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The doctrine of Commonwealth v. Garrigues, that where a statute prescribes a mode for determining a contested election, a quo warranto will not lie, was followed in Pennsylvania, in Commonwealth v. Baxter, 35 Penn. St. R. 263; Commonwealth v. Leech, 44 Ibid. 332; Commonwealth v. Loughlin, 20 Leg. Int. 100 (ante 651); Commonwealth v. Barger, Ibid. 101; and Commonwealth v. Reed, 18 Pittsburgh Leg. Journal 131. And in Ohio, in State v. Marlow, 15 Ohio St. R. 114; and Peck v. Weddell, 17 Ohio St. R. 271. (And see Hulseman v. Rems, 41 Penn. St. R. 396, ante 314.)
But these decisions are directly in conflict with the earlier judgment of the supreme court of Pennsylvania, in Commonwealth v. McCloskey, 2 Rawle 369 (ante 196), the doctrine of which was followed by the supreme court of California, in People v. Holden, 28 Cal. 123 (ante 480). In this latter case, Chief Justice Sanderson said: "It is first claimed by the appellant, that the district court had no jurisdiction in the premises, and that the only remedy, in cases like the present, is under the statute which prescribes the mode and manner of contesting elections. No proposition could be more untenable. It is true, that the act providing the mode of contesting elections, confers upon any elector of the proper county, the right to contest, at his option, the election of any person who has been declared duly elected to a public office to be exercised in and for such county. But this grant of power to the elector, can in no way impair the right of the people, in their sovereign capacity, to inquire into the authority by which any person assumes to exercise the functions of a public office or franchise, and to remove him therefrom, if it be made to appear that he is a usurper, having no legal title thereto. The two remedies are distinct; the one belonging to the elector, in his individual capacity, as a power granted, and the other to the people, in the right of their sovereignty. Title to office comes from the will of the people, as expressed through the ballot-box, and they have a prerogative right to enforce their will, when it has been so expressed, by excluding usurpers and putting in power such as have been chosen by themselves; to that end, they have authorized an action to be brought in the name of the attorney-general, either upon his own suggestion or upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state. It matters not, upon what number of individuals, a right analogous in its results, when exercised, may
have been bestowed, for the power in question, none the less, remains in the people, in their sovereign capacity; it has been shared with the elector, but not parted with altogether."
So, in Armstrong v. Miller, where the select council of Philadelphia had refused to receive the report of an election committee, vacating the seat of the defendant, Mr. Justice Strong, in the court of nisi prius, refused to interfere, on a bill for an injunction, mainly on the ground that the law gave a full remedy by writ of quo warranto. 2 January 1864.
Where the office is a public one, a quo warranto will not lie at the suggestion of a private relator. Commonwealth v. Burrell, 7 Penn. St. R. 34; Commonwealth v. Cluley, 56 Ibid. 270 (ante 144); State v. Boal, 46 Mo. 531. And even where the law permits such action, a mere stranger cannot interfere; the relator must, in such case, show his own right to the office to be superior to that of the defendant. State v. Adams, 2 Stew. 235-6 (ante 289); People v. Lacoste, 37 N. Y. 192. Thus, an information in the nature of a quo warranto to determine the right to an office as between rival claimants, must set forth all the facts which show that the relator is entitled to it; it is not enough, to show that the incumbent is disqualified. State v. Boal, 46 Mo. 528. In Pennsylvania, the purview of the act of 13th April 1840, is broad enough to cover all questions arising on writs of quo warranto, between rival claimants of elective offices. Commonwealth v. Cullen, 13 Penn. St. R. 133. It is, however, a rule of corporation law, that a person shall not be permitted to impeach a title conferred by an election in which he concurred; but if a person do not know, or have the means of knowing of an objection to an election, at the time it takes place, he will not be deemed to have concurred in it; and the subsequent recognition of an election does not, necessarily, and under all circumstances, preclude one so acquiescing from questioning its validity as a relator in a quo warranto; for before one can be charged with acquiescence in, or recognition of, an illegal election, it must appear that he had knowledge, or the means of knowledge, at the time of such recognition. Commonwealth v. McCutchen, 2 Pars. 205.
In the Supreme Court of Pennsylvania.
NOVEMBER TERM 1857.
