Lane v. Kolb

92 Ala. 636

Opinions

STONE, O. J.

The office of Commissioner of Agriculture is not provided for by t-he Constitution. It is the creature of statute. Before the act of February 18, 1891, the Commissioner was appointed by the Governor, under section 130 of the Code of 1886. Its provisions are, “ The Commissioner of Agriculture is appointed by the. Governor, and holds office for the term of two years, and until h'is successor is appointed and qualified.” Under this statute the Governor, on September 1, 1889, appointed R. F. Kolb to tíhe office. Kolb qualified and entered upon the duties of the office. He was in the discharge of its duties when the statute hereafter copied was enacted, and remained in office without molestation, until the expiration of two years from the date of his appointment.

On February 18, 1891, the act was approved “ To make the office of the Commissioner of Agriculture elective.” Sess. Acts, p. 1213. Its provisions are :

§ 1. “ That the office of the Commissioner of Agriculture be hereby declared an elective office, and that at the gene ral election in 1892, and every two years thereafter, there shall be elected one Commissioner of Agriculture, whose term of office shall he two years.”

§ 2. “ That all laws and parts of laws in conflict with the provisions of this act be, and the same aré hereby repealed.”

At the end of two years from Kolb’s appointment — bo-wit-,. September 1, 1891 — the Governor appointed H. D. Lane to-the said office of Commissioner, who gave the bond and took the oath prescribed by law, and was commissioned as such. He thereupon made a demand in writing on Kolb of “ the moneys, papers, books, and other property belonging to the office of Commissioner of Agriculture.” This demand was refused, and the present proceedings were then instituted for the recovery of the same. The probate court decided that Lane was not entitled to recover, and dismissed his petition. From that decision the present appeal was-taken.

There is no issue of fact presented by the record, but the-determination of the issue before us depends on the proper interpretation of the statutes. Appellant contends that by the terms of the statute of February 18, 1891, the Governor’s right of appointment is not displaced until the time fixed for holding the first election — August, 1892.- The appellee takes issue on this claim, and contends that the Governor’s power of appointment was taken away, eo instanti> by the approval of the later statute.

No general power of appointment has been conferred on the Governor of Alabama, either by the Constitution or by statute. It is not one of the inherent, executive functions, and hence unless the power to appoint is expressed in some statute, it does not exist. So, in this case ; unless the power of appointment conferred by section 130 of the Code remains of force until August 1892, the time for holding the first election under the act of February 1891, the appointment of Lane was without authority and is void.

When an office is not provided lor by the Constitution, but is the creature of statute, there is no element of contract between the officer chosen and the public, or constituent body which confers the office. Being created, and its functions and emoluments conferred, by the legislature, the same body may abolish if, take away or reduce its functions and emoluments, or make any change its wisdom or caprice may suggest, not inhibited by the organic law. — Mechem Pub. Officers, § 465. In Prince v. Skillin, 71 Me. 361, it is said that, “ All offices, except when legislative authority is limited or restricted by constitutional provisions, are subject to the will of the legislature. There is, with the above exception, no vested right in an office or its salary. The office may be abolished. The mode of appointment may be changed. The length of time of official existence may be shortened. The compensation for official services may be diminished.” To the same effect are Butler v. Pennsylvania, 10 How. 402 ; Taft v. Adams, 3 Gray 126 ; Connor v. Mayor, 5 N.Y. 285; People v. Devlin, 33 N.Y. 269; s. c. 88 Amer. Dec. 377 ; Com. v. Bacon, 6 Serg. & R. 322 ; Barker v. Pittsburgh, 4 Penn. St. 49 ; People v. Wilson, 72 N. C. 155 ; Bunting v. Gales, 77 N. C. 283; Rhodes v. Hampton, 101 N C. 629; State ex rel. v. Davis, 44 Mo. 129 ; Wilcox v. Rodman, 46 Mo. 322; Bryan v. Cattell, 15 Iowa 538 ; Atty-Gen. v. Squires, 14 Cal. 12 ; Bulger v. Merrill, 45 Cal. 553 ; State v. Douglas, 26 Wis. 428.

