Smith, Appellant, v. Halfacre, 6 Howard 582

Mr. Chief Justice Sharkey delivered the opinion of the court. This case comes up from the eighth judicial • district, and it appears from the record that the office of judge of that district is claimed by two individuals, and the question is, which had the constitutional right to hold the office. ' The eighth district was formed by act of the legislature- in 1836, and the act provided that an election for. judge and district attorney should be held on the first Monday and day following in July of that year, at which election Frederick W. Huling was elected judge.

At the general election in November, 1837, he was re-elected; he-however still claimed to hold under the election of 1836, but ultimately qualified under the election of 1837. About the expiration of four years from his first election in July, he requested the governor to issue a writ of election, as his time would ■expire in July, 1840.

The governor, however, differed with him in- opinion, and refused to order the election, hqlding that he was in office under the election of 1837, and that his term would not expire until the regular election in November, 1841, and proposed that if he would resign he would issue a writ of election to' fill the vacancy until. 1841. This Huling did, and at November, 1840, was again re-elected to fill the vacancy occasioned by his own resignation. Under this last election he now claims to hold for four years, the constitutional term.

At the general election' in November 1841,. the governor issued his writ of election, and amongst other officers directed that a circuit judge should be elected for the term prescribed in -the constitution, and James M. Howry, the other claimant, was elected. He presided in the case at bar,.and it was on exceptions taken to his authority that the case comes up. The several commissions of Huling, and also that of Howry, were spread upon the record, and with a view to an investigation of the question, such of .the above facts as did not properly appear in the record, were admitted in argument.

The language of the 11th

section of the 4th

article of the constitution, under which both -parties claimed the office, is as follows: “The judges of the circuit court shall be elected by the qualified electors of each judicial district, and hold their offices for the term of four years, and reside in their respective districts.” The constitution.was adopted in 1832, and it was contended that as the 8th district was formed after the constitution was adopted, and after the first general election, that the term of office of the judge of that district commenced at the time of his election, and that he is entitled to hold for the full term.

That his condition is different from the judges elected at the first election in May, 1833, as to whom a provision, was .made for the beginning of their term of office, and that there' is nothing in the constitution or law that abridges Hilling’s term, or- requires that it should have expired at the first general election after his election in Jidy, 1836; that under that election he was entitled to hold four years, or until July, 1840;. and further, that under his re-election in November, 1840, he must hold the office four years, -or at least four years from the July preceding, although the writ of election may have been designed to fill a vacancy which would terminate in November, 1841.

The question which 'is here propounded rests mainly on the construction which we may give to the constitution. Before we proceed to notice the several provisions which it contains that may properly bear upon the question, it will be proper to notice some of the prominent rules by which constitutions are to be construed, and having done so, it will remain to apply them to the instrument under consideration. , • 1.

The- familiar rule that all instruments must be construed according to the sense of the terms used and the intention; of the parlies, is -as applicable to constitutions as to any thing else; perhaps it is more so, as a constitution is but a general form of government, the details being left to legislation., 1 Story’s Com. 383.

One of the primary objects of a constitution is a harmonious order in the operations of the several departments of the government, and where the instrument is doubtful or not sufficiently specific in its provisions, we may safely conclude that it was not the intention of the framers,to produce disorder and confusion. 2. We must in the next place look to the "scope and design of the instrument, viewed as a whole, and also viewed in its component parts.” I Story’s Com. 387. If the design and object be clear, .although the provisions may seem to be doubtful, we have a sure guide to a proper construction. 3.

Where a constitution is not entirely explicit in itself, and requires construction, it ought not to be so construed as to cripple the government, and render it unequal to the objects for which it is declared to be instituted. 9 Wheat. 1. These rules, it is believed, will be sufficient to enable us' to arrive at a proper conclusion, in their application to the constitution. We shall endeavor to avoid any construction which the instrument will not fairly justify.

