The opinion of the Court was delivered on the fourth of February by
Gibson C. J. —
Did the question depend on whether all the provisions of the eleventh section of the schedule, are applicable to the officers named in the third section of the sixth article, the respondent might have a plausible case ; for some of them, by the letter, are not; but it is impossible to say, with that degree of certainty which is requisite to judicial decision, what was meant. “ The appointing [197] power,” it is said, “ shall remain as heretofore, and all officers in the appointment of the executive department, shall continue in the duties of their respective offices until the legislature shall pass such laws as may be required by the eighth section of the sixth article of the amended constitution.” Now the words. ‘ all officers in the appointment of the executive,’ are undoubtedly broad enough to include, prothonbtaries, clerks, registers of wills and recorders of deeds; but their principle of tenure and mode of selection are fixed not by the eighth but the third, section of the article: and hence an argument that the subsequently granted power of removal is referable, not to those whose succession requires no supplemental legislation, but to the officers included in the eighth section whose manner of selection has not been fixed in the constitution. It is immaterial to the question, however, whether the contemplated election of the officers included in the eighth section, requires supplemental legislation or not. It is evident that the convention thought it did; for on no other hypothesis can we account for the fact that they were put into the schedule and classed with those whose mode' of selection remained to be determined. It is else impossible to imagine why the change in respect to their offices should have been intentionally deferred till the proper details were furnished for the succession of another set, who were not necessarily coupled with them. If the passing of the laws alluded to, were not thought to be a preparatory step to the election of officers belonging to the respondent’s class, why was it postponed till such laws should be enacted"? It surely was not intended .that the citizens of Erie should not elect their recorder of deeds till the legislature should have provided for the election of an inspector of bark in Philadelphia. Even were it certain that the election of the officers specified in the third section, requires no auxiliary legislation, it would not lessen the absurdity of making the time of legislative action,' on an independent subject, the termination of incumbency under the amended constitution. If the incumbent could hold but till the legislature passed a particular law, there might be an interval betwixt its date and the ensuing election, and a consequent vacation of the office in the interim — a result which certainly was not intended. But succession to the offices specified in the third section, evidently requires auxiliary legislation, if for nothing else, to repress those frauds which have unhappily defiled the purity of our elections. The legislature is expressly directed to specify in what extent of combination different offices may be held by an individual; and it will be indispensably necessary to prescribe the duties of the return judges. If their path be not so distinctly marked as to preclude dispute, the Courts will be filled with new and useless litigation. But conceding, for the purposes of the argument, that the election of these officers needs no legislation, why were they put into the category of those whose election does 1 If there were no [198] reason for it, or a very absurd one, it would require us to restrain the generality of the words ‘all officers in the appointment of the executive department,’ and thus to deprive the respondent of the foundation of his title. But even if they be taken, as I think they must, as actually including him, and that it be taken that he and the officers of his class shall hold till the legislature ‘pass such laws as may be required by the eighth section of the sixth article,’ still I cannot, for myself, see why the qualification “ unless their commissions shall be superseded by new appointments,” — words as comprehensive as any which precede them — shall not equally attach themselves to his tenure. Its limitation, as the members of the section stand, is not less explicit, nor less capricious, than if it were declared that he should hold till the legislature had passed a new militia law. If he be at all within the words ‘ all officers in the appointment of the executive,’ he is equally within the proviso which is the correlate of the entire member that precedes it; for it is restrained in its application by no word, circumstance, or thing, which can be supposed to have been in the view of the convention. Why should it be supposed that it was intended to exclude these officers, standing as they do in the circumstances and necessities of their fellows, from the generality of any words whatever? The actual intent, though susceptible of a guess, is so lamely expressed, that it is impossible to -affirm any thing in regard to it. My own impression is that the penman proceeded upon a notion that all the officers in the appointment of the executive were comprehended in the eighth section of the sixth article; and if that were so, the- section would be consistent in all its parts. But conjecture is not a sufficient ground of judicial construction. There is an inexplicable ambiguity in the text, but one which doubtless arose from the hurry inseparable from the closing scenes of a protracted session, and which in a matter of temporary appointment, is entirely excusable. However, did the matter rest on the special provision of the schedule alone, my own opinion would be that the respondent had failed to make out a title by it; but we all concur — and I rest the judgment of the Court on it — that any express provision to continue the functions of the executive till they should be displaced by the action of a new organ, was superfluous ; and that there is another ground on which his competitor is decisively entitled.
