State ex rel. Hensley v. Plasters

105 N.W. 1092, 74 Neb. 652, 1905 Neb. LEXIS 327

• Court: Nebraska Supreme Court
• Decided: October 19, 1905
• Docket: No. 14,468
• Status: Published

Opinions

Per Ouriam.

Writ of mandamus allowed. Opinion to be filed later.

Barnes, J., dissents.

The following opinion was filed December 6, 1905:

Sedgwick, J.

The last legislature enacted what was known as the Inepnial election law, the purpose of which was to dispense with annual elections and to provide for the holding of a general election on each alternate year. The act in express terms provided for the filling of many offices by election in the year 1906, which elections would otherwise have been held in the year 1905. The office of register of deeds was expressly included in this provision. The statute was held to be unconstitutional in State v. Galusha, ante, p. 188. There Avere also several independent acts of the legislature making precisely the same provisions for various different offices, among them being chapter 47, laAvs 1905, which provides for the office of register of deeds. This chapter purports to amend section 77a, article I, chapter 18, Compiled Statutes, 1903. This section was originally enacted in 1887, amended in 1889, and as so amended it provided that “at the general election in the year 1889, and every four years thereafter, a register of deeds shall be elected in and for each county having a population of eighteen thousand and three (18,003) inhabitants or more, to be ascertained by the census of 1885, and each state and national census thereafter,” etc. It contains at length provisions in regard to the fees of the register of deeds, varying in different counties according to the number of inhabitants of the county. The only change made by the act of 1905 in question was the insertion of 1906 instead of 1889, so that the section should read: “At the general election in the year 1906, and every four years thereafter,” etc. By the act of 1887 the office was created, and it was provided that the election should be held at the general election of that year, and every two years thereafter, so that the next election of the register of deeds would take place in the year 1889, which was not changed by the act of 1889. The term, however, by the latter act was extended four years, and, by its provision that a register of deeds should be elected every four years thereafter, the election of the register of deeds would take place in 1905. If, then, this act of 1905 is valid, the effect would be to prevent the holding of an election for register of deeds in 1905,-ttlndJ to provide for the election of that officer in 1906, thereby extending the term of the officers now holding for the period of one year. The county clerk of Gage county refused to file the certificate of nomination of the relator as a candidate for the office of register of deeds, and refused to cause his name to be printed upon the official ballot as such candidate, to be voted for at the election of 1905, and these proceedings were brought to obtain a writ of mandamus to compel him to do so. If the act in question is valid, the county clerk was right in his refusal, as there could be no election of register of deeds in the year 1905.

1. In the argument the constitutionality of the act was attacked upon several grounds. It was insisted that the sole purpose of this legislation was to provide for biennial elections; that this act was a part of the scheme of the legislature mainly set forth in the more comprehensive act above referred to, but supplemented by several acts that manifestly had no purpose, except to assist in the general object to do "away with annual elections. From this premise it was argued that this act was unconstitutional, because the inducement for its enactment has failed with the failure of the more comprehensive act. To this it was objected that the court is never at liberty to look to one act of the legislature for the inducement to another act. If the court could know that the sole inducement to the act was to assist in carrying out the provisions of a general act of the legislature, enacted at the same time, that has been found to be unconstitutional and void, it would, of course, hold this act unconstitutional also. The argument is that the court cannot know this to be the case, but, on the other hand, must presume that the legislature had some sufficient motive in enacting a law which is complete in itself. This seems to us somewhat like a relic of the earlier days, when courts continually presumed things to exist which they knew did not exist. We do not find it necessary to pass upon this curious question, since the statute must be held invalid for another reason.

2. Another objection urged against the constitutionality of the act was that the legislature has no power to extend the terms of the present incumbents of the office of register of deeds by such legislation. The office is not mentioned in the constitution. It is a creature of the statute, and there can, of course, be no doubt that the power that created the office may abolish it, or may change it, including the lengthening of the term of the office itself. There is no doubt of the validity of the act of 1889, the sole and manifest purpose of which was to extend the length of the term from two years to four years; and, likewise, there can be no doubt that the term might be again reduced by the legislature to two years, or that the office might be abolished entirely and its duties imposed upon other officers. County of Douglas v. Timme, 32 Neb. 272. Again, there can be no doubt that the legislature, after it has established an office, or in the act of establishing it, may provide for filling the office either by election by the people or, in a proper case, by appointment by some designated authority. The legislature, however, cannot itself fill the office. It cannot elect or appoint the officer. Const., aid. Y, sec. 10; State v. Stanley, 66 N. Car. 59, 8 Am. Rep. 488; State v. Holcomb, 46 Neb. 88. And it seems to us to follow that it cannot by direct legislation for that sole purpose cause an office to be held for the term, or any period of the term, by any particular individual. The supreme court of California in Christy v. Board of Supervisors, 39 Cal. 3, held, as stated in the syllabus:

“But when office has been filled by an election, the legislature may extend the term of the incumbent; provided the whole term, when extended, does not exceed the time limited by the constitution.”

