State ex rel. Burdick v. Schnitger

• Decision Date: 23 June 1908
• Parties: STATE EX REL. BURDICK v. SCHNITGER, SECRETARY OF STATE
• Court: Wyoming Supreme Court

96 P. 238

17 Wyo. 65

STATE EX REL. BURDICK v. SCHNITGER, SECRETARY OF STATE

Supreme Court of Wyoming

June 23, 1908

ORIGINAL proceeding in Mandamus.

The action was brought in the name of the State on the relation of Charles W. Burdick to require the respondent, William R Schnitger, as Secretary of State, to issue notices at the time provided by law for the election of a district judge in each judicial district of the State. The facts are stated in the opinion.

Watts &amp Dyer, for the relator.

Section 19 of Article 5 of the Constitution provides the full term of six years to a district judge regularly elected for such term and is not to be construed as fixing such full term for a judge elected to fill a vacancy caused by resignation. The Legislature has construed the provision as applying only to one elected immediately preceding the expiration of a full term. (Rev. Stat. 1899, Sec. 201.) That section provides for an election for district judge in each judicial district in the year 1896 and every six years thereafter. There is no conflict between that section and Section 195. The Constitution provided for a term of six years and fixed the beginning of the term of office. Section 201 fixes the same time for the election of judges for a term of six years, and provides for the filling of a vacancy in such manner as might be thereafter enacted. Section 195 provides for an election of State officers, at any general election, and for an election to fill a vacancy in the office of district judge at any general election when such vacancy exists. Sexennial elections having been provided in the case of district judges, and general elections occurring every two years there must be an election of a district judge at certain of said general elections because of the expiration at such election of the sexennial period. Whenever there is a vacancy caused by death, resignation, removal or disqualification there may, at any general election, be an election to fill such vacancy. The construction of the Constitution by the First Legislature in determining that district judges are to be elected at stated times for the period of six years, and that in case of a vacancy in the office at any time, there may be an election to fill the vacancy at any general election is entirely consistent with the constitutional provisions.

If the beginning and end of the terms of district judges have been fixed by the Constitution the rule governing the case is the one stated in 23 Ency. Law, 418, and adopted by this court in State ex rel. v. Brooks, 14 Wyo. 393. We believe that the beginning and end of such term are fixed by the Constitution and that, therefore, one elected district judge to fill a vacancy holds only for the remainder of the unexpired term.

The office of district judge is no more personal to the incumbent than the office of State Treasurer is personal to the incumbent of that office. The decision in State ex rel. v. Brooks, supra, holding that one elected State Treasurer to fill a vacancy holds only for the unexpired term of his predecessor is applicable to and must be held to govern the office of district judge.

W. E. Mullen, Attorney General, for respondent.

It was the intention of the Constitution to secure to the judiciary that larger degree of independence resulting from infrequent elections, and at the same time accord to the electorate the privilege of choosing elective officers at reasonable periods. (People v. Weller, 11 Cal. 86.) An elective judiciary with long terms being the policy of the Constitution it should be regarded as an important factor in the determining of this controversy. An election proclamation or certificate cannot change the law, much less the Constitution. (People v. Burbank, 12 Cal. 393.)

