O'Leary v. Adler , 51 Miss. 28 ( 1875 )

Simrall, J.,

delivered the opinion of the court.

In the absence of a constitutional prohibition or limitation, the legislature may, at its discretion, abolish the municipal offices of a city, establish new ones and define their jurisdiction. It may also prescribe how the offices shall be filled, as by election or appointment ; if in the latter mode, whether by the governor alone, or by him and the senate, or as the law may direct. The act of March 5, 1875, which gives rise to this controversy, created for Vicksburg the office of city judge, defined its jurisdiction, and declared that the judge should be appointed by the governor with the concurrence of the senate. For two years prior to the passage of this act, the jurisdiction conferred by it had pertained to the mayor of the city. The object of the statute is to withdraw from the mayor and vest it in the city judge. On the 16th of March last, Adler, the defendant in error, was appointed by the governor to the office, received his commission, took the oath; but O’Leary, the mayor, declined to surrender. Thereupon, he brought this suit to recover the office. It devolves upon the plaintiff in this suit to show a complete right to the office. The fifth section of the act declares to the effect that the governor, with the advice and consent of the senate, shall make the appointment, the appointee to hold until the next general election, when his successor shall be elected. The language is peculiar: * * “ The judge of the city court be, and he is hereby, appointed by the governor with the concurrence of the senate.” This, in connection with section 106 of the code of 1871, is all the statute law supposed to bear upon the subject. Two sections of the constitution, the 13th, of art. V, and the 7th of art. XII, relate to filling vacancies by the legislature. These, in substance, authorize the legislature to determine the mode of filling all vacancies in all offices not otherwise provided for in the constitution. The power of appointment to office and filling vacancies under these sections and the statute of 1871, was considered at this term in the case of District Attorney, etc., v. Howe, 50 Miss., 607. If the constitution has declared the mode, as it has in several instances, that is a limitation or prohibition on the legislature not to adopt another and different. The legislative authority obtains under the sections referred to, when the constitution is silent as to the mode. The constitution authorizes the legislature to create inferior courts and abolish them at pleasure. The act of 1875 establishes an inferior court, or restores one which for a time had been abrogated, and confers upon the governor and senate the appointment of the judge. The office is made elective, beginning with the next general election. In the meantime it is appointive. The proposition may be stated in this formula: The legislature establishes an inferior court, and makes the judge thereof appointive by the governor and senate. Can the office be filled in any other mode ? If the act had said, the judge shall be elected by the people, certainly the governor and senate would not have had power to appoint. It would seem that the special act which made the very case should govern, unless there is some general statute, not incompatible with it, which should apply. But the special act repeals all former acts and parts of acts which are inconsistent with it. If a former statute had said, that in circumstances such as these, the governor might appoint, would it not be incompatible with this act, and repealed by it ? But can the appointment of Adler be sustained by the general statute, sec. 106, Code of 1871 ?

That statute regulates the filling of office by appointment. It requires the concurrence of the senate to appointments to terms about to expire, and to all vacancies which happen during the session of the senate. Appointments by the governor in vacation are limited to vacancies which then happen (and as could not be anticipated and were casual), “ and vacancies which occur during the last five days of the session,” and which evidently (construed in connection with the context) means those which arise from contingency.

For the general rule declared is, that where a term is “ about ” to expire, it must be filled by nomination and confirmation, before the vacancy occurs; so if the vacancy occurs during the session, it must be filled in the same way. It would be a plain evasion of the statute if the term of an appointive officer would expire within the last five days of the session of the senate, for the governor to withhold his nomination, 'and make an appointment in the recess. That would be evasive of, and in conflict with, the first clause of the section.

The words, “ a vacancy occurring during the last five days of the session,” imply that an incumbent has caused a vacancy by ceasing to hold the office, and does not include the idea of creating an office, which never has had an incumbent, and construing the mere filling of the office as a vacancy which has happened. Upon that theory, the creation of the office and the vacancy are one and the same act; both are done uno flatu. The words mean that an existing office has become vacant within five days preceding the adjournment, and not that the statute may be passed in one of those days establishing an office in which a “ vacancy has happened ” in such sense as the governor may rightfully fill it.

The vacancy intended by the legislature is one which arises from contingency in an existing office. The language does not admit of the rendering which would embrace a newly created office, which never had an incumbent, and which, by the terms of the law, required the concurrent act of the executive and senate to fill it. Moreover, this office of city judge is declared to be elective. That is the regular and permanent plan of filling it.

In order to avoid the delay and expense of a special election, we may suppose the legislature authorized the governor and senate to appoint for the time or term anterior to the general municipal election. It is a local special case, provided for in the statute. The senate remained in session one or more days after the law was passed, and it was practicable to make the appointment by the governor and senate as specially directed. Adler, not having been appointed in that mode, it follows that he has no right to the office, unless authority to make an executive appointment in the recess of the senate can be derived from sec. 106 of the code. It must be observed that the constitution confers the appointing power upon the governor, separate from the senate, in but a single instance, to fill a vacancy on the supreme bench caused by death, resignation or removal. Sec. 5, art. 6. It is by virtue of statute law that the executive appoints to judgeships on the circuit and chancery bench in the recess of the senate. Express authority is conferred upon the legislature in two' sections of the constitution to enact such laws. With the single exception above mentioned, the executive has no constitutional power to fill vacancies in any offices. When, therefore, he exerts such authority, it must be derived from a statute, and the conditions must exist on which the power depends. As we have seen, the act of the 5th of March does not empower the governor to appoint the city, judge. The last clause of the 106th section of the code, only has reference to a casual vacancy, leaving an office which has been filled without an incumbent, and which has occurred within five days preceding the adjournment of the senate.

It follows that the governor had not the warrant of law to make the appointment.

The judgment is reversed, and the cause remanded for further proceedings, in accordance with this opinion.