The office of Commissioner of Agriculture is not provided for by t-he Constitution. It is the creature of statute. Before the act of February 18, 1891, the Commissioner was appointed by the Governor, under section 130 of the Code of 1886. Its provisions are, “ The Commissioner of Agriculture is appointed by the. Governor, and holds office for the term of two years, and until h'is successor is appointed and qualified.” Under this statute the Governor, on September 1, 1889, appointed R. F. Kolb to tíhe office. Kolb qualified and entered upon the duties of the office. He was in the discharge of its duties when the statute hereafter copied was enacted, and remained in office without molestation, until the expiration of two years from the date of his appointment.
On February 18, 1891, the act was approved “ To make the office of the Commissioner of Agriculture elective.” Sess. Acts, p. 1213. Its provisions are :
§ 1. “ That the office of the Commissioner of Agriculture be hereby declared an elective office, and that at the gene
§ 2. “ That all laws and parts of laws in conflict with the provisions of this act be, and the same aré hereby repealed.”
At the end of two years from Kolb’s appointment — bo-wit-,. September 1, 1891 — the Governor appointed H. D. Lane to-the said office of Commissioner, who gave the bond and took the oath prescribed by law, and was commissioned as such. He thereupon made a demand in writing on Kolb of “ the moneys, papers, books, and other property belonging to the office of Commissioner of Agriculture.” This demand was refused, and the present proceedings were then instituted for the recovery of the same. The probate court decided that Lane was not entitled to recover, and dismissed his petition. From that decision the present appeal was-taken.
There is no issue of fact presented by the record, but the-determination of the issue before us depends on the proper interpretation of the statutes. Appellant contends that by the terms of the statute of February 18, 1891, the Governor’s right of appointment is not displaced until the time fixed for holding the first election — August, 1892.- The appellee takes issue on this claim, and contends that the Governor’s power of appointment was taken away, eo instanti> by the approval of the later statute.
No general power of appointment has been conferred on the Governor of Alabama, either by the Constitution or by statute. It is not one of the inherent, executive functions, and hence unless the power to appoint is expressed in some statute, it does not exist. So, in this case ; unless the power of appointment conferred by section 130 of the Code remains of force until August 1892, the time for holding the first election under the act of February 1891, the appointment of Lane was without authority and is void.
When an office is not provided lor by the Constitution, but is the creature of statute, there is no element of contract between the officer chosen and the public, or constituent body which confers the office. Being created, and its functions and emoluments conferred, by the legislature, the same body may abolish if, take away or reduce its functions and emoluments, or make any change its wisdom or caprice may suggest, not inhibited by the organic law. — Mechem Pub. Officers, § 465. In Prince v. Skillin, 71 Me. 361, it is said that, “ All offices, except when legislative authority is
The inquiry, at what time the act of February 18..-1891, went into practical operation, is the pivotal question in this case. In ascertaining the meaning of a statute, as of most other writings, the first law of interpretation is that we must search for the meaning in the words employed, assisted, if necessary, by the facts and conditions which existed at the time of the enactment of the statute, or the-making of the contract we are called on to interpret. Intention is not a subject, of proof, in the ordinary sense, but must be gathered from the language employed, and the attendant facts. These, it must be conceded, furnish the safest guide to the end sought for — the ascertainment of the intention with which the act was done. Attendant facts, as well as consequences, may be looked to in the interpretation of statutes. — Endlich on Interpretation of Statutes, §§ 2-15, 251, 258, 264 ; Huffman v. State, 29 Ala. 40 ; Sutherland on Stat. Con., § § 238, 323.
In construing a statute, we should not, unless compelled thereto by unbending language, reach the conclusion that the legislature intended to do an act which would lead to public inconvenience or detriment, to a suspension or failure of official functions, or to a defeat of the object they must have had in contemplation. “ It is always to be presumed that the legislature intends the most beneficial construction of their acts when the design of them is not apparent..”' This was the language of the distinguished Chief Justice Parsons in Richards v. Dagget, 4 Mass. 534. In Somerset v. Dighton, 12 Mass. 383, the court said, “ In some cases the letter of a statute may be restrained by an equitable construction ; in others enlarged ; and in others the construction,
It is said that when words are plain and unambiguous, there is no room for construction. That is true in the sense-intended, but it has limitations. All words spoken in one’s own tongue may, in one sense, be said to be plain anfl unambiguous. It is when combined into sentences that they enter the field of interpretation, and the attendant facts, the consequences then become important factors. We can not. admit there is any inflexible rule, that when words, on their face, and construed by themselves, appear to have a plain meaning, there is then left no field of operation for the doctrine of construction. Nothing is perhaps more frequently misunderstood than language often is, which, at first blush, appears to be plain, if considered by itself. The subject, the occasion, the surroundings and the end to be .accomplished must be steadily kept in view. Language, though plain and unambiguous when considered by itself, has a very different, intent and meaning when employed in certain supposable conditions, from that we would readily accord to it, when expressed with other surroundings and aims. Language is, at best, an imperfect vehicle of thought. Wills and other important documents prepared by the greatest legal and judicial minds of the world, have perhaps given rise to as great contrariety of interpretation, as any other subject of juridical contention. How, then, can we say of any statute which undertakes to modify or change the existing state of things, that we can safely arrive at the intention of the lawmaking power, without considering the status or condition of things to which it relates ? How can we arrive at the
Pursuing the methods suggested, the chances are greatly multiplied that we will be conducted to the goal sought for by all legitimate inquiry — -the ascertainment of the legislative intent. All rules of interpretation are framed with a view to that end. We think the language of the statute we are considering falls very far short of reaching that high standard, which precludes all inquiry into the intention with 'which it was enacted.
