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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 354 On the 23d of October last, Robert H. Morris, one of the justices of the supreme court, elected in the 1st judicial district, died, leaving unexpired five years and upwards of the official judicial term for which he was elected. At the general election held on the 6th day of November last, a large number of the electors in that district *Page 355 voted for a justice of the supreme court to fill a vacancy, and of the votes so cast, Henry E. Davies received a larger number than any other person so voted for. No notice was given prior to the election, by the secretary of state, or by any other officer, that any vacancy in the office of justice of the supreme court was to be filled in the 1st judicial district at that election. On the 3d of December last, the governor appointed the defendant to be a justice of the supreme court, to fill the vacancy occasioned by the death of Mr. Justice Morris. These facts, which appear upon the face of the complaint, and are admitted by the demurrer, sufficiently present the question now before us, which is, whether the electors of the 1st judicial district, under the circumstances stated, possessed the power of filling the vacancy in question by their votes at the last general election.
Section 13 of article 6 of the constitution is in the following terms: "In case the office of any judge of the court of appeals, or justice of the supreme court, shall become vacant before the expiration of the regular term for which he was elected, the vacancy may be filled, by appointment by the governor, until it shall be supplied at the next general election of judges, when it shall be filled by election for the residue of the unexpired term."
This is the only section which, in direct terms, speaks of a vacancy occurring in either of the offices named; and as the vacancy in question occurred before the expiration of the regular term of the officer by whose death it was occasioned, a case is presented clearly falling within the scope of the section.
It is contended that the whole purpose of this section is to confer a power of appointment upon the governor, and limit the period for which such appointment shall be made, and that the section does not regulate the filling of the vacancy by election. To shape the language used so that it can bear this construction, it is necessary to subject it to great and violent changes. Thus altered, it will read, "the *Page 356 vacancy may be filled, by appointment by the governor, until it shall be supplied at the next general election of judges, atwhich it can be filled by election (after such notice as may be provided by law) for the residue of the unexpired term." Thus read, it does not conflict with the decision appealed from. But it is difficult to conceive that if this was what the convention meant, they would have used the language they have, to convey that meaning. The books will be searched in vain for authority or principle to support such a reading. The language, as it stands, provides for a temporary filling of the vacancy by the governor, and a permanent filling of it by the electors, and quite as plainly for the one case as for the other. It is clear and explicit, and neither requires nor permits any other construction than that which is obvious upon its face.
When such a vacancy is to be permanently filled, it must be "by election for the residue of the unexpired term," not at a special election, nor at a general election merely, but at a "general election of judges." Other clauses of the same article afford us the means of saying what was referred to under this designation. Under § 2, the four elected judges of the court of appeals are directed to be so classified that one of them shall be elected ever second year; and by § 4, the justices of the supreme court are to be classified so that one of the justices of each district shall go out of office at the end of every two years. One judge of the court of appeals and eight justices of the supreme court would thus end their official terms at the close of every second year. An election to fill these places is plainly the general election of judges spoken of in the 13th section. Section 12 of the same article provides that "the judges of the court of appeals shall be elected by the electors of the state, and the justices of the supreme court by the electors of the several judicial districts, at such times as may be prescribed by law." Under this section the legislature had power to fix a different time, for the election of the officers named, from *Page 357 that at which the governor and members of the legislature were to be elected, but they have not hitherto deemed it expedient to do so. Under the provisions of chapter 240 of the Laws of 1847, § 3, those officers are to be chosen at general elections, which are declared to be such as are held at the same time in every county for the election of all or some of certain designated public officers, among whom are named judges of the court of appeals and justices of the supreme court. Section 6 of the same act provides "that all vacancies in any of the offices named" in the last mentioned section, with certain exceptions unnecessary to be noticed, "shall be supplied at the general election next succeeding the happening thereof." By this enactment the legislature have exercised the power which it is claimed they possess, under article 10, § 5 of the constitution, to provide for filling vacancies in office. It applies to justices of the supreme court and to judges of the court of appeals. It happens in the case before us that the election which was held on the 6th of November last was not only a general election, but also a general election of judges. There was, therefore, the warrant both of the constitution and the statute for the electors to proceed to fill the vacancy, if that election was the "next" after the occurrence of the vacancy. I abstain from quoting dictionaries to show how "next" is defined; no plainer term can be used. The election on the 6th of November was certainly the first that occurred after the 23d of October, when the vacancy took place, and it as certainly occurred after that day, unless the position taken by the defendant's counsel shall be sustained. That position was, that the term "next general election" was to be held to embrace not only the actual day on which the voting takes place, but also the preceding period in which the preliminary notices are by law to be given by the secretary of state, where such notices are directed. If this be so, then as to some officers the election begins on the 1st day of September at latest, and as to others on the 15th day of October. *Page 358 (1 R.S., 4th ed., 339, 340, §§ 2, 4.) Moreover, the sections of the statute which direct the secretary of state to give notice and prescribe its terms, recognize the position that the day of