The inquiry, at what time the act of February 18..-1891, went into practical operation, is the pivotal question in this case. In ascertaining the meaning of a statute, as of most other writings, the first law of interpretation is that we must search for the meaning in the words employed, assisted, if necessary, by the facts and conditions which existed at the time of the enactment of the statute, or the-making of the contract we are called on to interpret. Intention is not a subject, of proof, in the ordinary sense, but must be gathered from the language employed, and the attendant facts. These, it must be conceded, furnish the safest guide to the end sought for — the ascertainment of the intention with which the act was done. Attendant facts, as well as consequences, may be looked to in the interpretation of statutes. — Endlich on Interpretation of Statutes, §§ 2-15, 251, 258, 264 ; Huffman v. State, 29 Ala. 40 ; Sutherland on Stat. Con., § § 238, 323.

In construing a statute, we should not, unless compelled thereto by unbending language, reach the conclusion that the legislature intended to do an act which would lead to public inconvenience or detriment, to a suspension or failure of official functions, or to a defeat of the object they must have had in contemplation. “ It is always to be presumed that the legislature intends the most beneficial construction of their acts when the design of them is not apparent..”' This was the language of the distinguished Chief Justice Parsons in Richards v. Dagget, 4 Mass. 534. In Somerset v. Dighton, 12 Mass. 383, the court said, “ In some cases the letter of a statute may be restrained by an equitable construction ; in others enlarged ; and in others the construction, may be even contrary to the letter.”- — In Smith v. The People., 47 N. Y. 330, the court employed the following language: “In the construction of statutes effect must be given to the intent of the legislature whenever it can Re discerned, though such construction seem contrary to the letter of the statute. That intent must be primarily sought in the language of the statute, and if the words employed have a well understood meaning, are of themselves precise and unambiguous, in most cases no more can be necessary than to ^expound them in their natural and ordinary sense. The words in such case, ordinarily, best declare the intention of the legislature. These rules are elementary, but it is equally well settled that words, absolute of themselves, and language the most broad and comprehensive, may be qualified and restricted by reference to other parts of the same statute in which they are used, and to the circumstances and facts existing at the time, and to which they relate, or are ■applied. A literal interpretation of words in most common ■use, and having a well defined meaning as ordinarily used, would not' unfrequently defeat rather than accomplish the intent of the party using them. If in reading a statute in -connection with other statutes passed at, or about the same time, a doubt exists as to the force and effect the legislature intended to give to particular terms, that is as to the meaning which it was intended they should bear and have in the connection in which they are used, it is also competent to refer to the circumstances under which, and the purposes for which a statute is passed, to ascertain the intent of the legislature. The ground and cause of the making of the statute explain the intent.” — In Stewart v. Keemle, 4 Serg. & R. 72, the court said, “ There is no rule in the construction of statutes of the inflexible nature contended for by the counsel for the defendant in error; that without relation to the other parts of the acts, or the whole system of laws ; without relation to the unjust and absurd consequences, that would flow from a literal adherence ; without relation to the clear scope and design of the act, courts must adhere to the the very words and letter of the law; for the letter of a statute will be enlarged or diminished, according to legal discretion, so as to embrace all the purposes designed by it.” — In Hoke v. Henderson, 4 Dev. Law 1, s. c. 25 Amer. Dec. 677, that great and sterling jurist, Chief Justice Ruifin, declared that, “ In construing an instrument the cardinal point is to ascertain the meaning of those who speak in it from the words used by them, and the objects apparently to be effected. This is the rule for the construction of statutes, as well as other instruments, and it is the duty of the court, to-whose province it falls, according to the distribution of the powers of government in this country, to interpret statutes,. 10 put & fair meaning upon the language of the legislature, in order to effect, as far as they are constitutionally allowable, the ends in view.” — In Neenan v. Smith, 50 Mo. 525, it was decided that, in construing a statute, reference must be had to its object, and it will not be presumed that the legislature attempted to authorize a proceeding unreasonable in itself, unless the intention is indicated in .express-terms.” In Blakeney v. Blakeney, 6 Por. 109, this court said, “ To construe a statute according to its equity is nothing more than to give effect to it, according to the intention, of the law makers, as indicated by its terms and purposes. Hence it may- either be extended or restrained by an equitable construction.” — McCloskey v. McConnell, 9 Watts 17; People v. Wilson, 72 N C. 155; Plumstead v. Spackman, L. R. 13 Q. B. 878.

