The United States ex rel. Noyes vs. Hatch, 1 Pin. 182

Miller, J. This is an application for a mandamus, to compel the respondent to deliver over to the relator the books, records and papers, in, and pertaining to the office of register of the board of canal commissioners of the Milwaukee and Rock River canal. It is in reality a contest between the governor and legislature of th.e Territory, respecting the power of appointing the said commissioners ; and it has received from the conrt the deliberation and research demanded by the dignity of the parties and the great importance of the question. By

an act of congress, approved June 18, 1838, entitled “An act to grant a quantity of land to the Territory of Wisconsin, for the purpose of aiding in opening a .canal to connect the waters of Lake Michigan with those of Rock River,” there was granted to the Territory for the said purpose, the odd sections along the course of the canal, and to be subject to the disposal of the legislature of the said Territory for the purpose aforesaid and no other.

The said act further provides, that the commissioner of the general land office shall •ascertain, under the direction of the president of the United States, the particular lands granted to the Territory, and shall cause duplicate lists of the same to be prepared from the plats on file in his office, one of which he shall transmit to the governor of said Territory, who, or such other person or persons as shall be appointed for the purpose, under the authority of the legislature of the Territory, or of the State which may be erected out of the same, after the admission of such State, shall have power to sell or convey the whole, or airy part of said lands, at a price not less than two dollars and fifty cents per acre, and to give a title in fee simple therefor to whomsoever shall purchase the whole or any part thereof.

In pursuance of this act of congress, the legislative assembly of the Territory, on the 26th day of February, 1839, passed

an act to provide for aiding in the construction of the Milwaukee and Rock River canal; the second

section of which provided for the appointment, by the governor, by and with the advice and consent of the council, of three commissioners, to be styled the board of canal commissioners, one of whom to be designated as the acting commissioner, one as register, and one as receiver, and to hold their offices for the term of one year, subject, however, to be removed at the pleasure of the governor. They were also to give bond, with security, for the faithful discharge of the duties of their office.

They were also authorized to administer oaths and examine witnesses, touching any applications for the registry of lands under the provisions of said act. They were also empowered in said act to make sale of the said lands, so as aforesaid granted to the Territory. By

an act of the legislative assembly, approved on the 11th day of January, 1840, it is provided that the canal commissioners shall be elected annually, on joint ballot of the council and house of representatives of the Territory, and shall hold their offices for the term of one year, and until others are elected in their places. This act, in this particular, superseded the act of the 26th of February, 1839. It is provided in

an act of congress, entitled “An act establishing the Territorial government of Wisconsin,” approved 20th April, 1836, that the legislative power óf the Territory shall be vested in a governor and a legislative assembly; and further, that the governor shall nominate, and by and with the advice and consent of the legislative council, appoint all judicial officers, justices of the peace, sheriffs, all militia officers, except those of the staff, and' all civil .officers not otherwise provided for.

Under this provision of the organic law, the relator was appointed by the governor, regent of said board on the 22d day of February, 1842, during the recess of the council. The respondent was elected by the legislative assembly, on joint ballot, on the 18th day of the same month, to the same office, in pursuance of the act of January, 1840. They both claim to exercise and hold the same office under their respective appointments, and the question for the determination of the court is which appointment is legal.

The above-mentioned act of congress, making the said grant of land, was passed more than two years after the date of the organic law of the Territory; and they are both of equal power, force and effect, in relation to their respective objects, and are on an equality as laws enacted by congress. The organic law is binding upon the legislature of the Territory, as the constitution of a State is upon the action of its legislature; but it is a mere act of congress, subject to its amendment, modification or repeal.

Under the constitution, it was competent for congress to legislate directly for the Territory; but, as this would be inconvenient, and probably not consistent with the immediate or local wants or interests of the people, the Territorial government was created by the organic law, wherein the governor and legislative assembly are authorized to discharge their respective duties therein referred to, for the interest and protection of the people. Congress passed the act of June, 1838, with a full knowledge of the organic law, and of the power given therein to the governor to make appointments.

This is a law of a peculiar character for a specific purpose — a mere grant for a certain purpose not connected with the government of the Territory or with the respective functions of the governor and legislature, as directed and authorized in the organic law. The lands granted by this act were made subject to the disposal of the legislature for the purpose mentioned in the grant; and by authority of the legislature, the governor himself, or some other person or persons, are to be appointed to make sales of these lands.

