Citation Numbers: 89 A. 172, 87 Conn. 537, 1913 Conn. LEXIS 137
Judges: Prentice, Thayer, Rohaback, Avhbeler, Beach
Filed Date: 12/20/1913
Status: Precedential
Modified Date: 11/3/2024
Article Fifth, § 3, of the Constitution of the State, as originally adopted, provides that "the judges of the Supreme Court of Errors, of the Superior and inferiour courts, and all justices of the peace, shall be appointed by the General Assembly, in such manner as shall by law be prescribed. The judges of the Supreme Court, and of the Superior Court, shall hold their offices during good behaviour; . . . all other judges and justices of the peace shall be appointed annually." Amendments have since been adopted affecting the manner of appointment and the tenure of office of the judges and justices of the peace here named. The only one affecting the office now in question is Article Twenty, which provides that "judges of the City Courts and Police Courts shall be appointed for terms of two years." This was adopted in 1876. The charter of the city of Hartford provides that there shall be a city police court established and holden in the city of Hartford, and a judge and associate-judge thereof. An amendment of the charter, approved May 14th, 1907, provides "that the judge and associate judge of the city police court within and for the city of Hartford shall each hold office for the term of two years from and after the first day of July next following his appointment and until his successor shall be duly appointed and qualified." 15 Special Laws, p. 134. *Page 540
In January, 1911, the respondent was appointed, by the General Assembly, judge of said city police court "for the term of two years from and after the first day of July, 1911, and until his successor is duly appointed and qualified." He qualified and accepted the office and has continued to hold and perform its duties until the present time. The General Assembly in 1913 appointed no successor of the respondent, and adjournedsine die on the 4th day of June, 1913. On June 24th, 1913, and while the General Assembly was not in session, the Governor, acting under a statute providing that he may fill vacancies, appointed and commissioned the relator judge of said city police court "to fill a vacancy which will occur on the first day of July, 1913, by expiration on that day of the term of office of Walter H. Clark." The relator accepted the appointment, qualified, and demanded possession of the office on July 1st, 1913, which the respondent refused. This action is brought to determine whether, since July 1st, 1913, the respondent has had legal title to the office.
In his plea to the information, the respondent sets out the provisions of the Constitution and city charter, and his appointment by the General Assembly above referred to, as his warrant for holding the office; and, these being admitted, he claims that he may lawfully hold over beyond the fixed term of two years until his successor is legally appointed; and he claims that the relator was not, and that no other person has been, so appointed. The relator claims that these facts do not show a legal title to the office in the respondent. In this proceeding the respondent is bound to establish a legal title. His holding over under this appointment is undoubtedly sufficient, as claimed by his counsel, to constitute him a judge of the court de facto. Such title is sufficient to make his acts good as to the public and third persons when his title is not directly in question. *Page 541
But quo warranto calls upon him to show that he is ade jure officer. It lies to oust an illegal incumbent from office, not to induct a legal one into it. The burden in such a proceeding is on the respondent to establish a legal right to the office in dispute. State ex rel. Oakey v.Fowler,
Do the facts show that he is a de jure officer? As he bases his title upon his appointment by the General Assembly, we are to inquire whether they had the power to make the appointment which they did make. It is conceded that they could properly appoint the respondent for the constitutional term of two years. The relator claims that it was beyond the power of the General Assembly to appoint for a longer term. That body derives its powers from the Constitution. Article Fifth, §§ 1 and 3, contains a grant of power to the General Assembly to ordain and establish inferior courts, and to appoint the judges thereof in such manner as shall by law be prescribed. Had there been no further provision, this would have included the power to fix the terms of the judges. But the Constitution (Article Fifth, § 3) expressly limits the term to annual elections. Article Twenty of the Amendments declares expressly that city and police court judges shall be appointed for two years. The people of the State thus kept from the General Assembly the power to fix and change the terms of these judges. Any attempt on the part of the latter to fix or extend the term is in excess of their constitutional powers.
