State ex rel. Cotter v. Leipner

• Decision Date: 30 July 1951
• Citation: 138 Conn. 153,83 A.2d 169
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. COTTER et al. v. LEIPNER et al. Supreme Court of Errors of Connecticut

Page 169

83 A.2d 169

138 Conn. 153

STATE ex rel. COTTER et al. v. LEIPNER et al.

Supreme Court of Errors of Connecticut.

July 30, 1951.

Hugh M. Alcorn, Jr., Hartford, and George C. Conway, Atty. Gen., William L. Beers, Deputy Atty. Gen., John R. Thim, New Haven, and Henry P. Bakewell, Hartford, for the plaintiffs.

William S. Gordon, Jr., Hartford, Leo Parskey, Hartford, John D. LaBelle, Manchester, (Mary C. Fitzgerald, Stephen M. Riley and William P. Aspell, all of Hartford, on the brief), for the defendants.

Before

BROWN, C. J., JENNINGS, BALDWIN, and INGLIS, JJ., and WYNNE, Superior Court Judge.

INGLIS, Judge.

This action is brought to determine the title to the office of judge of the City Court of Bridgeport.

The following facts have been stipulated: The terms of office of the defendants' immediate predecessors (who, as it happens, were the present plaintiffs) expired under the law as it then was on June 30, 1949. The General Assembly having failed to appoint successors, there were vacancies in the office for the term commencing July 1, 1949. The governor, after the General Assembly adjourned, acting under the authority of § 92 of the General Statutes, appointed the defendants to fill those vacancies and they accepted the appointments and took their oaths of office. Their respective commissions, following the phraseology of § 92, stated that they were appointed judges of the City Court of Bridgeport 'to fill vacancy, from July 1, 1949, until the sixth Wednesday of the next session of the General Assembly and until a successor shall be appointed and shall have qualified.'

At no time since the appointment of the defendants as of July 1, 1949, has the General Assembly, upon the nomination of the governor or otherwise, appointed or attempted to appoint anyone to be a judge of the City Court of Bridgeport. After the adjournment of the 1951 General Assembly, the governor purported to appoint the plaintiffs judges of that court and issued to them commissions reciting that he appointed them judges 'to fill vacancy, from July 1, 1951, until the Sixth Wednesday of the next session of the General Assembly and until a successor shall be appointed and shall have qualified.' The plaintiffs have accepted their appointments and taken their oaths of office.

The question reserved for the advice of this court is whether the defendants or the plaintiffs have been the de jure judges of the City Court since July 1, 1951. The question determinative of the case is whether the terms of office of the defendants expired prior to July 1, 1951, so that on that date the offices were vacant. This question turns very largely upon whether the twentieth amendment to the state constitution and the statutes adopted thereunder still operate to fix the terms of office of city court judges or whether that amendment and those statutes have been superseded by the forty-seventh amendment.

Article fifth, § 3, of the Connecticut constitution provides that the judges of inferior courts, such as municipal courts, shall be appointed by the General Assembly. The twentieth amendment, adopted in 1876, directs that 'Judges of the city courts and police courts shall be appointed for terms of two years.' Implementing those constitutional provisions, statutes were adopted prior to 1948 prescribing the methods to be followed by the General Assembly in making appointments and specifying that each judge should be appointed for a term of two years from July 1 in the year of his appointment. General Statutes §§ 72, 73, 76. On December 16, 1948, the governor proclaimed that the forty-seventh amendment had been adopted. That amendment reads: 'The judges of minor courts, including town, city, borough and police courts, shall upon nomination by the governor, be appointed by the general assembly for such term and in such manner as shall be by law prescribed.' General Statutes, Sup.1947, p. 745.

