State v. Clark

• Decision Date: 20 December 1913
• Citation: 87 Conn. 637,89 A. 172
• Court: Connecticut Supreme Court
• Parties: STATE EX REL. EBERLE v. CLARK.

89 A. 172

87 Conn. 637

STATE EX REL. EBERLE

v. CLARK.

Supreme Court of Errors of Connecticut.

Dec. 20, 1913.

Case Reserved from Superior Court, Hartford County; Joseph P. Tuttle, Judge.

Information by the State, on relation of Frederick G. Eberle, against Walter H. Clark in the nature of quo warranto to determine respondent's right to office of judge of the city police court of Hartford. A judgment of the Superior Court was advised in favor of the State, and the case was reserved for the Supreme Court of Errors. Affirmed.

Noble E. Pierce, of Bristol, and John W. Coogan, of Hartford, for relator.

Henry Stoddard, of New Haven, and William F. Henney, of Hartford, for respondent.

THAYER, J. Article 5, § 3, of the Constitution of the state, as originally adopted, provides that "the judges of the Supreme Court of Errors, of the superior and inferior courts, and all justices of the peace, shall be appointed by the General Assembly, in such manner as shall by law be prescribed. The judges of the Supreme Court, and * * * superior court, shall hold their offices during good behavior; * * * all other judges and justices of the peace shall be appointed annually." Amendments have since been adopted affecting the manner of appointment and the tenure of office of the judges and justices of the peace here named. The only one affecting the office now in question is article 20, which provides that "judges of the city courts and police courts shall be appointed for terms of two years." This was adopted in 1876. The charter of the city of Hartford provides that there shall be a city police court established and holden in the city of Hartford and a judge and associate judge thereof. An amendment of the charter approved May 14, 1907, provides: "That the judge and associate judge of the city police court within and for the city of Hartford shall hold office for the term of two years from and after the first day of July following his appointment and until his successor shall be duly appointed and qualified."

In January, 1911, the respondent was appointed, by the General Assembly, judge of said city police court "for the term of two years from and after the first day of July, 1911, and until his successor is duly appointed and qualified." He qualified and accepted the office and has continued to hold and perform its duties until the present time. The General Assembly in 1913 appointed no successor of the respondent and adjourned sine die on the 4th day of June, 1913. On June 24, 1913, and while the General Assembly was not in session, the Governor, acting under a statute providing that he may fill vacancies, appointed and commissioned the relator judge of said city police court "to fill a vacancy which will occur on the 1st day of July, 1913, by the expiration on that day of the term of office of Walter H. Clark." The relator accepted the appointment, qualified, and demanded possession of the office on July 1, 1913, which the respondent refused. This action is brought to determine whether, since July 1, 1913, the respondent has had legal title to the office.

In his plea to the information, the respondent sets out the provisions of the Constitution and city charter, and his appointment by the General Assembly above referred to, as his warrant for holding the office; and, these being admitted, he claims that he may lawfully hold over beyond the fixed term of two years until his successor is legally appointed; and he claims that the relator was not, and that no other person has been, so appointed. The relator claims that these facts do not show a legal title to the office in the respondent. In this proceeding the respondent is bound to establish a legal title. His holding over under this appointment is undoubtedly sufficient, as claimed by his counsel, to constitute him a judge of the court de facto. Such title is sufficient to make his acts good as to the public and third persons when his title is not directly in question.

But quo warranto calls upon him to show that he is a de jure officer. It lies to oust an illegal incumbent from office, not to induct a legal one into it. The burden in such a proceeding is on the respondent to establish a legal right to the office in dispute. State ex rel. Oakey v. Fowler, 66 Conn. 294, 300, 32 Atl. 162, 33 Atl. 1005; State ex rel. Reiley v. Chatfield, 71 Conn. 104, 110, 40 Atl. 922; State ex rel. Southey v. Lashar, 71 Conn. 540, 546, 42 Atl. 636, 44 L. R. A. 197.

