Commonwealth ex rel. Bowman v. Slifer , 25 Pa. 23 ( 1855 )

The opinion of the Court was delivered by'

Lewis, C. J.

This is an ¿pplication for a mandamus to compel the state treasurer to pay the relator the arrears of salary alleged to be due to him as adjutant-general of the Commonwealth.

The parties have argued the case on its facts and merits, without requesting an issue, and we proceed to dispose of it accordingiy.

The objections to the mandamus are:—

1. That General Bowman was not appointed for the term of three years, but only to fill the vacancy occasioned by the resignation of General James Keenan,- whose commission expired by it's own limitation on the 2d February, 1855.

2. That General Bowman omitted to give security for the faithful performance of the duties of the office, and therefore Governor Pollock, on the 3d February, 1855, removed him and appointed Thomas J. Power his successor, who has ever since performed the duties of the office and received the salary.

It does not appear to be averred in the pleading that Governor Pollock removed the relator because he omitted to give-the required security. Nor is any other cause of removal set forth. It is merely pleaded that he failed to perform the duties of the office, and did not, at any time, give bond, with one or more sufficient sureties, &c., and “thereupon” he was removed. No neglect of duty is specified, except the failure to give bond; and from what seemed to be admitted on the argument, no other neglect of duty is pretended. No removal is shown or alleged, except that which is implied by the simple appointment of a successor. And when it is seen that this took place on the day after General Keenan’s commission expired by its own limitation, it is but a fair construction of the act of Governor Pollock, to hold that he intended no more than the appointment of a successor, under the impression that General Bowman’s appointment had expired by its own limitation.

We are unwilling to believe that the governor intended, without cause to remove an officer appointed for a term of years, before the term had expired. That he possessed the power of removal is conceded; but the power is to be exercised upon cause shown. It exists only where “ the officer fails and neglects faithfully to perform the duties of his office.” It is true that the executive is made the judge; and that his “ opinion” or judgment is conclusive, so far as relates to the question of removal. But that judgment is not to be pronounced without notice, without any charge or specification, and without any opportunity given to the officer to make his defence. The reputation and the right of the incumbent to the office for the term specified in his commission are involved; and he has a right to know the accusation and to be heard in his defence. The present executive understood these rights too well, and appreciates them too highly, to be guilty of violating them. If he was on his trial before the Senate, on impeachment for doing so, it would be difficult to convince any one that he intended to commit any such act of oppression.

The appointment of General Power would be understood there as it should be here. It was nothing more than an appointment to fill a vacancy supposed to exist in the office. The Act of Assembly requires the adjutant-general to give bond before he enters on the duties of his office. So that the giving of the bond is not an official duty, but a preliminary to entering upon official duties. .It is made so by the very section which gives the governor power to remove for neglect of official duty. The omission to give bond is, therefore, not a neglect of official duty for which the governor is authorized to remove an incumbent duly commissioned for a term of years. This power of removal is a special authority, and must'be strictly pursued.

It was not pretended at the argument that there was any other removal of General Bowman than that which may be implied from the appointment of General Power. In setting forth that appointment it is not averred that it was intended as a removal of General Bowman, or that any notice of it was given to the latter, for the purpose of terminating his authority. Where an office is held during the pleasure of the appointing power, a removal may he either express, that is by a notification that the officer is removed, or implied, by the appointment of another person to the same office. But it has been decided that in either case the removal is not completely effected until notice actually received by the person removed. An office held during pleasure is not distinguishable from other cases of revocable authority. The officer has authority to act until notice of revocation: Bowman v. Morris, Wallace U. S. C. C. Rep. 124; Cren v. Vernum, Cro. Car. 97; 1 Ven. 400 ; 2 P. Wm. 194; 19 Vin. Abr. 451, pl. 3; 3 Rep. 71; Cro. Eliz. 440; Id. 14; 13 Peters 260; 2 Bing. 692.