Constitutional provisions are not necessarily self-executing. In so far as they either expressly or by necessary implication require legislative action to implement them, they are not effective until that legislative action is had. Brown & Co. v. Seay, 86 Ala. 122, 125, 5 So. 216; Ex parte Wall, 48 Cal. 279, 318; Green v. Aker, 11 Ind. 223, 225; Woodworth v. Bowles, 61 Kan. 569, 574, 60 P. 331; Detroit v. Oakland Circuit Judge, 237 Mich. 446, 450, 212 N.W. 207; State ex rel. Crumb v. City of Helena, 34 Mont. 67, 71, 85 P. 744; Ex parte Wagner, 21 Okl. 33, 38, 95 P. 435; O'Connor v. Armstrong, 299 Pa. 390, 396, 149 A. 655; Southern Express Co. v. Patterson, 122 Tenn. 279, 293, 123 S.W. 353; City of Newport News v. Woodward, 104 Va. 58, 60, 51 S.E. 193; 1 Cooley, Constitutional Limitations (8th Ed.) p. 165. Until a constitutional amendment which is not self-executing is made effective by the requisite legislation, earlier constitutional provisions and statutes adopted under them which apply to the same subject matter ordinarily remain in full force. This is so unless they have been expressly repealed, or the new provisions are negative or prohibitory in content so that their purpose appears to be the suppression of an existing evil, or the peculiar circumstances under which the new are adopted indicate a contrary intent. Porter v. First National Bank, 96 Fla. 740, 744, 119 So. 130, 519; Blake v. Board of Commissioners, 5 Idaho 163, 165, 47 P. 734; Leser v. Lowenstein, 129 Md. 244, 252, 98 A. 712; Opinion of Justices, 3 Gray 601, 69 Mass. 601, 602, 604; Williams v. Mayor of Detroit, 2 Mich. 560, 565; Coatesville Gas Co. v. County of Chester, 97 Pa. 476, 481; Supervisors of Doddridge v. Stout, 9 W.Va. 703, 705; State ex rel. Hudd v. Timme, 54 Wis. 318, 331, 11 N.W. 785.

Examples of the application of this principle to situations closely analogous to that in the present case may be found in Blake v. Board of Commissioners, supra, and in Opinion of Justices, supra. In the Blake case, the court had before it a constitutional amendment which provided that two offices theretofore combined so that a person elected to one held the other ex officio, should be separated and that the legislature should provide by law for biennial election to such offices. The court held that the amendment was not self-executing and that the old order of things would continue and the two offices be treated as combined until the legislature set up the machinery for carrying the amendment into effect. In the second case, the opinion of the justices was sought as to the effect of the adoption of several constitutional amendments upon pre-existing constitutional provisions. One of the amendments provided that executive councilors, who up to that time by constitutional provision had been chosen by the legislature, should be elected by popular vote, one from each of eight districts, with direction to the legislature to divide the state into such districts. Another amendment directed that the legislature should prescribe by law for the election of sheriffs, clerks of courts and other officers in the various counties by popular vote for such term of office as the legislature should prescribe. The justices unanimously expressed the opinion that neither of these amendments was effective to change either the modes of appointment to the various offices or the terms for which appointments were to be made until the legislature should implement them by the contemplated legislation. Until such legislation should be adopted it was stated that the offices were to be filled in the manner and for the terms prescribed in earlier constitutional provisions which the amendments were intended ultimately to supplant.

The case of Badger v. Hoidale, 8 Cir., 88 F.2d 208, 109 A.L.R. 798, relied upon in this connection by the defendants, is not at variance with the principle we have stated. The federal court had before it an amendment to the Minnesota constitution which substituted, for a provision that corporate stockholders should be subject to double liability, a provision that the legislature should have the power to provide for and limit the liability of stockholders. On its face, the amendment seemed to be a complete substitute for the former provision. It appeared not only that the amendment as adopted had been given the same section number as the former provision but also that, as required by law, before its adoption the attorney general of the state had rendered his opinion as to the effect of the amendment. This opinion, which had wide publicity, was that the amendment would do away with double liability. The rationale of the decision was that, in view of those facts, it was clear that the people must have intended that the amendment would immediately repeal the former provision. It was on the basis of this reasoning that the court concluded that the amendment did so operate. It is generally recognized that a constitutional amendment, even if it is not self-executing, may, immediately upon its adoption, supersede a former provision if it is clear that it was the intention of the people in adopting it that it would do so. That is all that the Badger case holds.

The generally accepted principle that a constitutional amendment which requires implementing legislation is not effective to supersede a pre-existing constitutional provision unless it expressly repeals it, or unless its provisions establish a principle which is essentially negative or prohibitory in content, or unless it is clearly the intent of the amendment that it should, is, of course, merely an aid in the construction of any given amendment. With it as a guide, we turn now to a specific consideration of the effect of the adoption of the forty-seventh amendment upon the twentieth. It must be borne in mind that the question is not what effect the adoption of the forty-seventh amendment had upon article fifth, § 3, of the constitution. The first part of the amendment, providing that the appointment of minor court judges shall be by the...