Commonwealth v. Hanley

• Decision Date: 22 January 1848
• Parties: COMMONWEALTH ex rel. BROOM <I>v.</I> HANLEY.
• Court: Pennsylvania Supreme Court

Page 513

9 Pa. 513

COMMONWEALTH ex rel. BROOM v. HANLEY.

Supreme Court of Pennsylvania.

January 22, 1848.

Jan. 22.

Reed, for the relator.—The court has invariably shown a determination to carry out the intent and spirit of the constitution: 8 W. 344; 4 Wh. 186. Under the former constitution, the office now in question was held at the pleasure of the governor, and by his appointment. The constitution of 1838 changed the mode of selection in two particulars: 1. In directing a popular election. 2. In limiting the term to three years. This is clearly defined, and was the object of the act of 2d July, 1839. This appears from § 3, which provides that the delay incident to a contested election shall be computed in the term of three years. This is reiterated in § 4. But for the convenience of the public, and to prevent a failure in the office, he is to hold "until his successor is qualified." The spirit of the constitution is violated by allowing him to hold for a longer period, and the qualification of this rule is to be strictly construed. The true construction is to confine it to the contingency of the person elected neglecting or becoming incapable of being qualified. But a vacancy proper is to be filled in the mode pointed out. No commission is to issue until the 1st of December following the election, and if, in that period, the person elected will not qualify, or cannot, then the incumbent holds over. And this emergency alone is thus provided for, as is apparent from the whole tenor of the instrument. For if there is no vacancy, and no appointment by the governor, there can be no election of a successor at the next general election, for that is allowed only in such cases. But a vacancy by death is one of the very instances specified in the 4th section, for the appointment by the governor, until the people at the earliest opportunity may fill the office. It is true a commission cannot issue until December 1st, but before that time the person is "elected to fill the office," and does fill it, so as to cause a vacancy within the intent of the law.

J. and C. Fallon, contrà.—To destroy the executive patronage, and substitute elections by the people, was the main object of the constitution. An appointment by the executive is allowed only where absolutely necessary, and then only until the first opportunity offered for a popular choice. This, it is submitted, is the great object of the new constitution. Why should the office be filled by the governor when there is an incumbent chosen by the people, under the constitution? But clearly the governor's right is limited to the case of a vacancy. Was there then a vacancy when he appointed? This is the only question; and the answer is found in the commission, which, according to the constitution and law, authorizes the respondent to hold until his successor is duly qualified. His successor must have been elected under the constitution, and qualified, i. e. capable of entering on the duties of the office. Here Brooks was not qualified; hence there was no successor, and his death did not leave the office vacant, because the respondent was then lawfully filling it. It is conceded that an inability or neglect to qualify allows the incumbent to hold over. How can a case of inability to qualify more completely occur than by the death of the person elected?

ROGERS, J.

The rights of the relator and respondent depend upon the construction of that part of the amended constitution, which provides "That the prothonotaries of the Supreme Court shall be appointed by the said court for the term of three years, if they so long behave themselves well: prothonotaries and clerks of the several other courts, recorders of deeds, and registers of wills, shall at the time and places of election of representatives, be elected by the qualified electors of each county or district over which the said courts extend, and shall be commissioned by the governor. They shall hold their offices for three years, if they shall so long behave themselves well, and until their successors shall be duly qualified. Vacancies in any of the said offices shall be filled by appointments to be made by the governor, to continue until the next general election, and until successors shall be elected and qualified as aforesaid."

The cardinal rule in the construction of the constitution is the spirit and intention of its framers; and this intention we have endeavoured to carry out in The Commonwealth v. Swift, 4 Wh. 186, and in The Commonwealth v. Collins, 8 W. 344, and in other cases.

The respondent was elected clerk of the Orphans' Court, for this city and county, the second Tuesday of October, 1845, and being so elected, the then governor of the commonwealth issued a commission in due form, dated the 9th November, 1845, whereby the respondent was commissioned, in the language of the constitution, to be clerk of the Orphans' Court for the term of three years to be computed from the 1st day of December, 1845, and until a successor shall be duly qualified.

The respondent took the oath of office, gave bond with sureties as required by law, was in all respects duly qualified, entered on the duties of his office the 1st December, 1845, behaved himself well, and has since used and continued to use and exercise the same.

The second Tuesday of October, 1848, Oliver Brooks was elected successor to the same office, but having died the 7th November, 1848, within thirty days (the time prescribed by the act of the 2d July, 1839) from the day of election, he never was nor could be qualified to fill the office by taking the necessary oath or by giving bond as the law requires. In this position, the governor, reciting that a vacancy had occurred in the office, issued his commission to the relator.

The relator contends that, according to the spirit of the constitution, the tenure of county offices is strictly limited as to time, viz: three years; that any extension of the time arises only from the exigency of the case, and must be strictly construed; that the holding over the incumbent is confined to the single instance of failure to qualify — a failure resulting from the act or omission of the successor; that there can be no holding over when a vacancy occurs which is to be filled for a limited time by executive appointment; that if neither the death of the successor, before his commission takes effect, nor the expiration of the term of three years for which the respondent was elected and commissioned, create a vacancy, the incumbent necessarily holds over for three years, and a popular election next year is defeated; that the office, so far as to create a vacancy by death, is filled by election, and that at the expiration of the term of three years, for which an incumbent is elected and commissioned, a vacancy occurs, even though there be no election by the people, as, in case of a tie, such incumbent continues under a provisional tenure, being only a temporary officer, until his successor shall be duly qualified.

The respondent denies and avoids the several propositions of the relator, and insists that sedulous care is taken in the amended constitution to restrict, as far as possible, the patronage of the...