Brown v. O'Connell , 36 Conn. 432 ( 1870 )

Butler, J.

There are two distinct questions raised in this case. The first is, whether the judge of the police court of the city of Hartford was judge of that court de jure, when the proceedings in question were had, and if not, then second, whether he was so a judge de facto that the proceedings are valid.

The first question involves the construction of Art. 5 of the constitution of this state, and the constitutionality of the law authorizing the common council of the city of Hartford to appoint a judge for the police court of that city.

Sec. 1 of that article provides that “ the judicial power of the state shall he vested in a Supreme Court of Errors, a Superior Court, and such inferior courts as the General Assembly shall from time to time ordain and establish.” Sec. 3 of the same article provides that “ the judges of the Supreme Court of Errors and of the superior and inferior courts and all justices of the peace shall be appointed by the General Assembly in such manner as shall by law be prescribed.” And it further provides that “ the judges of the Supreme Court and of the Superior Court shall hold their offices during the term for which they were elected, and all other judges &c. shall be appointed annually.”

In the opinion given by the judges of this court in regard to the constitutionality of the soldiers’ voting act, (30 Conn., 593,) we held that the constitution embodied “ the supreme original will of the people in respect to the organization and perpetuation of a state government, and that whatever that supreme original will prescribes, the General Assembly and every officer and citizen to whom the mandate is addressed, must do; and whatever it prohibits, the General Assembly and every officer and citizen must refrain from doingand if either attempt to do that which is prescribed, in any other manner than that prescribed, or to do in any manner that which is prohibited, their action is repugnant to that supreme and paramount law, and is invalid.” This is the rule by which we are to be governed in construing the clauses involved and in determining the constitutionality of the law in question.

Has then the constitution prescribed the authority by which the judge of this police court shall be appointed ? for if so the mandate must be strictly obeyed.

It should be borne in mind that no judicial power is vested by the constitution in the General Assembly, either directly or as an incident of the legislative power, and the General Assembly cannot confer it.

Under the charter of Charles II, both the legislative and the judicial power were vested in the General Assembly; but it was one of the objects which the people had in view, in framing and adopting the constitution, to divest the General Assembly of all judicial power. To that end Art. 2 of the constitution provides that “ the powers of government shall be divided into three distinct departments, and each of them be confided to a separate magistracy, to wit: those which are legislative to one; those which are executive to another ; and those which are judicial to another.” For the same reason they used different language in different articles in conferring the powers. In Art. 3 they say that the legislative power'of the state shall be vested in the General Assembly. In Art. 5 they say the judicial power of the state shall be vested in the Supreme Court of Errors &c. as hereinbefore cited. Thus, while the entire legislative power is vested in the General Assembly, the judicial power is separated from it and vested in the courts “ as a separate magistracy.”

It is obvious from this view of these provisions that the General Assembly have no power or authority to oi’ganize courts, or appoint judges, by virtue of the general legislative power conferred pipón them, and that their authority to do either is special, and derived from Art. 5th of the constitution jalone; and that the judicial power is not conferred by the General Assembly, but vests, by force of the constitution, in the courts, when organized pursuant to the special provisions of that article.

It is conceded, as it well may be, that the legislature had tlie power to constitute this police court, under the provisions of sec. 1st of the fifth article. There is nowhere in that instrument any limitation in respect to the number or character of the inferior courts which they may establish. It was therefore competent for them to provide for the organization of the court in question, and to define the jurisdiction it should possess ; and when so constituted, the judicial power of the state vested in it, by force of the constitution, to the extent of the jurisdiction so defined.

It must also he conceded that the power to provide a judge of the court in any way the General Assembly should see fit to do, would necessarily be incidental to that power to constitute the court, if no special provision had been made for such appointment.

But such special provision was made, as heretofore recited, as follows : “ The judges of the Supreme Court of Errors, of the superior and inferior courts, and all justices of the peace, shall be appointed by the General Assembly, in such manner as shall by law-be prescribed.”

That provision is mandatory, and there is no possible ground for doubt in relation to its construction, unless it is found in the words “ in such manner as shall by law be prescribed.”

The term “ manner” is a comprehensive one, but it is evident that it has reference, in that connection, to the mode of doing the act prescribed—to the proceedings of the two houses of the General Assembly in making the appointment —whether by ballot or by resolution, and whether by joint or concurrent action of the two houses—and could not have been intended to authorize a delegation of the power to appoint any and all the judges, to any officer or tribunal to whom they might think proper to delegate it. The term “ appointed” means “ named,” or “ designated for,” or “ assigned to,” an office. The act of naming, designating or assigning, is necessarily the direct act of the body or person by whom the appointment is made. An appointment therefore, by a common council, pursuant to a law of the General Assembly, is not an appointment by the Assembly, and the construction supposed would render the words, “ by the General Assembly,” superfluous. But those words are there, and for a purpose, and if operative are conclusive. And such was the cotemporaneous construction given to the constitution by those who framed and adopted it.

