Constitution of California, art. 6, sec. 5, Wood's Digest, 33; Ib. secs. 3 and 8, gives an analogy. Also, art. 1, sec. 3; art. 4, sec. 3, U.S. Const. as to Senators; art. 4, sec. 5, 6 and 7, St. Const., Hood, 30; Act of 1853, Wood, p. 150, art. 634, is legislative exposition of the Constitution as to vacancies. Art. 5, sec. 8. Pay is pro tem. Art. 6, sec. 15. The tenure of office does not depend upon the commission, but upon the provision of the act creating the office. Fisher ads. The State, 1 McCord, 233.
The first Judges not appointed to the succeeding general election but for two years, why should not the same will apply to all subsequently created districts. Suppose a district created by the second Legislature--how long would the Judge have held? Smith v. Halfacre, 6 How. 582; The People v. Langdon, 8 Cal. R. 12; The People v. Whitman, 10 Cal., Field's opinion; Cases from Dallam. Const. of Texas fixes no time of commencement for terms of Judges. Dangerfield v. Sec. of State, Dallam, 358.
In Bradley v. McCrabb, Dallam, 504, it was a contest for Clerk of the District Court; but the case shows that by the Constitution there was no provision for any time of commencement of the time of office, nor even a provision for a particular time of election.
In Roman v. Moody, Dallam, 512, the contest was in relation to County Clerk, which was created by statute.
No commencement of terms of office is specifically fixed, and the time of the Chief Justice of the counties, the Court say:
" It is simply provided that he shall hold his office for four years, and not that it shall commence and end on prescribed days," & c.
And in Selby v. Johnson, a contest for District Judge, (Dallam, 597) it is again shown that there is not fixed by the Court of Texas, any time of commencement of office, or particular time of election.
And the Court, after quoting from the Constitution the language of tenure, adds: " Nor are there other expressions and terms used, which by implication and construction, can modify the certain and plain intendment of the foregoing declaration."
In Banton v. Wilson, 4 Texas, 400, the only question raised by the record is, whether an election which was ordered, was a regular election, and all else decided in that case is mere obiter dictum. But this case (which was another contest for Clerk) also shows the fact that there is no fixed time in the Court of Texas for the commencement and termination of the office.
And in that case the Court says: " The statutes of 1846 did not prescribe any fixed period for election of county officers after the first election for that purpose in July, 1846."
In Hughes v. Buckingham, 5 Smedes and Marshall, 632, which is relied on by respondent, the case of Smith v. Halfacre is expressly affirmed, both opinions being by Judge Sharkey, and it pronounces that the incumbent has the right to a full term of office as fixed by law, where the statute does not prescribe the commencement or termination of the term.
In the People v. Green, 2 Wend. 266, there was a contest for Sheriff.
The Constitution of New York specifically provided for elections " once in every three years, and as often as vacancies shall happen," and the Governor may remove them at any time within the three years for which they shall be elected.
It is also shown, then, that the statute provides expressly in case of vacancies, for the new officer to hold during the constitutional term.
And it is very explicit that there is no time fixing the commencement and end of the term.
In Coutant v. The People, & c., 11 Wendell, 512, the decision is the same as in the last case from 2 Wendell, and the same reasons apply, and it is sustained in the opinion of the Chancellor by the debates in the Convention which framed the Constitution.
And this case is an authority for following a well matured legislative construction.
And it shows that a provision in the revised statutes pointing explicitly to a different result, was after a strong contest between the two houses, rejected, p. 517.
The case of the People v. Gasy, 6 Carnen, 642, has no relevancy to the subject matter under discussion.
In the case of the State of Ohio v. Neibling, 6 Ohio R., (Citchfield) was a contest for Clerk.
The Court says: " Although the Constitution has fixed the periods for the commencement and termination of many of the officers, yet in regard to the Clerk of the Court, no invariable period of the year is prescribed."
And the Court decides the case in favor of the new term on the ground, that as regards other officers, the Constitution expressly provides for elections to fill the unexpired terms where vacancies occur.
JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J., concurring. Field, J., concurring.
OPINION
BALDWIN, Judge
The record in this case raises the simple question--for what period are District Judges elected under our Judiciary system? It will be seen that there had existed, prior to Judge Norton's incumbency, no term in the office of the Twelfth District Judge. That office was created by the Legislature, in May, 1854; so that the question so much discussed, as to the duration of the period of service of Judges elected before the expiration of six years from the date of the qualification of a predecessor, is not necessarily involved in this decision. The Constitution (art. 6, sec. 1) provides that " the judicial power shall be vested in a Supreme Court, in District Courts, in County Courts, and in Justices of the Peace. " Section 5 provides that " the State shall be divided by the first Legislature into a convenient number of districts, subject to such alteration, from time to time, as the public good may require; for each of which a District Judge shall be appointed by the joint vote of the Legislature at its first meeting, who shall hold his office for two years from the first day of January next after his election; after which, said Judges shall be elected by the qualified electors of their respective districts at the general election, and shall hold their office for the term of six years."
The phraseology of the third section (which relates to the Justices of the Supreme Court) is different from that of the fifth section, especially in this: That after providing for the first election of Justices of the latter Court by the Legislature, it directs " them to be so classified as that one shall go out of office every two years."