election, and not the whole period between it and the last day of notice, is designated by the phrase "next general election." His notice is itself to specify the officers to be chosen "at the then next general election." (Laws of 1847, ch. 240, § 7; 1R.S., 4th ed., 339, §§ 2, 3, 4.) A further and conclusive answer to the position is to be found in the well ascertained meaning of the terms "general election." The election law of 1842 (ch. 130, §§ 4, 5) says, general elections shall be held on the "Tuesday succeeding the first Monday of November in every year; and again, "general elections shall be held for one day only." This expression, which is also found in the Revised Statutes, had been long used in this state before the convention which framed the constitution met; it was then in force as law, and must be taken to have been used by that body in this, which is both its natural and its accustomed sense. It seems to me, therefore, that we are bound to declare that the election at which the relator claims to have been elected was the next general election of judges after the office in question became vacant. Nor does it seem to me that the necessity of this conclusion is at all affected by the fact that the election law (1 R.S., 4th ed., 340, § 4) contains a provision under which, if this vacancy had existed prior to the 15th of October, it would have been the duty of the secretary of state to give notice of the vacancy. Having occurred after that period, no similar duty was by law imposed upon him, or upon any other officer. In the case of a vacancy occurring in the office of a judge of this court, no law makes it the duty of any officer under any circumstances to give notice of the vacancy with reference to an election to fill it. And yet the statute before referred to (Laws of 1847, ch. 240, § 6) directs it to be filled at the next election; and § 10 of the same act, regulates the form of ballots to be *Page 359 given when at a general election one or more vacancies are to be supplied in the office of judge of the court of appeals or justice of the supreme court. Nor is this provision necessarily to be regarded as proving that an accidental omission exists in respect to the filling of the office of a judge of the court of appeals, as to which a notice was at least as proper as in regard to filling the office of a justice of the supreme court. That supposition ought not to be resorted to, except from necessity, because it assumes that the legislature has been guilty of an oversight in the discharge of their duty. The better explanation is that afforded by the fact that the section requiring notice when a vacancy in a district is to be filled, formed part of the election law under the Revised Statutes. At that time there were senatorial districts and congressional districts, each of which fell under its provisions. This section was continued in the revision of the election law of 1847, and it was probably allowed to stand unaltered, as the legislature saw that under it no conflict could arise with § 6 of that act, which provides for filling vacancies in the offices of judges of the court of appeals and justices of the supreme court and others at the next general election; inasmuch as when the vacancy in the office of justice of the supreme court occurred before October 15th, notice could be given, and when it occurred after that time, no law prescribed any notice. This they might reasonably consider good ground for not altering the section in question; because, even where notice is prescribed, no one supposes that the omission to give it will vitiate the election.
Having arrived at the conclusion that the constitution requires the interpretation above given upon the plain meaning of the terms employed, it may be proper to consider for a moment a ground which seems to have pressed with controlling force upon the judges of the supreme court who decided the case at general term; I mean the possible inconveniences which may grow out of the provision as it stands, upon the interpretation we have *Page 360 put upon it, and which we think its language clearly requires. The period has been when an inconvenience which would arise from construing a statute as it stood and as it read, was deemed abundantly to warrant a court to put upon it a strained and unnatural construction, for the purpose of avoiding the inconvenience and substantially conforming the will of the law-makers to the better judgment of the judges. But courts at the present day, both in this country and in England, acknowledge that their simple duty is to strive to ascertain the will of the law-makers from the law itself, and having ascertained it, to give it effect. Courts are not responsible that only wise laws shall be made; they have no power given to them to judge of the wisdom of the legislature, nor to revise and alter that which has been enacted to be the law. (Waller v. Harris, 20 Wend., 561; Vilas v. Jones, 1 Coins., 274; Leith v. Irvine, 1My. Kr., 277.) If these principles are proper to restrain the action of courts in construing acts of the legislature, they certainly, with no less cogency, are applicable to constitutional provisions which, from their greater importance and more permanent operation, must be supposed to have been framed with the utmost circumspection. Upon the construction which we put upon the constitution and laws, the vacancy occasioned by the death of Mr. Justice Morris was proper to be filled by election at the time when the relator claims to have been chosen. Having arrived at this conclusion from the consideration solely of the language of the constitution and the laws, it is gratifying to find, though we do not advert to it as a ground of decision, that the history of the constitutional provision in question, as preserved in the debates of the convention, coincides exactly with the interpretation which its terms impose upon us. Section 13 happens to stand in the very terms in which it was introduced before the convention. Mr. Loomis, on introducing the section, is reported to have said: "It must be obvious that no provision was made for filling a vacancy. He had therefore drawn a *Page 361 section to provide for supplying vacancies," which he read in the words as it now stands. Mr. Tallmadge moved to amend, by striking out the words, "it shall be supplied at," so as to make it imperative to elect a successor at the next general election, and deprive the governor of the power to fill by default. Mr. Loomis explained his object to be to keep the office filled until the votes were counted and the elected judge installed. Mr. Tallmadge withdrew his amendment. After some other propositions, which throw no further light upon the point, Mr. Loomis' amendment was agreed to. (Conv. Debates, Argus ed., 596.)
We are of opinion that the judgment should be reversed, and leave be given to the defendant to answer.
DENIO, C.J., COMSTOCK, SELDEN and HUBBARD, JS., concurred in the foregoing opinion.