Walsh v. Commonwealth ex rel. Evans , 1 Law Times (N.S.) 101 ( 1879 )

Mr. Justice Woodward

delivered the opinion of the court, March 31st 1879.

On the 17th of April 1878, the “Act to provide for the division of counties of this Commonwealth, and the erection of new counties therefrom,” was passed. Proceedings to promote the division of the county of Luzerne, and the erection of the county of Lackawanna were at once begun. These proceedings were perfected on the 21st of August 1878, when the governor declared by proclamation that a majority of the votes cast at the election held under the terms of the act, on the 13th of August 1878, had been in favor of the creation of the new county, and that thenceforth, in the words of the 9th section, “said new county was established, with all the rights, powers and privileges of other counties of this Commonwealth.” In the 11th section, the governor was required immediately to appoint and commission the officers for the new county, who should continue in office until the next general election, and until their successors should be duly elected and qualified. Patrick M. Walsh, the defendant in this quo warranto, was appointed surveyor the day the establishment of the new county was proclaimed.

At the general election, held on the 5th of November 1878, the relator, Richard Evans, received a majority of the votes cast for county surveyor. The term for which the defendant was copa’missioned was “until the end of the next session of the senate,” and he resisted.the relator’s claim to the office, because, as he alleged, the election of county officers at the general election of 1878 was undue and illegal. The ground was taken that it had been held in violation of section eighth of the fourth article of the constitution, declaring that “ in any case of vacancy in an elective office, a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be held at the second succeeding general election.” Less than three calendar months intervened between the date of the defendant’s commission and the date of the'election. Insisting that the office of surveyor was vacant when he was appointed, the defendant asserted his right to retain it until the final adjournment of the session of the senate in 1879. The relator, on the other hand, denied that he was such an elective officer as was contemplated in the constitutional provision. He contended that the design of the legislature in the 11th section of the act was to bridge over the interval between the creation of the county and the next election, by directing the governor to appoint new officers, instead of directing that their duties should be performed by the existing officers of the county of Luzerne. He relied on the second section of the fourteenth article of the constitution, requiring that “ all vacancies not otherwise provided for, shall be filled in such manner as may be provided by law.” Invoicing that direction as one of the grounds to support his claims, he began this proceeding to obtain possession of the office, and prosecuted it to a judgment, pro forma, of ouster against the defendant.

Was the office of surveyor of the county of Lackawanna vacant, in the constitutional import, on the 21st of August 1878 ? The verb “ to vacate,” in its English form, has acquired an active sense through a long period of transition, by popular usage and in consequence of its early adoption as a technical and legal term. “ To leave empty;” “to cease from occupying;” “to annul;” “to make void,” undoubtedly express the different meanings in which, as a verb, the word has come to be employed. But it does not follow that its derivatives have acquired exclusively equivalent meanings in popular, or legislative, or legal usage. In its original Latin form, the word was invariably used to define the state and condition of some existing thing at some particular point of time. It had no transitive power whatever. It meant “ to be empty, void or vacant;” “to be void of, free from or without, to lack or want a thing.” Vacant lands were described as lands that were “ uninhabited or uncultivated.” The Roman law gave the word precisely the same meaning. Vacant possessions were defined by Ulpian, in the Pandects, to’be such as were “free, unnoccupied, ownerless:” Dig. 38, 17, 2. And many of the derivatives from the English verb retain the exact meaning of the original Latin word. To be “vacant,” in its primary sense, is “to be deprived of contents; empty ; not filled.” The first definition of “ vacancy,” is “ the quality of being vacant; emptiness.” The wmrds “ vacant lands,” so familiar in the Pennsylvania courts, convey as to description of subject-matter, the precise idea which Ctesar conveyed in explaining the public policy of the Suevi. Surrounding their own territories they desired, to as wide an extent as possible, vacare agros. De B. Gal. IV. 3. Usage has warranted the employment of these words in an enlarged and broader sense, hut the primary and strictly grammatical meaning which they still retain is identical with their exclusive original signification. The result is that the word “ vacancy ” aptly and fitly describes the condition of an office when it is first created and has .been filled by no incumbent. The need to strain and torture terms would lie in the opposite direction.