But when an officer holds for a specified term of years, “ if he shall so long behave himself well,” there is no implied conviction of misbehaviour, nor any implied removal for- that cause arising from the appointment of another person to fill the same office. This was decided in the People v. Carrigne, 2 Hill 104, but the principle of justice on which the rule is founded is too clear to require the aid of authority. There is, therefore, neither removal nor intention to remove General Bowman. The question is, whether his commission was void, or had expired, at the time when General Power was appointed. The clerk who filled it up was certainly not very judicious in the selection of words to express the meaning ’ of the executive. There is an ambiguity of expression in it, which has probably produced the present difficulty. But the acts of public officers, where the rights of the public require it, should be construed with liberality. There is always a presumption that they are in accordance with the law. The' presumption can be repelled only by clear evidence of illegality. The Act regulating the militia of the Commonwealth declares that the appointment of the adjutant-general shall be “ for the term of three years, if he so long behave himself well, and faithfully performs the duties of his office.” The commission accordingly states that the executive has appointed George W. Bowman adjutant-general “ in pursuance of the authority contained in the militia laws of this Commonwealth.” An appointment for a shorter term could not be “in pursuance of that authority.” This part of the commission must, therefore, be understood as some evidence that the appointment was made for the term of three years, as the law requires. In the habendum, when fairly construed, it is stated that he is to have and to hold the office for the term of three years, if you shall so long behave yourself well, &c. Rejecting the imperfect sentence which relates to the vacancy occasioned by the resignation of General Keenan, the meaning is perfectly plain. , That this imper-feet sentence was introduced as a mere parenthesis, and forms no part of the habendum, seems manifest from the whole language of the commission. That the “term of three years” is to be read as fixing the term of General Bowman’s commission, seems reasonable, because, without so reading it, no term whatever is specified. If no term be specified, the words “ if you shall so long behave yourself,” would be senseless. They would have nothing to which they could have relation. The parenthetical statement that he is commissioned “ to fill the vacancy occasioned by the resignation of General Keenan,” does not cut down his term below the period prescribed by law. These words are very frequently introduced where an appointment is made to fill a vacancy occasioned by death or resignation. They do not, of themselves, import limitation of the term of the appointee. It is only in cases where the law declares that an appointment to fill a vacancy shall be for the unexpired term of the previous incumbent, that they have any effect whatever. In this case the law allows of no appointment for a shorter period than three years. The reference to the vacancy occasioned by the resignation of General Keenan is, therefore, merely surplusage. It did neither good nor harm. It was like similar language contained in the commissions of Judges Cowan and B’rownson, of the Supreme Court of New York. They were appointed to fill vacancies occasioned by resignations, and the fact was so stated in their respective commissions, but it was never supposed that this had the effect of cutting down their judicial term. The official term, established by law, is not to be changed in such vague and unnecessary surplusage in a commission. We are unanimously of opinion that on a fair construction of the commission granted to General Bowman, it was intended to give him the right to the office.for the term of three years, if he should so long behave himself well. But it seems that he neglected to give the security required by law. He has faithfully performed the duties of the office, however,.without complaint; and, since these proceedings were instituted, he has tendered the security. The emission seems to be, an inadvertence. There is nothing wilful in it, so far as we s.ee. Tt does not appear that security was ever demanded, or that the state has suffered any injury for the want of it. If the omission furnished ground for refusing to permit General Bowman to take possession of the office, or for imposing any penalty upon him, it does not appear that the executive, or other authorities, did either the one or the other. He was permitted to enter upon the. duties, take charge of the public property, perform his public duty, and to receive the salary provided by law. Under these circumstances, his tender of security, as soon as the omission was brought to his notice, is sufficient to entitle him to hold the office.

But for the period during which he performed the duties of the office without having given the required security, he was not strictly the officer dé jure. He was merely the officer de facto. His acts are good so far as others are concerned. But the rule seems to be established, that none but the officer de jure can successfully claim compensation for official services: Riddle v. Bedford Co., 7 S. $ R. 389; Dilton v. Myers et al., 3 Penn. Law Jour. 169; Brightly’s N. P. Rep. 326. It follows that General Bowman is not entitled to the mandamus. The performance of the duties of the office before giving the security was prohibited by law. The law must, therefore, refuse to aid him in compelling payment for services thus rendered against its direction.

This view of the case renders it unnecessary to express any opinion on the question whether the title to an office can be determined in a mandamus for the salary.

Mandamus refused.