It is said that when words are plain and unambiguous, there is no room for construction. That is true in the sense-intended, but it has limitations. All words spoken in one’s own tongue may, in one sense, be said to be plain anfl unambiguous. It is when combined into sentences that they enter the field of interpretation, and the attendant facts, the consequences then become important factors. We can not. admit there is any inflexible rule, that when words, on their face, and construed by themselves, appear to have a plain meaning, there is then left no field of operation for the doctrine of construction. Nothing is perhaps more frequently misunderstood than language often is, which, at first blush, appears to be plain, if considered by itself. The subject, the occasion, the surroundings and the end to be .accomplished must be steadily kept in view. Language, though plain and unambiguous when considered by itself, has a very different, intent and meaning when employed in certain supposable conditions, from that we would readily accord to it, when expressed with other surroundings and aims. Language is, at best, an imperfect vehicle of thought. Wills and other important documents prepared by the greatest legal and judicial minds of the world, have perhaps given rise to as great contrariety of interpretation, as any other subject of juridical contention. How, then, can we say of any statute which undertakes to modify or change the existing state of things, that we can safely arrive at the intention of the lawmaking power, without considering the status or condition of things to which it relates ? How can we arrive at the ■changed status, without first considering the status intended to be changed? Can we safely undertake to declare the intention of a legislative enactment, without considering the attendant circumstances, and its probable operative effect ? When a statute is amendatory or alterative of existing con■ditions, we should so construe it as to produce as little friction in the transition, as the words employed will permit.

Pursuing the methods suggested, the chances are greatly multiplied that we will be conducted to the goal sought for by all legitimate inquiry — -the ascertainment of the legislative intent. All rules of interpretation are framed with a view to that end. We think the language of the statute we are considering falls very far short of reaching that high standard, which precludes all inquiry into the intention with 'which it was enacted.

But if we are mistaken in our proposition, and the natural interpretation of the statute we are considering be so clear as prima faoie to bar all outside inquiry, this is not absolutely coñclusive. All members of the legal profession will •recall the illustration, stated to be drawn from the jurispru■dence of ancient Rome, which Sir William Biacksfone gives, when considering the rules of statutory interpretation. A Roman edict or law had denounced a heavy penally against any one who shed human blood in the streets of the city. An epileptic fell in a paroxism in the street and blood-letting was resorted to for his relief. The question was, whether this was a violation of the penal law. It was plainly 'within its letter, but was declared not to be wilhiu its spirit. I cite from memory, without assuming to be verbally accurate.

The language of the act of February 18, 1891, is “That the office of Commissioner of Agriculture be hereby declared an elective office.” This speaks in the present tense; and in-as-much as statutes, under our system, go into immediate operation, unless a different intention is expressed, it is held by my dissenting brothers, that the enactment of the statute operated a total repeal of section 130 of the Code of 1886. Let us inquire to what results this would lead, if we must •adopt this construction.

Section 130 of the Code is, as we have said, in the following language: “The Commissioner of Agriculture is appointed by the Governor, and holds office for the term of two years, and until his successor is appointed and qualified.” The most pronounced effect would be to declare that the then incumbent of the office would be ascertained to be -in without any existing authority of law. The office itself, its functions and emoluments, being of legislative creation, and, therefore, subject to legislative modification or repeal, a plausible argument may be formulated that when the authority under which he received his appointment was repealed, the office tenure would fall with it. This would lead to a vacancy in the incumbency of the office, until an election could'be held under the new law.