It is manifest in every feature of the constitution, that it was thought to be best that all officers should hold their offices for a limited tenure, and that they should all be elected directly by the ’ people. Hence definite tenures were fixed for every office, some longer and some shorter, but the time at which such tenure should commence is a principal point of difference between the counsel in this case. If this can be ascertained, the case is'divested of all difficulty, and in order to do this we must have recourse to the several provisions of the constitution which may furnish any light on the subject.

We conceive it to be quite clear that the convention looked to the first Monday in November, biennially, as the day of the general election, and the tenures of the different officers are regulated with a view to that time as a period át which they should begin and end. The shortest term is two years, the next four, and the longest six. The 5th

section of the 3d

article provides that the members of the house of representatives shall serve for the term of two years from the day of the commencement of the general election) and the 6th

section of the same

article provides that the representatives shall be chosen every two years on the first Monday ánd. day following in November. Now it is renaarkable that the terms “general election” should have been used if it had not been intended that all officers should then be elected. It surely was not intended to call an election general, merely because representatives were to be elected. The next, pro vision is, that the senators shall be elected for four years. The next

article establishes the judicial department. The judges of the high court of errors and appeals are elected for six years; the circuit judges for four years, the chancellor for six years, and the judges of the probate courts for two years; but this

article is entirely silent as to when these officers shall be elected, or when the several terms shall commence or end. The 13th

section provides that the state shall.be divided into convenient districts for the election of circuit judges. In the subsequent parts of the constitution, provision is made for the election of all other officers, state and county, but in no instance is it declared when the several terms shall commence. This was reserved for a general provision, and we conceive that it was abundantly made in the 5th

section of the schedule.

The language is, that “immediately upon the adoption of this constitution the president of this convention shall issue writs of election, directed to the sheriffs of the several counties, requiring therp to cause an election to be held on the first Monday and day following in December next for members of the legislature, at the respective places of holding elections in said counties, which elections shall be conducted in the 'manner prescribed by the existing laws of the state; and the members’ of the legislature thus, elected shall continue in office until the next general election, and shall convene at the seat of government on the first Monday in January, eighteen hundred and thirty-three; and shall at their first session order an election to be held in every county of this state, on the first Monday and day following in May, eighteen -hundred' and thirty-three, for all state and county officers under this constitution, (members of the legislature excepted,) and the officers then elected shall continue in office until the succeeding general election and after, in the same, manner as if the election had taken place at the time last aforesaid.” This' constitution was adopted in the autumn of 1832, and that the government under it might go into operation as-soon as possible, the legislature was directed to convene in January, and provide for a general election to take place in May, and the officers then elected were to hold their offices from that time, in the same manner as if they had been elected at the general election in November, thus giving them six months over the constitutional term, in order to let their terms expire at a regular election.

We have in this clause- an additional recognition of the first Monday in November 'biennially as the time for the general election, and we have also conclusive evidence that it was intended that the term of all officers should regularly expire at that time. To accomplish this, the first officers elected under the constitution were required to hold for a longer period than those who -might be subsequently elected. This was undoubtedly for the sake of uniformity. No other reason can be given for it.

It is admitted by counsel, that in regard" to the officers first to be elected, their terms were to be regulated by the general elections; but it is insisted that this rule does not apply to those who might be elected to fill offices subsequently created. We cannot agree with counsel that the office of. judge of the 8th judicial district was an office created by the legislature. The district was created by the legislature, but the office was created by the constitution. The constitution created the office without reference to any district.

There was no judicial district at the time the constitution was adopted; all districts had been abolished. As well might we say, therefore, that the legislature created the office of circuit judge for the four districts which were organized or established by the first legislature which met in January, 1833. The constitution provided that the state should belaid off into convenient districts, and wheta so laid off, judges were to be elected by virtue of the constitution, not by virtue of the law. The term of four years is prefixed to the' office.

The constitution - was operative over the whole state, and if it. was essential to have uniformity in one part, it was in another. l ean see no reason why the period' of the regular election should be regarded as the proper limit of the term of one judge more, than another.

Let us suppose that the first legislature had failed to provide for the election of judges for the four .districts which were then created, or that the election failed in one or more districts, and -that jn reality no election took place until T834-, how long would a judge then elected have held Jfis office? ' I should imagine only until the succeeding general election; and yet the case before us is precisely such a one in principle. If it was thought to be important that officers in one part of the state should be elected at the general election, it must be equally so in regard to other parts of the state.