Was the claim of the relator sustainable on other grounds ? When the defendant was commissioned, executive, legislative and popular action had established the county of Lackawanna, and with it the office of surveyor. It was an existing unfilled elective office. The duty of the governor to fill it was clear. He derived his original power to appoint from the constitution, and that had authorized him-to issue a commission in the event of a vacancy in any elective office. It is true the statute had directed him to appoint the officers of Lackawanna; but without that direction, if the offices had been established by special enactment, it would still have been his constitutional duty to issue the commissions. The eleventh section directed that the officers appointed by the governor should retain their places until the next election, and until their successors should be duly elected and qualified. Due election and qualification could only result from action in accordance with the constitution and existing laws. If the county had been organized before the 5th of August 1878, the legality and regularity of the election on the 5th of November would have been unquestionable., But until the 21st of August it was uncertain whether the county would ever have existence at all. The proclamation changed what had been a project into a vital actuality. The moment the life of .the county began, there came into being the several county offices specified in the first section of the fourteenth article of the constitution. They were not places to be filled by clerks-, or agents, or deputies, pro hac vice. They were elective' offices and they were vacant. All the conditions under which the constitutional duty of the governor to select incumbents subsisted. Is it possible that in view of such conditions, the legislature could have the power, even if they had so intended, to take these offices out of the operation of the constitutional provision ? But they could have had no such intention. When the act was passed, it was as uncertain that the organization of the county would be perfected three months after the next election, as it was that it would be perfected three months before. And on what principle can the second section of the fourteenth article apply in any way to this question ? They were “ vacancies not otherwise provided for,” which were to be “filled in such manner as should be provided by law.” But these vacancies were such as had been provided for. They were vacancies in elective offices which the governor had power to fill. The provisions of the Act of the 17i;h of April 1878, must be construed in its connection with the provisions of the constitution, and the officers of the county pf Lackawanna must stand on the same footing as if their places had previously been occupied, and they had succeeded to them by appointments to supply vacancies produced by causes of ordinary and familiar kinds.

It was strongly urged at the argument that no ground of reason or convenience .existed in this case to justify an interference with the right of the people to elect their officers in the autumn of 1878. It was said that there was ample time after the proclamation to select candidates, and to provide that the rights of parties, individuals and the community should be secured from hazard. If this court had the power to say this, it is possible that this suggestion would be adopted. It is true that all formal details relating to assessments, revision of lists, the furnishing of ballot-boxes and blanks, and the notice to be given by the sheriff, could have been arranged in this interval of seventy-six days. But cases might occur where the interval would be forty, thirty, twenty or ten days. And it would be necessary to go into an inquiry in each instance into the adequacy of time to prepare for the election. To guard against a shifting rule like this, fortunately for the community and the courts, the constitution has established an abiding and pervading system. It was the opinion of its framers that the work of selecting officers for the government of the Commonwealth, and of the counties of the Commonwealth, should be carefully and thoughtfully done. Haste, impulse and evil temper will enter into political contests, whatever safeguards may be thrown around the ballot, and whatever may be the period allowed for deliberation. But the constitution has established the unbending rule that three full months shall be the period within which to prepare for an election to supply a vacancy, and during which mistakes may be corrected, prejudices may be overcome, ignorance may be enlightened, excitement may be allayed, and passions may subside. It has not been suggested that this election resulted in the choice of a surveyor who was not entirely competent, and did not possess every requisite qualification for the duties of the position. But it has sometimes happened that in haste, and under the influence of prejudice, very important offices have been filled, not only by very incompetent, but by very bad men.

It has not been thought necessary to encumber this opinion with quotations from the authorities bearing on this question. They are overwhelmingly preponderant in favor of thé position of the defendant, and have been marshalled with great ability in his counsels’ original and supplemental briefs. Indeed, in this connection, the court have pleasure in acknowledging the benefit they have derived from the careful, skilful and thorough preparation of this cause by the counsel for both the parties. A single remark in regard to each of the cases of The Commonwealth v. Swift, 4 Whart. 186; Broom v. Hanley, 9 Barr 518, and The Commonwealth v. King, 4 Norris 103, needs only to be made. The only point ruled in the first was, that the constitution of 1838 did not create a vacancy in the office of recorder of deeds, and that the power remained in the governor to appoint under the constitution of 1790 until the general election in 1839. In the second, it was decided that the death of a person elected to fill the office of clerk of the Orphans’ Court before he had qualified himself, according to law, did not create a vacancy, but the incumbent who was commissioned to fill the office until his successor should be qualified, held over. In the third case, the sheriff of McKean county died about three weeks before the general election of 1875, in the third and closing year of his term ; and as the people of the county could have devoted the whole of the three years to preparation for the election of his successor, it was held of course, that the appointee of the governor could retain the office only to the time when the new term began in January 1876. Nothing decided in either of those cases touches the points in issue here.

The judgment of ouster is reversed at the costs of the relator : and it is now ordered, adjudged and decreed that judgment on the demurrer in favor of the defendant be forthwith entered: and it is further ordered, adjudged and decreed, that the said defendant recover his costs of said relator, to be levied by execution, as in cases of debt.

Justices Mercur and Gordon dissented.