State ex rel. Attorney General v. Messmore , 14 Wis. 163 ( 1861 )

By the Court,

Dixon, G. J.

Ye fully agree with counsel for tbe defendant tbat tbe constitution requires each of tbe circuit judges to be a resident of tbe circuit for which be is elected, and that sucb residence must continue till tbe end of bis term of office, or so long as be may desire to discharge tbe duties and receive tbe emoluments pertaining to the same. This conclusion is so apparent from tbe language of section 7 of article VII, as hardly to admit tbe aid of argument in its support. It is: “ And after be shall have been elected, be shall reside in tbe circuit for which he was elected.” But we think they are mistaken in supposing tbat tbe judge must not also be a resident of the circuit at tbe time of his election. It is possible that the language of section 7, above quoted, and which alone was referred to in argument, would, if considered by itself, sustain this interpretation; but section 10 of the same article makes it clear that such was (not the intention. Its last clause reads as follows : “No person shall be eligible to the office of judge, who shall not at the time of his election be a citizen of the United States, and have attained the age of twenty-five years, and be a qualified elector within the jurisdiction for which he may be chosen.” This, in effect though not in words, fixes the place of residence within the circuit at the time of the election, and if possible, renders more clear and unquestionable the object to be accomplished by the language of section 7, which is, that after he is elected, his office shall not be removed or separated from the jurisdiction or circuit over which he is to preside.

Conceding for the present, so far as relates to the eleventh judicial circuit thereby created, that the act (chapter 162, Laws of 1861) by virtue of which the defendant received his appointment, became^ completely operative from and after the 10th day of April, 1861, as provided in its last section— a matter to which we shall have occasion hereafter to refer— we are brought at once to the consideration of the means by which effect is to be given to section 6 of the same article, in a case where, in the creation of a new circuit, the residence of the judge of an existing circuit is by legislative enactment placed without the limits of the jurisdiction for which he was chosen.

The last named section provides: “ The legislature may alter the limits or increase the number of circuits, making them as compact and convenient as practicable, and bounding them by county lines, but no such alteration or increase shall have the effect to remove a judge from office. In case of an increase of circuits, the judge or judges shall be elected as provided in this constitution, and receive a salary not less than that herein provided for judges of the circuit court.”

Here we have the power clearly given to the legislature, if indeed it would not have existed without, to create new and alter the limits of old circuits, at its pleasure, provided they continue to be bounded by county lines, but with tbe express 1 declaration that no such increase or alteration shall have the effect to remove a judge from his office. It was clearly con- Í templated that this power, the arbitrary and unjust use o/ which is not to be presumed, would be exercised without regard to the places of residence of the judges of existing circuits. The declaration that it shall not have the effect to remove them from office demonstrates this; for it seems to have been supposed that without such declaration, the tenure of a constitutional term of office might have been disturbed or cut short by a legislative change in the place of residence of its incumbent. It was to guard against this, and strengthen the slender independence of the judiciary, that the declaration was inserted. Aside from the proviso as to the boundary of circuits by county lines, and that they shall be as compact and convenient as practicable, and this limitation as to its effect upon the tenure of existing offices, the power of the legislature is unrestricted. We have then in the case before us to reconcile the existence and valid exercise of this power with the requirement that the judge shall reside within the circuit for which he was elected, and the question is, How shall it be done ? We think with the counsel for the defendant, who are supported by the authority of the case of The State ex rel. Ives vs. Choate, 11 Ohio, 511, that it must be by giving the judge, whose place of residence is thus lawfully separated from the jurisdiction to which he belongs, reasonable time and opportunity to remove to the circuit for which he was elected, and if he does not, the office becomes vacant under the constitution and the general statute upon that subject. In no other way can full force be given to both provisions of the constitution, and we must therefore accept it as the mode intended by thé framers. Judges, in assuming the trusts imposed upon them, must be presumed to submit to the inconveniences which may thus sometimes be occasioned, when the public good requires either the creation of new, or the alteration of the boundaries of old circuits.

