Burton v. County of Kennebec , 44 Me. 388 ( 1857 )

Tenney, C. J.

The plaintiff was commissioned as register of probate for the county of Kennebec, by the executive of the state, on February 28, 1854, and after being qualified according to law, entered upon the discharge of tho duties of that office. By tho appointment under the constitution and laws of the state, then in force, ho was entitled, upon the fulfillment of his trust, to receive the salary provided, for the term of four years from the date of his commission, unless removed, as he might bo, at any time by the governor and council.

Resolves, entitled “ Resolves providing for an amendment of the constitution, relating to the elective franchise,” were passed by tho legislature, by two thirds of each branch, on March 17, 1855. These provided for the choice of judges and registers of probate, and of sheriffs, by the people of each county; the first election of these officers to take place at the annual election, on the second Monday of September, next after the amendment, providing for such elections, shall have been declared by the legislature to have been adopted as a part of the constitution; and the persons elected to hold these offices for four years, commencing on the first day of January next succeeding their election.

As early as February 28, 1856, when “ the legislature passed a resolve declaratory of amendments of the constitution,” it appeared that a majority of the inhabitants voting on the questions proposed by the resolves of March 17,1855, were in favor of the amendments, and they became a part of the constitution, according to article 10, section 4, of the constitution of this state. Whether it so appeared, at the time the state of the votes was ascertained by the governor and council, or at the subsequent time, when “ a message was sent to the legislature by Governor Morrill, transmitting the report of council upon the proposed amendments,” according to a proper construction of said section, is a question which we think is not necessarily involved in a proper decision of this case, and no opinion is expressed thereon, notwithstanding reasons plausible, at least, may exist in favor of the affirmative, in one or the other of the alternatives mentioned.

Each of the amendments proposed in the resolves, having received the requisite majority to make them effectual, became a part of the constitution, at the same time, and before the new provisions could become operative. Elections were to take place, and after the votes were counted, and the choice determined, a still farther period was to elapse before the officers elect could commence the discharge of the^ appropriate duties. And in relation to the offices of judges and registers of probate, and of sheriffs, no election could be declared till the legislature had made some provisions by which the amendments could be practically effective. The time of the first election of those officers depended upon that when the legislature should declare that the amendments had been adopted as a part of the constitution. If this declaration had been postponed till after the annual election on the second Monday of September, 1856, it is not seen in what manner the election of the officers named could have been chosen earlier than the annual election in September of the succeeding year. The amendments as contained in the resolves, made no provision in relation to the place to which the votes should be returned, or by whom counted and declared, and notice given to the persons elected. Herein the amendments did not differ in character from certain provisions in the original constitution. That became the frame of government, when it appeared to have been adopted by the people, in the mode provided; but in some respects it could not be effectual, till after legislative enactments. As an example of this, we refer to section 1, of article 6, declaring that the judicial power of this state shall be vested in a Supreme Judicial Court, &c. With nothing but the constitution, this provision, important, and it may be said essential to the security of public and individual rights, was lifeless, till the legislature determined the number of judges of that court, and its jurisdiction, or until the executive should make appointment of its members, according to other parts of the constitution.

It is manifest that the additions to the constitution, by the amendments, had no validity at an earlier period than that, when the portion which was stricken out thereby ceased to be a part of that instrument, or the contrary. The parts expunged from the constitution as it formerly was, and those added thereto, in the amendments proposed in the resolves, were designed only to present the reading of the provisions, as they should be under the amendment, and wore the same thing as it would have been to have provided, that instead of such sections as they stood in the constitution at the time the resolves were passed, the following should be substituted ; or that the parts proposed to be changed should be altered, so that they should read as follows. The amendments in the constitution of Massachusetts, adopted in 1855, referred to by the plaintiff’s counsel as being essentially distinguished from those of this state, which we are considering, are believed to be in substance precisely similar, though in form they may differ. The amendments of the constitution of this state contain no express repeal of the provisions of the constitution, intended to be changed, more than do the amendments of that of Massachusetts. The terms, “ and by striking out the words,” used in the resolves cannot be regarded as designed to repeal the then existing provisions of the constitution, when the parts added could have no such effect. But the new provisions, as a whole, standing as they do, take the place of the old, without the least regard to the distinction between the parts stricken out of the latter, and those added thereto.

