State v. Kuhl

• Decision Date: 23 February 1889
• Citation: 17 A. 102,51 N.J.L. 191
• Parties: STATE ex rel. FRITTS v. KUHL.
• Court: New Jersey Supreme Court

17 A. 102

51 N.J.L. 191

STATE ex rel. FRITTS

v. KUHL.

Supreme Court of New Jersey.

Feb. 23, 1889.

(Syllabus by the Court.)

Quo warranto.

Argued at November term, 1888, before the Chief Justice and VAN SYCKEL, KNAPP, and GARRISON, JJ.

Riker & Riker and Voorhees & Cotter, for relator. Wm. S. Gummere, Henry Young, and The Attorney General, for defendant.

VAN SYCKEL, J. The facts which have occasioned this litigation are as follows: On the 15th of February, 1888, a vacancy occurred in the office of president judge of the Hunterdon pleas, by the death of Mr. Sanderson. At the time of his death, the senate was in session, and remained in session until the 30th day of March, 1888. On the 1st day of March, 1888, the governor nominated the defendant, Richard S. Kuhl, to the office of president judge of the Hunterdon pleas, to fill the said vacancy. The senate held the nomination until the 20th of March, and then refused to consent to it. No other nomination to this office was made by the governor to the senate during its session. In the mean time the chief justice, under a statute passed in February, 1888, appointed Judge BARTINE of the Somerset pleas to preside in Hunterdon, and perform the duties of president judge of Hunterdon pleas. On the 7th of April, 1888, during the recess of the legislature and while Judge BARTINE was presiding in Hunterdon, the governor appointed the defendant to fill the vacancy occasioned by the death of Judge SANDERSON. The information is filed to determine whether the governor had the power during the recess of the legislature to fill a vacancy such as existed in this case.

Paragraph I, § 2, art. 7, of our constitution provides as follows: "Justices of the supreme court, chancellor, and judges of the court of errors and appeals shall be nominated by the governor, and appointed by him, with the advice and consent of the senate." Paragraph 12, art. 5, provides that "when a vacancy happens during the recess of the legislature in any office which is to be filled by the governor and senate, or by the legislature in joint meeting, the governor shall fill such vacancy, and the commission shall expire at the end of the next session of the legislature, unless a successor shall be sooner appointed." If, therefore, within the meaning of this paragraph of the state constitution, "this vacancy happened during the recess of the legislature," it was the duty of the governor to fill it. The word "happen," in its strictest literal sense, signifies an unexpected event. It is also not uncommonly used as synonymous with "occur," "take place," "exist," and "happens to be." In its most rigorous meaning, if the contingency implied by it is referred strictly to the time of the occurrence of the vacancy, it will exclude the power of the governor to appoint where an official term expires by its own limitation in the recess, for in that there is nothing uncertain; the time is fixed and definite. On the contrary, it may be said that while there is no uncertainty as to the point of time when the vacancy will occur in such a case, there is uncertainty whether the senate will be in session, and therefore a word implying an unexpected event is properly used. It may also be argued that if the uncertainty implied by the word "happens" is as to the senate being in session, the vacancy does not happen then,—the time of that is certain, but the senate happens not to be in session, and that the constitutional clause should be read as follows: "When it happens that the senate is not in session when there is a vacancy." This would give the governor power to appoint in all cases of vacancy. These suggestions are made to show that the import of this clause is not free from doubt.