The constitutional and statutory provisions considered in State ex rel. v. Brooks, 14 Wyo. 393, are clearly distinguishable from those involved in this case. It is our contention that Section 19 of Article 5 contains a provision which removes the terms of district judges from the operation of Section 20, Article 21 (Schedule), in so far, at least, as to prevent such officers from being grouped in a uniform class, with a uniform time for an election to full constitutional terms. The clause "until otherwise provided by law" in Section 19, Article 5, refers to such time as the Legislature shall otherwise provide by law for the division of the State into a different number of judicial districts. It was inserted in the section as an amendment to conform it with the succeeding Section 20. (Const. Debates, p. 494.) It seems reasonably clear that the terms of district judges, as fixed by the Constitution, independent of legislation, are six years from and after the first Monday in January succeeding their election, and until their successors in each case are duly qualified. The Legislature can neither expressly nor inferentially shorten such terms nor otherwise contravene the provision of the Constitution requiring district judges to be elected at general elections for the term of six years. (State ex rel. v. Thoman, 10 Kan. 191; People v. Perry, 79 Cal. 105; People v. Rosborough, 14 Cal. 180.) The term "general elections" at which a district judge may be elected as used in Section 19, Article 5 of the Constitution, is not there used in a restrictive sense, that is as designating a particular general election, but in construing that provision one general election period cannot be given a preference over any other as a time for an election for the full six year term. How, then, and by what right and authority, can the Legislature provide, even if it intended to do so, that district judges may be elected for full six year terms only at the general elections occurring sexennially? We do not think that the Legislature has undertaken to do so by Section 201, R. S. 1899. That section may be construed as having been passed for the purpose of executing the provisions of the section of the Constitution above mentioned, and as a directory statute for observance by election officers. The last portion of the section provides that in case of a vacancy "for any cause whatever" such vacancy shall be filled at the election, "when such vacancy shall be required to be filled by law, or the Constitution of this State." This clause following the provision for sexennial elections seems to have been intended as an exception to the general rule for an election every sixth year. In other words, the provision for an election every sixth year after 1896 should not be understood as an inflexible rule prohibiting elections for district judges at other periods. The language "occurring for any cause whatever" is broad enough to include a vacancy occurring, or about to occur, by reason of the expiration of a full term. The statutory or constitutional provisions apparently conflicting should be harmonized if possible. (Slaymaker v. Phillips, 5 Wyo. 453.)

When are vacancies in the office of district judge required to be filled by law or the Cons itution? In the case of In re Fourth Judicial District, 4 Wyo. 148, it was said that there is no special provision for filling a vacancy in the office of judge of the district court, but that Section 7 of Article 4 of the Constitution controls, viz.: "When any office from any cause becomes vacant, and no mode is provided by the Constitution or law for filling such vacancy, the Governor shall have the power to fill the same by appointment." (See also State ex rel. v. Henderson, 4 Wyo. 555.) Section 195, Revised Statutes 1899, was enacted after the provision now incorporated in Section 201 and is to be construed as providing the time for filling a vacancy in the office of judge "for any cause whatever," thus authorizing an election for a full term at any general election, since that would be a vacancy within the meaning of the words "for any cause whatever." If, however, there is any conflict between the two Sections 195 and 201 the former must prevail for the reason that it was enacted and approved subsequent to the latter.

Although Section 26, Article 3 of the Constitution, requires that so much of a law as is revised, re-enacted or extended, shall be re-enacted and published at length, it is well settled under such a limitation that a statute repeals or operates as an amendment of a prior law upon the same subject to the extent that they are in conflict, although the latter is not mentioned in the former. (Scales v. State, 47 Ark 481; Churchill v. Hill, 59 Ark. 54; Leep v. R. Co., 58 Ark. 407; People v. Mahaney, 13 Mich. 481; Lehman v. McBride, 15 O. St. 573; Shields v. Bennett, 8 W.Va. 74, 87; Baum v. Raphael, 57 Cal. 361; R. Co. v. Nestor, 10 Colo. 405; Evernham v. Hulitt, 45 N. J. L. 53; Sheridan v. Salem, 14 Ore. 328, 337; Davis v. State, 7 Md. 151; Cooley, Const. Lim. (6th Ed.), 182; 1 Thomp. Corp., Sec. 94, and cases cited.) The term of a district judge is personal to the incumbent. (Const., Art. 5, Sec. 19; Coutant v. People, 11 Wend. 512; People ex rel. v. Green, 2 Wend. 267; People v. Weller, 11 Cal. 86; People ex rel. v. Langdon, 8 Cal. 1; People ex rel. v. Garey, 6 Cowen 642; People ex rel. v. Cowles, 13 N.Y. 350; People v. Keeler, 17 N.Y. 370; Benton v. Watson, 4 Tex. 400; People ex rel. v. Weller, 11 Cal. 77; State v. Johns, 3 Ore. 538; People ex rel. v. Townsend, 102 N.Y. 430; State ex rel. v. Thoman, 10 Kan. 191; People v. DuBois, 23 Ill. 498; 23 Ency. L. 418; Opinion of the Justices, 61 Me. 601; Opinion of Justices, 16 Fla. 841; Sansbury v. Middleton, 11 Md. 296; Whipper v. Reid, 9 S. C. (9 Rich.) 5; Smith v. McConnell, 44 S.C. 491; Crowell v. Lambert, 9 Minn. 283.) The cases which apparently hold to the contrary are based upon peculiar constitutional provisions different from those found in this State. ...