THE ATTORNEY GENERAL, ex relatione John Taylor. vs. HENRY BROWN, 1 Wis. 513

By the Court, CbawfokD, J. This is an information in the nature of a quo warranto, wherein the respondent, Henry Brown, is charged with having usurped, intruded into, and unlawfully held and exercised the office of State’s prison commissioner, which he still holds and exercises, to the damage and prejudice of the relator, John Taylor, who claims to be the person rightfully entitled to said office.

To this information the respondent has a plea, admitting that he did enter into the office, and now does enjoy and exercise the same, and setting forth matter in justification, and in support of the right which he claims to said office. To this plea the attorney general, on behalf of the relator, has interposed a general demurrer, which requires us to examine the several statutory provisions relating to the organization and control of the State prison, in order to decide upon the sufficiency of the plea and the rights of the parties.

The first action of the legislature upon the subject of a State prison, is to be found in

chapter two hundred and eighty-seven, of the acts of 1851. By the first

section of this act, the Governor was authorized to appoint three commissioners, to be known as State’s prison commissioners, whose powers and duties are specified in the act; but there is no term of office designated therein. The next enactment on the subject, was

chapter one hundred and twenty-nine, of the acts of 1553, whereby it was provided, that the State prison commissioners should be elected on joint ballot of the two houses of the Legislature at the session, who should hold their office for the terms of one, two and three years, respectively, as might be' determined by them by lot. The third

section of this act provides for an annual election, by the people, (at the general election,) ot one commissioner, whose derm of office should continue for three years, and in case of a vacancy, the Governor was empowered to appoint a commissioner, to hold for the residue of the unexpired term. The fourth

section amends the act of March 14, 1851, (the one first referred to above,) so that it should not conflict with that of March 19, 1852. At the same session of the legislature, and before any election on joint ballot of the two houses, as provided in the last act, there was still further legislation on the same subject. On the first day of April, A. D, 1852, two acts were approved, the first of which was to enable the Governor to borrow money from the school fund to defray certain expenses of the session, and which has no bearing on this case.

The other expressly repealed the act March 19, 1852, (previously enacted at the same session,) and authorized the Governor “to appoint one or more commissioners, not exceeding three, to superintend, and to take charge of the State prison.”. It abolished the offices created by the act of March 14,1851, but contained no other provisions. Again, on the 19th day of April, 1852, a third act on the subject was approved, entitled “an act for providing more fully for the organization of the State prison, and for repealing

chapter two hundred and eighty-seven, of the Session Laws of 1851.” By the second

section of this act it is provided, that “ the organization of the State prison shall consist of one commissioner, who shall be appointed, as provided for in the act of April 1st, 1852, <fcc., which act of April 1st, as we have seen, gave the authority to appoint, to the Governor. The forty-ninth

section of the act of April 19, 1852, gives power to the Governor to Q'emove the commissioner “ when he shall believe that the best interests of the State demand such removal;” and

section fifty-three repeals all of the act of March 14th, 1851. Throughout the act of April 19th, 1852, as, indeed, in all of the previous legislation on this matter, it is obvious that the legislature intended to vest in the Governor a supervisory control over all things pertaining to the State prison. We may here observe, that upon the act of April 19, 1852, becoming operative, the only enactments which thereafter remained in force, relating to the State prison, were the two acts of April 1, 1852, and the act of April 19, 1852, because the act of March lá, 1851, and that of March 19, 1852, had been repealed. The last provision made by the legislature on this subject, is

chapter twenty-four of the Session Laws of 1853, approved March 10. By the first

section of this act, it is provided that the two houses of the legislature, in joint ballot, shall elect one commissioner, to be styled State prison commissioner, and that he shall hold his office until the 1st day of January next thereafter, and until a successor shall have been elected and qualified. The second

section provides for an election of a commissioner at the general election in November, 1853, and biennially thereafter. The'third

section empowers the Governor to appoint, in case a vacancy shall occur, and the person so appointed shall hold the office for the residue of the unexpired term; and the fourth

section repeals all acts and parts of acts conflicting with the provisions of this act. It appears from the pleadings before us, that in accordance with the provisions of

Chapter twenty-four of the Session Laws of 1853, Mr. Taylor was elected by the two houses of the legislature in joint ballot, on the 28th day of March, A. D. 1853, to this office of commissioner; that after his election, to wit: on the 2d day of April, A. D. 1853, the Governor of this State did remove him from the said office, by virtue of authority in him, the said Governor, in that behalf vested ; and that by like competent authority, on the said 2d day of April, A. D. 1853, the Governor did duly appoint Mr. Brown, to hold, exercise and enjoy Sa^ °ffice; that Mr.

Brown did accept the appointment, and did qualify and entitle himself to the office, and entered into the same, and has ever since enj0y6(j and exercised the said office. The right of M. Brown (the respondent) to this office, depends entirely upon the question, whether the Governor was lawfully vested with the power to remove Mr. Taylor after he had been c-lected by the legislature.

The policy of our constitution and laws has assigned to the different departments of the state government, distinct and different duties, in the performance of which, it is intended that they1 shall be entirely independent of each other ; so that whatever power or duty is expressly given to, or imposed upon the executive department, is altogether free from the interference of the other branches of the government. Especially is this the case, where the subject is committed to the discretion of the chief executive officer, either by the constitution or by the laws.

So long as the power' is vested in him, it is to be by him exercised, and no other branch of the government can control its exercise. But it would be alike unbecoming and unwarranted on our part, to enquire into the motives of the Governor, in the exercise of a discretion given to him alone, in any case.