The' court said in the opinion:

“If we had any doubt on this point, me should be very reluctant to arrive at a different conclusion, in view of the serious complications which might arise, growing out of past legislation on this subject. The legislature has ■ so often exercised, unquestioned, the power to prolong the terms of the incumbents of elective officers, that it might result in the most embarrassing perplexities, if all these acts, at this late day, were pronounced to be void. They have repeatedly extended terms of supervisors, tax collectors, assessors and all county officers. (Citing many acts of their legislature.) Nothing but an imperious sense of duty, founded on the plainest principles of constitutional construction, would justify us in holding all these acts to be Amid after this lapse of time.”

To our ininds the reason for their holding set forth in this quotation is more satisfactory than the other reasons which the court attempted to give. It does not appear from the opinion that their constitution contains an equivalent of our provision in section 13, article XVI, to the effect that elective officers must be elected “at the general election next preceding the time of "the termination of their respective terms of office.” We find no suggestion in their opinion as to what force or meaning should be given to such a constitutional provision. They say:

“The people select the incumbent of the office, but the legislature has the power to define the duration of the term.”

That is, the people by election shall designate the person' who shall hold the office, and the legislature shall then provide for how long a time he shall hold. Again they say:

“It cannot be denied that he was elected to the office. and that he would not be the incumbent of it, except for his election. The people have exercised their constitutional right in selecting him for the office,” etc.

Such language as this does not satisfy our idea of the meaning and force of our constitutional provision. We think the idea of our constitution is that the people shall choose a man to fit the established term, and not that the o'J^lature shall establish a term to fit the man who has been chosen. In the argument it was stated by counsel for the respondent that the inducement to this legislation was not to assist in carrying out the general idea of the more comprehensive biennial law, but the sole object of this legislation was to extend the term of the various registers of deeds for one year; that is, by an act for that sole purpose, the legislature has declared that A, who is now occupying the office of register of deeds and whose term for which the people elected him will expire in January next, shall hold that office for another year. This is nothing else than providing by legislative enactment who shall be register of deeds in the respective counties of the state from January, 1906, to January, 1907. This, we think, the legislature cannot do. On the other hand it is plainly provided by that part of the constitution above quoted that the legislature shall provide for an election so that, before the current term of elective officers expires, the people may select the incumbent for the succeeding term. The view of the California court makes no distinction between the term of office itself and the tenure of that office during that term by the incumbent; between the official house and the individual who occupies it. The legislature establishes the office, and the people provide the incumbent. So that attempted legislation, which has for its sole purpose to determine who shall be the incumbent of the office for another definite period of time, is infringing upon the rights of the people; and is void.

Counsel for respondent cited People v. Loeffler, 175 Ill. 585, and Crook v. People, 106 Ill. 237, but these authorities do not support their contention. In- the first named case it was said:

“When an office is created by a statute, it is wholly within the control of the legislature creating it. The length of term and mode of appointment may be altered at pleasure, and the office may be abolished and the compensation taken away from the incumbent, unless forbidden by the constitution.”

These propositions are not controverted. They do^000f^ involve the question of the right of the legislature to select the incumbent of an office. In 1872 the legislature of Illinois enacted a general incorporation law, and provided that cities already incorporated might, upon a vote of the people at an election held for that purpose, become incorporated under this general act. The city of Springfield was incorporated under a special act, and afterwards on the 4th day of April, 1882, held an election, at which it was voted to become incorporated under the general act. The general act of incorporation provided that “the city officers then in office shall thereupon exercise the powers conferred upon like officers in this act until their successors shall be elected and qualified.” It was contended that the vote of the people repealed the special charter, and that that repeal abrogated all the offices of the city and determined the tenure of all the officers who held under tifie repealed act. The supreme court held' in Crook v. People, 106 Ill. 237, that the vote of the people did abrogate the special charter of the city, but that the general incorporation act continued the officers that were in office at the time of the vote for the purpose of calling an election to elect officers under the general incorporation act, and that this was not such an extension of the terms of those officer's as to be in v: "ation of the constitution. It does not appear that the terms of the officers were extended beyond the time for which they were elected by the people, and moreover the authority given these officers to hold over for a specific purpose was incidental and necessary to the incorporation of the city under the general law. We do not find it necessary to determine in this case whether such special and incidental holding over for a short period would be in violation of our constitution. It was contended by both parties upon the argument that the act that we are now considering was enacted for the sole purpose of extending the tenure of the office another year; one party contending that this was the ultimate purpose of the legislation; the other wparty contending that this purpose was only incidental to the general scheme to provide for biennial elections.