In order to carry into full effect the objects and intentions of this grant, it was competent and proper for the legislature or legislative assembly to pass

an act authorizing and appointing the governor to act as the commissioner, or to authorize the governor to appoint the commissioner with the advice and consent of the council, as was done in 1839, or for the election of a commissioner or commissioners on joint ballot—and such law, whatever it may be, is the proper rule of action until repealed. This is an application to the court, to declare void the act of January, 1840, under which the respondent was appointed, on the ground that it conflicts with the organic law.

It would be the right and duty of the court to do so in a clear and manifest case. 12 Serg. & Rawle, 330; 3 id. 169; 4 Wheat. But this, in the opinion of the court, is very far from being such a case. The propriety of the act of January, 1840, in • this particular, and of the election or appointment of the respondent in pursuance of it, is beyond all question or doubt. The power of the governor to appoint the relator remains to be considered. This power is claimed for the governor by virtue of the seventh

section of the organic law, in which he is authorized to nominate, and by and with the advice and consent of the council, to appoint all civil officers not therein provided for.

Laying aside the position that this office of canal commissioner was not contemplated by congress at the enactment of the organic law, it may be inferred that the term civil officers was intended to embrace such officers as in whom part of the sovereignty or municipal regulations, or general interests of society are vested; and that such has been the general understanding in the States, under their constitutions, is known to citizens of experience and observation. But this question is not without authority of a very respectable character.

On page 244 of 17 Serg. & Rawle, will be found, quoted from 3 Greenl. 482, which is not in the library, as follows: In 1822, the supreme judicial court of the State of Maine, .consisting of Mellen, Chief Justice, and Pueble and Weston, Justices, in an opinion given to the governor of that State, say, “that the terms office and officers are used in the constitution of Maine, where it prescribes an oath of office to all legislative, executive and judicial officers, imply a delegation of a portion of the - sovereign power to, and possession of it by the person filling the office, and that a person clothed by a resolve of the legislature, with no other powers than those of superintending the public lands, and performing certain acts relating to them, under the discretionary regulation of the governor, was not an officer, and therefore was not required to take the oath.

By

section 8 of

article 2, of the constitution of Pénnsylvania, adopted in 1790, the governor is- authorized to appoint all officers whose offices are established by the constitution, or shall be established by law, and whose appointments are not therein otherwise provided for. In the case of The Commonwealth ex rel. Lehman v.

Sutherland, 5 Serg. & Rawle, 145, which was a rule to show cause why leave should not be granted, to file an information in the nature of a quo warranto, against Joel B.' Sutherland, to inquire by what authority he exercised the office of Lazaretto physician ; Chief Justice Tilg-hman uses the following language: The word office is of very vague and indefinite import. Every thing concerning the administration of justice, or the general interests of society, may be supposed to be within the meaning of the constitution, especially if fees and emoluments are annexed to the office.

But there are matters of temporary and local concern, which, although comprehended in the term office, have not been thought to be embraced by the constitution. And when offices of that kind have been created, the legislature have sometimes made the appointment in the law which created them ; sometimes given the appointment to others than the governor ; and sometimes given the power of removal to others, although the appointment was left with the governor. The officers of whom I am speaking (says the chief justice), are often described in acts of assembly by the name of commissioners.

Such, for instance, as one employed in the laying out of roads and canals and other works of a public nature. Yet all these perform a duty, or in other words, exercise an office. So, likewise, officers within the limits of a corporation are generally, appointed by the corporation, unless they concern the administration of justice.

And in order to discover in what light this office of physician to the board of health has been viewed, the chief justice traced the health laws from their origin, and satisfied himself that it had been considered, and justly considered, as an office under the control of the legislature, and subject to their modifications as to appointment, duration and removal.

Judge Duncan, in his opinion in the same case, on page 154, says: That the power of appointment to a new office, without commission from the governor, in the law creating the office, has frequently been exercised ; as the commissioners appointed by the act of April, 1794, to settle the compensation of Pennsylvania claimants for lands within the seventeen townships of Luzerne county. The commissioners are named and appointed by the act, without any intervention of the governor, except in his legislative capacity of approving the act.