He is responsible for his acts in such case, not to the courts, but to the people; and whenever experience shall have demonstrated the impolicy or impropriety óf clothing the chief executive, officer of the state with a power of removing inferior officers, at his discretion, or “ when he shall believe the best interests of the state demand such removal” it may then be the time for the people, in whose hands alone is the remedy, to eradicate the supposed evil. But courts are created to construe the laws as they are, not to declare what they should be.

It is no part of our duty to impugn the action of the Governor in such a case, but on the contrary, we are bound to hold him justified in whatever conclusion he may have formed. In this case, therefore, whatever may have influenced the executive in the removal of Mr. Taylor, has no claim to our attention ; it is wholly foreign to the question before us, and can have no bearing upon it.

On the part of the relator, it is claimed that the act of 1853, which deprived the Governor of the power to appoint this officer, except in the event of a vacancy, necessarily deprived him of the power of removal, and was a virtual repeal of the 49th

section of the act of April 19, 1852 ; because, it is said, the mode of choosing the officer, and the whole scope and tenor of the act of 1853, is inconsistent with that of April 19,1852. It is also claimed that the legislature had no power to enact the law of April 19, 1852, after it had, on a previous day during the same session, passed a law on the same subject matter. Perhaps either house might, by its own rules, prohibit the introduction of a bill modifying, changing or abolishing the provisions of

an act on the same subject matter, passed at a previous time in the same session, and this on the ground of public policy ; but it would certainly be a novel, if not a very dangerous doctrine, to hold that whenever the legislature had enacted a laAv on a given subject, they thereupon ceased to possess any legislative control over that subject during the same session ; for, if this were so, no matter how clearly it might be shown that the law so passed was impolitic or injurious in its provisions, if the legislature were ever so well satisfied of the necessity of altera- # ° tion or repeal; its power is gone ; it is become irnpo^en^. py. reaS0Il 0£ its former act.

Sir William Blackstone, in speaking of the British Parliament, says that “ the supreme and absolute authority of this State ” is vested in it by the Constitution, (1 Comm. 105,) and that

an act of parliament is “ the exercise of the highest authority” that kingdom acknowledges upon earth, (id. 144;) and under our own Constitution, which vests the whole legislative power in the senate and assembly, subject to the approval of the Governor to a certain extent, it must be admitted that

an act of the legislature is the exercise of the highest authority we acknowledge ; for where is there a higher or more controlling power, so long as the act is not in violation of the Constitution or the laws of God ? What, then, can limit the power, so admitted, or prevent its exercise at any time ? We know of no provision of the Constitution which would be violated,where no private right is invaded. But a sound public sentiment would afford the only effective restriction upon an impolitic tendency to hasty and inconsiderate legislation.

We can see no good objection to the validity of the act of April 19, 1852,,because of its being enacted at the same session, and subsequent to the acts of March 19 and April 1, 1852; and we- hold that it was competent for the legislature to repeal the act of March 19, which provided for an election by the legislature, and to substitute therefor an appointment by the Governor, as it did by the act of April 19, 1852. The remaining question is, whether the act of 1853 repeals the 49th

section of the act of April 19, 1852. If it did, it must Tbe because there is a conflict or inconsistency between them. # It is neither the duty' nor the province of courts to construe two separate acts, so that the latter of the two must of necessity repeal the former. In the exercise of this power by a court, the line of distinction between legitimate judicial duties, and assumed legislative ones, may be sometimes so very vague and indefinite as to be imperceptible.

Whenever the two acts are susceptible of a construction which will give an operation to both, without doing violence to either, it is incumbent on the court to search for some allowable means to give them such a construction. This will best further the intention of the Legislature ; and it is only when the nature of the provisions, and the words used are such as to render it impossible to reconcile them, that the court will feel called upon to apply the doctrine of repeal by implication.

The authorities cited by the counsel for the respondent are conclusive upon this point. “The rule of construction on this subject is, that if there be two affirmative statutes, or two affirmative sections in the same statute, upon the same subject, the one does not repeal the other, if both may consist together, and we ought to seek for such a construction as will reconcile them together. 4 Oilm. 274.” “ The invariable rule of construction in respect to the repealing of statutes by implication is, that the earliest act remains in force, unless the two are manifestly inconsistent with, and repugnant to each other, or unless in the latest act some express notice is taken of the former, plainly indicating an intention to abrogate it. * * * * * Hence a repeal by implication is not favored; on the contrary, courts are bound to uphold the prior law, if the two acts may well subsist together.” 5 Hill, 225, and cases there cited.

See also 5 Mass. 382; 2 Pick. 176; 20 id. 410; 24 id. 297; Dwarris on Stat. 674; 3 Bibb. 180.

In this case there can be no doubt but that the act of March 10, 1853, in so far as it provided for the election of State commissioner by joint ballot of the two houses of tire Legislature, and providing for succeeding elections of that officer by the people was repugnant to the act of April 19, 1852, and to that extent the latter act was repealed by the former; but an examination of both will show, that there are many, very important provisions in the act of April 19th, 1852, which have not been, in any way affected by the act of 1853 ; and among these is the power given to the Governor to remove, when he shall deem it to the best interests of the State.

There is no conflict or inconsistency between the two acts on this subject, for the exercise of the power of removal is quite compatible with the due enforcement of every provision of the act of 1853 ; and we cannot believe that by virtue of an election by the Legislature, this officer was intended to be made exempt from a liability to be removed by the executive, in the absence of language to express such intention; and especially so, when the former act gave the power of removal in express terms.

We have given an attentive examination to this case, and we are all clearly of opinion, that the act of March 10, 1853, did not repeal the 49th

section of the act of April 19, 1852, and we therefore hold that the respondent, Henry Brown, has not usurped or intruded into the office of State Prison Commissioner, but that he lawfully holds and. exercises said office, by virtue of an appointment thereto lawfully made by the Governor of this State.