People ex. rel. Hughes v. May

3 Mich. 598

• Court: Michigan Supreme Court
• Decided: January 15, 1855
• Status: Published

Opinion

By the Court,

Martin, J.

Among the well settled rules of construction of statutes, are these: 1st, the natural import of the words of any legislative act, according to the common use of them when applied to the subject matter of the act, is to be taken as expressing the intention of the Legislature, unless the intention só resulting from the ordinary import of the words be repugnant to sound acknowledged principles of public policy; (7 Mass. 523;) and 2d, if the subject of the statute relates to courts or legal proofs, the words of the Legislature are to be construed technically, unless from the statute itself it appears that the terms were used in a more popular sense. (4 Pick. 405; 24 Ib. 296.) These rules aré equally applicable in the construction of a constitution — as a constitution is law, the people having been the legislators — as much as a statute is law, the Senators and Representatives being the legislators.

The natural import of words is that which their utterance promptly and uniformly suggests to the mind — that which common use has affixed to them; the technical, is that which is suggested by their use in reference to a science or profession — that which particular use has affixed to them; and when the natural and technical import unite upon a word, both these rules combine to control its construction, and indeed, it is difficult to understand how any other signification than that which they suggest can be affixed to it, unless upon the most positive declaration that a different one was designed.

Now the word attorney, when used in connection with the proceedings of courts, and the authority to conduct business in them, as well as when employed in a general sense with reference to the transaction of business usually and almost necessarily confided to members of the legal profession, has a fixed and universal signification on which the technical and popular sense unite. The legislator and the judge, the lawyer and the layman, understand it alike, as háving reference to a class of persons who are by license constituted officers of courts of justice, and who are empowered to appear and prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are devolved by law in consequence. That the natural and technical im-port of the words- or title prosecuting' attorney are identical, I shall not stop to.argue at length; our common experience teaches us that they suggest to every person alike, the idea of an attorney at law set apart to conduct the public business whether of a civil or criminal nature — and perhaps primarily —that oí a criminal character in the courts of law.

Before the adoption of our present constitution, I apprehend it was never supposed, nor would it for a moment have been contended, that any person who was not an attorney at law was eligible to the office of prosecuting attorney. Indeed, I am not aware that it was ever the subject of doubt, and this uniform understanding of the public, and the uniform practice of the government corresponding with such public understanding, is and should be held of equal force and obligation with judicial or legislative construction. By the constitution of 1835, art. 7, § 3, it was provided that-there should be an attorney general for the State, and a prosecuting attorney for each of the respective counties, who should be appointed by the governor by and with the advice of the Senate, and whose powers and duties should be prescribed by law. No instance occurred, to my knowledge, in which, under that constitution, any person was ever appoint-ed to either of these offices who was not an attorney at law, and it would have been held an abuse of his office had any Governor attempted any such thing. ■ In addition to such popular, and it may be added, executive understanding, we have that of the Legislature also, as to the import of these words. By the Revised Statutes of 1846, chap/14, §§ 53,60, • the duties of this officer are prescribed; and among other things he is required to appear and prosecute causes, whether civil or criminal, in which the State or county is a party, in all the courts of his county, and he is made the legal adviser of the county officers. By the same statute, chap. 95, §§ 26, 27, it is enacted that no person shall practice as an attorney, &c., -unless licensed; and the same laws substantially existed at the time of the adoption of that constitution,-and the revision of 1816. Now statutes pari materia — those having relation to any particular class of persons or class of duties, are to be construed together, and these both relating to officers of courts, and to the persons who may prosecute and defend suits in them, and being enacted simultaneously must receive such a construction as will render each consistent with the other. The Legislature, then, could only have understood that the prosecuting attorney was to be selected from among those whom it authorized by chap. 95 to discharge the duties it in chap. 11 imposed upon him, and upon whom it imposed no disability inconsistent with the power to discharge such duty; and this still more plainly appears from the language of § 60, chap. 11, in which the Legislature distinctly avow the light in which the words prosecuting attorney were regarded, for it is enacted that “the Supreme Court, and each of the Circuit Courts, wherever there shall be no prosecuting attorney for the county, or” &c., may, by an order to be entered in the minutes of the Court, appoint some other attorney at 1cm to perform for the time being the duties of the office. And again, by § 11 of chap. 15 of R. S., p. 82,-it is provided “that whenever charges shall be made against any prosecuting attorney, as provided in section six of this chapter, the Governor shall direct the attorney general, or the prosecuting attorney of some county adjoining that in which the accused resides, or some other attorney at law, to conduct the inquiry into such charges.” No words can more plainly indicate the understanding of the Legislature, that the prosecuting attorney was required to be an attorney at law, than these.

Have the people, by the new constitution, attached any different signification to these words, or taken this officer out •from under the operation of chap. 95, § 26, of the Revised Statutes? "We think not. The power to confer this office was always primarily in them. By the old constitution they delegated it to the Governor and Senate; by the new, they have simply reclaimed it to be exercised by themselves, by election of the incumbent. By art. 10, § 3, it is provided that a prosecuting attorney shall be chosen by the electors. The language designating the officer is the same as the old constitution, -which had received both a popular and legislative construction; and by a well settled canon of construction, it must continue to receive the same, unless the contrary intention expressly appears. Had the language been “ a' person to discharge the duties heretofore executed by a proser cutimg attorney,” there would be some ground upon which to base an argument that a change was designed ; but the use of identical words negatives any such idea. Can it be necessary, by a labored argument, to maintain the almost, self-established proposition, that the framers of the new constitution used words and phrases which they adopted from ■the old, according to their universally received and established import?