Inasmuch therefore as the judicial power of the state is separated from the legislative and confided to the courts as a separate magistracy, and the power to organize courts and appoint judges is conferred by special mandatory provisions, requiring direct action by the General Assembly, those powers cannot be delegated, and the appointment of judges, in all cases where the constitution has not been altered by amendment, can only be made by vote of the Assembly.

But it is claimed that, however that may be, the appointment of Judge Merrill was not within the purview of Sec. 3, Art. 5 of the constitution, for the reason that the cities existing at the time the constitution was adopted, of which Hartford was one, possessed as a franchise the right to hold city courts and appoint their judges, and that the franchise was continued by the clause of that instrument which continued the rights and franchises of corporations. The claim is supported by a decision made by a deceased and distinguished judge of this court on the circuit, but we do not think it should be sustained.

It is unnecessary to consider the effect of that continuing clause upon then-existing rights and franchises ; or whether, as a mere municipal corporation, the city of Hartford had then or has now, an intangible, vested right, as against the legislature, to have a city court with civil jurisdiction and appoint its judge. No rights or franchises were contemplated by that continuing clause except such as were then existing; and it cannot be construed to embrace new and distinct courts or judicial franchises, (if such they may be called) subsequently created. Whatever might have been true therefore, if the criminal jurisdiction conferred upon this police court had been given, as an extension of its jurisdiction, to the then existing city court, a right to'have and enjoy this new and distinct judicial tribunal, or the right to appoint its judge, cannot be regarded as within any franchise then possessed by the city. We are constrained by this view to hold that the law conferred no authority upon the common council to appoint Judge Merrill and that the appointment was void.

But I am entirely satisfied that Merrill was judge de facto, and that the proceedings in question were valid. It is claimed that to constitute an officer defacto, there must he color of an election or appointment by a body which has actual power to make it. In support of this proposition a dictum of the late Chief Justice Hinman is cited from his opinion in Douglass v. Wickwire, 19 Conn., 492. I am not satisfied that the dictum was intended to be as broad as it is claimed to be.

The general rule is well expressed by Judge Storrs in Plymouth v. Painter, 17 Conn., 588, thus :—“ An officer defacto is one who exercises the duties of an office under color of an appointment or election to that office. He differs on the one hand from the mere usurper of an office who undertakes to act as an officer without any color of right, and on the other hand from an officer de jure, who is in all respects legally appointed and qualified to exercise the office. These distinctions are very obvious and have always been recognized.”

It is easy to suppose cases where an officer may be appointed by a body who suppose they have a right to appoint him, when in law they have not, and yet the officer will be such de facto and his acts cannot be collaterally impeached. Such cases have in fact occurred, and the acts of the officer been sustained. In the state of Massachusetts the legislature passed a law organizing a new comity, and authorizing the governor to appoint a deputy sheriff for it. The law was to take effect at a future day. Before it took effect the governor appointed a deputy sheriff for the county and he acted as such. His power to act was questioned collaterally, and it was holden that the appointment was void, because the law had not taken effect, and the authority to appoint had not been conferred, but that the sheriff was nevertheless an officer defacto, and the validity of his acts could not be collaterally impeached. Fowler v. Bebee, 9 Mass., 231.

But it is unnecessary to follow out this view of the subject. This officer undoubtedly had color of appointment from the only body who had constitutional power to appoint him.

He was not an usurper. He had color of appointment by the common council of Hartford, and they had color of delegated authority from the General Assembly. That authority was defective and void, not because the General Assembly had not power to appoint, but because they could not delegate the power. But they did, in fact, authorize the common council to appoint, and by an act which had all the forms of law. There was color therefore, derived from the law, which emanated from the legislature who had constitutional power to appoint; for that law gave color of appointment to every officer, whether judge or clerk, who was elected or appointed pursuant to its provisions.

It is claimed that there can be no color where the action of the appointing power is void, but there is no foundation for the claim. In the case of Douglass v. Wickwire, the appointment of the seventh grand juror was without authority and void, but his acts were sustained as those of an officer de facto. So in .Massachusetts, in the case cited, where the governor appointed a deputy sheriff for a new county before the law constituting the county and authorizing the appointment had taken effect. And there are many other cases of a similar character. Thus, where a minor, who was for that reason ineligible, was appointed to office, it was holden that his appointment was void, but that he must be treated as an officer de facto, on the production of his commission. The People v. Dean, 3 Wendell, 438. So of a commissioner of deeds, who acted under color of a void appointment from the governor who had no authority to appoint. Parker v. Baker, 8 Paige, 428. So also where a minister of the gospel, who was ineligible by statute, was appointed to office. McInstry v. Tanner, 9 Johns., 135. So also where a judge was appointed by vote of the legislature, void for want of a constitutional quorum. Morris v. The People, 3 Denio, 381.

It is very clear from these cases, and upon principle, that it is immaterial whether an appointment is void for the want of legal power to make it; or through irregularity or informality in making it; or is ineffective because of the failure of the appointee to comply with some condition precedent required of him. It is sufficient, in any case, that the officer have color of appointment from some power having authority, or color of authority, to make it.

Judgment must be advised for the plaintiff.

In this opinion Carpenter and Loomis, Js. concurred. Park, J., dissented.