Even if the repeal of section 130 of the Code be held not to oust the incumbent until the end of his term of two years, the office would become vacant at that time — ¡September 1, 1891. This because, first, the repeal of section 130 would carry with it the repeal of the last clause of that section — Ihe ■clause which declares that the appointed incumbent shall continue in office “until his successor is appointed and qualified.” We have no general provision of that kind, constitutional or statutory, applicable to offices in this State. In the second place, there could as the majority holds, be no special election ordered to fill the office, because the act of February 18, 1891, which it is claimed repeals section 130 of the Code, expressly declares that the election of Commissioner of Agriculture shall be held “at the general election in 1892, and every two years thereafter.” This is the latest expression of the legislative will, and we think necessarily implies that there can be no election till that time.

A third consequence of declaring that section 130 of the Code was instantly repealed by the approval of the act of February 18, 1891, and of the contention of appellee that he rightfully holds over under his appointment of September 1, 1889, until his successor is elected and qualified in August 1892, would be to declare not only that a repealed statute ■secured to him this privilege, but that it secured it to him without an official bond of binding obligation. We say, without a binding official bond, because we approve and will adhere to the doctrine declared in City Council of Montgomery v. Hughes, 65 Ala. 201. We there said, in effect, that the purpose of such clause is to guard against a possible hiatus or interregnum between the termination of one incumbent’s term and the qualification of his successor. This was and is intended to secure continued service in the office, and lasts for only a reasonable time. It was not intended to extend the liability of bondsmen to a term for which they had not contracted to be bound, even though the legislature expressly sanctioned such extension. To enlarge the binding effect of a contract previously entered into, is not alone without the scope of legislative power as to the sureties. It is void as to the principal himself if done without his authority,, express or implied.— U. S. v. Kirkpatrick, 9 Wheaton 720; Bigelow v. Bridge, 8 Mass. 275 ; Dover v. Twombly, 42 N. H. 59.

There are decisions not consistent with some of the principles declared in City Council v. Hughes, supra. Com. v. Hanley, 9 Penn. St. 513; State v. Lusk, 58 Mo. 333; People v. McIver, 68 No. Car. 467 ; State v. Howe, 25 Ohio St. 588; 18 Amer. Rep. 321; People v. Tilton, 37 Cal. 614. None of these authorities hold that the liabilities of bondsmen can be increased by legislative enlargement of the official term. We think that, on the main point, the case of City Council v. Hughes rests on impregnable grounds, and we will follow it.

‘We have copied the act approved February 18, 1891, in full. It is not in torm an amendment of section 130 of the Code. It, in terms, repeals “ all laws and parts of laws in conflict with ” its provisions. We take it that all will admit this clause accomplishes nothing. The same result would follow if it had been omitted. It repeals, and only repeals laws or parts of laws in conflict with it, and a late legislative enactment always does that. Enactments that are m conflict, or inconsistent with each other, can not both be the law at one and the same time. The later enactment, being the latest expression of the legislative will, is the law; and declaring a rule of action different from that previously prescribed, necessarily displaces and repeals older laws. But, ■whether expressed, as in the statute we are construing, or implied ex necessitate rei, the repeal is only co-extensive with the conflict, or ¿incompatibility.

The caption of the act of February 18, 1891, is in the following language : “To make the office of Commissioner of Agriculture elective.” It contains but one subject, which is clearly expressed in the title. Cons, of Ala., Art. IV, §2. All the affirmative provisions of the statute are strictly in line with the caption. It declares that the office of Commissioner of Agriculture is hereby made elective, “and at the general election in 1892, and every two years thereafter, there shall be elected one Commissioner of Agriculture, whose term of office'shall be two years.” The legislature had but one controlling purpose — to change the mode of selecting the incumbent of the office. That thought was dominant in their minds, and they gave expression to it. But as no general election would be held under our constitution until 1892, no State election could be held to fill the office until 1892, unless the legislature chose to order a special election for the purpose, and they made no such order. On the contrary, they precluded, as we have seen, all possible claim that the office should be filled by special election, by declaring when it should take place — “at the general election in 1892.” By the very terms of the enactment, nothing was to be done under it, until the general election in 1892. Eleven months before that time the statutory term of the incumbent then in office would expire. For this term of eleven months the legislature made no provision. ' They could have provided for a special election, had they chosen to do 'so, or, they could have made express provision for filling that term. They did neither.