The conclusion that Ave have reached in this case is amply sustained in the reasoning of the court of appeals of New York in People v. Bull, 46 N. Y. 57, 7 Am. Rep. 302. The legislature of NeAV York created a new judicial district in the city of New York, called the eighth judicial district, and directed the time for the election of a justice of the district court for that district. The time designated was “at the next general election Avhich took place in the same year.” It was directed that the justice should be elected the same as the justices of the district court in that city, and that he should hold his office for the term of six years from January 1, 1861. Under that laAv the defendant was elected to the office. AfterAvards the legislature enacted that “the term of office of the justice * * * of the district court for the eighth judicial district, in the city of NeAv York, is hereby extended and con-' tinued to and including the 3'lst day of December, 1869, so that the term of office of said justice * * * shall expire AAffien the term of office of'the present, justices * * * of the other district courts expire hy law.” The court of appeals held that this act was unconstitutional; that it was beyond the power of the legislature to extend the term of the incumbent. The opinion, which was delivered by Mr. Justice Folger, is an exhaustive and unanswerable discussion of the point involved. In the course of the discussion the eminent jurist said:

“If the legislature can, by extending the term of such an office, continue in it the holder thereof for one year, it may for any number of years; and thus the duration' of the term thereof may be perpetuated by legislative power; arid the people, after one exercise of the constitutional poAver of choosing certain of their own officers, be ever after that deprived of it. So the legislature may as well from time to time, at the expiration of a term, whether the elective term, or the legislative extended term approaches, again and again extend it, and continue in office an incumbent distasteful to his legitimate constit-** uency. Thus Avould the theory of the government be subverted, and its practice be prevented. The government is the expressed will of a majority of the people, limited by constitutional restrictions. The practice is, that such will shall be expressed, at frequently returning periods. * * * It (the constitution) at the saíne time gives the legislature power to declare the duration of the office. But doing that, it means no more than that, be the time what it may, and altered in duration when it may. the incumbent shall be the creature of the people. And thus it guards against a majority of the legislature, adverse in sentiment to a majority of the people of a locality, placing or continuing over them in official power, one whom they would not select. * * * It will not be claimed, that the legislature could have passed an act, appointing to the office for a term of three years, after the expiration of the defendant’s elective term of six years, any person whom it might in the act name. Nor will it be claimed, that it could have passed an act, appointing the defendant to the office by his proper name for that term of three years. That all will concede to he a violation of the constitution. But is not the violation the same, to continue him in the office by his official name for that time by legislative act? The authority under which he must act for the term is the same in both cases. He would find it not in the voice of the people, but only in the act of the legislature.”

The whole opinion is worthy of careful study, and sets forth sufficient reasons for the conclusion which we have reached in this case. It is true the language of their constitution was that all such judicial officers as may be created therein (in cities and villages), by law shall be elected at such time and in such manner as the legislature may direct. This provision does not affect the argument as applied to the case at bar. The reasoning of the New York court, which we approve, is to the effect that continuing an officer in office beyond his term is equivalent to an appointment for the time he is so continued in office. The legislature cannot appoint registers of deeds, and therefore it cannot by an act for that sole purpose continue such officer in office for a definite period beyond the expiration of the term for which he was - elected. It is not necessary to discuss the effect of section 13, article XVI of our constitution above referred to.

Again, it was said by the same court in 1896:

“Where the office is to be filled by one authority and the duration of the term is to be determined by another, the declaration of such duration must go before the filling, so that each authority may have its legitimate exercise.” People v. Foley, 148 N. Y. 677, 43 N. E. 171. It was held in that case that: “The legislature cannot extend the term of a town officer after his election, since that would virtually be an appointment to the office during the period of extension.” There were other matters presented upon the argument, but their discussion Avould be of no permanent value, and Ave think the foregoing are sufficient reasons for our conclusion in alloAving the peremptory writ.

Writ allowed.