Langley having died in office in June, 1855, the ensuing town meeting in February, 1856, presented the *Page 372 legal occasion for electing a person to fill the vacancy thus arising. A choice was accordingly made, and Forman being the successful competitor, was elected a justice of the peace of the town of Kortright, to fill the vacancy. No question is made as to the legality of that election, and there can be none. But in the interval between the death of Langley and the occurrence of the town meeting, namely, in July, 1855, the governor had appointed the defendant to fill the vacancy. The terms of the appointment are not stated in the pleadings; but as it could be made, if at all, only under the act of 1849 (ch. 28), it must have been for the period mentioned in that act, that is to say, until the commencement of the political year next after the annual election of 1856. This, if the annual election means the annual town meeting, as is argued, would make the defendant's term of office extend to January 1, 1857, if the appointment is legal. The contest between the parties relates to this period of time, that is, from the aforesaid town meeting in February, 1856, until the first day of January following; the attorney-general maintaining that Forman was entitled to enter upon the office immediately after his election, and the defendant claiming that the election gave him only the right to the office on the first day of January, 1857, some eleven months after the election, when his, the defendant's term would, according to the argument, expire. Upon this, two inquiries are presented: first, whether such an appointment as was made by the governor in this case was authorized by the constitution; and secondly, whether the act of 1849 embraced the case of a vacancy in the office of a justice of the peace. The last question is not material to the decision of the case, unless the first is resolved in favor of the defendant.
The constitutional provisions bearing upon the case, are the following: "The electors of the several towns shall, at their annual town meeting, and in such manner as the legislature may direct, elect justices of the peace, whose term *Page 373 of office shall be four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law." (Art. 6, § 17.)
"The legislature shall provide for filling vacancies in office; and in case of elective offices, no person appointed to fill a vacancy shall hold his office by virtue of such appointment, longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy." (Art. 10, § 5).
Pursuant to the first of these provisions, the legislature had determined that there should be four justices in each town, who are to be divided into four classes, so that one shall be elected in each year. (1 R.S., 111, § 35). Where a justice is chosen for the full term, he is to enter upon his duties on the first day of January next succeeding the election; but where the election is to supply a vacancy, the person chosen is to take the oath of office and enter upon his duties immediately. (Laws of 1829, ch. 356, § 2; Laws of 1830, ch. 290, § 1).
In considering the question of the constitutional power of the legislature to postpone the commencement of the term of office of a person chosen to supply a vacancy in this office, we are to bear in mind that the constitution declares that a person so chosen shall hold for the residue of the unexpired term. If this language is to be understood in its most obvious meaning, there is no authority in the legislature to abridge that residue and deprive the party chosen of a part of it; or to divide it, giving to a person designated by appointment a portion of it, and to the person chosen at the town meeting the remainder. By the system of the constitution, the office of justice of the peace was made an elective office. It was not only elective when a full term was to be supplied, but also when there was a fraction of a term left to be provided for on account of the *Page 374 death, resignation or removal of an incumbent. The only vacancy to be supplied by appointment which could possibly arise, according to these arrangements, would be during the period between the death, c., of the incumbent and the occurrence of the next annual town meeting. It would be preposterous to say that the office was vacant when there was a person at hand who had been chosen by election in the manner required by the constitution, whose term of service had commenced, and who stood ready to serve. In a case which may be supposed, and which is not unlikely to occur, the mandate of the constitution, that a person chosen to fill a vacancy shall hold for the residue of the unexpired term, would, upon the defendant's position, be entirely disobeyed. Suppose the term of Langley to have expired on the first day of January, 1857, Forman, on being elected at the town meeting of 1856, would, according to the constitution, have been entitled to serve during the remainder of the term; but if the defendant's position is sustained, the office during that whole period would belong to a person appointed by the governor. In other words, the election to fill the vacancy, though made according to the constitution, would be wholly nugatory.
But the other provision of the constitution which has been referred to, must not be lost sight of. The legislature is required to provide for filling vacancies in office. So far there is no conflict between the two. If a justice die during the year a vacancy necessarily arises; and without legislative intervention it must continue until the next town meeting; but, under the power above mentioned to provide for filling vacancies, the legislature might properly direct it to be supplied by an executive appointment. Such an appointment would be coextensive with the vacancy, that is, it would extend to the next annual town meeting. This is all that the case would require, and all that could be done consistently with the constitution, unless the power of the legislature is enlarged by the language which follows: "No *Page 375 person appointed to fill a vacancy (in an elective office) shall hold his office, by virtue of such appointment, longer than (until) the commencement of the political year next succeeding the first annual election after the happening of the vacancy." I will assume for the present that the words "annual election" as here used, are to be understood in a general sense, so as to embrace town meetings as well as state elections, according to the exigency of the particular case. The language is not that the person appointed shall hold the office for the period indicated, but that he shall not in any case hold it longer. But it may be said the power is conferred to provide for an appointment which shall continue for the whole time mentioned, and where the power exists the court is not allowed to inquire whether it has been properly exercised in a given case. The argument refers to a sound principle of constitutional law, but upon a question of construction we must look at all the language of the instrument to be construed. The power conferred is to provide for the filling vacancies in office, and it cannot be made to embrace the authority to provide an incumbent for an office not vacant, or for a period beyond the vacancy, unless the intention is clear.
