State ex rel. O'Neale v. McClinton

5 Nev. 329

• Court: Nevada Supreme Court
• Decided: October 15, 1869
• Status: Published

Opinions

By the Court,

Whitman, J.:

This proceeding is in the nature of quo warranto, informing that defendant has entered into and usurped the office of District Judge of the Eighth Judicial District of the State of Nevada, and praying his exclusion therefrom.

It appears from the pleadings and evidence that S. H. Chase was duly elected to fill said office for a term ending with the first. Monday of- January, 1870. That on the twenty-seventh of May, 1869, said Chase was under certain statutory proceedings declared insane, and sent to the Insane Asylum at Stockton, California, as by such statute provided; and that upon certificate of such action the Governor of the State, deeming the office vacant therefor, on the fourteenth day of July, 1869, issued a, commission to defendant, who thereunder qualified in legal form, and has since been, and is now, acting as such Judge. The sole question in the case is, whether there was a vacancy to be filled — all the proceedings had being admitted to be formally correct.

The Act followed is entitled “An Act to provide for the care of the Insane of the State of Nevada, and to create a Fund for that purpose.” (Stats. 1869, 104.) The title and text of the statute correspond, and the former fully indicates the entire purpose and object of the latter, which was not intended to result, in any event, in a judicial determination creating a vacancy in any office. Had, however, this been its intention or result it would, as applied to judicial officers, be void, because clearly repugnant to the Constitution of this State. That provides, touching such, thus: Art. VII, Sec. 3 — “ For any reasonable cause, to be entered on the journals of each house, which may or may not be sufficient grounds for impeachment, the Chief Justice and Associate Justices of the Supreme Court, and Judges of the District Courts, shall be removed from office on the vote of two-thirds of the members elected to each branch of the Legislature; and the Justice or Judge complained of shall be served with a copy of the complaint against him, and shall have an opportunity of being heard in person or by counsel in his defense: provided, that no member of either branch of the Legislature shall be eligible to fill the vacancy occasioned by such removal.

Sec. 4. “ Provision shall be made by law for the removal from office of any civil officer other than those in this article 'previously specified, for malfeasance'or nonfeasance in the performance of his duties.”

Such, or similar provisions, at the time of their adoption by the Constitutional Convention of Nevada, were neither 'new nor singular, having been therebefore incorporated in the Constitutions of many States of this Union. That there is a lack of judicial interpretation of, or decision upon their meaning or effect, must be attributed to the fact that the same is clear and evident. When called in question, however, they have 'been held to be exclusive and prohibitory upon the Legislature against the employment of other means for the removal of officers within their purview.

An office presently filled cannot become or be vacant without a removal, either voluntary or involuntary. When voluntary, no judicial determination resulting in vacation is necessary; when involuntary, such determination is essential, unless otherwise provided by the Constitution or laws in pursuance thereof; and in all cases is of that nature by whatever body performed. (Page v. Hardin, 8 B. M. 648.)

In the case of Lowe v. Commonwealth, considering a statute providing for the suspension from office of a county jailer, claimed to be unconstitutional because the Constitution had provided that such officer, with others named, should “ be subject to indictment or presentment for malfeasance or nonfeasance in office,” conviction to vacate the office, the Court, by Chief Justice Stiles, says: “ But the question yet remains to be decided whether the Legislature can prescribe any other mode of removing such officers from office than those furnished by the Constitution, or enact a law whereby such officers may be suspended from a performance of the duties of their respective offices, and deprived of the emoluments of the same, which suspension — so far as the officer is concerned— would be certainly tantamount to a removal. It seems to us that there can be but one view of this question, which is, that wherever the Constitution has created an office and fixed its term, and has also declared upon what grounds, and in what mode, an incumbent of such office may be removed before the expiration of his term, it is beyond the power of the Legislature to remove such officer, or suspend him from office for any other reason or in any other mode than the Constitution itself has furnished. To recognize the existence of such power would be, in effect, to say that these provisions of the organic law of the land are subject to legislative caprice, and to that extent, to defeat and violate the restrictions and safeguards which were inserted in the Constitution in order to give it ■ permanence and stability. The results of such a doctrine might be pernicious in the extreme.

“ The Governor’s term of office is fixed by the Constitution. That instrument likewise provides how he may be impeached and removed, and declares that all impeachments shall be tried by the Senate. Would it be seriously contended that the ’Legislature could, by enactment, subject him to trial for official misconduct in any other mode — as by indictment or presentment in a Circuit Court — and declare that, upon a conviction thus had, his office should be deemed vacant, or that he should be suspended from a discharge of his official duties ? And yet such legislation would be valid if that .department of the government can, at its option, change the provisions of the^ Constitution in reference to the mode of proceeding against the Governor, or any officer whose office is created by that instrument. Or suppose the Legislature should attempt by enactment to empower this Court, whenever in. its judgment the public interests demanded it, to suspend any State officer whose term of office is fixed by the Constitution, and who is subject to impeachment, from the performance of his official duties for such period as the Court might deem proper; would such enactment be regarded as constitutional ? Most 'certainly not. And yet the reverse would be true if the power in question really existed. In our opinion, the fact that the framers of the Constitution inserted in that instrument the several provisions fixing the terms of the offices thereby created, and prescribing the grounds upon which and the modes whereby the incumbents of such offices may be removed, is altogether sufficient to warrant the conclusion that those subjects were fully considered by them, and that they intended by embodying said provisions in the Constitution to make them permanent and fixed, and thus to place the subjects to which they relate altogether beyond legislative control. (Lowe v. Commonwealth, 8 Met. Ky. 237.) How applicable the reasoning of the citation to .the case at bar. See also, as generally touching this matter, Page v. Hardin, (8 B. M. 648); People ex rel. Ballou v. Dubois, (23 Ill. 547).

A reference to the debates of the convention framing the Constitution of this State, will show that the provisions herein referred to were maturely considered, and the consequent inference arises that they were understanding^ adopted.

The argument of inconvenience urged against the view taken by the Court of the Constitution, can have no weight; at most it could only affect a doubtful point, and in every such instance it is the duty of the Court to sustain the statute in immediate question. This is not á case for doubt; the Constitution.is clear and explicit. During the term of office of Judge Chase there could be no vacancy, except upon his voluntary or involuntary removal therefrom. Hé has not voluntarily removed himself, nor has he been removed as the Constitution commands; therefore there is no vacancy, and was none for the Executive to fill. So the commission issued to the defendant was and is null, and the prayer of the relator must be granted, and judgment of ouster with costs be rendered against J. Gr. McOlinton, defendant herein.

It is so ordered.