have legally made the appointment, in his absence from the state, the lieutenant governor could have done so. The incumbent’s term ended the 3d June, 1874. — 621 — On the 17th of July, the office' being vacant, Lieutenant Governor Davis appointed. His appointee immediately accepted and qualified. It hardly admits of doubt that, under the permanent provisions of the constitution, that when the governor fills an office by appointment, in vacation of the senate, his whole power over the office is exhausted. That idea runs through the opinion of the court in Newsom v. Cook, 44 Miss., 360 et sequiter. The statute authorizing the governor to remove at pleasure certain officers therein named, was sustained, because of the anomalous and. peculiar provision of the 6th sec. of art. 12, which was temporary in its effect, and has long since ceased to have effect. The doctrine there admitted is, that after the several classes of officers provided for in the constitution have been lawfully inducted into office, either by election or appointment, they do not hold at the pleasure of the executive, and can only be removed in the manner prescribed by law. The same doctrine is announced in Marbury v. Madison, 1 Cranch, 161-3. It is said; “Some point of time must be taken when the power of the executive over an officer, not removable at will, ceases. That point of time must be when the constitutional power of appointment has been exercised.” After a long and earnest struggle in Great Britain, the independence of the judges of the crown was secured. It has always been supposed that that result has been achieved on this continent, by making their terms of office during good behavior, or for a definite term; by giving them a fixed compensation, and declaring that they shall only be removed for good cause, after trial and conviction, or on address of two-thirds of the legislature. In no other than one of these modes could Chancellor Simmons, if rightfully in office, be removed, so long as he could legally bold the roffice. The statute, sec. 106, requires the governor to report to the senate “ all such appointments, requiring their approval, within ten days after the commencement of the meeting of that body, for their advice and consent to the sppointment.” The language implies that the appointment made in vacation — 622 — shall be submitted to the senate. If the governor has the constitutional right to submit some other name to the senate than his appointee in vacation, we are clearly of opinion that he cannot remove such appointee and leave the office vacant, or to make room for another person, so long as the senate has not concurred with him in another appointment. The constitution has provided the modes, and only modes, of removing a judge. If an office is filled by a person invested with its functions, the office is not vacant, and an appointment confers no right. Commonwealth v. Hanley, 9 Penn. St., 519. The law authorized the incumbent of an elective office to hold until his successor was duly elected and qualified. It was held, the governor could not fill as for a vacancy, because the office is temporarily filled by a person designated by law. People v. Tilton, 37 Cal., 624; People v. Van Horn, 18 Wend., 518. A constitutional officer cannot be divested of an office, except in the manner provided for in the constitution. State v. McNeely, 24 La. Ann., 20; State v. Towne, 21 La. Ann., 490. Unless the governor may at pleasure remove an officer, his appointment when made is final. Ewing v. Thompson, 48 Penn. St., 372; Weatherbee v. Caznean, 20 Cal., 507. We conclude, therefore, that the governor had no authority to revoke the appointment made by the lieutenant governor or himself; and treating that revocation as treating a vacancy, fill the office by the appointment of another person. But as we have seen, neither the governor nor, in his absence, the lieutenant governor, could rightfully make an appointment for the 10th district. It will follow, therefore, that the acceptance of a commission, and the qualification of Mr. Simmons, did not invest him with the office de jure. The subsequent removal of Mr. Simmons by the governor, was without warrant of law. If he had been legally appointed, the power of the executive to fill the office was exhausted. — 623 — Manifestly, the constitution does not intend that the executive appointee to a chancellorship is tenant of the office at the governor’s sufferance, and is removable at his pleasure. The appointment of Mr. Campbell by Governor Ames, did not confer the office upon him legally and constitutionally. But since Mr. Campbell, some time after his appointment, with the acquiescence of Mr. Simmons, entered upon the office, and discharged its functions; referring his claim so to dc to the appointment and commission of the governor, he thereby became an officer de facto. He acted on a claim of right, and referred his possession and title to his appointment and commission.. That for the repose and quietude of society, constituted him de facto chancellor, and imparted virtue and validity to his judicial acts. In order that litigants and others who have an interest in his official doing, to prevent a failure of justice, to avoid confusion, it is the safe and prudent rule to treat him as a de facto officer. When the incumbent is in full, quiet fruition of the office, and has entered under color of right, the law clothes his acts with validity. “To