Barnard v. Taggart

• Decision Date: 30 April 1890
• Citation: 29 A. 1027,66 N.H. 362
• Parties: BARNARD, Atty. Gen., v. TAGGART.
• Court: New Hampshire Supreme Court

29 A. 1027

66 N.H. 362

BARNARD, Atty. Gen.,

v. TAGGART.

Supreme Court of New Hampshire. Hillsborough.

April 30, 1890.

Application by Daniel Barnard, attorney general, for a mandamus to compel David A. Taggart, president of the senate, to assume the office of governor. Judgment rendered for plaintiff.

The petition was filed in compliance with a request made by the governor in the following letter:

"Antrim, Mar. 31, 1890. Daniel Barnard, Esq., Attorney General—Dear Sir: Please take such steps as you think necessary to cause the president of the senate to exercise the powers of the office of governor during the vacancy caused by my illness. I am not able to perform the duties of the office, and the public service should not suffer from my inability. Very truly yours, D. H. Goodell."

Copy of the petition:

"State of New Hampshire, Hillsborough— ss.: March Term, 1890. Attorney General v. David A. Taggart. To the Supreme Court: The plaintiff, in behalf of said state, complains against the defendant, and says the chair of the governor of said state has been and is vacant by reason of the sickness of his excellency, David H. Goodell, and his consequent inability to perform any of the duties of his office, and the defendant is president of the senate of said state; yet the defendant does not exercise any of the powers and authorities which by the constitution and laws the governor is vested with, but refuses so to do. Wherefore, the plaintiff prays for a writ of mandamus, or other appropriate and adequate process, directed to the defendant, requiring him to exercise the powers and authorities of the governor during the vacancy, according to his duty in the premises. Daniel Barnard, Attorney General."

"Order of Notice. State of New Hampshire, Hillsborough—ss.: In the Supreme Court. This petition having been filed this first day of April, 1890, it is ordered that the plaintiff notify the defendant to appear at the term of said court now in session at Manchester, in said county of Hillsborough, on the seventh day of April, 1890, at eleven o'clock in the forenoon, and show cause why the prayer of said petition should not be granted, by giving in hand to the defendant an attested copy of said petition and this order thereon, or by leaving a like copy at his usual place of abode, at least three days before said 7th day of April. It is further ordered that a like copy be served in like manner upon his excellency the governor, David H. Goodell. Thos. D. Luce, Clerk."

Defendant's answer.

"The defendant says that he does not exercise any of the powers and authorities of the governor's office because his duty to do so is not settled by any adjudication or conclusive evidence of record. He is ready to do his duty when he has authoritative evidence as to what it is, and thereof submits to the judgment of the court. David A. Taggart."

The case was submitted upon evidence introduced by the plaintiff, and heard by the whole court (Kerr v. Trego, 47 Pa. St. 292, 295) at the trial term at Manchester, April 7, 1890, and was not entered in the law term.

Daniel Barnard and R. M. Wallace, for plaintiff. David Cross, for defendant.