Let us look at the practical operation of the system, as contended for. If a judge of a new district is to hold his office four years from his election, other officers of new counties must hold in the same way. Nearly half of the counties of the state have been created since the formation of the constitution, and others may be formed, and supposing the elections of officers in such counties to have taken place at irregular periods, the provision in the constitution establishing, the general election would be virtually abolished. We should then have one half of the state electing Officers at irregular periods.

Elections, instead of being biennial, would be monthly. Confusion, irregularity, and disorder would be the consequence. Our system was thought by many to be a bold experiment in the science of government; and we cannot be insensible that probable abuses of the elective franchise were urged against it; and nothing is better calculated to produce those abuses than frequency of elections. But, in truth, the plan contended for would produce disorder, throughout the whole state, for if there is.no uniform time for the beginning of terms of office, then each officer must hold the full period.

It will not do to' say that a judge in one part of the state holds his office for four years, and that another, elected to fill a vacancy, can only hold for' the residue of the term. . I 'can see no just reason for drawing a distinction. If the constitution has not provided uniformity throughout the whole state, it has not been provided for any part of it. In the great variety of officers we elect, it is no stretch .of imagination to suppose that -many of the incumbents will vacate their offices ,in thé course of every year.

On the principle contended for, each successor would hold for his full term,' and thus it is easy to perceive, that before many years the utmost confusion would be the consequence. It would require an executive officer of extraordinary ability and energy to keep the severa] offices filled. Elections would consume much of the time of the people, and thus, instead of securing to themselves the enjoyment of a high privilege,, they would have entailed an evil of no ordinary magnitude. ■, But, say the counsel, we are not to look to the consequences; we must pronounce the law as it is, regardless of consequences.

This is true in one sense, b,ut in a case like the present we may properly look to consequences. ■ We are endeavoring to ascertain the intention of the framers of the constitution; if the evils mentioned are so apparent to us, is it not. fair to suppose that they must have been foreseen by the "convention? We must suppose the evils were quite as apparent to that body as they are to us, and it would be an unjust and forced

interpretation, to construe the constitution so as to incur evils which were apparent, when a different

interpretation, and one which has the best foundation in the instrument itself, would avoid them. We cannot by mere construction attribute folly to the convention, if the constitution will fairly admit of a different construction. These-evils afford an unerring evidence that the intention of the convention was different from that contended for by the • counsel for the plaintiff in error. Their construction - is also c.ontrary to the scope and design of the instrument. Its evident tendency would be to cripple the government, and defeat its object.

The constitution was designed to be permanent, or at least immediate changes were not anticipated. It was designed as a form of government which could be conveniently carried into practical operation, and, properly construed, its objects are accomplished without difficulty; but if it is to be construed as counsel have contended, its operations would be almost,if not entirely impracticable.

Hence it is a fair mode of reasoning to look to the consequences for the purpose of ascertaining the intention of the framers of the constitution, and when such consequences must have been so entirely apparent, and so fraught with evil, we are forced to conclude that the design was to avoid them. By providing for a general election, it was meant that it should not only be general as to all officers whose terms had. expired, but that it should be general throughout the state.

In 1832, hot one half of the state had been laid off into- counties,. and the convention must have looked ■ to the subsequent division of the whole state into counties. Can it be supposed that this general provision was to be regarded as operating only on that portion of the state which was then legally organized, and'that as to the remainder, there was to be no fixed time for the general election? Such a spectacle would be a singular one in a well organized government.

By providing when a general election should be held, a sufficient indication was given as to when the terms of the several officers should commence; and if the provision in the

schedule had been omitted, it would still be sufficiently clear that all officers were to hold in reference to the regular periodical elections; but the fifth

section of the

schedule places the matter beyond a doubt. Counsel rely entirely on the force of the provision contained in the 11th

section of the 4th article, which declares that the circuit judges shall be elected by the qualified electors of each judicial district, and hold their offices for the term of -four years. This section, considered alone, might justify their construction; but the whole instrument is to be taken together, with reference to all its parts. ■ Other parts of the instrument provide that a general election sháll beheld biennially, in November, for the purpose of electing all officers under the constitution. The term of four years, then, is to be taken in connection 'with this other provision.