The business of theconventionwasnot to change the constitution but to alter it; and its individuality being retained, those parts of it which are yet to be supplanted at appointed periods, are still in force. This is a principle not of convenience, but necessity, even in the adoption of an entire constitution whose parts are not all to-go into operation at once. A convention can do no more than mark out the principles of organic structure: the apparatus necessary to animate the mass, must be produced by acts of ordinary legislation. Such was the predicament of the convention of 1790, which, for that purpose had [199] recourse to the old machinery by continuing, for a time, the functions of the president, executive council, and officers in the appointment of the executive under the constitution of 1776 ; and such was the predicament of the late convention, when in order to introduce the principle of judicial rotation, it ordained that the commissions of the judges under the unamended constitution, should consecutively expire at appointed periods. Now the present judicial incumbents hold their offices not by force of any conventional sanction or recognition of their tenure or mode of appointment, for the principle . of the amendments is adverse to both, but by force of particular parts of the unamended constitution, whose annihilation has been simply deferred. The convention did not sanction those parts — ■ they needed no sanction — it merely postponed the period of their extinction. When, however, an old part is supplied by a new pne, the change is instantaneous .and entire. Unless the contrary be distinctly specified, it admits'of no intermediate state of action or being. Now, it could not have been the design of the late convention to leave to the executive, responsible as. he is to public opinion for the official conduct of his officers, the power to appoint without its correlative power to remove; nor does any thing contained in the schedule, as I have attempted to show, necessarily imply it. Indeed the letter is directly adverse to it. There could be no motive to create an indefeasible tenure in the case, of a class of officers, some of whom might be incapacitated by an act of Providence; and though an officer chosen by the people may also be thus incapacitated, yet the want of a power to remove him. by any provision of the amended constitution, is nothing to the purpose. It is a casus omissus, susceptible of remedy by .future amendment, which, however, could not reach'the incapacity I have indicated. On this last ground, therefore, we are of opinion, that the original provisions of the unamended constitution, which give the executive a power to appoint and a power to remove, are, in their application to the present subject, still in force; and that the demurrer be overruled.
Sergeant, J. —
The importance of the principles involved in the present case, has induced me to state the reasons why I concurdn the opinion that the respondent is not entitled to hold the office of Recorder of Deeds, for the city and county of Philadelphia.
Under the constitution of 1790, recorders of deeds, together with a great number of other officers in the commonwealth, were appointee! by the governor, and were removable at his will and pleasure. This power of removal was not founded, as it was at one time supposed to be, on the maxim that the power of removal was incident to the power of appointment; for there are many instances :under our constitution and others, in which the power of appointment is vested in one functionary, and the power, of removal in another. It is derived" from those clauses of the constitution by [200] which the supreme executive power is' vested in the governor; and he is to take care that the laws be faithfully executed. Article ii., section 1. 13. By virtue of these powers the governor is bound to carry the laws into operation which can only be done through the intervention of officers; and if these officers are not removable at his pleasure, he is relieved from that responsibility to which it'is for the public good to hold him. 5 Serg. & Rawle, 451. It was under similar clauses in the constitution of the United States, that Congress, after considerable discussion, decided, in their first session, at the instance of Mr. Madison, who supported the doctrine by several able speeches, that the president alone had the power'to remove certain officers, although the power of appointing them was vested in the president and senate. And this doctrine has been ever since adhered to. See Serg. Const. Law, 2d ed. 372, 412. It was also recognised as applying to the constitution of Pennsylvania when brought before this Court in the year 1820, in the case of a dispute between two persons appointed respectively by Governor Snyder and Governor Findley, Commonwealth v. Bussier, (5.Serg. Rawle, 451;) and under it, the Governor for the time being has, ever since the constitution of 1790 came into operation, exercised the power of removing officers of executive appointment, when their tenure was not otherwise established by the express provisions of the constitution, or by law.