And here we may say, what is in part applicable to another branch of the case, that we wholly reject the other exposition of defendant’s counsel, upon which, it was claimed, that by virtue of this power of increase and alteration, tions and judgeships are made itinerant and wandering in vtheir nature — that circuits may be entirely shifted from the district or territory for which they are created, and judges assigned to places entirely outside the jurisdictions for which they were chosen — or as was said, left with no jurisdiction and no mark of office save the name and salary. That this would be contrary to the spirit and intention of the framers of the constitution is manifest from almost every provision on the subject.

In the change of the limits, or increase of the number of circuits, they looked to no obliteration of those which already existed, but contemplated that their identity would be preserved. And however much confusion and uncertainty might be introduced by changes of numbers or names, and the alteration of boundaries, we have no doubt it would be the duty of the courts to ascertain and determine, according to the spirit of the constitution, which were the old and which were the new circuits, or which belonged to this and which to that incumbent. The offices of the circuit judges are spoken of and treated throughout as distinct and independent — each being capable of a separate and certain identification, and each having an incumbent, whose right it is to hold that particular office until the end of the time fixed by law, or other sooner termination of his official duties. If the number of circuits is increased, judges are to be elected as provided in the constitution, to fill the offices thus created. Each judge must reside in the circuit for which he was elected. He must, at the time of his election, be a qualified elector within the jurisdiction for which he may be chosen. Judges may hold courts for each other, and shall do do so when required by law, from which it is to be implied that otherwise their offices are strictly local and separate in their character. These provisions .sufficiently refute the position of counsel and establish the intention of the framers.

It is conceded by counsel on both sides, and certainly not doubted by the court, that the circuit known and designated by the act as the- sixth, is, with some alteration' of boundaries, tEe same judicial circuit which was formerly known by tRat name. TEe number is tEe same, and it embraces by far tEe larger portion of tEe same territory. It is admitted tEat tEe term of office of tEe judge of tEat circuit will not expire until tEe first day of January, 1863 ; that Ee has not resigned, nor been removed by address or impeachment, and that Ee still resides within the limits of the circuit, as heretofore prescribed by law. This was the position of affairs on the 10th day of April last, when the defendant received Eis appointment. It follows from what has been said, that the legislature could not, by way of complying with the provision of the constitution that the change of boundaries should not have the effect to remove him from office, transfer him to, or declare him to be judge of the eleventh judicial circuit for the residue of Eis term, as was attempted by the 7th section of the act; and.that if Ee was a judge at all, Ee was at that time the judge ©f the sixth judicial circuit to which the defendant was appointed. Whether Ee was then judge of the sixth circuit depends upon the proper application of the principles already stated. If Ee was, then there was no vacancy, and the appointment of the defendant was void, and conferred no title whatever to the office. The act was published April 4th, and was, by its terms, to take effect as to the sixth, eighth and eleventh circuits therein defined, from and after the 10th day of that month. The defendant was appointed on the 10th. If the office had become vacant, it was by reason of the failure of the judge to remove within the newly prescribed limits of his circuit after the act was to take effect and before the appointment was made. This could not possibly have happened. The appointment was made one day in advance of the time when the law was to become operative, and no opportunity for neglect on the part of the presiding judge was given. And even if it had been made on the very day, and. the judge had had his residence or place of business beneath the dome of the capitol, no person will contend that a reasonable time was given him to deliberate as to whether he would remove or not, and much less to do so, though for never so short a distance. As it was, he resided upwards of two hundred miles from the seat of government, where, by ) the ordinary methods, several days would be required to \ transmit the information, and at a considerable distance from ’■.the limits of his circuit, as fixed by the act. Under these circumstances, it is still more apparent that he could have been guilty of no unreasonable neglect in taking his residence within it; and that no forfeiture could have been incurred by his failure to do so. No opportunity to comply with the requirements of the law by a change of residence was afforded him.

