Attorney General v. Campbell

• Decision Date: 17 May 1906
• Citation: 78 N.E. 133,191 Mass. 497
• Parties: ATTORNEY GENERAL v. CAMPBELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 497

78 N.E. 133

ATTORNEY GENERAL v. CAMPBELL.

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1906

COUNSEL

Dana Malone, Atty. Gen., and Fredk.

P. Cabot, for relator.

Matthews Thompson & Spring, for respondent.

OPINION

KNOWLTON C.J.

This is an information in the nature of a quo warranto to determine by what authority the respondent holds the office of clerk of the superior court of Suffolk county for civil business. Joseph A. Willard was elected to that office for the term of five years from the first Wednesday of January 1902. On August 14, 1904, he died. On September 3, 1904, the justices of the superior court, acting under Rev. Laws, c 11, § 277, appointed Francis P. Ewing Mr. Willard's successor, and he duly qualified and entered upon the duties of the office. On September 27th of the same year, the acting Governor of the commonwealth issued a precept to the board of aldermen of Boston, reciting that by reason of the death of Mr. Willard a vacancy then existed in the office, and directing them to notify and summon the voters to fill the vacancy for the remainder of the term of five years from the first Wednesday of January, 1902, by an election on the 8th day of the following November, which was the day prescribed by the statute for the annual state election. The aldermen acted upon this precept in the usual way, and on the day appointed, the respondent was elected by a vote of 46,166 ballots cast for him, and 45,835 cast for Henry Behew and 2,759 cast for other persons. The respondent took the prescribed oath and entered upon the duties of the office.

The Attorney General contends that he was not legally elected, first, because the appointment of Mr. Ewing by the justices was in legal effect for the remainder of the term for which Mr. Willard was elected, so that there was no vacancy to be filled by election, and secondly, because the precept for the election was not seasonably issued, and the proceedings which the law requires to render an election valid were not had in pursuance of it. The last part of this contention is founded on the fact that, on the day when the precept was issued, caucuses were being held for the nomination of officers and the election of delegates to conventions to nominate officers, to be voted for at the election on November 8th, and no caucuses were held for that purpose after the day on which the precept was issued.

Article 19 of the amendments to the Constitution of Massachusetts, which was ratified in 1855, provides for the election by the people of certain officers who previously had been appointed by the Governor, including clerks of the courts. By this amendment the Legislature was required to prescribe by general law for the election of these officers. By St. 1856, p. 99, c. 173, § 2, the Legislature provided for the election of clerks of the courts, with a special requirement that in Suffolk county, instead of electing a single officer who should be clerk of the Supreme Judicial Court and clerk of the superior court for that county, as in other counties one person was to be elected to be clerk of the Supreme Judicial Court and clerk of the court of common pleas, the voters should elect a clerk of the Supreme Judicial Court and a clerk for the superior court. The superior court of the county of Suffolk had been created by St. 1855, p. 862, c. 449, to take the place of the court of common pleas in that county. In St. 1856, p. 98, c. 173, the clerk of the superior court for the county of Suffolk was treated in the same way, in all particulars, as the clerks of the courts were treated in their relation to the court of common pleas, in other counties. All of the clerks of the different courts referred to in the act were removable by the Justices of the Supreme Judicial Court, or a majority of them, and the judges of the several courts, or a majority of them, were authorized, in case of a vacancy, to appoint a person to the office to hold it until the next annual election, at which time the office for the unexpired term was to be filled by a vote of the people. In case of a vacancy in the office of clerk of any of these courts, under this statute, the proceedings for filling it would have been such as were taken in the present case.

By St. 1859, p. 339, c. 196, the superior court was established to take the place of the court of common pleas throughout the commonwealth. This statute provided for the election of clerks of the superior court, including one for civil business and one for criminal business, in Suffolk county, who were not to be clerks of the Supreme Judicial Court, as were the clerks of the superior court in other counties. In other respects the statute treats clerks of the superior court in Suffolk county as it treats clerks of the courts in other counties.

We have these laws compiled in the General Statute of 1860, and by chapter 121, § 7, the power of the justices to appoint a clerk of the superior court when there is a vacancy in that office in the county of Suffolk is clearly stated. The appointee is 'to hold the office until the next annual election, or until another is elected or appointed in his stead.' The provision for elections to fill vacancies is found in Gen. St. c. 10, § 13, which deals with clerks of the courts and other officers. There can be no doubt that a clerk of the superior court for Suffolk county is included in the term 'clerk of the courts,' found in section 10, c. 10, and referred to in section 13 of this chapter, for there is no other provision for the election to fill a vacancy in this office, which is referred to in section 7. These provisions of the General Statute were continued without change in Pub. St. c. 10, §§ 1, 3, 10, and 13, and chapter 159, § 7. They were left unaffected by St. 1890, c. 423. See sections 188, 190, 197, 200.

The election laws were again revised in 1893, but no changes were made that materially affected this case. St. 1893, pp. 1205, 1247, 1245, 1235, 1237, c. 417, §§ 146, 258, 251, 218, 222. We have no doubt that the term 'clerk of the courts,' in section 218, was intended to include the clerks of the superior court in the county of Suffolk, as the same term includes them in former statutes.

In the revision and codification contained in St. 1898, p. 541, c 548, we find, at the end of section 274 (page 630) authority to the justices in case of a vacancy in the office of clerk of the superior court for the county of Suffolk, to 'appoint a clerk' without an express statement of the term for which they are to make the appointment. But here again we find, in the earlier part of this section and in section 277 (page 632), express provisions for filling a vacancy in the office of clerk of the courts by an election 'at the next annual election for which precepts can be seasonably issued.' In this statute, as in the former statutes, the term 'clerk of the courts' includes the clerks of the superior court in Suffolk county. It follows that the appointment by the justices, in the present case, which referred to the statute without stating the length of the term, was only until the next annual election for which precepts could be seasonably issued. The principal provisions of the act last cited are found,...