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(Term of office.)
exist; and if exercised, the appointee of the governor would be in possession of the office, by virtue of a constitutional grant, whilst the newly-elected judges would claim it only in virtue of a legislative regulation. The inferior law would, of course, have to yield to the superior, and one of the elected judges would have to stand back, for a year; but which of them? the constitution and laws afford no means of determining; elected at the same time, and for the same term, and to retire necessarily at the same time, a difference of a year would exist in their tenures, and no man could tell which was the short one.
The constitution was never meant to produce results so absurd and unjust. It provides that the supreme court shall consist of five judges,* and it established the court as a perpetual institution; it contemplated the possibility of vacancies and provided for filling them, but they were vacancies happening from death, resignation or other cause external to the constitution itself. In its own legitimate and necessary operation, it would cause no vacancies; it would dismiss no one of its servants, until it had provided a qualified successor; it would not constitute the court, even for a week, with less than five judges, nor give the governor power to displace for a year the judge chosen by the people. To give our fundamental law its intended effect, and to prevent confusion and disorder, Chief Justice Lewis's commission must be regarded as extending to the first Monday of December.
If it be said, that this is adding a week, by judicial construction, to his prescribed term, it must be accepted as a necessary consequence; and if, fifteen years hence, the first Monday shall fall on the first day of December, the terms of Messrs. Strong and Thompson will be abbreviated a week, but that too must be borne as a necessary result of the indefinite terms in which the constitutional amend
It provides no such thing; the supreme court at the time of the adoption of the amendment, consisted of five judges, and the amendment provided for the tenure of the first five judges to be elected, which was to be determined by lot.
(Term of office.)
ment was conceived. It is a common fault of our legislation (and the amendment of 1850 shares it largely), that phraseology is not carefully considered. In the amendments of 1838, nothing was more anxiously attended to than the language in which comprehensive rules were to be expressed, and the consequence has been, that less doubt and litigation have grown out of those numerous amendments, than have sprung from the single amendment of 1850. Reading it, however, as we have construed it, in respect to the termination of judicial commissions, we avoid vexatious embarrassments, and give effect to its spirit and intention; and as to the week added to one judicial tenure and taken off from another, the maxim must be applied, de minimis non curat lex. The prothonotaries of the several districts will test writs in the name of Chief Justice Lewis until the 7th December 1857.
In 1865, a question arose in Philadelphia as to the election of controllers of the public schools; the act of 22d March 1865 had provided that the directors, at a meeting held on the third Tuesday of December, should elect one of their number to serve as controller for one year, from the first Monday of January next ensuing, and the question was, whether this election was to be held by the directors then in office, some of whose terms would expire on the 1st January, and whose successors had already been elected, or by the directors holding over and the persons elected as directors, who would hold office for the year during which the controller was to serve. LUDLOW, J., admitting that the statute was clothed in very ambiguous language, came to the conclusion, that the board as then organized were the electors of the controllers of the ensuing year. Case of the School Controllers, 6 Phila. 110. A like action by a retiring body was held binding in Hadley v. City of Albany, 33 N. Y. 603 (ante 307).
In Missouri, a person elected, at a special election, to fill the office of judge of the St. Louis county court, was adjudged to hold only until the next regular general election. State v. Conrades, 45 Mo. 45.
* The learned judge was a distinguished member of the constitutional convention of 1837-8.
COMMONWEALTH v. HANLEY.
In the Supreme Court of Pennsylvania.
JANUARY TERM 1848.
(REPORTED 9 PENNSYLVANIA STATE REPORTS 513.)
[Vacancy in office.]
Where an officer holds for a term of years, and until his successor is duly qualified, the death of the person elected to fill the office, before he has qualified himself according to law, does not create a vacancy that can be filled by executive appointment.
This was a quo warranto to inquire by what authority the defendant claimed to exercise the office of clerk of the orphans' court for the county of Philadelphia. It appeared by the pleadings, that the defendant had been elected, at the general election in 1845, and commissioned for the term of three years from the first of December 1845, and until his successor should be duly qualified; that at the general election in 1848, one Oliver Brooks had been duly elected as the defendant's successor in office, but had died on the 5th November following, before he had been commissioned or qualified. The governor deeming that this created a vacancy, to be filled by executive appointment, thereupon, commissioned Broom, the relator, to fill the supposed vacancy.
Reed, for the relator.
J. & C. Fallon, for the defendant.
ROGERS, J., delivered the opinion of the court. The rights of the relator and respondent depend upon the construction of that part of the amended constitution which provides "that prothonotaries of the supreme court shall be ap
(Vacancy in office.)
pointed by the court, for the term of three years, if they so long behave themselves well; prothonotaries and clerks of the several other courts, recorders of deeds and registers of wills, shall, at the time and place of election of representatives, be elected by the qualified electors of each county or district over which the said courts extend, and shall be commissioned by the governor; they shall hold their offices for three years, if they shall so long behave themselves well, and until their successors shall be duly qualified; vacancies in any of the said offices shall be filled by appointments, to be made by the governor, to continue until the next general election, and until their successors shall be elected and qualified as aforesaid." The cardinal rule in the construction of the constitution is, the spirit and intention of its framers; and this intention we have endeavored to carry out in Commonwealth v. Swift, 4 Whart. 186, in Commonwealth v. Collins, 8 Watts 344, and in other cases.
The respondent was elected clerk of the orphans' court for this city and county, the second Tuesday of October 1845, and being so elected, the then governor of the commonwealth issued a commission to him, in due form, dated the 9th November 1845, whereby the respondent was commissioned, in the language of the constitution, to be clerk of the orphans' court for the term of three years, to be computed from the first day of December 1845, and until a successor shall be duly qualified. The respondent took the oath of office, gave bond, with sureties, as required by law, was in all respects duly qualified, entered on the duties of his office the 1st December 1845, behaved himself well, and has since used and continued to use and execute the same. The second Tuesday of October 1848, Oliver Brooks was elected successor to the same office, but having died the 7th November 1848, within thirty days (the time prescribed by the act of 2d July 1839) from the day of election, he never was, nor could be, qualified to fill the office, by taking the necessary oath or by giving bond as
(Vacancy in office.)
the law requires. In this position, the governor, reciting that a vacancy had occurred in the office, issued his commission to the relator.
The relator contends that, according to the spirit of the constitution, the tenure of county officers is strictly limited as to time, viz: three years; that any extension of the time arises only from the exigency of the case, and must be strictly construed; that the holding over of the incumbent is confined to the single instance of failure to qualify (a failure resulting from the act or omission of the successor); that there can be no holding over, when a vacancy occurs which is to be filled, for a limited time, by executive appointment; that, if neither the death of the successor, before his commission takes effect, nor the expiration of the term of three years for which the respondent was elected and commissioned, create a vacancy, the incumbent necessarily holds over for three years, and a popular election next year is defeated; that the office, so far as to create a vacancy by death, is filled by election, and that, at the expiration of the term of three years for which an incumbent is elected and commissioned, a vacancy occurs, even though there be no election by the people, as, in case of a tie; such incumbent continues under a provisional tenure, being only a temporary officer, until his successor shall be duly qualified. The respondent denies and avoids the several propositions of the relator, and insists, that sedulous care is taken, in the amended constitution, to restrict, as far as possible, the patronage of the executive, and to give him the power of appointing to the office in question only when the public necessity requires it; that the governor has the right of appointment in the single case, where a vacancy has occurred, and then only, because public convenience demands that there should be some actual incumbent competent to fulfil the duties of the office.
The fundamental error which lies at the root of the whole case of the relator, consists in the assumption that,