(REPORTED 29 PENNSYLVANIA STATE REPORTS 518.)
[Term of office.]
The commissions of the judges of the supreme court are to be computed from the first Monday of December next succeeding their election, to the first Monday of December in the year of their limitation.
WOODWARD, J., delivered the opinion of the court. In order that writs out of this court may be tested in the name of the proper officer, and that judgments and decrees may be duly entered, between the 1st and 7th days of December, proximo, it becomes necessary to decide, whether the commission of Chief Justice Lewis will expire on the first day of that month, or continue until the 7th, which will be the first Monday. If we should follow the strict letter of the constitutional amendment of 1850, which first introduced an elective judiciary into our system of government, it would be obvious, that Judge Lewis's commission could not extend beyond the first of December, because, elected in 1851, at the first election under the amendment, and the term of six years assigned to him. by the lot therein prescribed, he was commissioned on the first Monday, which happened, that year, to be the 1st day of December 1851, for six years, a period that would expire at midnight of the last day of November 1857. He received subsequently a commission as chief justice, which, however, was founded on that granted in 1851, and in no wise superseded it, or affected the limitation therein expressed. The title to his office was derived, not from the commission which designated him as chief justice, but from the popular election of 1851 and the commission in
(Term of office.)
pursuance thereof; and according to these, upon a literal reading of the constitution, his title would expire with the present month of November.
But we are satisfied, that the spirit and true meaning of the amendment are rather to be followed, than its strict letter; and according to these, the first Monday of December is made the terminus a quo and ad quem of judicial commissions; so that, whether we reckon the special tenures assigned to the first five judges elected to this court, or the general tenure of fifteen years assigned to all subsequently-elected judges, they are to be considered as running from the first Monday of December next succeeding the election, to the first Monday of December in the year of their limitation; in other words, we hold, that the years mentioned in the amendment are to be counted from Monday to Monday, and not from the day of the month to the day of the month. The amendment itself implies that this is a sound construction. It fixed, expressly, the first Monday of December 1851, as the day on which all prior judicial commissions should expire, and of course, indicated that as the day on which the new ones should commence; and it was the first Monday, without regard to the day of the month on which that day of the week should fall. That year, the first Monday happened to be the first day, but that day was selected, not because it was the first day, but because it was the first Monday of December; the framers of the amendment very well knew, that the first Monday would not always fall on the first day. And so, in the case of a vacancy, it shall be filled, says the amendment, by executive appointment, "to continue till the first Monday of December succeeding the next general election." Our brother Armstrong is on the bench by executive appointment, under this clause of the constitution, and his commission, by its own limitation, must extend to the first Monday, this year, the seventh day of December. It is unreasonable to suppose, that the amendment, which was designed to establish an elective judiciary, meant to make
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a distinction in favor of an executive appointment, and against a popular election, and we should mar the symmetry of the system by so administering it. If both classes of judges, however, those elected for a term of years, and those appointed to fill vacancies, are confined to the same rule, if both hold to the first Monday of December, we have a system that is simple, consistent and harmonious in all its parts.
This constitutional amendment originated in and was drafted by the legislature; a legislative interpretation of the meaning of its terms is, therefore, entitled to peculiar respect. We have a legislative construction of it, in the 11th section of the act of assembly of 15th April 1851, regulating the election of judges, wherein it is provided, that as soon as practicable after the first Tuesday in November next following any election of judges, "the governor shall grant the persons elected, respectively, commissions as are now required by law, to hold their respective offices, from and after the first Monday of December next following such election, for and during their respective terms of office," &c. The constitutional amendment having failed to fix, in terms, the date at which the commissions of elective judges should take effect, the legislature supplied it in this section, and supplied it, of course, according to their understanding of the meaning of the constitution.
The gentlemen recently elected, Messrs. Strong and Thompson, will be commissioned under this section, and cannot, of course, come upon the bench before the 7th of December. If Judge Lewis should go out on the first, there would be a vacancy in the office for a week, and vacancies, says the constitutional amendment, happening from whatever cause, are to be filled by executive appointment, to continue till the first Monday of December succeeding the next general election. It is not to be supposed, that the governor would exercise his power of filling this vacancy, but if the constitution be construed according to its letter, the power of appointment would clearly