The whole of section 1 of the act being one continuous sentence, containing only commas in its punctuation, and 1he first half of the sentence making the office elective being connected by the conjunction “and” with the latter part which fixes the time for holding the election, it can not be inferred or supposed that it was intended that the first part should go into immediate effect, and the last suspended until seventeen months afterwards. We know of no rule of interpretation, either of law or grammar, by which one continuous sentence, relating to one single subject, joined together in all its parts by the copulative conjunction, can be so severed as to make one operative presently, and the other postponed, in the absence of express direction to that effect. The principle of interpretation which requires us to give some operation to every clause of a statute, if we can, finds no practical field of operation in the statute we are construing. There is but one sentence, and what is termed a second clause, is only the concluding member of the sentence. The first member makes the office elective, and the second declares when the election shall be held. Beyond this, the statute is silent. The legislature knew there would be a vacancy at the end of the then incumbent’s term. If the intention was to put the statute into immediate practical operation, why did they not make some provision for filling the vacancy they knew would occur ? They expressly ordered an election for 1892. Why were they silent as to an election in 1891 ? Should we not presume that this was intentional ? A specific provision in a statute controls a general provision. Felt v. Felt, 19 Wis. 193; Endlich on Int. of Statutes, §399. Why should not the specific provision, ordering an election in 1892, control the general legal intendment, that statutes take effect from the date of their enactment, unless otherwise directed ? Is not the conclusion strong that it was intended to be otherwise directed in this case ?

The inquiry is raised, whether the act of February 18, 1891, would not have the same operative effect which the majority of the court gives to it, if what is claimed as the first clause had been omitted. Omitting those words, the statute would read as follows : “ Be it enacted,” &c., “ that at the general election in 1892, and every two years thereafter, there shall be elected one Commissioner of Agriculture, whose term of office shall be two years.”

To this we answer,

First, such language in a statute would be very unusual, and on its face would bear the semblance of incompleteness. We can not suppose the legislature would enact a solemn statute in such unusual terms. Second, if the enactment had been in that form, it would have been difficult, if not impossible to determine whether or not the intention was to create an additional Commissioner of Agriculture, or to convert the former office into an elective one. What is called by our dissenting brothers the first clause, is the only part of the statute which shows that it refers to the office then and theretofore known as the Agricultural Commission. Its language is “ that the office oí Commissioner of Agriculture be hereby declared an elective office.” The definite article, the, individualizes the subject, and shows the legislature referred and intended to refer to the officer then known as the Commissioner of Agriculture. The word “hereby” imparts no additional meaning to the statute. It means bjr this act, or by this statute; nothing more. The statute would receive, and necessarily receive the same interpretation — accomplish the same result — without it, as it does, or can do with it. Suppose, instead of the language employed, the legislature had said, Be it enacted that the Commissioner of Agriculture, whose office is by'this act made elective, shall be elected at the general election in 1892, and every two years thereafter, &c. Could a different interpretation be put on the language supposed from that properly applied to the statute as it is ? And would any one contend that the words, “ by this act”, had the effect of putting any part of the statute in practical operation, before the time fixed for doing the first practical act under it? We apprehend there could be but one negative answer to these questions.

Let us further suppose that until the enactment of the statute approved February 18, 1891, there had been in this State no such office as that of Commissioner of Agriculture, but the duties of the office, as now prescribed by law, had either not been formulated and assigned, or had been vested in some other department of the State government. Would any one contend that the statute, framed as it now appears, would go into practical operation in any of its provisions, until the time arrived which itself had fixed for holding the election to fill the office? Would any one claim that a special election could be called to fill a supposed vacancy —the non-incumbency of the.office — until the general election in 1892 ? Would not the rules of interpretation demand in such case that we hold that the legislature intended things should remain in statu, quo, until the time they themselves had prescribed for filling the office ? Is there a reasonable ground of difference in principle between the supposed case and the case we have in hand ?