DOE, C. J. "Whenever the chair of the governor shall become vacant, by reason of his death, absence from the state, or otherwise, the president of the senate shall, during such vacancy, have and exercise all the powers and authorities which, by this constitution, the governor is vested with when personally present; but when the president of the senate shall exercise the office of governor, he shall not hold his office in the senate." Const, art. 49. From 1784 to 1792 the governor (then styled the "President of the State of New Hampshire") was president of the senate. Instead of his present power of vetoing or approving bills passed by the senate and house, he had "a vote equal with any other member" of the senate, and also "a casting vote in case of a tie," and when his office was vacant all his powers were exercised by "the senior senator." When the constitution took effect, and the legislature met for the inauguration of the new government, June 2, 1784, Meshech Weare, the governor elect, was unable to be present. In brief periods of his illness and absence, in June, 1784, and February, 1785, his duties were performed by Woodbury Langdon, senior senator, acting as governor pro tem. On both occasions Langdon presided in the senate, by virtue of his provisional tenure of the governor's office; and on the 8th of June, 1784, as governor, he sat with the council, and exercised the governor's power (with the required advice and consent of the council) of signing warrants for the payment of money out of the state treasury. The authority of this precedent has not been shaken, and it does not appear that the soundness of the contemporaneous construction has ever been doubted. "'Where a word having a technical as well as a popular meaning is used in the constitution, the courts will accord to it its popular signification, unless the very nature of the subject indicates, or the text suggests, that it is used in its technical sense.' Weill v. Kenfield, 54 Cal. Ill; Sprague v. Norway, 31 Cal. 173. Words used in a constitution should be construed in the sense in which they were employed. They 'must be taken in the ordinary and common acceptation, because they are presumed to have been so understood by the framers, and by the people who adopted it * * * It * * * owes its whole force and authority to its ratification by the people, and they judged of it by the meaning apparent on its face, according to the general use of the words employed, where they do not appear to have been used in a legal or technical sense.' Manly v. State, 7 Md. 135." Miller v. Dunn, 72 Cal. 462, 465, 14 Pac. 27. "The terms 'jury' and 'trial by jury' are, and for ages have been, well known in the language of the law. They were used at the adoption of the constitution, and always, it is believed, before that time, and almost always since, in a single sense. * * * At that date * * * no such thing as a jury of less than twelve men, or a jury deciding by less than twelve voices, had ever been known, or ever been the subject of discussion, in any country of the common law." Opinion of the Justices, 41 N. H. 551, 552. A similar narrowness of meaning has not been attached to "vacant by reason of his death, absence from the state, or otherwise." And, if the public service could be thrown into disorder by a rule of construction with which the people who adopted the constitution were not familiar, the law would not apply a rule which they did not apply, but would carry into effect the understanding and intent of the voters who enacted article 49 for cases of necessity, and used "otherwise" in its comprehensive and usual sense. In the connection in which the word here occurs, "otherwise" includes the governor's physical disability, as equivalent, for the provisional purpose of this article, to his death or absence from the state. "The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. * * * We must presume that words have been employed in their natural and ordinary meaning. As Marshall, G. J., says, the framers of the constitution, and the people who adopted it, 'must be understood to have employed words in their natural sense, and to have intended what they have said.' Gibbons v. Ogden, 9 Wheat. 1, 188. This is but saying that no forced or unnatural construction is to be put upon their language; and it seems so obvious a truism that one expects to see it universally accepted without question; but the attempt is made so often, by interested subtlety and ingenious refinement, to induce the courts to force from these instruments a meaning their framers never held, that it frequently becomes necessary to redeclare this fundamental maxim. Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned or unlearned, may be able to trace the leading principles of government, * * * The real question is what the people meant, and not how meaningless their, words can be made by the application of arbitrary rules." When there is doubt, evidence may be found in the primary and leading "object to be accomplished, or the mischief designed to be remedied or guarded against, by the clause in which the ambiguity is met with. 'When we once know the reason which alone determined the will of the lawmakers, we ought to interpret and apply the words used in a manner suitable and consonant to that reason, and as will be best calculated to effectuate the intent.' Smith, St. & Const. Constr. 634. * * * We have not thought it important to quote and to dwell upon those arbitrary rules to which so much attention is sometimes given, and which savor rather of the closet, than of practical life. * * * They are more often resorted to as aids in ingenious attempts to make the constitution seem to say what it does not, than with a view to make that instrument express its real intent. All external aids, and especially all arbitrary rules, applied to instruments of this popular character, are of very uncertain value; and we do not regard it as out of place to repeat * * * that they are to be made use of with hesitation, and only with much circumspection." Cooley, Const. Lim. 69, 73, 75, 80, 101.

The primary and leading object of article 49 is evidence tending to show that the construction adopted in the first year of the constitution is correct. The mischief designed to be prevented was the suspension of executive government by the governor's death, absence from the state, or disability. 9 Cong. Rec. pt. 1, 46th Cong. 1st Sess. pp. 184-189, 273-285, 287-298, 312-325, 341-355; Opinion of the Court, 60 N. H. 585. The prescribed remedy is the duty of a substitute to act in cases of...