constitute an officer de facto, there must be color of right by election or appointment, or an acquiescence by the public, for a length of time which would afford strong presumption of color-able right. Kimball et al. v. Alcorn et al., 45 Miss., 158. Nor can a distinction be made between the acts of a de facto officer, assigning competence to some and incompetency to others. He is competent to do whatever the dejare officer may. Cooper v. Moore, 44 Miss., 392. It pertains to the chancellor to appoint a clerk in certain circumstances. When these circumstances exist, the de facto chancellor may exert the power with the same right that he may render a decree or punish for contempt. What is the power of the chancellor to appoint a clerk? As we have seen, the mode prescribed in the constitution for filling vacancies in all county offices is by an election, which must be ordered by the board of supervisors. But since more or less time must elapse from the happening of a vacancy before the unex — 624 — pired term can be filled by election, the Code, § 983, makes provision for that emergency, as well as “ for the refusal or inability of the incumbent to perform the duties,” by enabling the chancellor to make an ad interim appointment until the office can be filled by election and qualification, or until the incumbent who has been temporarily disabled, and refused to act, resumes his duties. Such appointee shall perform the duties of clerk * * whilst he continues in office. The chancellor, for this limited time, is authorized — that the business pertaining to the office may not be impeded — to designate and assign some person to the performance of its duties. It would be a palpable evasion of the constitution if the board of supervisors should refrain from ordering an election, to the end that such appointee might enjoy the residue of the term in case of the incumbent’s death, resignation or removal. The legislature could not provide for filling a vacancy which had thus happened, otherwise than by an election. The statute does not authorize the chancellor to fill the office for the balance of the term. Its scope and purpose is, until that can be done by an election, he may assign some person to discharge the duties of clerk. We think that Campbell, as de jacto chancellor, had the right to designate the respondent to act as clerk. The last question arises under the 16th section of the 4th article of the constitution. “No person liable for public moneys unaccounted for, shall be eligible * * to any office of profit or trust until he shall have accounted for and paid over all the sums for which he may-have been liable.” It is not controverted by counsel that this section may be applied to'the appointment of a clerk of the chancery court by the chancellor. The allegation is, that the respondent Howe did receive large sums of money as treasurer of Panola county, for which he has not accounted and paid over, but is still liable therefor. But it is said that this default must have been ascertained and fixed by the judgment of a competent court before the disability accrues. The words do not impart an artificial or precisely fixed meaning, but are used in their — 625 — ■ordinary and popular sense. The “ liability for the public moneys until accounted for and paid over,” is the disqualifying fact. It is not the act of misappropriation or embezzlement that ipso facto works the disability, but rather the fact that the person owes public moneys for which he is liable, not having accounted for them, and paid them over at the time he entered upon the office. It is not an absolute and perpetual bar arising from the act of default, but it is a disability that may be temporary, and is removed so soon as the funds are accounted for and paid over. It was designed to operate as a stimulus to honesty and an indemnity for fidelity in handling public money. If an officer has been entrusted with public funds, he shall not be eligible to any office of profit or trust until he has settled his accounts and paid over all sums for which he may have been liable. If he is a ■defaulter, that shuts tbe door of official employment against him until he has relieved himself from his defalcation. The two succeeding sections, the 17th and 18th, also declare ineligibility; but in both instances, there must have been a conviction. The first, of “ an infamous crime; ” the other, “ of giving or offering a bribe to secure an election or appointment.” In these instances, the “ conviction ” of the infamous crime, or of offering or giving the bribe, is the fact that disqualifies. In the other, the nonaccounting for and nonpayment of the funds is the disqualifying circumstance. In Shelby v. Alcorn, 36 Miss., 274, it was held, that sec. 26 of art. 8 of the constitution of 1882, which, for all the purposes of this application, is like sec. 88 of art. 4 of the present constitution, operated of its own force to make void the appointment of a member of the legislature to an office created during his term of service. The text is, “No senator or representative, during the term for which he was elected, shall be appointed to any office which shall have been created,” * * * etc; The interpretation which has been put upon words nearly identical in the case cited is, that the constitution operates a prohibition; and the — 626 — appointment would not confer the office. Compare the language of that section with sec. 16 of art. 