These commissioners were in the nature of judicial officers, exercising important and discretionary powers and judicial functions; and although the constitutionality of many portions of that act has been called in question, yet this has never formed an objection. The enumeration of such appointments would be useless. It would be too much now to pronounce that all this was usurpation on the constitutional rights of the governor, forbidden by the constitution and void. In most cases of local appointments, they are made by the people, or by certain bodies of men authorized by the law creating the office.

This act and appointment bear date but four years after the adoption of the constitution of the State. In the case of The Commonwealth v. Douglass, 1 Binn. 77, as early as the year 1803, it appears that Douglass had been appointed an inspector of the prison of Philadelphia in pursuance of law. The propriety or legality of the election was disputed, but not the constitutionality of the law under which it was made. Chief Justice Tilg-hman, in the case of The Commonwealth ex rel. Reynolds v.

Bussier, 3 Serg. & Rawle, 457, says: It is understood that, in what I have said, I do not mean to include certain officers (so called, when that word is taken in its largest sense), of a local, limited or corporate nature, which have not been supposed to be comprehended in the governor’s power of appointment. By the constitution of Pennsylvania,

article 5,

section 2, it is declared, that the judges of the supreme court,' and the presidents of the several courts of common pleas, shall not hold any other office of profit under the commonwealth. Thomas Cooper, while acting as a commissioner to settle the compensation to claimants to lands in Luzerne county, above referred to, was appointed a president judge ; and his acts as such commissioner, after he qualified as such judge, were objected to in the case of Shepherd v. The Commonwealth, 1 Serg. & Rawle, 1.

It was there decided, that the office of commissioner, which Judge Duncan in the case above referred to, said was in the nature of a judicial office, exercising important and discretionary powers and judicial functions, was not an office within the meaning of the constitution. By the same constitution,

article 1,

section 18, no person holding any office under the United States, or that commonwealth, shall be a member of either house of the legislature during his continuance in office. Charles Biddle, a member of the senate of Pennsylvania, was appointed, by the president of the United States, to act as a commissioner to sign bills or notes, called treasury notes, issued under the authority of the act of congress, for which he received a compensation. The question was brought before the senate, who decided that his seat was not thereby vacated. 1 Serg. & Rawle, 10.

The same constitution declares the holding of offices or appointments under the State incompatible with holding or exercising offices or appointments under the United States. Under this provision, together with the laws passed in addition thereto, the supreme court of that State decided, by a majority, in the case of The Commonwealth v.

Binns, 17 Serg. & Rawle, 219, that the selection of an editor of a newspaper to print the laws of the United States, by the secretary of state of the United States, is not conferring an office or appointment under the United States, incompatible with the office of alderman of the city of Philadelphia.

The different acts of the legislature of Pennsylvania respecting the internal improvement system of that State from 1825 to 1829, authorized the governor to appoint the canal commissioners ; but, by the act passed in 1829, the power of the governor to appoint them was revoked, and they were appointed, in pursuance of law, by the legislature.

Although the board of commissioners was clothed with immense powers in the disbursement of money and extensive patronage, it is not,, after a diligent research, to be found in the books of reports, that the governor’s rights or prerogative, under the constitution, which authorized him to appoint all officers, which officers are established by that constitution, or shall be established by law; were questioned, or that the constitutionality of the law under which the legislature made the appointment, was brought to the attention of the courts.

It is true that this power was afterward restored to the governor by subsequent acts of the legislature, but the precedent remains. It would be too tedious to refer particularly to all the cases that have been decided in that State by the people, the legislature and the courts, giving a construction to the term office, as understood in the constitution. Many cases, cited by the judges in their opinions, in the causes above stated, and not mentioned here, are referred to.

The legislative assembly of- this Territory seems to have put the same construction on the term office, in the organic law, at its first session after the organization of the Territory. By

an act approved on the 3d December, 1836, three commissioners were to be elected by joint ballot of the council and house of representatives, whose duty was to cause the necessary public buildings to be erected at Madison, for the accommodation of the assembly and other officers of the territorial government. The treasurer of said board, to be elected under said law, was also to give bond, with security, for the faithful discharge of Ms office. Under this law commissioners were elected and qualified, as appears by the public records.

This is called an office; so is the commissioner under consideration ; so are those generally in the cases referred to, but it appears that they are not such officers as are contemplated by the constitutions referred to, or our organic law. Motion for mandamus overruled.