State v. Cadle , 2 Greene 400 ( 1850 )

Opinion ly

GbeeNE, J.

This was a quo warranto on the information of Abraham Smalley against Kichard Ca-elle. The^. complainant charges Cadle with unlawfully holding and exercising the office of clerk of the district court, in the county of Muscatine, to the exclusion of the relator, who claimed to hare been regularly elected to the same office, on the first Monday in August 1849, and to have executed a bond, and to have taken the oath of office as required by law, on the "25th of the same month.

In pleading to the information the defendant acknowledged that he did hold and exercise the office as charged, but denied the usurpation alleged, and the right of Smal-ley to the office; and he justified by averring that he was duly elected to the said office at a general election held on the first Monday in August, in the year 1848, and on the 15th of the same month qualified himself according to law, and that the term of office Sad not yet expired. To this plea the relator demurred, but the court overruled the demurrer, and adjudged the plea a sufficient bar to the action. In thus disposing of the demurrer the court necessarily decided that a general election as provided by the constitution, was held on the first Monday in August 1848, at which the defendant was elected to the office in question for the term of two years. The correctness of this decision is controverted by the plaintiff in error, and this is the only question involved in the case.

The constitution provides for the election of clerks of the district court, by the qualified voters of each county, at the general election, and that they shall hold their office for the term of two years. Laws of' 1841, Art. G, § 5, of the state constitution. By the third section of the fourth article it is provided, that “the members of the house of rejiresentatives shall be chosen every second year, by the qualified electors of their respective districts on the first Monday in August, whose term of office shall continue -two years from the day of' the general election.” The si¿th section of the schedule, declared that the first general election under the constitution shpuld be within three months after its adoption, at such time as the governor by proclamation might appoint, for the election of representatives in congress and state officers; but the office of clerk is not enumerated in that section as one of those to be chosen at that election. Under this section of the constitution the governor appointed the first general election in October 1846, and at that time the members of the first general assembly were elected, and clerks were chosen in a portion of the counties. As several of the clerks were chosen without legal notice of the election, an act was passed in which any person who received for clerk a majority of all the votes cast in the county for state officers, “at the general election on the 26th October 1846,” should be recognized as clerk on giving the bond and taking the oath required by law. Law's of 1847, p. 24.

Clerks were again elected on the first Monday in August, 1847, in some of the counties, and their election was declared to be legal by an act of the general assembly, approved January 25th 1848, and by the same act subsequent elections were'authorized to take place on the first Monday in August 1849, and biennially thereafter.e

But in many of the counties clerks were elected at the general election in 1848, and in December following another act was passed which repealed the act of January 25th 1848, so far as it applied to the election of prosecuting attorneys and district clerks, held on the first Monday in August 1848. This new act also provided that those officers should be elected on the first Monday in August 1850, and every two years thereafter in every organized county in the state. The legislation on this subject has not only beeu contradictory, but some of it has been repugnant to the constitution. By that instrument it is expressly established that the clerks and prosecuting attorneys shall be elected at the general election, and hold their offices during the term of t-wo years, and the time designated for this general election is the first Monday in August, vdien the members of the general assembly are to be biennially chosen. But the first general election as we have seen, •was to be at such time as the territorial governor might by proclamation appoint. That time having been fixed in December 1846, it necessarily follows tliat tbe next general election as biennially designated, by tbe constitution was on tbe first Monday in August 1848, and would occur on tbe same Monday in every alternate year thereafter. This we think, is tbe only construction that can harmonize with, tbe letter' and spirit of the constitution, and such we conclude was the obvious intention of its framers. So far as public convenience can have a bearing upon this question of construction, it was no doubt promoted by tbe decision below. Most of tbe elections have been conducted conformable to that view, and with that understanding most of tbe election laws have been enacted. The first legislature under tbe constitution clearly recognized that construction, in passing an act defining tbe time of bolding elections for state, district and county officers. Laws of 1847, p.~ 153. Tbe second section of that act provides that tbe governor shall be elected every four years counting from the first Monday in August 1846; and tbe biennial election of secretary, auditor and treasurer of state, counts from tbe same date according to tbe third section of the act. - In section five, after providing for tbe election of several'county officers on tbe first Monday of August 1847, and biennially thereafter, it is enacted “that in those counties where- there was no election for clerks of tbe district coiirt and .prosecuting attorneys at tbe last election, there shall be elected on tbe first. Monday in August next, one clerk of the district court and one prosecuting attorney, who shall bold their offices until tbe general election on the first Monday in August 1848” &c., and tbe same act provides for tbe election of senators and representatives at tbe election of 1848, and biennially thereafter. These various sections properly considered show tbe cotemporaneous construction placed upon the constitution by the general assembly in relation to elections; that construction lias generally prevailed in practice, and has repeatedly been sanctioned by judicial decisions. So far then as-pnblic convenience can influence a decision upon a question of doubtful construction, it is in support of tbe decision made in tbe court below. But independent of this consideration and without going beyond tbe explicit language of the constitution we have united in tbe conclusions, that the general elections authorized by the constitution are biennial, and as the first general election took place in 1846, the second was held on tbe first Monday in August 1848, and all subsequent ones must be held every two years thereafter ; and that under the constitution the only time appointed for the election of clerks and prosecuting attorneys is at tbe general elections.

D. G. Cloud., for plaintiff in error. IF. G. Woodward, for defendant.

Judgment affirmed.