French v. Cowan

• Citation: 10 A. 335,79 Me. 426
• Parties: FRENCH, Petitioner, etc., v. COWAN and others.
• Decision Date: 09 June 1887
• Court: Supreme Judicial Court of Maine (US)

10 A. 335

79 Me. 426

FRENCH, Petitioner, etc.,

v. COWAN and others.

Supreme Judicial Court of Maine.

June 9, 1887.

On report from supreme judicial court, Androscoggin county.

Petition for mandamus against the mayor, aldermen, and city marshal of the city of Lewiston; the petitioner claiming to be the legally appointed city marshal. The opinion states the facts.

Wm. L. Putnam and Geo. C. Wing, for petitioner. W. H. Judkins, City Sol., and John B. Cotton, for respondents.

FOSTER, J. The controversy in this case arises in relation to the title to the office of city marshal of the city of Lewiston, and a petition for mandamus is instituted against the mayor and aldermen, and Daniel Guptil, the present incumbent of said office. The petitioner claims under an appointment made by the mayor, by and with the advice and consent of the aldermen, March 12, 1885. The defendant Guptil claims under a similar appointment made April 1, 1886. It being conceded that both appointments were made by the proper authorities, the controversy arises by reason of the contention of the petitioner that his appointment, although expressly purporting to extend only to April 1, 1886, was by operation of law for the term of two years from the date of such appointment, and would not expire till March 12, 1887, and that consequently the appointment of Guptil during that time was unauthorized and void. Guptil at the time of his appointment took possession of the office, and was recognized as the lawful city marshal, and has ever since been acting as such.

Inasmuch as the question presented, if we are to decide it upon its merits, becomes one of statutory construction, it will be necessary briefly to examine the act of incorporation of the city, as well as the subsequent enactment of 1880, entitled "An act to promote the efficiency of the police force of the city of Lewiston."

By an examination of section 4 of the city charter it will be found that all subordinate officers were to be elected and appointed annually by the city council, for the ensuing year, on the third Monday of March, or as soon thereafter as might be convenient; that all officers should be chosen and vacancies supplied for the current year, except as therein otherwise provided; and that all the subordinate officers and agents of the city should hold their offices during the ensuing year, and till others should be elected and qualified in their stead, unless sooner removed by the city council. Thus the tenure of office provided by this section was for the current year. Section 18 authorized the appointment of a city marshal by the mayor and aldermen in the manner provided in the section before named, constituted such marshal chief of police, and specified his duties. It is also provided by said charter that the city may ordain and publish such acts, laws, and regulations, not inconsistent with the constitution and laws of this state, as shall be needful to the good order of the city.

In accordance with the express authority with which the city was thus invested, certain ordinances were duly ordained and published; the twenty-first section of which provided that all police officers should hold their office until the last day of March next succeeding their appointment. And here it may be stated, as a fact about which there is no dispute, that since the incorporation of the city it has been the custom pertaining to the administration of police for the term of office of city marshal to expire on the last day of March, and to begin on the first day of April, in the respective years in which terms of said office expire and begin, not only under the original act of incorporation, but also since the special act in relation to promoting the efficiency of the police went into operation in the spring of 1880. Inasmuch, therefore, as that act provided that the city marshal should hold his office for the term of two years, the subsequent appointments were made on April 1, 1880, 1882, and 1884. Although several appointments were made from April 1, 1884, to the time when the petitioner was appointed, none of them received the advice and consent of the aldermen till the appointment of the petitioner, March 12, 1885.

It is at this point that the present controversy arises. It is insisted by the petitioner that a city marshal, duly appointed in accordance with said act to succeed one whose term has fully expired, has by the express provisions of the act a definite and individual term of office of two full years from such appointment,—which cannot be abridged, either by the act of the mayor or of the aldermen, and whether made at the commencement of the municipal year, or any time thereafter. On the other hand, it is claimed in defense that by a proper legal interpretation of the act, when read along with the act of incorporation, as necessarily it must be, the term of a city marshal, appointed to succeed one whose term has expired, is to be reckoned, for the purpose of ascertaining its duration, from the first day of April next succeeding the prior term, and that the person thus appointed is entitled to hold his office only to the expiration of two years from that date, notwithstanding there may have been an interval of time of greater or less extent between the expiration of the prior term and the date of his appointment.

In arriving at a correct conclusion in determining which of the foregoing positions is correct, we must be guided by the established rules pertaining to the construction of statutes,—that, like a will or contract, it is to be read and construed as a whole; recourse being had to all its parts, rather than to any particular clause, where the meaning is doubtful, or where, by giving a particular clause full effect, it would conflict with other clauses. And in the construction of statutes it is held to be the duty of courts to execute all laws according to their true intent and meaning. That intent, when collected from the whole and every part of a statute, must prevail, even over the literal import of terms, and control the strict letter of the law, when the latter would lead to possible injustice and contradictions. State v. Mayor of La Porte, 28 Ind. 248; Holmes v. Paris, 75 Me. 561, and cases there cited. Hence the act of 1880 is to be read and construed, not as standing alone, but in the light of the instrument which it sought to amend. That instrument is the act of incorporation; and only so much thereof is altered or repealed as is inconsistent with the act in question. This act, in express terms, changes the manner of appointment of the city marshal, deputy-marshal, and policemen. Formerly the appointment was the joint act of the mayor and aldermen. By the amendment these appointments are vested in the mayor; the confirmation in the aldermen. The tenure of certain offices is changed. The act provides that "the city marshal shall hold his office for the term of two years, and the remainder of the police force shall hold their office for the term of three years; providing, however, that, the first year after this act shall take effect, one-third in number, as near as may be, of said police force, shall be appointed for the term of one year; one-third in number, as near as may be, shall be appointed for the term of two years; and one-third in number, as near as may be, shall be appointed for the term of three years; and there shall be appointed each year thereafter one-third in number, as near as may be, of said police force."

It is evident, when we consider the language of the amendment, in connection with the act of incorporation, that one of the objects to be attained, besides a modification in the manner of appointment, was that the terms of office of city marshal were to consist of consecutive periods of two years, following each other in regular order, the one commencing where the other ends, instead of annual terms of one year each, as before the passage of the act. The purport of the statute in question is to promote the efficiency of the police force of the city. That force consists of the marshal, deputy-marshal, and policemen. It was also the design of the statute that the terms of the policemen should consist of periods of three years, following each other in like consecutive order as those of the city marshal. The tenure of their office was so arranged that one-third of their number, as near as may be, were to be appointed each year, thus preserving the efficiency of the force. It is admitted that the police year in practice ever since the adoption of the city charter has begun on the first day of April, and that since the passage of this statute the office of city marshal has been filled in separate and distinct terms of two years each; these terms commencing on the same day in April as the police year. The same paragraph which designates the terms of office of the remainder of the police also specifies the tenure of office of the city marshal. That office is intimately associated with, and forms a part of, the police department; the marshal being chief of police, and possessing all the powers, and exercising all the duties, appertaining to constables of towns. It partakes more of the character of a municipal office, commencing at the beginning of the municipal year, than of those offices which, like judges, and registers of probate, and judicial officers, are entirely independent of municipal affairs. In the latter class the terms are fixed and positive, to be sure, when no vacancy occurs; but, in case of any vacancy, the constitution provides otherwise for the commencement of such terms. The constitution, in express terms, provides that all judicial officers shall hold their respective offices for a definite term "from the time of their respective appointments." The rule applicable in such cases cannot properly be applied in the construction of a statute, the provisions of which may be controlled by the true intent and meaning of the...