But if we are mistaken in our proposition, and the natural interpretation of the statute we are considering be so clear as prima faoie to bar all outside inquiry, this is not absolutely coñclusive. All members of the legal profession will •recall the illustration, stated to be drawn from the jurispru■dence of ancient Rome, which Sir William Biacksfone gives, when considering the rules of statutory interpretation. A Roman edict or law had denounced a heavy penally against any one who shed human blood in the streets of the city. An epileptic fell in a paroxism in the street and blood-letting was resorted to for his relief. The question was, whether this was a violation of the penal law. It was plainly 'within its letter, but was declared not to be wilhiu its spirit. I cite from memory, without assuming to be verbally accurate.
The language of the act of February 18, 1891, is “That the office of Commissioner of Agriculture be hereby declared an elective office.” This speaks in the present tense; and in-as-much as statutes, under our system, go into immediate operation, unless a different intention is expressed, it is held by my dissenting brothers, that the enactment of the statute operated a total repeal of section 130 of the Code of 1886. Let us inquire to what results this would lead, if we must •adopt this construction.
Section 130 of the Code is, as we have said, in the following language: “The Commissioner of Agriculture is appointed by the Governor, and holds office for the term of two years, and until his successor is appointed and qualified.” The most pronounced effect would be to declare that the then incumbent of the office would be ascertained to be -in without any existing authority of law. The office itself,
Even if the repeal of section 130 of the Code be held not to oust the incumbent until the end of his term of two years, the office would become vacant at that time — ¡September 1, 1891. This because, first, the repeal of section 130 would carry with it the repeal of the last clause of that section — Ihe ■clause which declares that the appointed incumbent shall continue in office “until his successor is appointed and qualified.” We have no general provision of that kind, constitutional or statutory, applicable to offices in this State. In the second place, there could as the majority holds, be no special election ordered to fill the office, because the act of February 18, 1891, which it is claimed repeals section 130 of the Code, expressly declares that the election of Commissioner of Agriculture shall be held “at the general election in 1892, and every two years thereafter.” This is the latest expression of the legislative will, and we think necessarily implies that there can be no election till that time.
A third consequence of declaring that section 130 of the Code was instantly repealed by the approval of the act of February 18, 1891, and of the contention of appellee that he rightfully holds over under his appointment of September 1, 1889, until his successor is elected and qualified in August 1892, would be to declare not only that a repealed statute ■secured to him this privilege, but that it secured it to him without an official bond of binding obligation. We say, without a binding official bond, because we approve and will adhere to the doctrine declared in City Council of Montgomery v. Hughes, 65 Ala. 201. We there said, in effect, that the purpose of such clause is to guard against a possible hiatus or interregnum between the termination of one incumbent’s term and the qualification of his successor. This was and is intended to secure continued service in the office, and lasts for only a reasonable time. It was not intended to extend the liability of bondsmen to a term for which they had not contracted to be bound, even though the legislature expressly sanctioned such extension. To enlarge the binding effect of a contract previously entered into, is not alone without the scope of legislative power as to the sureties. It is void as to the principal himself if done without his
There are decisions not consistent with some of the principles declared in City Council v. Hughes, supra. Com. v. Hanley, 9 Penn. St. 513; State v. Lusk, 58 Mo. 333; People v. McIver, 68 No. Car. 467 ; State v. Howe, 25 Ohio St. 588; 18 Amer. Rep. 321; People v. Tilton, 37 Cal. 614. None of these authorities hold that the liabilities of bondsmen can be increased by legislative enlargement of the official term. We think that, on the main point, the case of City Council v. Hughes rests on impregnable grounds, and we will follow it.