If, then, the General Assembly, by the charter of the city of Hartford or by the Resolution appointing the respondent, attempted to extend his term beyond two years, such extension was void. It is clear from the *Page 542
language of the charter and Resolution that something more was intended to be done than to appoint him for the constitutional term of two years. In his plea he sets up his appointment "for the term of two years from and after the first day of July, 1911, and until his successor is duly appointed and qualified," in justification of his holding over after July 1st, 1913. He thus treats his appointment as being for more than two years. That, manifestly, is precisely what it was intended to be. The first fifteen words fixed the minimum period of his tenure of the office; the remaining words were used to prolong the term until such time as his successor should be qualified. This was to appoint for a term of more than two years, and was in violation of the constitutional provision. Commonwealth v.Sheatz,
We construed a constitutional provision which provided a tenure for a fixed term and until a successor should be qualified, as conferring upon the appointee the same de jure title after, as before, the fixed limit.State ex rel. Morris v. Bulkeley,
The claim of the respondent, that it was his right and his duty to hold over and exercise the duties and functions of the office after the expiration of his term until his successor should be appointed, may be conceded. The public interest requires that such officers shall hold over when no successor is ready and qualified to fill the office; otherwise important public offices might remain vacant, to the public detriment, in the absence of statutes providing for the filling of the vacancies, or through the neglect of the appointing authorities to fill them. The rule has grown out of the necessities of the case, so that there may be no time when such offices shall be without an incumbent. But such holdover incumbent is not a de jure officer. He is in for no term, but holds the office only temporarily until the vacancy can be filled by competent authority, and his incumbency does not prevent the filling of the office by the authority duly authorized to fill the vacancy. He merely performs the functions of the office until a duly-qualified appointee to it shall appear, and then is bound to yield the office to such appointee. If, then, the relator was duly appointed and qualified when he demanded the *Page 546 office, the respondent should have surrendered it to him. This brings us to consider whether the relator has a good title to the office.
The statute under which the Governor acted in appointing the relator (Public Acts of 1907, Chap. 233, p. 835) reads as follows: "While the general assembly is not in session and when provision for filling such vacancies is not otherwise made, the governor may fill any vacancies, however arising, in all offices originally filled by the general assembly or either branch thereof, or by the governor, with the advice and consent of the general assembly, or either branch thereof, until the third Wednesday of the next session of the general assembly, and until a successor is elected, or appointed, and qualified. He may fill any vacancy in any office to which he has power of appointment."
It is the respondent's claim that in so far as this statute purports to give the Governor power to appoint judges of the various courts named in § 3 of Article Fifth of the Constitution, whose appointment is therein granted to the General Assembly, it is void as contravening that constitutional provision. It is also claimed that, if the statute is not void, no vacancy existed; and that, if one existed, other provision for filling it had been made, so that the statute was inapplicable to the situation.
In support of the claim that no vacancy existed, it is said that, although the respondent was not a de jure officer, it was his duty to remain in possession of the office after his fixed term had expired until a duly-qualified officer appeared, and that the provision of the city charter which has been referred to, and the Resolution of appointment passed in conformity to it, conferred upon him at least a color of title, so that his possession of the office was that of a de facto officer at least; and it is claimed that an office is not vacant when *Page 547 in possession of a de facto incumbent. The word "vacant" or "vacancy," as applied to an office, is not to be taken in a strict technical sense in every case. In the eye of the law an office is vacant when it is not filled by a de jure incumbent. It may be thus vacant when it is occupied by one who is not a de jure officer, as by a mere usurper. We think that the word "vacancies" is used in this sense in the statute in question, not as indicating that the office is physically vacant, but that it is not occupied by a de jure officer. It provides that the Governor may fill any vacancy, however occurring. The plain purpose of the statute is to have every office supplied with a de jure officer, and applies as well to an office occupied by a usurper or a holdover or de facto officer, as to cases in which, by death or resignation, the office is left without any incumbent.