The direction that the incumbent selected to fill a vacancy shall not hold longer than until a certain period, no doubt implies that one may in some cases be appointed to hold until that period, but it does not prove that under all circumstances an appointment for so long a time may be made. Nearly all the offices provided for by the constitution have fixed terms of service. If a vacancy occurs during the term, it is to be filled (if no particular provision for the particular office is made by the constitution itself) pursuant to the provision under consideration; but in the case of elective offices, an appointment to fill the vacancy is so limited in duration as to preserve as far as practicable the elective principle. Except for a consideration to be presently mentioned, the limitation would have been simply until *Page 376 the next annual election. But at the commencement of the government under the constitution, the principal state offices under the former constitution ceased on the last day of the year 1847, and the terms of new state offices commenced on the first day of January 1848. (Art. 14, §§ 1, 3.) The first day of the calendar year was fixed on as the commencement of the political year. The constitution fixed the time for the annual election for the Tuesday succeeding the first Monday of November, subject to be changed by the legislature. (Art. 3, § 9; Art. 14, § 1.) This was the general election at which the principal officers were to be chosen. (Art. 4, § 3; Art. 5, 1-4.) Thus a period of nearly two months intervened between the election and the commencement of the terms of the officers elected. And this feature would continue permanently unless the time for holding the general election should be changed; and as convenience would always require some length of time for ascertaining and making known the result of the canvass of a state election, it followed of course that there would always be a space between the election and the commencement of the terms of office. The method which should preserve the least possible departure from the elective principle would have been to allow the appointment, to fill a vacancy, to extend only to the next general election. But if the regular incumbent died during the last year of his term, there would inevitably be a vacancy in the office for the period between the election and the commencement of the next year, unless an election for the few weeks comprising this interval was allowed. In any case great practical inconvenience would be occasioned by having the term commence immediately after the election. Hence instead of the nearest possible approximation to the elective theory, the convention adopted that which was practically the nearest, by allowing an appointment to fill a vacancy to extend to the commencement of the next political year after the election. Such an appointment to a state office would still be for the vacancy, *Page 377 and would not embrace a longer period. The space of time between the election and the beginning of the next year would be a part of the term of the late incumbent. The appointee would hold to the first day of January succeeding the election, and the person chosen by election would enter into the office on that day. It is apparent that the motives for this arrangement are for the most part inapplicable to the case of justices of the peace who are to be chosen at town meetings. The results of these elections may generally be ascertained without delay. Still the legislature, as we have seen, have adopted the same system in respect to the election of justices for the regular term. Whatever may be the time for holding the annual town meeting, the justice chosen for the full term does not enter upon his office until the commencement of the next year. I do not doubt the legality of this provision for it was a matter of legislative discretion. There was propriety in confining the terms of office to the political year. When, however, the election is to fill a vacancy in that office, the constitution has itself determined the limit of the appointment for the antecedent vacancy, by giving to the person elected the whole residue of the term. This is not at all inconsistent with the powers implied in the fifth section of the tenth article authorizing such appointments to extend to the commencement of the ensuing year. The two provisions, when construed together, as they must be, show that although appointments extending beyond the election may be made in many cases, the office of justice of the peace presents an exception. I am, therefore, of opinion that the provision of the act of 1830, allowing justices elected to fill a vacancy to enter upon the office immediately, was in accordance with the true construction of the constitution, and that if the act of 1849 assumes to take away this right and to allow an executive appointment to be interposed in its place, the provision is a plain violation of that instrument. *Page 378
Having come to this conclusion upon the question of constitutional power, it is not important to decide whether this case of vacancies in the office of justice of the peace is embraced in the act of 1849. The provision is not limited to state officers, as is shown by the exception of the cases of county judge and surrogate, under certain circumstances. I am inclined to the opinion that the words "annual election," as used both in this act and in the tenth article of the constitution, refer to a state election, and that the "town meetings" are not embraced in it. But however that may be, it is plain to my mind that the office of justice of the peace is not within the enactment. In the cases intended to be provided for, the legislature may, by concurrent resolution, remove the person appointed by the governor, whereupon both houses are to appoint a person in his place. Independently of the consideration that it could not probably have been intended to subject a local officer of this grade to such a mode of appointment under any circumstances, the constitution provides that the removal of justices shall be by such court as shall be prescribed by law. It can only be done upon cause shown and after an opportunity of being heard. (Art. 6, § 17). This is a provision intended to secure the independence of this class of judicial officers, and applies as well to justices appointed to fill a vacancy, as to those elected for a full term. The case of a justice of the peace cannot be brought within the scope of the act of 1849, unless the act of 1830, to which reference has been made, is considered as repealed. The provision of the last mentioned act upon the point under consideration, is precise and direct. To hold that it is repealed by the provisions of a general statute, which makes no mention of it, or of the office in question, and which would have an extensive operation without touching this subject, would be contrary to the sound and well-settled doctrine, that repeals of statutes by implication are not allowed, except in cases where the implication is extremely plain. (Dwarris on Statutes, 674). *Page 379
The judgment of the Supreme Court must be reversed, and judgment be rendered for the plaintiff.
JOHNSON, Ch. J., COMSTOCK, PRATT and ROOSEVELT, Js., concurred in this opinion. SELDEN, HARRIS and STRONG, Js., dissented, the latter delivering the following opinion: