| Commonwealth ex rel. Todd v. Sheatz
| Decision Date | 16 May 1910 |
| Citation | 77 A. 547,228 Pa. 301 |
| Parties | Commonwealth ex rel. Todd v. Sheatz |
| Court | Pennsylvania Supreme Court |
Argued May 2, 1910
Miscellaneous Docket No. 2, No. 350, in case of Commonwealth of Pennsylvania ex rel. M. Hampton Todd, Attorney General, v John I. Sheatz. Original jurisdiction.
Quo warranto to the defendant requiring him to show by what authority he holds possession of the office of state treasurer.
M Hampton Todd, attorney general, for the commonwealth.
William U. Hensel, for respondent.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.
This is a suggestion for a writ of quo warranto filed in this court by the attorney general against John O. Sheatz to determine his right to the office of state treasurer. The case was heard on the information and answer and demurrer thereto.
The suggestion sets forth that John O. Sheatz was elected state treasurer at the general election held November 5, 1907, for the term of two years, commencing on the first Monday of May, 1908, and entered upon the performance of the duties of his office on that date; that Jeremiah A. Stober was elected state treasurer at the general election held on November 2, 1909, for the term beginning the first Monday of May, 1910, and died on January 10, 1910; that notwithstanding the expiration of Sheatz's term as state treasurer he retains possession of the office contrary to law and to the prejudice of the commonwealth, and refuses to surrender the same and admit thereto Charles Frederick Wright who was duly appointed and commissioned as state treasurer on April 11, 1910, by the governor of the commonwealth for the term to begin on the first Monday of May, 1910; that said Wright duly filed his bond and took the oath of office as state treasurer as required by law, and demanded of Sheatz possession of the office which was refused.
The answer admits the election and service of Sheatz as state treasurer and the election and death of Stober as averred in the suggestion. It also admits the appointment of Wright as state treasurer by the governor, the filing of a bond by him and his taking the oath of office and the refusal by Sheatz to surrender possession of the office to Wright as averred in the suggestion. The answer concludes as follows: "I claim the right to retain possession of said office by virtue of the constitution and laws of the Commonwealth of Pennsylvania."
The attorney general demurred to the answer and assigned as causes therefor that it showed no sufficient cause authorizing the respondent to retain the office of state treasurer; and that the term of office of state treasurer is limited by the constitution to two years and cannot be extended by an act of assembly. We heard the case on May 2, 1910, the day on which the term immediately succeeding that for which Sheatz was elected began, and after due consideration sustained the demurrer and entered judgment of ouster against the respondent.
The contention of the commonwealth is that the constitution having fixed the term of office of state treasurer at two years, Sheatz's term expired at the end of that period, and that the Act of May 9, 1874, P.L. 126, is, in so far as it attempts to extend the term, an extension of a constitutional term which it is beyond the power of the legislature to make. The respondent contends that the act of 1874, providing that a state treasurer shall continue in office for two years "or until his successor shall be duly qualified," governs the case; that the act does not extend the constitutional term but provides for the holding over of the elected incumbent until his successor is duly qualified; and that as Stober, elected in November, 1909, never qualified, there was no such vacancy in the office that the governor could fill by appointment.
When the respondent was elected state treasurer and during his term of office, the present constitution of 1874 was in force. His term was not abridged or extended by the amendments to the constitution adopted in 1909. Article IV, sec. 21, of the constitution provides: By art. IV, sec. 8, of the constitution and the amendment of 1909, the governor is empowered to fill any vacancy that may happen in the office of state treasurer, with the advice and consent of the senate if it be in session. By the act of assembly, approved April 28, 1873, P.L. 77, it was provided that the term of office of the state treasurer shall be two years "from the first Monday of May next succeeding his election;" and by the act of May 9, 1874, P.L. 126, it was provided that "the term of office of the state treasurer shall hereafter commence on the first Monday of May next succeeding his election." It will, therefore, be observed that at the time the respondent was elected and entered upon the duties of the office of state treasurer it was a constitutional office, the term was fixed by the constitution at two years, and began, as provided by law, on the first Monday of May, 1908. Did the term of office of the respondent expire in two years from the first Monday of May, 1908, and thereby create a vacancy in the office on the first Monday of May, 1910? We are of the opinion that this question must be answered in the affirmative.
The constitution is the supreme law of the commonwealth, and its command must be obeyed. It is only when the constitution fails to deal with a subject that the general assembly may legislate upon it. These are fundamental and basic principles from which there can be no departure. As well said by Chief Justice BLACK in Sharpless v. Philadelphia, 21 Pa. 147, 161, This admonition was given by the great jurist more than half a century ago, but the necessity for heeding and enforcing it both in state and federal jurisdictions has never been greater since the establishment of the government than at the present time.
Under the well-settled rules of interpretation, the constitution of the commonwealth having fixed the term of office of state treasurer at two years, the respondent's term expired at the end of that period, and thereafter he could not exercise the functions of the office. The term of office fixed by the constitution is expressly limited to a definite number of years, and it is not within the power of the legislature, directly or indirectly, to extend it beyond the prescribed period. There is no implied right to hold beyond the fixed tenure or of the legislature to extend the term; on the contrary, under the established rule of constitutional construction, there is an implied prohibition against the right of the legislature to add to the term where the constitution has definitely prescribed the duration of the tenure. This inhibition prevents the incumbent holding over which is simply the prolongation of the old term. The legislature is without power to abridge or extend the term or to change or add to the qualifications of a constitutional office unless it is expressly or by necessary implication conferred by the constitution. This is a settled principle of construction necessarily resulting from the supremacy of the organic law. It is recognized in the adjudicated cases.
In State v. Howe, 25 Ohio 588, Chief Justice McILVAINE after reviewing all the authorities on the subject said (p 589): The authority of this case was recognized and followed in State v. Brewster, 44 Ohio 589, which was a quo warranto to oust the defendant from the office of county auditor after the end of his constitutional term of three years. The court said (p. 594): "The term of office of Brewster having been fixed and limited by the constitution, there is no power in the general assembly to extend his term or tenure of office beyond the time so limited." In Wilson v. Clark, 63 Kan. 505, in discussing the subject the court said (p. 510): "It is true, as was held in State v. Thoman, 10 Kan. 191, and Peters v. Board of State Canvassers, 17 Kan. 365, that when the constitution fixes the duration of a term it is not in the power of the legislature either to extend or abridge it." The constitution of Indiana provides that the treasurer shall continue in office two years and no person shall be eligible to the office more than four years in any period of six years. In Howard v. State, 10 Ind. 99, in speaking of the term of treasurer the supreme court of that state said: ...
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