It is urged for the relator that the office of District Judge is divided into fixed terms, which are to be considered as distinct entities, independent of the person or number of persons who may fill such terms; that the reason of this was, that system and order may be maintained in elections; that it might be known by the officers and the people of the State when the offices of these Judges commenced and expired; and that therefore, the election to fill these offices should be held throughout the State on the same days. If there be any reason for a constitutional policy of this sort, we are unable to find in the words of the Constitution any indication of it. Certainly, no language is contained in that instrument which by reasonable inference justifies this construction. If the Convention meant to declare that all elections for District Judges should be held on the same day over the State, or that the individual Judges should only hold in certain cases fractions of terms, it would have been easy to say so in unequivocal language. But this is not said; on the contrary, the language is express: " said Judges shall hold their offices for the term of six years." The construction given would require the section to read: " Provided, if a Judge be elected before the expiration of the period for which his predecessor was elected, then such Judge last elected shall only hold for the remainder of the term of his predecessor." The fact that the Legislature is directed to appoint the District Judges for the first two years, does not aid the construction; that provision was only for a temporary organization of the judicial system, until the people had time and were prepared to act.
Nor, if we were disposed to go beyond the words of the Constitution, to find a latent policy which is to control the language, do we see any such obvious reasons for this course as the counsel seems to imagine. For the importance of this principle of electoral uniformity is not very apparent. It is true, it might save some little trouble to the Executive Department to announce at stated intervals all the elections for Judges; but still, this would not dispense with the necessity of giving notice of elections for vacancies. This is, however, a small matter. Nor do we see how it is important to the citizens of Siskiyou that the election of Judges for the Los Angeles District should occur at the same time as that for their own. On the other hand, we think the policy was not to have frequent elections for judicial offices; but that the policy was to give to each District Judge elected a right to hold for six years, and thus to secure the independency of the Judiciary; and it is obvious that this reason applies to Judges whenever elected.
We do not, however, approve of that principle of constitutional construction, which seeks by vague surmises, or even probable conjecture, or general speculation of a policy not distinctly expressed, to control the express language of the instrument; since such a mode would not unfrequently change the instrument from what its framers made it, into what the Judges think it should have been. Chief Justice Marshall, in Gibbons v. Ogden, (9 Wheat. 1) speaking of the Federal Constitution, says " that the framers and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said." " It is true, the spirit of the instrument must be observed; but this spirit is to be collected chiefly from the letter." (1 Story Com. 411; 4 Wheat. 122.) " If," says the Supreme Court of the United States, " the plain meaning of a provision, not contradicted by other provisions in the same instrument, is to be disregarded, because we believe the framers could not intend what they say, it must be one where the absurdity and injustice of applying the provision to the case would be so monstrous that all mankind would, without hesitation, unite in rejecting the application."
The case mainly relied on by the relator is that of Smith v. Halfacre (6 How. Miss. 601). This case evidently rests for support, if it can be maintained at all, upon the peculiar judicial system as fixed by the Constitution and laws of that State. This is evident from the subsequent case of Hughes v. Buckingham (5 S. & M. 648) where it is held that a Clerk of a High Court of Errors, whose office is created by statute for four years, but without any designation of the time of commencement, was entitled to the full period from his assumption of the office. The Court says: " The term of four years relates to the incumbent, not to the office. The office, or the interest in it, is not divided into periods of four years each. * * If the incumbent should choose to abandon or forfeit his interest, the term of his successor commences as soon as he may be designated by the Chancellor, and the law or the grant gives him the full term; not a remnant of what had been abandoned by his predecessor." " The case of Smith v. Halfacre (6 How. 582) decides the principle now involved. The great struggle in that case was to show that no period was fixed by the Constitution for the commencement of the Judge's term of office, and that he was therefore entitled to hold for the full period of four years from the time of his election. And it was fully conceded by the Court that this would have been the result of an omission to designate the commencement of the term. But we held that, on a fair construction, the Constitution did provide for the beginning and the end of the term." Now, the Constitution of this State does not fix the time of the commencement of the term of the District Judges--this may be fixed by the Legislature, and has been done by our statute. (See 6 Ohio, The State v. Niebling, 43.)
But if the case were in point, however great our respect for the Court deciding it, we should be constrained by the weight and number of opposing authorities, to disregard it. The principle which we have adopted is sanctioned by the following cases: 6 Ohio, supra , 5 S. & M. 648; Banton v. Wilson, 4 Texas, 400; Shelby v. Johnson, Dallam, 597; Roman v. Moody, Ib. 597; Bradley v. McCrabb, Ib. 512; People v. Gary, 6 Cowen, 442; S. C., 9 Cowen, 640; 1 McCord, 151; People v. Green, 2 Wend. 266; Powers v. Hunt, 2 Hump. 24; People v. Contaub, 11 Wend. 132; Ib. 512; Marshall v. Howard, 5 Maryland, 431. The provisions, constitutional or statutory, construed in some of these cases, are identical with those we are construing, and they all maintain the same or an analogous principle. In 2 Hump. especially, the language of the Court is singularly applicable. Judge Green says: " To preserve uniformity in the appointment, at the same time, of officers of the same grade throughout the State, would be a matter of small moment and no practical utility. But if it were a matter of greater importance than it is supposed to be, it would be unattainable. New counties have been admitted, and will continue to be constituted; the organization of which, by the election of county officers, would necessarily mar the supposed beauty and harmony which would result from preserving the term of office entire," etc.
The only remaining question is, whether the relator is entitled to a commission for the office to commence in January, 1861, after the expiration of Judge Norton's term. The statute under which the relator claims, is in these words: (Wood's Dig. 150, art. 634, sec. 14) " The District Judges shall be chosen by the qualified electors of their respective districts, at the general election in the year 1858, and at the general election every six years thereafter, and shall enter upon their duties on the first day of January subsequent to their election."
The statute, so far as it affects the election of 1858, only applies to such offices as were to become vacant in January, 1859, and this is evident as well by the terms of the Act as the unreasonableness of supposing that the Legislature meant to authorize an election several years in advance of the time when the office was to be filled.
Judgment affirmed.
CONCUR
FIELD
Field, J. I concur in the judgment.