When, however, the present amended constitution of Pennsylvania was formed, in the year 1838, the convention thought fit to make a change in various officers, both as to their mode of appointment and tenure. New provisions were -introduced, respecting especially that class of which the officer now in question is one, namely, pr'othonotaries and clerks of Courts, recorders of deeds, and registers of wills. By article six, section third, they were all, (except prothonotari.es of the Supreme Court,) made eligible by the people at the general elections, and were to- hold- their offices for three years, if they behaved well. But inasmuch as the counties in the state differ very widely in their population and business, and in some of scanty population, it has been deemed expedient by the governor to give all these offices to one person, in other counties to divide them among two or three, and in others each office has a separate incumbent, in order to arrange the future incumbents according to the same principles, the legislature is directed by the same section, to provide by law, how many, persons shall hold said' offices, and how many and which of said offices shall be held by- one person.
By virtue of these provisions, and the 10th clause of the schedule, the first election of these officers will take place in October 1839. All that the legislature has to do in relation to them is, to provide by law amongst iiow many incumbents in each county these offices shall be distributed, and to prescribe the manner of their election. This is enjoined upon them as a duty by the will of the people, authorita[201] lively expressed in the convention, it is not left to the discretion of the legislature to do or omit it.- It is therefore to be presumed it will be done by the legislature at its present session. When this shall have been done, the electors of each county will be able to know how many persons are to be chosen to fill these offices, and to give their suffrages accordingly; and the new system on this subject will thenceforward go into operation. From time to time, thereafter, as counties may be formed or divided or may vary in population and business,’ the legislature may enact new laws in relation'to the number of persons to occupy thesé offices, adapted to the changes of circumstances, provided they do not impair the term of three years as provided by the constitution.
But after arriving at this point, another question necessarily presented itself to the framers of the amendment. The officer is to be chosen and commissioned for three years. But suppose,he should die, or resign, within that period, a vacancy will be thereby created, and how is that to be filled! Some officer, legally qualified, is indispensable to transact the- public business. He has no deputy recognised by law as capable of taking his place ; there is no officer, like the coroner in the sheriff’s’ case, to step in and act. It would scarcely be worth while to be constantly holding special elections to fill up these vacancies.' To meet this emergency then, and, as it appears to me, for that purpose only, the following provision is made in the same section. “ Vacancies in any of the •said offices shall be filled by'appointments to be made by the governor, to continue until the next general election, and until successors shall be elected and qualified as aforesaid.”
It has been earnestly Contended, that this clause provides for the present case : that a vacancy had occurred in this office under the new constitution, that the governor had appointed the respondent to fill it, and that therefore he is to continue-until the next general election. But it appears to me, on the best consideration I have been able to give to this and other clauses, that it applies solely to cases of vacancies occurring after the system shall have gone into operation, and thd officer shall have been elected. The words of it extend no further. “ Vacancies in said offices.” What offices 1 Those which" had been mentioned before — those which were to endure for three years — those- towhich the'incumbents were elected by the people. I do not see how a vacancy can exist in an elective office till it has been once filled by. an election. It whs absolutely necessary to provide for such vacancies, because otherwise the office could not have been filled, and the public interest would seriously suffer. Whereas vacancies occurring in the short interval till next fall, in offices of executive appointment, were of but minor and temporary importance, and no inconvenience could result from leaving them for a time as they already stood.
