Brodie v. Campbell

Baldwin, J. filed the following opinion, Cope, J. concurring.

I concur in the opinion of the Chief Justice. I think that the Act of 1854 is to be taken in connection with the general statute of 1853, which provides, in effect, that the appointee shall hold until his successor is qualified. The Act of 1854 provides that the Governor shall appoint some competent person as Judge of the Twelfth District, established by that act, who shall hold office until the. next general election, when a Judge shall be elected by the people. There is no necessary conflict between this act and the general Act of 1853. The last named act was intended to be general in its application. The Act of 1854 is silent as to the time when the Judge elected at the general election should take office. The mere designation of the time of the election, and the provision that the appointee should hold until the election, do not necessarily restrict the holding to the day of election, when we consider that a general act on the same subject exists, providing for the extension of the holding to the qualification of the successor. To work a repeal, the last act must be directly and irreconcilably inconsistent with the first; that is, reading both acts together, effect cannot be given to both: But effect can, in this matter, be given to both. The consequence of the construction contended for by appellant would be to leave an interregnum in this important office, which w'e cannot suppose was designed by the Legislature.

It follows, that, giving effect to the Act of 1853, Judge Horton held, and was entitled to hold, under his appointment until the person elected in September qualified. Horton was chosen at that election. But his term commenced under that election with his qualification. It is unreasonable to suppose that the Legislature designed to fix the commencement of the term at an earlier period than that at which the incumbent could enter upon the office. Some time *23must necessarily elapse before the person elected could get. his commission, and be ready to qualify. This period was, in the nature of things, indefinite, and a variety of causes might delay or accelerate it. The statute has not provided for the issuing of a commission, or the qualification of the successor in such cases at any given time. Prima fade the date of this qualification must be considered a reasonable time to qualify; and the period here taken seems to be in analogy to the time fixed by the Legislature in other instances for the commencement of the terms of Judges chosen at the general election. We do not mean to say that a person appointed to a vacancy may delay to qualify as long as he chooses, and then fix his regular term from the act of qualification; for that would be to perpetuate the office in himself; nor even that the Governor could defer signing the commission for as long a term as he chose; for that would give him the power to prolong the term of his appointee indefinitely; but that the rule in this case is, that the new term commences with the qualification—the modification of the proposition being that this qualification must not be unreasonably deferred; and we think it was not in this instance. We consider the action of the Legislature in analogous cases, in fixing the time for the commencement of a term, as conclusive of the question in this aspect of it.