State ex rel. Cummings v. Trewhitt

Mr. Justice Neil, after making the foregoing statement, delivered the opinion of the Court. A careful examination of the act of 1903 (Acts 1903, p. 1536, c. 576) discloses two purposes:' One, that the office of county attorney of Hamilton county shall be enlarged from a one-year term to a two-year term, and that this latter term shall begin on the first Monday of January, 1905, when the first election under that act Shall take place; the other, that the interval of one year between the close of the then incumbent’s term, under the act as it stood before amendment, and the beginning — 566 — of the new two'-year term, shall be held by the incumbent elected under the said original act. Acts 1899, p. 823, c. 352. Are these lawful purposes, and can they stand together? The office of county attorney is not provided for in the constitution, but was created for the county solely by legislative action. There can be no doubt, therefore, of the power of the legislature to lengthen or shorten the term, or to abolish the office altogether. There is only one constitutional restriction imposed, and that is to be found in article 11, section 17, viz.: “No county office created by the legislature shall be filled otherwise than by the people or the county court.” The question to be determined is, whether the foregoing constitutional provision is violated by that portion of the act which provides that the incumbent shall continue to hold the office until the new term begins. The decision of this question must be found in a true construction of the provision quoted. That provision was intended to preserve the right of choice to the people, either directly or through their designated agents, the justices of the county court, and no act can be allowed to stand which substantially interferes with such choice. Does the act in question so interfere? We are of the opinion that it does. A term equal in length to the original term, or, to state it differently, half the length of the new term, is bestowed upon the incumbent by the legislature, and to that extent the people are deprived — 567 — of the exercise of tbe right of' choice which they reserved to themselves. This is a substantial violation of the terms of the provision. There can be no doubt that the legislature, upon creating a new county office or State office, may provide for the filling of such office by appointment until the next general election. Such was the case of Condon v. Maloney, 108 Tenn., 82, 100-103, 65 S. W., 871. And this was the course pursued when the court of chancery appeals was created in 1895, and it is the course always pursued when a new judicial circuit or chancery division is created. But these and similar cases stand on a different principle altogether from the case we have before ns. These fall under article 7, section 4, of the constitution, wherein it is provided that “the filling of all vacancies, not otherwise directed or provided by this constitution, shall be made in such manner as the legislature shall direct.” In State, ex rel., v. Maloney, 92 Tenn., 62, 20 S. W., 419, and in Condon v. Maloney, supra, it .was held that the term “vacancy” covers equally a case where the appointment or election may be made to fill an, office for the first time, and where it may be made to fill one whose previous incumbent has died, resigned, or been removed. But clearly that term cannot be made to cover the case of an office in which there is an incumbent in possession, and in the discharge of his duties, merely by the device of extending his term. We are referred by counsel to State v. Wilson, 12 Lea, 246, 253, as an authority upon the power of the legisla — 568 — ture to authorize the holding over of incumbents for such purpose, thus extending their terms. The court, in the case referred to, passed- upon such action in respect of a municipal office, concerning which the legislature was embarrassed by no constitutional restriction. That case furnishes no authority for the present controversy. Counsel have also cited us to the principle (const., art. 7, sec. 5) that “every officer shall hold his office until his successor is elected or appointed and qualified.” This, however, does not apply to the kind of case we have under consideration, but to official terms that end by their own limitation; the purpose being to prevent an hiatus, and so to provide that there shall always, be some one designated by law to perform the public duties for which public offices are created. Where there is such a constitutional provision as that just quoted, “the weight of authority is,” says the supreme court of Indiana, “that a term of office fixed by statute runs not only for the period fixed, but for an additional period between the date fixed for its termination and the date at which a successor shall be qualified to take the office. The period between the expiration of the term fixed by statute and the time at which a successor shall be qualified to take the office is as much a part of the •incumbent’s term as the fixed statutory period.” Kimberlain v. State, ex rel. (Ind.), 29 N. E., 773, 14 L. R. A., 858, 860, 30 Am. St. Rep., 208, and cases cited. Such an extension is altogether different in origin and purpose from one granted to the incumbent of an — 569 — office by direct legislative action. From tbe former, nothing but good results can inure to tbe public service, while tbe'latter may be made tbe vehicle of favoritism, and must certainly withdraw tbe office to which it is applied for a time from the operation of the power to fill it, which the constitution has reserved to the people themselves. In view of the language and unmistakable purpose of article 11, section 17, of the constitution above quoted, we cannot admit the existence of such a power in the legislature, either by direct or indirect action. That a statute passed merely for the purpose of extending the term of office of an incumbent, where the constitution provides that the office shall be filled by a popular vote, would'be unconstitutional, we think there can be no doubt, and the authorities so hold. In Throop on Public Officers it is said: “Where the constitution of a State requires certain officers to be elected by the people, and authorizes the legislature to fix the term of office, and the manner and time of the election, if the legislature has prescribed the duration of the office, and the office has been filled accordingly, a statute extending the term of the incumbent is unconstitutional, for, if the legislature thinks proper to