To hold a special election for a State office would cost the State a large sum. The legislature knew this. They must not be presumed to have intended any thing detrimental to the State, or tending to its great inconvenience, unless by their express command they leave us no latitude of interpretation. Is the statute before us of that class ? It mentions only one date — the time for holding the general election in 1892. It is silent on the question of filling the office until that time. We must suppose the legislative mind took in the situation, and that it was manifest that the statute being enacted would create a vacancy at the - expiration of the incumbent’s term, or that he would hold over eleven months, until his-successor was elected and qualified. We can not indulge the presumption that the functions of this important office were intended to be left dormant and without an incumbent for eleven months. They, then, must have expected and intended, either that the Commissioner in office should hold over, or that the statute theretofore in force which made the office appointive, should remain in operation until August 1892, or that the intervening term of eleven months should be filled by special election. They could not have intended a special election, for reasons which we think we have shown. The provisions of the statute repel that interpretation. Expresswm facit eessare taciturn. Can we presume that because they made no such provision, they intended, at once, to so far repeal section 130 of the Code as to take away the Governor’s power of appointment, yet leave it in force and unrepealed to the extent that the incumbent shall continue in office, without bond, until his successor is elected at the general election in 1892, and qualifies pursuant thereto ? Does the language of the statute show that the legislature intended this?. Does not the language of the statute force the conclusion that the intention was to put the statute in practical operation at the time the-first act was to be done under it- — the holding of the election in August 1892, and not till then ? The legislature did not in terms declare that the incumbent should hold over after the expiration of his term ; did not in terms take away the Governor’s appointing power. If these results were brought about, it was accomplished by legal intendment, and not by direct command. The intendment invoked is, that statutes take effect at the date of their enactment, unless otherwise expressed. We think it is otherwise expressed in this case, for the first and only act expressly directed to be done under it, is postponed to August 1892.

We have attempted to show that the interpretation contended for would lead to results at once unreasonable, and, in theory, at least, opposed to the public welfare. The opposite view gives the legislature credit for an intention to inflict no inconvenience or hardship, but to conserve the public interest. ~We have thus the alternative presented to us of following an asserted legal intendment, not expressed in words, which tends to public inconvenience and detriment, or, of declaring that the legislature intended the best conservation of the public interests, and expressed that intention by postponing action under the law until August 1892.

We have contended that the express direction to elect the Commissioner of Agriculture at the general election in 1892, is an implied inhibition of the right to elect before that time. Our dissenting brothers claim that the effect of this argument, if carried to its logical results, will be to deny all right to fill that office by special election for all time. This, because the statute, after directing the election to be held in 1892, adds the words, “ and every two years thereafter.” This we conceive to be an entire misapprehension. There was, until this enactment, no general law declaring this to be one of the elective State offices. The command of the statute we are considering is, that the Commissioner shall be elected “ at the general election in 1892.” If the statute had stopped there, there could have been no subsequent election to the office, because no provision would have been made for it. And a serious question might have arisen, as to the length of the term of the office. The super-added direction to elect every two years thereafter, was necessary to place this office in line with the bulk of the State executive offices, filled by popular vote. That was its purpose,'that the extent of the direction. Being made elective and the elections ordered every two years, and at the same times as the elections of other State officers take place, the consequence is that it falls in line with other State offices filled by popular vote, except in the respects that the statute makes a difference. The statute makes no provision for filling vacancies by executive appointment, and the consequence is, that after the incumbency of the office is supplied by election at the general election in 1892, vacancies supervening would have to be filled by special election. This is the full scope of the provision, and, we think, a full answer to the argument of our brothers based upon it.