The case of Harrison v. Simonds,
It was suggested upon the argument that at the time the relator was appointed the respondent's term had not expired, and so no vacancy existed in the office. While the appointment was dated the 24th of June, it recites that the appointment is to fill a vacancy to occur on the first day of July by the expiration on that day of the term of office of the respondent, Clark. The appointment anticipates the event, but is not to become effective until the vacancy occurs. The appointing authority was not bound to wait until the vacancy actually existed before designating his appointee. Expediency and convenience required that the appointment should be so made that when the respondent's term ended the successor might be qualified and prepared to take the office and enter upon its duties at once. While it is well settled that an officer or appointing body clothed with authority to appoint to a public office cannot, in the absence of express authority, make a valid appointment thereto for a term which is not to begin until after the expiration of the term of such *Page 549
appointing officer or body (State ex rel. Morris v.Sullivan,
A provision of the Hartford city charter provides that "the associate judge [of the city police court] shall perform the duties and be vested with all the powers and functions of the judge of said court whenever there shall be a vacancy in the office of said judge and in case of his absence or disability." 7 Special Laws, p. 434. This is relied upon by the respondent as showing that provision for filling the vacancy in question has been "otherwise made" than by the statute under which the Governor acted. The charter shows that the judge and associate judge are appointed for the same term; the same language applying to each. If the judge is not thereby empowered to act beyond the statutory term of two years, it cannot be that the associate judge is. The apparent purpose of this section of the charter is to provide an associate judge, who, during the term for which both are appointed, may act in cases in which the judge is disqualified and in case of his absence or disability, and, in case of his death or removal from office, may perform the entire duties of it for the remainder of the term or until his successor *Page 550 shall be appointed. It was not contemplated that the associate should fill a vacancy caused by the expiration of the judge's term. The vacancy which he is to fill is, in the language of the charter, "a vacancy in the office of said judge." This shows that it was merely a provision for a vacancy in the term held by the judge and not one to occur in the office at any time, near or remote, after the expiration of his term.
The remaining question as to the relator's title involves the validity of the statute under which he was appointed. It is claimed to be unconstitutional so far as it authorizes the Governor to fill vacancies in judicial offices. The constitutional provision claimed to affect the question is quoted above. From this (Article Fifth, § 3) it appears that the judges of the courts therein named, which include the city and police courts, are to be appointed by the General Assembly. This provision we have held to be mandatory. Brown v. O'Connell,
That this is the view taken by the General Assembly immediately after the adoption of the Constitution and ever since, appears abundantly in the statutes and city charters which they have since enacted. Continuously since that time they have by their enactments provided that the Governor or some appointing authority other *Page 553
than the one which the Constitution designates to make the appointments for fixed terms should fill vacancies in these judicial offices, and in other offices the terms of which the Constitution declared should be filled by the General Assembly or by election of the people, and these enactments have been acted upon and appointments to fill vacancies have been made under them. Thus, in the absence of one of the judges of the County Court (the statute requiring that it be held by two), it is provided in Title 21, § 17, of the Revised Statutes of 1821, that the remaining judge may call in one of the justices of the peace of the county to fill the vacancy. Section 39 of the same Title provides that when all the judges of that court are disqualified, the clerk of the court may call in three justices of the peace (drawing them by lot from the names of the justices of the peace of the town in which the court is sitting) to fill the vacancies and try the case in which the judges are disqualified. Again, in the same Revision, Title 28, § 6, provides that vacancies occurring in the office of Treasurer, Secretary of State, and Comptroller, unless the same occur during the session of the General Assembly, shall be filled by the Governor. Of these offices the Constitution provided that the first two should be elective and the last should be filled by the General Assembly, as before stated. It is useless to multiply particular instances where this has been done. In addition to those already given, CHIEF JUSTICE BUTLER, in State v. Carroll,
When we say that this construction has been acquiesced in from the beginning, we should mention that it was, in a sense, called in question in a case growing out of an appointment made by the General Assembly in 1903. They appointed a judge of the City Court of New Haven "for the unexpired portion of the term" of his predecessor. The appointee claimed that they had no power to appoint for less than the constitutional term of two years, and endeavored, as against a new appointee, to hold the full two-year term. The case *Page 555
went off on another point, and it was found unnecessary to determine this question. State ex rel. Mathewson v.Dow,
The objection to the validity of the relator's appointment has been that, under § 3 of Article Fifth of the Constitution, the General Assembly was bound to appoint to fill the vacancy, and could not delegate this delegated power to the Governor. If by that section of Article Fifth the people did not delegate this power to the General Assembly, as we now hold, the ground of the objection disappears. But the question remains, could the vacancy be legally filled by the Governor?
