Commonwealth v. Fowler

10 Mass. 290

Opinion

By the Court.

The question before us is upon the sufficiency of the respondent’s plea in bar, in which he sets forth a commission issued by the governor of the commonwealth, bearing date the 20th of May, 1812. The act for erecting a number of "towns in the south part of the county of Hampshire into a separate county by the name of Hampden, passed the legislature on the 25th of February, 1812. But, by the last section of the act, its operation was suspended until the ] st day of August then next; no provision being made for the appointment of officers in the interim. We are all of opinion that the proceeding of the executive in this case was irregular, and that the appointment of the respondent to the office of judge of probate for the county of Hampden, at the time when it was made, was void. And our brother Ashmun seemed in his argument to concede, if it had been res integra, the transaction could not be supported. For it must have been under this impression that he produced the secretary’s certificate of a previous similar practice. It is true that a long and uniform usage goes far to establish principles. But the precedents in this case have been on both sides of the question ; and of those that were produced for the respondent, many vary in essential circumstances from the case under consideration. In none of them, except one, did a change of the chief magistrate take place between the appointment of the officers, and the actual operation of the statute under [ *301 ] which they were to act; and in that instance the * appointments were not made until after the change had intervened.

Although the change of the individual exercising the office of governor has no legal operation in the case, yet it may be considered as the cause why proceedings of this kind have not been instituted.

No public inconvenience need be apprenended from the principle established by this decision. For so long as the persons were da facto officers under such an appointment, their official acts were lawful,

Footnotes

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(a) except only in cases of direct injuries to their fellow-citizens, — an exception which cannot apply to one acting in the office of judge of probate. But it is always in the power of the legislature to provide against this inconvenience, and to prevent all question upon the subject, by authorizing the appointments before the act creating the county is to come into operation; as, indeed, has been done in several instances.

Two objections have been pressed upon our consideration, which have received the attention, on our part, to which, as well from their own nature as from the zeal and seriousness with which they were urged by the respondent’s counsel, they were entitled.

The first is the want of jurisdiction in this Court in a case of this kind. If this Court has not jurisdiction in the case, it must follow that there is no remedy; and a very important branch of the law is left without any means of execution. But we are well satisfied that our jurisdiction extends to the case. As the Supreme Judicial Court, we must have authority, whenever a wrong takes place, to redress it, either by appeal or by process originating here.

The other objection is, that an information of the nature of that before us in this case, does not lie against an officer appointed by the supreme executive authority of the commonwealth. And it is said that as the executive have the exclusive right of appointing, so it must have exclusively the right to determine when a vacancy in office exists, the filling of which appertains to that branch of the government; the * executive being a branch of [ * 302 ] the sovereignty of the commonwealth, equally independent with the judiciary.

Our government is founded on principles not known to the laws of any other country. The sovereignty of the commonwealth remains in the people. The several departments of the government, the legislative, the executive, and the judicial, are the agents of the people in their respective spheres. When the legislature enact a law, not authorized by the Constitution, it is the part and the duty of the judiciary to declare it void. When the executive, in any act or appointment, overleaps the bounds prescribed to it by the Constitution and the laws, it is alike the part and the duty of the judiciary to pronounce such act or appointment null and void. Where one is charged with usurping an office in the commonwealth, there must be authority in this Court to inquire into the truth of the charge. The party charged has a right to require that this inquiry be made by a jury of the country, so far as it shall involve facts.

For this purpose, the law has furnished the process used in the present case, and has called the respondent to show by what warrant he claims to hold and exercise the office of judg° of probate for the county of Hampden. In answer to this process, he has produced his commission; and this would have been an abundant answer to the information, if there had been at the time such an office as judge of probate for the county of Hampden, and a vacancy in the office. But it appears to us that such was not the existing state of things. The appointment appears to us to have been made without constitutional and legal authority. We are bound, then, to declare it void, and we adjudge respondent’s plea bad and insufficient.

Ashmun then moved in arrest of judgment, and the cause was continued.

[Vide Fowler vs. Beebe, 9 Mass. Rep. 231, and the cases referred to in the note to that case. — Arundel vs. Arundel, Yelv. 34.— Tyler vs. Duke of Leeds, 3 Stark. N. P. C. 218. —Andrews vs. Lynton, 1 Salk. 265. — 2 Lord Raym. 884. — Ed.]