Brodie v. Campbell
Before: Baldwin, Cope, Field
Synopsis
The full term of office of Judge Norton, of the Twelfth District Court, commenced with his qualification, January 2d, 1855, and expired six years thereafter; and the only election at which his successor could be elected was the general election in November, 1860.
The Act of May 15th, 1854, creating the Twelfth Judicial District, is merely amendatory of the Act of May 19th, 1853, and not independent of the general provisions of this latter act. The Act of 1854 must be construed in connection with the original Act of 1853, as much so as if it constituted from the day of its passage a part of that act; and by the fourteenth section of that act, Judge Norton, as the appointee of the Governor under the Act of 1854, was entitled to hold office until the election and qualification of his successor.
It is competent for the Legislature to provide for filling the office of District Jndge during the interval between the day of election and the qualification of his successor, by authorizing him to hold until such successor be elected and qualified.
Although the right to an office is derived by election from the people, it is competent for the Legislature to render the enjoyment of the right dependent upon various conditions, as to the ascertaining of the result of the election, the issuing of the commission, and the qualification of the officer.
Where the statute does not fix the commencement of the term of a District Judge, by the designation of a day certain, but requires a commission to issue to him, and his oath of office to be indorsed thereon, and leaves its issuance to the Governor without prescribing the period within which this shall take place, Courts will look to the qualification of the officer to ascertain the date at which his term begins.
The presumption is, that the Governor will issue the commission within a reasonable time; and the Constitution appears to have contemplated the first of January as the proper date at which District Judges, elected after the first legislative appointment, should enter upon their duties, and the general Acts of 1851 and 1853, concerning Courts of Justice and judicial officers, designate that date as the commencement of their terms, thus indicating, as it seems, the period between the election in the fall and January succeeding as a reasonable period within which the requisite proceedings for the ascertainment of the result of the election and the issuance of the commission should take place.
There is no conflict between the Act of 1854 and the Act of 1853, and this latter act is general in its application. The Act of 1854 is silent as to the time when the Judge elected at the general election should enter on his office. The mere designation of the time of the election, and the provision in the act that the appointee of the Governor should hold until the election, do not necessarily restrict the holding to the day of election, when it is considered that there existed at the time a general act providing for the extension of the holding to the qualification of the successor.
Opinion — Field
Field, C. J. delivered the following opinion: This is a contest for the office of District Judge of the Twelfth Judicial District, and is presented upon an agreed statement of facts between the parties, under the statute. Both contestants claim to have been elected as successors of the present incumbent— Brodie at the general election in 1859, and Campbell at the general election of the present year.
The Twelfth Judicial District was created by an Act of the Legislature of May 15th, 1854, entitled “ an Act amendatory of and supplementary to an Act entitled an Act concerning the Courts of Justice of this State, and Judicial Officers, passed May 19th, 1858.” The Act of 1853, referred to, recognizes the division of the State, existing at the time of its passage, into eleven judicial districts. That division was made by the Act of March, 1851, bearing the same title. Both Acts, that of 1851 and that of 1853, contemplate that District Judges elected by the people after a designated period shall take their respective offices on the first day of January subsequent to their election. (Session Laws of 1851, ch. 1, sec. 18; Ibid of 1853, ch. 180, sec. 14.) Both provide that in case of a vacancy, from any cause, in the office of District Judge, the Governor shall fill the same by granting a commission, which shall continue until the election and qualification of a Judge in his place; and that a Judge to fill such vacancy shall be chosen at the first general election subsequent to its occurrence. (Sec. 19 in Act of 1851, and sec. 15 in Act of 1853.) The Act of 1854 is not independent of the general provisions of the Act of 1853. It is, as it purports in its title, merely amendatory of and supplementary to the general act. It amends that act only in the section designating the number of Judicial Districts into which the State shall be divided, and it adds to it only by declaring that the jurisdiction of the new District Court shall be coextensive with that of the Fourth District, by fixing the terms of the Court and the salary [19]of its Judge, and by authorizing the Governor to make a temporary appointment for the office. It is to be construed in connection with the original act, as much so as if it constituted from the day of its passage a part of that act. The new Court once created, and the new Judge once appointed, were brought within the operation of the provisions of the general act. By the fourteenth section of that act, the appointee of the Governor—Judge Norton—was authorized to hold until the election and qualification of his successor. It was competent for the Legislature to thus provide for filling the office for the interval between the day of the election and the qualification of the new Judge, so as to prevent delays and embarrassment in the administration of justice. The question for determination is this: When did the term of the successor elected commence ? The statute did not name the day; it only authorized the appointee to hold until his successor qualified. In the present case, the successor was the same person as the appointee, Judge Norton having been elected for the full term. On the twenty-sixth of December, 1854, the Governor issued to him a commission for that term, and on the second day of January, 1855, he qualified thereunder. His full term must be deemed, therefore, to have commenced with his qualification—he having qualified within the time prescribed by law after the receipt of his commission. A different rule would prevail if the law had fixed the commencement of the term by the designation of a day certain; in that case the issuance of the commission and the time of the qualification would conclude nothing as to the term. But not so where the commencement must depend upon certain preliminary proceedings to be taken by different officers. A new Judge cannot enter upon the discharge of his duties until .the fact of his election is in some way officially determined, and authentic evidence of it furnished to him. For this purpose the law prescribes certain steps—following each other in regular order. The returns of the election are to be made from the different precincts to the County Clerk. After a certain interval, these returns are to be opened and the votes counted. A statement of the votes of the district is then to be prepared, properly authenticated, and forwarded to the Secretary of State. Upon
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