Since the duty to fill these vacancies is not imposed upon the General Assembly by the Constitution, the statute in question was not a delegation of such delegated power. Who, then, in the absence of a designation in the Constitution, is to fill these vacancies? Manifestly the appointing power must be fixed by statute unless fixed by the Constitution.
The power to ordain and establish inferior courts is conferred upon the General Assembly by § 1, Article Fifth, of the Constitution. Can it be doubted that, as a part of the legislative power thus conferred, they would have had, but for the provisions of § 3, the power to establish and fix by statute the terms of the judges of those courts, the manner of filling all vacancies, and the authority by whom the judges should be appointed and the vacancies filled? We think not. This power is an essential part of the power there conferred. Section 3 *Page 556 limits that power by fixing the terms and providing by whom the appointment to these terms shall be made. As to the remaining powers, § 3 is silent. The General Assembly, therefore, under § 1 of Article Fifth had the power, and it was their duty, to provide by statute for the filling of the vacancies which might occur, and to designate the authority which is to fill them. The statute under which the Governor appointed the relator was, therefore, not unconstitutional, so far as it applies to judicial offices and conferred upon the Governor authority to make the appointment which he did.
It follows that the relator was duly appointed and was de jure judge of the city police court of the city of Hartford when he demanded the office from the respondent, and that the respondent should have surrendered it to him upon that demand.
The Superior Court is advised to render judgment for the State, and that the relator recover his costs.
No costs in favor of either party will be taxed in this court.
In this opinion the other judges concurred.
Commonwealth v. McAfee , 232 Pa. 36 ( 1911 )
McGovern v. Mitchell , 78 Conn. 536 ( 1906 )
State Ex Rel. Comstock v. Hempstead , 83 Conn. 554 ( 1910 )
State Ex Rel. Morris v. Bulkeley , 14 L.R.A. 657 ( 1892 )
State Ex Rel. Mathewson v. Dow , 78 Conn. 53 ( 1905 )
Town of Cheshire v. McKenney , 182 Conn. 253 ( 1980 )
L. Wayne Furtney v. Simsbury Zoning Commission , 159 Conn. 585 ( 1970 )
State Ex Rel. Barlow v. Kaminsky , 144 Conn. 612 ( 1957 )
State Ex Rel. Schenck v. Barrett , 121 Conn. 237 ( 1936 )
State Ex Rel. Jewett v. Satti , 133 Conn. 687 ( 1947 )
Alcorn, State's Attorney, Ex Rel. Hendrick v. Keating , 120 Conn. 427 ( 1935 )
State Ex Rel. Jewett v. Satti , 14 Conn. Supp. 421 ( 1947 )
State Ex Rel. Whelan v. Lindstrom , 133 Conn. 50 ( 1946 )
Meigs v. Theis , 102 Conn. 579 ( 1925 )
Baker v. Town of West Hartford , 89 Conn. 394 ( 1915 )
State Ex Rel. Barnes v. Holbrook , 136 Conn. 312 ( 1949 )
Alcorn, State's Attorney, Ex Rel. Hoerle v. Thomas , 127 Conn. 426 ( 1941 )
Walkinshaw v. O'Brien , 130 Conn. 122 ( 1943 )
State Ex Rel. Martin v. Pepin , 14 Conn. Supp. 225 ( 1946 )
Adams v. Rubinow , 157 Conn. 150 ( 1968 )
Patten v. Miller , 190 Ga. 123 ( 1940 )
Tooele County v. De La Mare , 90 Utah 23 ( 1935 )
State Ex Rel. Conley v. Thompson , 100 W. Va. 253 ( 1925 )
Berger v. Town of Guilford , 136 Conn. 71 ( 1949 )