But it is said that as the act was published on the 4th of April, he must be deemed to have had from that time to receive intelligence and prepare and move. Conceding this to be so, still the time was too short. Six days for a work of that kind are entirely disproportionate to the labor to be performed. No householder could conveniently make the change in that space of time. And though it might by possibility have been accomplished, yet judges in such cases are not expected to hasten like one flying from an enemy, or from some deadly contagion.

We do not, however, hold that the judge was bound to take notice of the change or prepare to remove until the act was to go into actual operation. In these times of fluctuating and uncertain legislation, it would be enough that he prepared for the contingency when it actually happened, and then he must have a suitable and convenient length of time for that purpose. Eor aught that he knew or might suppose, the law might have been repealed, or further suspended, before the day fixed for its taking effect.

It is again said that the presumption of the law is in favor of the validity of the act of the governor in making the appointment, and that if no sufficient time for removal was given, still we are to presume that the governor was otherwise in possession of facts which he knew made it lawful and proper for him to appoint, as that the judge had signified to him his unwillingness to remove and a determination to abandon the office. A sufficient answer to this perhaps would be, that it is for the defendant to establish his right to hold the office by clear and indisputable evidence of the facts constituting his title. A still more satisfactory one is, that unlike that in Ohio, the case here made precludes the indulgence of any presumption as to the possibility or existence of facts not stated in the pleadings or shown in proof. The defendant’s claim of title is founded solely upon the fact that by reason of the change of boundaries the judge of the sixth circuit did not, at that time, reside within the same. This is directly stated in his first answer, and in the second, the non-residence merely. These are not enough. By the proofs the title is traced directly to the act in question, and the attempt of the legislature to transfer the real judge to the new circuit, and to authorize the governor to appoint another in his stead. Under these circumstances there seems to be no room for speculation, and we must act upon the facts as they appear from the whole case.

But again, it is said that if sufficient time for removal was not given before the appointment, certainly enough has elapsed since; and as the judge has not yet changed his residence, he must now be deemed to have abandoned all claim to the office. If we grant that such subsequent abandonment would relate back and confirm an appointment prematurely made, which is a very questionable proposition, still we do not think, under the peculiar circumstances of this case, that such failure of the judge to remove would constitute such evidence of consent by him to part with his light, as to prevent him from still claiming the office. At first the interference of the legislature, unauthorized though it may have been, in declaring him to be the judge of another circuit, vacating the office which he held and directing the governor to appoint his successor — the appointment by the governor of such supposed successor, and the actual occupancy of the office by him — events which followed each other with great rapidity — precluded, or seemed to preclude, all free exercise of thought or action. His right to hold the office was apparently forestalled - and gone. If he removed and took, or attempted to take, possession of the office and discharge its duties, it would very likely have led to occur rences unpleasant to him and unbecoming to the position which he occupied. Soon after, this action was commenced, by which the legality of the appointment and the extent and nature of his rights, were to be tried and finally mined. Under these circumstances we think he was right in suspending his action, and that he forfeited nothing until the controversy was thus terminated

We are of opinion, therefore, upon the assumption that the law went into complete operation on the day-named, that the appointment of the defendant was void, and that subsequent events have in no way aided the defense.