But we are not without further legislative aid in solving this question. By sec. 13 of the schedule to the new constitution, it was made the duty of the Legislature, at their first session after its adoption, to adapt the existing laws to its provisions, as far as might be. In the discharge of that duty, the Legislature of 1851 did not repeal § 60 of chap. 14, and § 11 of chap. 15, of the Revised Statutes, and we' may therefore presume they did not deem their provisions inconsistent with the constitution./ By those of chap. 14, court's are now, as they were before, required to appoint some other attorney at lano to discharge the duties of the office of prosecuting attorney for the time being, where the necessity for such appointment shall arise. Now it would naturally be supposed that this pow’er of appointment, so far as eligibility of persons was involved, would be as broad as the power of election, and that if the Legislature supposed the one to havé been enlarged, it would have enlarged the other also — ór would at least have stricken out from the statute the word “other.” So also § 11 of chap. 15, and § 26 of chap. 95, remain untouched, and consequently unrepealed, and wé know that they are constantly executed. Again, by the first and .subsequent sections of chap. 95 of the Eevised Statutes, provision was made for the appointment of a circuit court commissioner in each county of the State, and he was required to be, at the time of his appointment, an attorney and counselor at law. By § 16 of art. 6 of the new constitution, the Legislature was authorized to provide by law for the elecUon of one or more persons in each organized county who may be vested with judicial powers, not exceeding those of a circuit judge at chambers.

The Legislature of 1851 discharged this duty by an amendment of the Eevised Statutes, providing for the election of one circuit court commissioner, and retained the section prohibiting the election of any one but an attorney and counselor at law to the office. (Sess. L. 1851, p. 209.) Now if the. power to elect a prosecuting attorney is construed to do away with all previously required qualifications, and open the office to general competition, why should not the power to elect “ one or more persons ” have the like effect in this latter case ? The truth is, that if the Court may be regarded as imposing disabilities or annexing qualifications, by holding in this case that the disabilities existing and qualifications required before the adoption of the new constitution were retained by it, much more may the Legislature be obnoxious to the same charge, in the provision concerning circuit court commissioners. Yet no one will contend that the framers of the constitution could for a moment have lost sight of existing laws relative to the latter officer, or contemplated an abrogation of the qualifications then required by •existing laws, and so necessary to the execution of his duties.

In both cases they considered' and acted upon the office as they found it, and intended to do nothing more than to make it •elective. "When the nature and extent of the duties conferred upon these officers is considered, and the numerous powers lodged with them are understood, it cannot be presumed that the framers of this instrument had any design to change the existing order of things, especially when the least reflection would have shown them that such change might easily result in throwing our whole judicial system into perfect chaos. Any other construction would result prejudicially to the interests of the public, and be repugnant to sound and acknowledged principles of public policy. If such will be the result, our plain duty is to give that construction to the constitution, where not positively precluded by its express-language, which will avoid such disastrous consequences.

We concede, to the fullest extent, that it is not in the power of the judiciary, or even the Legislature, to establish arbitrary exclusions from office, or annex qualifications thereto, when the constitution has not established such exclusions nor annexed such qualifications. But it is begging the question to assume that the act of construing the constitution has this effect. Now. the framers of a constitution are presumed to have a knowledge of existing laws, and of their construction and the mode of their administration, and to act in reference to that knowledge as much as legislators are, and in this light we construe both constitutional and statutory law. The question we are required to solve is, what was the intention of the people in reclaiming by the constitution' the-power which had been delegated, and if we find that it was. before delegated to be exercised in a particular manner, orín view of any especial qualifications required to be possessed by the beneficiary, and especially if there had been a universal popular, as well as legislative construction, as old as the government, of - the manner of, and the limitation to the exercise of such power, are we establishing arbitrary exclusions from this office, or annexing any qualifications thereto,, by holding that the power was resumed to be exercised in the-same manner it always had been, and. subject to the samefimitations and restrictions which had always attended it? To search for and ascertain the intention of the law makers is a very different thing from legislation, and if the argument, urged on behalf of this -defendant is of any force now, it may always be successfully employed whenever courts are called upon to give construction to laws, and that power to-, construe be thus virtually taken away.

But it is urged that if the license to practice as an attorney- and counselor at law is a qualification of eligibility to the-office of prosecuting attorney, it -must necessarily he a continuing qualification, and it is said “ the power which makes, an attorney at law can unmake him. The courts can degrade a man from the profession — throw him over the bar — - and we are asked, when the lawyer goes over, does the prosecuting attorney go" over too ?” A fair answer to this question and proposition is, how has it been heretofore ? The, construction of the constitution to which we have arrived, i can by no possibility change existing laws or established practice in. this respect, while a contrary one might, and almost necessarily would have such an effect.

But it is not true that the courts make and unmake attorneys. It is the lavf which does this, and courts are in this, as in any other respect, the administrators of that law.

"We have not been unmindful of the delicacy of this question, nor regardless of the rights of the people to exercise-the electoral right untrammelled by any conditions or restric-. tions, except such as are self-imposed. But such conditions^ and restrictions, when established, are to be enforced, as welb; as the right itself. That there were such self-imposed in the-instance before us, we cannot doubt, and were it a balanced question, we should not hesitate to solve it .in such manner-as to protect the public interests, and especially to preserve the criminal jurisprudence of the State from possible utter-prostration.

Douglass, J., did not concur.