4, “No person liable for public moneys * * * shall be elected,” etc. And if it was a proper reading of the former section to hold the appointment of a senater or member of the house prohibited, the like rendering must be given to the latter. No senator, etc., shall be “ appointed,” etc. No person liable, étc., shall be “ eligible.” In both instances, the diqualification is, to take and hold. So the 8d sec. of art 12, operates of it own force, a disqualification. “ No person who denies the existence of a Supreme Being shall hold any office in this state. But it is insisted by counsel that the constitution means, that the matter, to wit: The liability for the public moneys must first be judicially determined before the disability, attaches. What shall be the character of such proceeding ? Shall it be a suit on the bond, as county treasurer, or other form of civil action ? Suppose that a recovery had been had against Howe, in a civil suit, six months prior to November, 1872, and the day before he was appointed clerk he had paid the judgment, plainly he would have been eligible to the office of chancery clerk, for he had accounted for and paid over the funds for which he had been liable. Shall the proceeding be by indictment. The 26th section of the 6th article makes clerks, sheriffs and other county officers subject to indictment * * for willful neglect of duty or misdemeanor in office, and upon conviction shall be removed from office. Suppose that Howe, whilst county treasurer, had been indicted, convicted and removed from that office, for a failure to account for and pay over tbe money, would the record of that conviction be evidence that he had not accounted for and paid over the money, when he was appointed clerk? If such evidence tended to prove his default, certainly the respondent could overcome it, if the truth were so by testimony, that after the conviction, and before the appointment, he had paid over the funds. These hypotheses serve to illustrate the true reading of the consti — 627 — tution, that the ineligibility is because the appointee, at the time he takes office, detains funds, for which he does not account and pay as required by law. The establishment of his “liability ” by suit or indictment at some time prior thereto, does not prove that at the date of his appointment he was still derelict. The infirmity in the argument of counsel is in construing the 16th section as of the same import as the 1.7th and 18th of the 4th article. These latter sections impose a perpetual ineligibility (not upon those who may have committed bribery, perjury * * or other infamous crime), but upon those who have been convicted of any of these crimes. There must be trial and conviction by a competent court. Two inquiries are involved íd settling the questions of ineligibility : First, is the respondent liable for thepublic money ? Second, does that liability extend down (no matter when it originated) to the time of the appointment, or has it been discharged by a proper accounting and payment. For the ineligibility is removed the moment the delinquency ceases. These inquines can be as fully and as thoroughly made in this proceeding, as in any form of civil action or as in the trial of an indictment. The defendant shall appear and answer such information in the usual way, and issue being joined, it shall be tried in the ordinary way. Code, § 1496. Such is the statute. The issue may be tried by a jury. The case comes within the classification given in section 741, Ang. & Am. on Corp. Where the incumbent is assailed for various disqualifications, such as the want of proper age, residence, or whether the office is compatible with another subsequently accepted ; or whatever other matter makes the incumbent ineligible, or forfeits the right to hold the office; in principle it is much like-the case of Commonwealth v. Allen, 70 Penn., 471. The statute of Pennsylvania forbids a councilman from being the surety of the treasurer of the town. Allen was proceeded against by quo warranto, to oust bim from his office of councilman, because he had become the surety of the treasurer. The statute also made the — 628 — act a misdemeanor, and on conviction the party could be fined not exceeding $500. The objection was urged (as in this case), that there must be in an independent suit, a judicial ascertainment of the illegal act, as by conviction of the misdemeanor. But the court held that the act of becoming security for tbe treasurer was forbidden, and worked a forleiture of the office. Say the court, “ Forfeiture arises in the unlawful relation, not upon conviction dor the misdemeanor. The consequence of the conviction is the fine, but this does not enforce the forfeiture. The quo warranto is to enquire, not into the misdemeanor, but into the rights of the member to continue in office.” For the misdemeanor in the office of treasurer, tbe respondent might have been indicted, and punished as provided in section 2890 of tbe Code. This proceeding is not designed or adopted to inquire into, much less punish the misdemeanor, but to determine tbe right of the respondent to the office, by reason of the alleged ineligibility thereto. We are of opinion, therefore, that the demurrer to the second specification of the, information ought to have been overruled; rendering such judgment as the circuit court ought to have rendered. The demurrer is overruled, and cause remanded for further proceedings.