Certain decisions of other courts are relied on in support of the proposition, that section 130 of the Code was immediately repealed by the approval of the act of February 18, 1891. The strongest cases cited are those from Illinois. In that State there is a constitutional provision' that “no public act of the General Assembly shall take effect, or be in force, until the expiration of sixty days from the end of the session at which the same may be passed unless, in case of emergency, the General Assembly shall otherwise direct.” The first case which seems to have arisen under this provision is Wheeler v. Chubbuck, 16 Ill. 361. In that case, as we gather from the opinion, the contention was that part of a statute, less than the whole, became operative before the expiration of the sixty days, by force of a certain expression found in the act. This contention did not succeed. As we understand the ruling of the court, it is rested on two grounds, viz : First, the uniform practice of the Illinois legislature, whenever it was intended to fix a different time from that named in the Constitution for the statute to take effect, to express that intention directly in the statute itself. Second, that this intention, to be effective, must embrace the whole statute, and not a part of it. The principle involved arising, as it did, out of a constitutional provision — a law which the legislature could not change — this, it would seem, should rightfully have exerted some influence. Speaking of the practice of the Illinois legislature, the court said: “Wherever it is designed that a law shall go into force before the -expiration of the sixty days, we universally find a separate clause at the end of the act, of the following purport: ‘This act to take effect and be of force from and after its passage.’ I find one hundred and twenty-seven acts, passed at the same session of the legislature, terminating with substantially the same distinct and unequivocal clause. There is one, ■declaring by a separate and distinct clause, also at the end of the act, that it should take effect on the first day of August. There are two in which it is declared, in a similar way, that they should take effect on the first day of April; and two others in which it is also declared, in a similar way, that they should take effect on the first day of March, the very day on which it is insisted that this act took effect. This, at least, serves to show what is the universal practice of the legislature, when they deem an act of sufficient emergency to take it out of the consiitutional provision. In the law in question there is no distinct clause, declaring when the act, as a whole, should take effect, and become an operative law. It is true that the act says, that, after the first day of March, next, certain acts should not be done, but whether the word next refers to a time succeeding the final passage of the bill, or the approval by the Governor, or the time fixed by the Constitution for the law to take effect, the legislature did not say. In order to take an act out of the constitutional provision, the legislature must direct that the act as a whole and entirety, shall take effect at a different time j and it is not sufficient, that certain parts of it might bear a construction which would, taken separately, give those parts effect at an earlier period.”

The later case of The Board of Supervisors v. Keady, 34 Ill. 293, is rested oil the authority of the older case of Wheeler v. Chubbuck, and is not distinguishable from it in the principles it declares. We think each of these decisions is eminently sound, when applied to the constitutional principle involved and the facts of the cases before the court. And the cases cited from Missouri and New York we fully approve. None of them, as we understand them, are opposed to the principles herein above declared.

The constitution of Massachusetts contains the following clause: “Each branch of the legislature, as well as the governor and council, shall have authority to require the opinions of the justices of the supreme judicial court, upon any important questions of law, and upon solemn occasions.”

The legislatures of the years 1854 and 1855 proposed amendments of their constitution, which were voted on and adopted in May, 1855. Proclamation was duly made of their adoption, and they thereby became parts of the Constitution of Massachusetts. Those amendments made a radical change in the mode of electing certain State officers, yet, under its provisions, it was not possible to elect those officers, to serve during the year 1856. No provision had been made to meet the emergency, and if the election could not be held under the then displaced clauses of the old constitution, those offices must remain vacant for the year 1856. The governor and council propounded, inquiries to the justices of the supreme judicial court, to obtain their opinions as to the power and duty of the executive authority in the premises. That confessedly able bench was, probably, as.ably filled at that time, as at any period of its history. The distinguished Lemuel Shaw was then chief justice, and among the five associates were the little, if any less, distinguished Theron Metcalfe and Plinny Merrick. The opinion rendered was concurred in and signed by all the justices, six in number. Among other things they said:“In answer to the first question, we are of the opinion, that the third article of these amendments will have no effect whatever upon the tenure of the office of the present members of the executive council. Even if no legislative action were necessary, there could be no election of councillors, until the Tuesday next after the first Monday of November, 1855, and the councillors then chosen can not enter upon, the duties of their offices until the first Wednesday of January, 1856, at which time, or as soon thereafter as others are chosen and qualified in their placé, the offices of the present, council will cease. ' The present amendment contains no express repeal of pre-existing provisions of the Constitution it repeals them by necessary implication, by providing another and different mode of filling these offices, but it can not have that effect until it comes practically into operation. ......In regard to the second part of the first question, our opinion is this. Supposing the first regular-session of the legislature to be held in January next, there can be no division of the Commonwealth into districts, until a law is passed for that purpose in the course of that session,, and of course there can be no election, until November, 1856, for councillors for the year 1857. In that case, we are of the opinion, that councillors for the year 2856 may be-rightfully and properly chosen, by the two houses of the legislature, in the manner required by the provisions of the-constitution in force a’t the time when the amendments were adopted.......As, therefore, the amendment supersedes and annuls the old provisions of the constitution, by its practical working, in filling these offices in, another mode, it follows that it will have that effect when only, in the course of its own regular operation, that result has been accomplished. If, then, in the regular operation-of this amendment the legislature, in 1856, being the first session' after the adoption of it, shall pass a law dividing the State into districts for the election of councillors, and the opportunity for making such' election will be in November,. 1856, we are of the opinion, that the former provisions of' the Constitution for the choice of councillors will remain in. force, so that it will be competent for the two houses of the ■legislature, at the organization of the government for the .year 1856, to elect councillors, and during that year to fill vacancies, in the same manner and with the like effect as if this amendment had not been made......... The fourth article provides for the election of the secretary, treasurer, auditor and attorney-general. The time for giving •in of the votes for these officers, the mode of declaring, certifying and returning the votes, are all definitely provided for by the article itself, so that no legislation is necessary to -give it effect. The first election, however, which can be made, under this provision, will be made on the Tuesday next afr.er the first Monday of November next, and the ■officers then chosen are to hold their offices tor one year ■commencing on the third Wednesday of January next thereafter. But as this amendment of the constitution, and the ■elections made under it can not so operate as to fill these offices, until the third Wednesday of January next, we are of the opinion, that, up to that day, appointments to these •offices are to be made, removals effected, and vacancies •filled, in the same manner as if this amendment of the constitution had not been made.”