extend the term, it must direct an’ election by the people for the increased time; but a statute changing the time of the election, or extending the term of an officer thereafter to be elected, is constitutional.” Id., sec. 20, p. 22. In State v. Arrington, 18 Nev., 412, 4 Pac., 735, it was — 570 — held that, under a proper construction of the State constitution, county assessors must be elected by the people, and that an act of the legislature undertaking -to extend the term of county assessors beyond the time for which they were elected was unconstitutional and void. “To our minds,” said the court, “it is enough to say that since the constitution gives to the people of a county the right to elect their assessor, and they do elect him for two years, they have the right also to elect his successor, and, if the legislature extends his term, their rights are abridged. Should we hold that the term could be extended, we should have to admit that the incumbent would hold the office during the period of extension by virtue of a legislative act rather than by an election.” The constitution of New York provided that all cityj town, and village officers should “be elected by the electors of such cities, towns, and villages,” etc. Const., art. 10, sec. 2. A collector of taxes was elected in Kings county under a statute then in force which fixed the length of his term at one year. Pending his term of office, the legislature passed an act providing that collectors of taxes in- Kings county should hold their offices for the term of three years. It was held that, if this act was to be construed as extending the term of the incumbents, it was unconstitutional. People, ex rel. Williamson, v. McKinney, 52 N. Y., 374. In People, ex rel. Lovett, v. Randall, 151 N. Y., 497, 45 N. E., 841, it was held that under the constitution town officers must either be elected by the voters of the — 571 — town, or appointed by some local authority; that an act of the legislature extending the term of a town officer then in office would be virtually an appointment of the officer by the legislature for the extended term, which appointment the legislature had no power to make; and that therefore an act extending the term of such officers must be construed as applicable only to' officers thereafter elected. To same effect: People v. Bull, 46 N. Y., 57, 7 Am. Rep., 302; People v. Foley, 148 N. Y., 677, 43 N. E., 171; People, ex rel. Eldred, v. Palmer, 154 N. Y., 133, 138-139, 47 N. E., 1084; State, ex rel. Meredith, v. Tallman, 24 Wash., 426, 429-430, 64 Pac., 759. It is thus seen that the extension of the term of relator as county attorney cannot be sustained either as the effect of direct legislative action, or by implication or inference under the constitutional provision concerning the holding over of incumbents.. We have, then, an act embracing two subjects, only one of which is included within the title, the necessary result of whieh is that it must be declared unconstitutional, unless the two subjects are severable, and are not so interwoven as that we can see that the legislature would not have passed the act with either omitted. We are of opinion that the two subjects are severable; that the first expressed the chief purpose of the legislature, and that the second — the extension of the term of the incumbent — was merely ' incidental and subordinate, and can be stricken out without in any sense impairing — 572 — the efficiency of the act; and this should he done, and the act preserved. Jones v. Memphis, 101 Tenn., 188, 47 S. W., 138. But it is insisted that, even if this be done, the county court could not lawfully elect a county attorney on the first Monday in January, 1904, for that year, since, it is argued, the act took'effect under const., art. 2, sec. 20, at the expiration of forty days after its passage; therefore it is said in January, 1904, there was no term of one year to which the defendant could have been elected, but that the term of one year had been already converted into one of two years. The section referred to reads: “No law óf a general nature, shall take effect until forty days after its passage unless the same or the caption shall state that the public welfare requires that it should take effect sooner.” It is clear that under this provision of the constitution a statute will always take effect at the expiration, of forty days from its passage — that is, forty days from its approval by the governor (Logan v. State, 3 Heisk., 442, 445) — unless a contrary purpose appear on the face of.the act itself; but there is nothing in this provision to prevent the legislature fixing a date subsequent to the expiration of the forty days, or at any time subsequent to the passage of the act, for its becoming operative. The purpose of the section of the constitution above quoted was to secure a sufficient interval between the date of the passage of an act and its going into effect, to enable the public to -become acquainted with — 573 — its terms and to conform thereto (Cooley, Const. Lim., marg. p. 156; Sammis v. Bennett (Fla.), 14 South., 90, 22 L. R. A., 48), with the saving that, if the public should require it, the legislature, by special direction to that effect, might cause it to become operative at once. There is nothing in the provision referred to, or in any other provision of the constitution, to forbid the legislature making even a longer interval than the one that was specially designated as a safeguard. So there was no constitutional objection in the way of the legislature’s postponing the operation of the act-of 1903 to the first Monday in January, 1905, and that is what the legislature in fact did. Such is the result of a true construction of that act. The act was prospective in its operation. The first election to be held under it was to take place on the first Monday in January, 1905. Its effect was not to repeal the provisions of the original act, but only to so change them as to bring them into harmony with its own purpose; which purpose was to change the term of the office from one. year to two.years, beginning with the date of the first election to be held under it, on the first Monday in January, 1905. From this it follows that the original act was still in force on the -first Monday in January, 1904, the one year term had not at that time been abolished, and the election of Mr. Trewhitt for the period running from the first Monday in January, 1904, to the first Monday in January, 1905, was lawful. It results that the decree of the court of chancery appeals must be affirmed.