The title of the resolves and the provisions therein, when examined together, show clearly that it was the design, at a time subsequent to that when the amendments should become a part of the constitution, that the offices referred to should be filled by popular or legislative election, and not by appointments made by the executive. Was it not intended that the power of the governor and council to make such appointments, and the right of the incumbents in office, under such appointments, to continue therein, should become extinct simultaneously? The expression of the popular voice in elections, which should annul the former, at the same time was to take away the latter. When the executive was deprived of its previous rights in this respect, and relieved from the performance of its former duties therein, as being in contravention of the amended constitution, how could the officers of its appointment hold their places, when the same amended constitution affirms, that the tenure of office shall be under the declaration of the people’s will, as provided therein ? If the former authority of the governor and council was struck down by the amendments, on what principle can the tenure of office longer survive, irrevocable, when that tenure was by constitutional provisions which have been annulled?

The conclusion, to our minds, is irresistible, that the rights of the governor and council to appoint judges and registers of probate, and sheriffs, and the rights of those officers under their commissions, were swept away by the amendments, at one and the same time.

This brings us to the inquiry, at what time did these rights cease ? If they ceased at the time when the governor and council ascertained by counting the votes, that a majority of the inhabitants voting, was in favor of the amendments, or when the report of the council upon the proposed amendments was transmitted to the legislature, the plaintiff has no cause of action, as he makes no claim for any part of his salary which accrued prior to February 1, 1856. If the authority of the executive, and the rights of the plaintiff continued till the legislative declaration that the amendments were adopted, unaffected by those amendments, provided there had been no new executive appointment, the action of the governor and council in removing was constitutional, and this suit must fail.

But it is not contended by either party, that the offices of judge and register of probate, and of sheriff, were suspended from the timo when the amendments became a part of the constitution, till the time when these officers elected by the people, were entitled to assume the duties thereof. The discharge of these duties is so important to the community, that a different construction should not be adopted, unless the language of the resolves absolutely demands it.

The resolves have provided no mode by which the legislature could have caused the performance of the duties of these offices, by those elected under the amended constitution, before January 1, 1857. If it was contemplated that guch officers should exist, and have authority to perform their appropriate functions, as we cannot doubt that it was, under what power were they to receive their commissions, in case of vacancy? "Was it under the constitution as it was before the change, the executive retaining its former authority ; or by virtue of the provision in the resolves, in s. 7, added to art. 6 of the constitution? By this section it is quite obvious that tho vacancies therein mentioned are exclusively those which occur by death, resignation or otherwise, after the elections have taken place under the amended constitution. If, however, it were otherwise, it could not aid the plaintiff in a successful prosecution of this suit, for if a vacancy took place in the office of register of probate in the county of Kennebec, before the first day of January, 1857, he was not appointed by the governor and council to supply it.

The amendments, as we have before seen, contain no express abrogation of any of the provisions in the constitution as it was previous to the amendments, excepting so far as the new mode of filling the offices referred to, supersedes, of necessity, those provisions. Hence the old mode of appointment cannot be regarded as repealed, any further than it stands in the way of a practical operation of the mode prescribed in the amendments, and adopted by the people as a part of the constitution. 3 Gray’s R., 602.

Again, the tenure of those offices was not provided for upon the hypothesis that it was not designed by the legislature which passed the resolves, that upon their adoption the offices to be filled by election, should remain vacant till those chosen thereto should commence the performance of their duties; and that the former provisions of the constitution, touching the matter in question, were annulled. In such cases, by art. 9, s. 6, the tenure shall be during the pleasure of the governor and council. This view was anticipated by the counsel for the plaintiff in his argument; and it is insisted that this section has reference only to those offices which the executive have power to fill. This section is under the article entitled “ general provisions,” which treats of matters various in their character, such as commissions to be signed by the governor, the elections required to be made on the first Wednesday of January annually, and the removal of officers by impeachment, and by the governor and council, on the address of both branches of the legislature. The section in question, of itself, or in its connection with other sections in the same article, does not appear to be designed to be affected by the limitation contended for. It is true, that the tenure of elective offices are generally, if not universally, provided for in this state. But we are now examining the tenure of offices which had been filled by executive appointment, and which were to be filled afterwards by those chosen by the people, under the amendments which became parts of the constitution, anterior to the time when these officers could act by virtue of their election. No reason is perceived for denying to the executive the authority to make the appointments during this interval, under the provision referred to.

Francis Davis was appointed by the governor, by and with the advice and consent of the council, register of probate of the county of Kennebec, on January 23, 1856; was qualified on February 1, 1856, and on the same day entered upon the discharge of the duties appertaining to that office. In this appointment the executive did not transcend the limits of the power conferred upon it by the constitution. Mr. Davis was by right the register of probate from the time he was qualified to act as such, and his acceptance of the trust, under his commission, operated as the removal of the plaintiff.

Other questions have been discussed in argument, the consideration of which becomes unnecessary, under the view which we have taken.

Plaintiff nonsuit, judgment for the defendant.