There are, however, in our judgment, other and more substantial reasons for holding that there was no vacancy, and that the appointment of the defendant was improperly made. We think that for judicial purposes the new circuits created by the act are not yet fully organized — in other words, that, as to them, the act is not as yet completely operative. Our opinion is founded upon the provisions of three sections of the constitution: section six already quoted, section seven of the same article, which provides for the filling of vacancies which may happen in the office of judge of the supreme court and circuit courts, and section eleven, which declares that a circuit court shall be held at least twice in each year in each county of this state organized for judicial purposes; and upon sections ninety-two and ninety-three of chapter seven of the Revised Statutes. ■ Section seven expressly declares that, in case of an increase of circuits, the judge or judges shall be elected as provided in the constitution. This ordinarily would be considered conclusive that in such case there can be no executive appointment of the first incumbent. But an adjudication of the supreme court of the state of Indiana has been found, where it was decided, under a similar provision of the constitution of that state, that in such case an appointment might be made. Stocking vs. The State, 7 Ind., 326. Upon the strength of that decision it has been strenuously insisted by counsel, that the power of making temporary appointments is a part of the elective system provided for by the constitution, and that a vacancy, within the meaning of section nine, exists in such a case, as much as when a judge dies or resigns his office. Unluckily for the views of counsel, the learned judges of Indiana, in their discussion of the question, seem entirely to Rave passed the language of the section of their constitution which authorizes the governor to fill vacancies by appointment It is in all material respects like that of our own. They limited their examination to the question, whether there was in any sense a vacancy, and having concluded that there was, they took it for granted that it was such an one as the governor could fill. That there was a vacancy, in the sense in which they applied the word, we are not inclined to dispute. Certainly, “ a new house may be as vacant as one tenanted for years, which was abandoned yesterday.” But aside from the requirement that judges of new circuits shall be elected, the question is not whether there is in any sense a vacancy, but whether it is such an one as the framers of the constitution contemplated should be filled by executive appointment. It seems clear to us that it is not — and that they looked solely to vacancies in existing offices, occasioned by the death, removal or resignation of a previous incumbent. Their language is: “ Where a vacancy shall happen in the office of judge of the supreme or circuit court, such vacancy shall be filled by an appointment by the governor, which shall continue until a successor is elected and qualified.” The use of the word “ happen” in this connection, is very significant, and evidently has reference to some casualty not provided for by law, and which could not be remedied by the usual means of an election. The primary principle established by the constitution is, that judges shall be elected, and the power of temporary appointment seems only to have been conferred from necessity, to cure certain defects which are inseparable from the system adopted. In the creation of a new circuit no such necessity exists. The business of our courts is never such that the public would suffer inconvenience by the delay of an election in such a case. It is not a casualty in any sense of the word, but the deliberate act of a legislative body, which may well and conveniently be provided for by the usual method prescribed by the constitution. Upon this subject we are not entirely without authority. The Senate of the United States, upon different occasions, appear to have put the same construction upon like language in the third clause of the second section of Article II of the constitution of the United States. Story’s Com. on Const., voL 3, § 1553; Sergeant’s Const. Law, chap. 81, p. 373.

This construction is also sustained by the entire legislation of the state, down to the time of the passage of the act in question. In the formation of the various circuits which have been created since the adoption of the constitution, the legislature have invariably provided that the first judge should be elected.

It was furthermore, no doubt, one prominent motive in providing that judges should be elected, to restrict, as far as possible consistently with the necessities of the public, the patronage of the executive, and it is our duty to construe the constitution so as to carry out that object.

The clause which gives the legislature power to declare the cases in which any office shall be deemed vacant, does not affect the question. It clearly confers no authority by direct act to declare a particular office vacant. The legislature can only by general laws declare under what circumstances existing offices shall be deemed vacant, and it then becomes a judicial question whether these circumstances exist. It cannot directly, and of its own motion, create a vacancy in the office of supreme or circuit judge, which the governor is authorized to fill by appointment.

It follows therefore that no appointment can be made in the new circuits which the legislature, in the exercise of an undoubted power, have seen fit to create. The act makes no special provision for an election, and they fall, therefore, within the general provision made by section 93 of chapter 7, R. S., above referred to, which is, that the first election shall be held on the first Tuesday in April next after the taking effect of the law providing for such election.

The act providing for the circuits must be deemed to have provided for the elections. In the meantime, as each of the counties comprised in them is by the constitution entitled to at least two terms of court a year, the operation of the law is so far suspended, and those counties are severally to be considered, as still belonging to the judicial circuits to which they were heretofore attached.

For these reasons, the judge of the sixth circuit still resides within its limits, and no change of residence has yet become necessary.

Let judgment of ouster be entered against the defendant.