Do the facts show that he is a de jure officer? As he bases his title upon his appointment by the General Assembly, we are to inquire whether they had the power to make the appointment which they did make. It is conceded that they could properly appoint the respondent for the constitutional term of two years. The relator claims that it was beyond the power of the General Assembly to appoint for a longer term. That body derives its powers from the Constitution. Article 5, §§ 1 and 3, contains a grant of power to the General Assembly to ordain and establish inferior courts and to appoint the judges thereof in such manner as shall by law be prescribed. Had there been no further provision, this would have included the power to fix the terms of the judges. But the Constitution (article 5, § 1) expressly limits the term to annual elections. The twentieth article of the amendments declares expressly that city and police court judges shall be appointed for two years. The people of the state thus kept from the General Assembly the power to fix and change the terms of these judges. Any attempt on the part of the latter to fix or extend the term is in excess of their constitutional powers.

If, then, the General Assembly, by the charter of the city of Hartford or by the resolution appointing the respondents, attempted to extend his term beyond two years, such extension was void. It is clear from the language of the charter and resolution that something more was intended to be done than to appoint him for the constitutional term of two years. In his plea he sets up his appointment "for two years from and after July 1, 1911, and until his successor is duly appointed and qualified" in justification of his holding over after July 1, 1913. He thus treats his appointment as being for more than two years. That, manifestly, is precisely what it was intended to be. The first nine words fixed the minimum period of his tenure of the office; the 'remaining words were used to prolong the term until such time as his successor should be qualified. This was to appoint for a term of more than two years and was in violation of the constitutional provision. Commonwealth v. Sheatz, 228 Pa. 301, 305, 77 Atl. 547; Commonwealth v. McAfee, 232 Pa. 36, 48, 81 Atl. 85; State ex rel. v. Howe, 25 Ohio St. 588, 595, 18 Am. Rep. 321; State ex rel. Attorney General v. Brewster, 44 Ohio St. 589, 594, 9 N. E. 849; Ham v. State, 162 Ala. 117, 122, 49 South. 1032, 1033; People v. Campbell, 138 Cal. 11, 16, 70 Pac. 918. An appointment of an officer to hold "during good behavior," when the Constitution provides that such officer shall be appointed for a specified time, is void as violating the constitutional provision. Monette v. State, 91 Miss. 662, 670, 44 South. 989, 124 Am. St. Rep. 715. Article 20 of the amendments to the Constitution provides that the appointments of judges of city and police courts shall be for a definite time, when it says that they shall be appointed for the term of two years. No appointment could be more indefinite than one which is to continue until the appointee's successor shall be appointed and qualified. Had the resolution omitted all reference to the term for two years and appointed the respondent to the office to hold until his successor should be appointed and qualified, it would not have been questioned that such an appointment violated the constitutional provision. Inserting in such a resolution a minimum term of two years during which the respondent should, in any event, hold the office would not have brought it within the constitutional provision. Yet this in effect is what is done in the resolution in question. The General Assembly, in making the appointment, were not legislating but were acting merely as an appointing body expressing their choice of a person to fill the office. McGovern v. Mitchell, 78 Conn. 536, 557, 63 Atl. 433. It has not been claimed in the brief or argument on the part of the respondent that the section of the city charter which provides that the city police judge shall hold office for two years and until his successor is appointed supports the respondent's claim that he is now de jure judge of the court. The same considerations are applicable in construing the charter provision which we have stated in considering the resolution of appointment. If our conclusion is correct that an appointment for more than two years violates the constitutional provision, a statute or city charter which assumes to authorize such an appointment must be so and affords no authority for making the appointment. The language clearly shows that the purpose of the charter provision was to continue the term beyond the constitutional limit.

We construed a constitutional provision, which provided a tenure for a fixed term and until a successor should be qualified, as conferring upon the appointee the same de jure title after as before the fixed limit State ex rel. Morris v. Bulkeley, 61 Conn. 287, 23 Atl. 186, 14 L. R. A. 657. If the Constitution permitted it, the charter provision in question would have the same effect. The history of the statute shows that it was intended to have that effect. The Hartford police court was established in 1851, long prior to the adoption of the twentieth article of the amendments to the Constitution. At the time of its establishment the city claimed to possess the franchise to elect the judges of its municipal courts upon the ground that those courts were not among the inferior courts referred to in the...