In order, therefore, to ascertain its true meaning in accordance with the recognized rules on interpretation, we must seek for the reason and spirit of it, having regard to the effects and consequences of the construction adopted, and the source from which the language employed was derived. Was it intended merely to prevent those offices from remaining vacant which became so during the recess of the legislature by some casualty, or was it to prevent any of the enumerated offices from remaining vacant during the recess of the senate, without regard to when or how the vacancy occurred? The latter clause of section 2, art, 2, of the federal constitution, adopted in 1787, provides that "the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session." The same section provides that the president shall nominate, and by and with the advice and consent of the senate shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States whose appointments are not otherwise provided for. The executive journals show that President Washington sometimes met the senate in executive session to seek their advice and consent. Senate Journal No. 2, p. 16; Executive Journal Aug. 22, 1789; Executive Journal Aug. 24, 1789. There is no record of the senate having considered "nominations" in his presence; but that it was his privilege to be in attendance when his nominations were being considered is clearly shown by senate rule 36, in regard to executive sessions. From this fact the inference was fairly drawn that it was not at that early day supposed that the senate could, in the just exercise of its power, arbitrarily and without assigning reasonable cause reject the president's nominations. Such conduct by the senate, in his presence, would have been discourteous and offensive, and a virtual usurpation of the right to nominate.

During the administration of President Monroe, in 1823, the question arose whether he had the power to fill, during the recess of the senate, a vacancy which had begun during the preceding session of the senate. During that session the president had made a nomination, which the senate refused to confirm, and then adjourned leaving the office unfilled. Mr. Wirt, then attorney general, advised the president that he had power to fill the vacancy. In his opinion he says: "Had this vacancy first occurred during the recess of the senate, no doubt would have arisen as to the president's power to fill it. The doubt arises from the circumstance of its having first occurred during the session of the senate. But the expression used by the constitution is 'happen,'—'all vacancies that may happen during the recess of the senate.' The most natural sense of this term is, 'to chance; to fall out; to take place by accident.' But the expression seems not perfectly clear. It may mean happen to take place;' this is, 'to originate,' under which sense, the president would not have the power to fill the vacancy. It may also, without violence to the sense, mean 'happen to exist,' under which sense the president would have the right to fill it by his temporary commission. Which of these two senses is to be preferred? The first seems to be most accordant with the letter of the constitution; the second most accordant with its reason and spirit. The meaning of the constitution seems to me to result in this: That the president alone cannot make a permanent appointment to those offices; that to render the appointment permanent it must receive the consent of the senate; but that, when so ever a vacancy shall exist which the public interests require to be immediately filled, and in filling which the advice and consent of the senate cannot be immediately asked, because of the recess, the president shall have the power of filling it by an appointment, to continue only until the senate shall have passed upon it; or, in the language of the constitution, 'till the end of the next session.' * * * In reason, it seems to me perfectly immaterial when the vacancy first arose; for, whether it arose during the session of the senate, or during their recess, it equally requires to be filled. The constitution does not look to the moment of the origin of the vacancy, but to the state of things at the point of time at which the president is called on to act." In 1825, Mr. President Adams adopted this construction of the constitution in the appointment of Amos Binney as navy agent of the port of Boston.

During the administration of President Jackson, in 1832, Attorney General Taney gave an opinion in which he accepted the interpretation of his predecessor, and held that the meaning of this clause of the constitution is, "if there happen to be any vacancies during the recess." 2 Ops. Atty. Gen. 525. To enforce his views he states instances in which it cannot be imagined that the power to fill the vacancy was intended to be withheld from the president. An officer may die abroad, or in a distant part of the country, and his death not be known until after adjournment; or a nomination may be confirmed by the senate, and the appointee may refuse to accept after adjournment. In 1841, Mr. Legare, attorney general, expressed a like opinion, (volume 3, p. 673,) which was concurred in by Mr. Attorney General Mason in 1846, (4 Ops. Atty. Gen. 523.)

In 1853, Attorney General Cushing, referring to the opinion of his predecessors in office, says: "They have thoroughly demonstrated, and conclusively established as a doctrine of administrative law, that the expression of the constitution, 'all vacancies that may happen during the recess,' signifies 'all vacancies that may happen to exist in the recess,' or, 'when there happen to be any vacancies in the recess.' And they concur in the general statement that, howsoever a vacancy happens to exist, if it exist it may be filled by temporary appointment of the president. They well agree that it is the true spirit of the constitution to have the offices which congress indicates to be needful by creating them filled, though provisionally, rather than to remain vacant, or to...