Analogies have been drawn from the operations of the federal government under the constitution of the United States, but we do not think such extraneous aid at all necessary. Our constitution is, in this respect, its own interpreter. By way of illustrating our views, suppose we put a case which may arise under the constitution. The senators are elected for four years; at the first election they were to be divided into two classes, and additional senators are also to be classed, but how or when does their term commence?

The legislature, at every apportionment, may create new senatorial districts, but when does the term of senators, who may be elected immediately after such district is created, commence or end? They are to hold for two and four years, and may be elected at a time different from the regular election; in such case they would have the same right to hold for the full term from their election that a circuit judge has. It is plain, however, that such senators’ terms would expire at a regular election. A different

interpretation would run the legislative department of the government into confusion.

Counsel have insisted that the constitution contains no specific provision in regard to the commencement and end of the term of other officers than those elected at the first election,- and that it would be adding to the constitution to apply it to others: we answer, that the constitution has no where provided that officers not elected at a general election shall hold from the time of their election; and it would surely be adding an additional clause if we were so to hold; and can any good reason be given why such a design should have been entertained as to officers that might at any subsequent time be elected, when a different design was so plainly expressed, and which is admitted to exist, in reference to the officers first to be elected?

We have heard none. A further, difficulty suggests itself. How are these irregular elections to be brought about? Take, for example, the eighth district; the judge was elected in July, 1836; he claimed to hold under that election until July, 1840, but the law under which he was first elected did not provide that an election in said district should be held every four years thereafter, nor does any general law provide for such cases. How, then, was another election to be held? In order to avoid this difficulty, it has been insisted that it is the duty of the governor to order an election.

The governor, like other officers, has some limit to his powers.' The constitution declares that he shall issue writs to fill vacancies; he is also to issue writs for the general elections, but no further provision is to be found in relation to his duty, other than that general direction which requires that he should see that the laws are faithfully executed. In this instance, however, there is no law to be executed, nor is there any constitutional provision. The constitution has provided for elections in two instances: first, for general elections; and second, for elections to fill vacancies.

There is no general election in July, nor is it pretended that there was a vacancy; and hence the governor’s power in this respect, to say the least of it, would be very doubtful. But suppose the law had provided for the election of judges and other officers in the eighth district in July, 1840, and at regular biennial periods thereafter, would it have been constitutional 1 If so, the legislature may, in effect, change the time of the general election. But let us suppose such a law to exist, and look at its consequences.

The first election was in July, 1836, and judges and clerks were then elected, and perhaps other officers. Four years after that time, another regular election takes place; thus we should have two regular periodical elections — one under the constitution, and one under the law. But let us look further: new districts have been, and will continue to be created, and probably the law creating them will fix the elections at different periods, and thus we should, for every district, have a regular election held at different times; and the same may be said of every new county created by the legislature.

Suppose a county to be created at the present session, and the officers should be elected in May, and that such county should be attached to the eighth district: on the supposed rule, the officers then elected would hold for two years from the time of their election. At the expiration of that time they must be re-elected, which would be in May, 1844; thus, in the same county, we should have one regular election in May, biennially, for county officers; a regular election in July, every four years; and the general elections in November, biennially.

This would produce too much discord to justify a conclusion that the system was intended so to operate.

In every possible aspect in which we have been enabled to place the question, the conclusion irresistibly forces itself on us, that the convention intended that all terms of office should begin and terminate with the regular election, and that this rule should apply as well to officers elected at any subsequent period of time, as to those who were to be elected at the first election; and that consequently Huling was first elected until the general election in 1837; that his regular term, then commenced, and ended on the first Monday of November, 1841; and- that James M. • Howry, being then legally elected, is entitled to hold the office for four years from that time. ' • The judgment is affirmed.