The following question was also asked : “ Terms of office at present appointed, but by said articies made elective, expiring, can new appointments be made by Governor and ■council, and for what term shall said officer be appointed ? ” •and was answered as follows : “ In case the terms of office of any of the said officers, who hold the .same by appointment of the Governor and council, shall expire before the said offices shall be filled by election pursuant to said articles of amendment, and the laws made pursuant thereto, we are of the opinion, that new appointments can be made by the Governor and council, and for such terms respectively as they would have been appointed for under the constitution and laws as they existed when said ■amendment was adopted, subject only to be sooner determined by the election and qualification of other persons to the same offices, conformably to these articles of amendment, and the laws made pursuant thereto.” — People v. Wilson, 72 Nor. Car. 155; Plumstead Board of Works v. Spackman, Law Rep. 14 Q. D. 878.

It was contended in argument before us, that when (he act to make the office of Commissioner of Agriculture elective was pending before the legislature, an amendment was ■offered, providing thq,t the incumbent then in office should ■continue in office until his successor was elected at the gen eral election iti 1892 ; and that that amendment was defeated. The journals of the two houses have been produced before us, and show that the bill was first introduced in the-Senate and passed that body, substantially as it became a. law. It was amended in the House of Representatives, by the addition of the clause, that the Commissioner then in. office should hold the office until his successor was elected and qualified. The senate refused to concur in the amendment, and the bill finally became a law without the amendment. It is contended for appellant that this may be looked to in determining the -legislative intent. In the Legal' Tender cases, 12 Wall. 457, this question was considered,, and the ruling appears to have been that it was not entitled to any weight in interpretation. The question in that case arose on a constitutional provision.

While we do not consider it a legitimate subject, of inquiry in the case we have in hand, it is gratifying to know that in arriving' at our conclusions, we do not run counter to what appears to have been the intention of the legislature.

There is no disagreement among the members of the court-on the proposition that the office of Commissioner of Agriculture was vacant on or from September 1,1891. We differ as to the manner of filling the vacancy. The majority of the-court hold that in the appointment and qualification of H. D. Lane the statutes then of force were conformed to. It-follows, that, in our opinion, the petitioner was and is entitled to the office, with all that pertains to it; and we, therefore, reverse the judgment of the Probate Court.

The decision in the court below was pronounced on the-pleadings. We can not certainly know that no issue of fact can or will arise in the future progress of the case. We therefore remand the cause for further proceedings in the Probate Court.

Clopton and Walker, J. J., concurring.