Besides the officers above referred to, namely, prothonotaries and [202] clerks of Courts, recorders of deeds, and registers of wills, there are various others mentioned in the new constitution, and their appointment or election, and tenure, expressly designated, such as judges, secretary of the commonwealth, state treasurer, sheriffs, and coroners and justices of the peace. These may be considered as constituting a class by themselves, consisting of the officers mentioned in the constitution, and wholly or principally provided for by it. There is another large class distinct from these, consisting of officers of various denominations, ■ established by Jaws passed from time to time by the legislature — some of - them appointed by the governor, and holding either at his will or for a term of years ; such as heads of department, attorney general, canal commissioners, inspectors, and others, in great numbers. Others are appointed by different •functionaries, such as superintendents, &c. on canals and rail-roads by the- canal commissioners — inspectors of penitentiaries by the Supreme Court — keepers of prisons by inspectors — directors of the Philadelphia schools, and the members of the board of health, by the select and common councils, 'district commissioners, &c. &c. These, from their number and variety, are best left, to the legislature to provide for: and therefore the eighth section of article sixth of the amended constitution declares, that all officers whose election or appointment is not provided for in this constitution, shall be elected or appointed as shall be declared by law. '
It seems to me, that the intermediate time between the 1st January, 1839, when the new constitution commenced its operation, and the time of the general election of 1839, when the officer in question is to be elected by the people, does not fall within this 8th section, because the 10th section of the schedule declares that recorders &c., shall be elected in 1839, and therefore these officers are not left to the will of the legislature, and because these dffices are in one sense of the word provided for by the. 3d section of article 6, though they are not fully provided for by that section, because the intermediate time is left to stand as it was; nothing, as has been before stated, being said about it. And it is from this equivocal sense in which the words provided for have been used in the constitution, that the difficulty in this section seems to have originated.
I therefore think that the eleventh clause of the schedule providing that all officers in the appointment of the executive shall continue until the legislature-shall pass the laws required by the 8th section of article 6, does not apply to the present case, but respects Only those cases where incumbents of executive appointment not mentioned in the constitution, hold under existing laws. This system is to continue ; -but the legislature may repeal and alter those laws, or pass new ones, and give their appointment to the governor, or to any person or persons they deem proper, and prescribe their tenure and mode of removal. ,
Being then a case so far not acted upon in the text of the consti[203] tution, let us look to the schedule, which is in nature of a residuary clause, embracing what may have been previously omitted. The third clause of the schedule-declares, that the clauses, sections and articles of the former constitution which remain unaltered, shall continue to be construed and have effect as if the said constitution had not been amended. How was the constitution of 1790 construed and .carried into effect as to the power of appointing and removing the officer in question I The governor for the time being possessed the unquestioned power of appointing and removing. By virtue of this clause, that power remains, there being no alteration of it in the amended constitution, till the election of 1839. The power of appointing justices of the peace till their" election in 1840, stands entirely on this footing, and is so taken for granted in the last clause of the schedule which speaks of justices of the peace, “ who may be appointed in the- interim.”
Considerable discussion has arisen on the words in the commencement of the 11th clause of the schedule. “ The appointing power shall remain as heretofore.” This phraseology is not strictly correct if taken in its broadest sense, for the appointing power of the executive is in many respects abridged ór modified by. the new constitution. But I think the most reasonable construction of it is, that the remainder of the appointing power shall continue as heretofore. That is to say, such portion of -the appointing power, whether vested in the governor of in others, as is not taken away by this constitution, or shall not be taken away by laws passed in pursuance of the 8th section of article six, shall remain as heretofore. In this sense it applies the same enactment to the present office, and others similarly -situated, which is more generally contained in thé third clause of the schedule above-mentioned: namely, that as the power of the executive to appoint and remove prior to next fall is not altered by this constitution nor rendered liable to be altered by the legislature, it shall remain as heretofore.
Judgment of ouster.