‘We have copied the act approved February 18, 1891, in full. It is not in torm an amendment of section 130 of the Code. It, in terms, repeals “ all laws and parts of laws in conflict with ” its provisions. We take it that all will admit this clause accomplishes nothing. The same result would follow if it had been omitted. It repeals, and only repeals laws or parts of laws in conflict with it, and a late legislative enactment always does that. Enactments that are m conflict, or inconsistent with each other, can not both be the law at one and the same time. The later enactment, being the latest expression of the legislative will, is the law; and declaring a rule of action different from that previously prescribed, necessarily displaces and repeals older laws. But, ■whether expressed, as in the statute we are construing, or implied ex necessitate rei, the repeal is only co-extensive with the conflict, or ¿incompatibility.
The caption of the act of February 18, 1891, is in the following language : “To make the office of Commissioner of Agriculture elective.” It contains but one subject, which is clearly expressed in the title. Cons, of Ala., Art. IV, §2. All the affirmative provisions of the statute are strictly in line with the caption. It declares that the office of Commissioner of Agriculture is hereby made elective, “and at the general election in 1892, and every two years thereafter, there shall be elected one Commissioner of Agriculture, whose term of office'shall be two years.” The legislature had but one controlling purpose — to change the mode of selecting the incumbent of the office. That thought was dominant in their minds, and they gave expression to it. But as no general election would be held under our constitution until 1892, no State election could be held to fill the office until 1892, unless the legislature chose to order a special election for the purpose, and they made no such
The whole of section 1 of the act being one continuous sentence, containing only commas in its punctuation, and 1he first half of the sentence making the office elective being connected by the conjunction “and” with the latter part which fixes the time for holding the election, it can not be inferred or supposed that it was intended that the first part should go into immediate effect, and the last suspended until seventeen months afterwards. We know of no rule of interpretation, either of law or grammar, by which one continuous sentence, relating to one single subject, joined together in all its parts by the copulative conjunction, can be so severed as to make one operative presently, and the other postponed, in the absence of express direction to that effect. The principle of interpretation which requires us to give some operation to every clause of a statute, if we can, finds no practical field of operation in the statute we are construing. There is but one sentence, and what is termed a second clause, is only the concluding member of the sentence. The first member makes the office elective, and the second declares when the election shall be held. Beyond this, the statute is silent. The legislature knew there would be a vacancy at the end of the then incumbent’s term. If the intention was to put the statute into immediate practical operation, why did they not make some provision for filling the vacancy they knew would occur ? They expressly ordered an election for 1892. Why were they silent as to an election in 1891 ? Should we not presume that this was intentional ? A specific provision in a statute controls a general provision. Felt v. Felt, 19 Wis. 193; Endlich on Int. of Statutes, §399. Why should not the specific provision, ordering an election in 1892, control the general legal intendment, that statutes take effect from the date of their enactment, unless otherwise directed ? Is not the conclusion strong that it was intended to be otherwise directed in this case ?
To this we answer,
First, such language in a statute would be very unusual, and on its face would bear the semblance of incompleteness. We can not suppose the legislature would enact a solemn statute in such unusual terms. Second, if the enactment had been in that form, it would have been difficult, if not impossible to determine whether or not the intention was to create an additional Commissioner of Agriculture, or to convert the former office into an elective one. What is called by our dissenting brothers the first clause, is the only part of the statute which shows that it refers to the office then and theretofore known as the Agricultural Commission. Its language is “ that the office oí Commissioner of Agriculture be hereby declared an elective office.” The definite article, the, individualizes the subject, and shows the legislature referred and intended to refer to the officer then known as the Commissioner of Agriculture. The word “hereby” imparts no additional meaning to the statute. It means bjr this act, or by this statute; nothing more. The statute would receive, and necessarily receive the same interpretation — accomplish the same result — without it, as it does, or can do with it. Suppose, instead of the language employed, the legislature had said, Be it enacted that the Commissioner of Agriculture, whose office is by'this act made elective, shall be elected at the general election in 1892, and every two years thereafter, &c. Could a different interpretation be put on the language supposed from that properly applied to the statute as it is ? And would any one contend that the words, “ by this act”, had the effect of putting any part of the statute in practical operation, before the time fixed for doing the first practical act under it? We apprehend there could be but one negative answer to these questions.
Let us further suppose that until the enactment of the statute approved February 18, 1891, there had been in this State no such office as that of Commissioner of Agriculture, but the duties of the office, as now prescribed by law, had either not been formulated and assigned, or had been vested
To hold a special election for a State office would cost the State a large sum. The legislature knew this. They must not be presumed to have intended any thing detrimental to the State, or tending to its great inconvenience, unless by their express command they leave us no latitude of interpretation. Is the statute before us of that class ? It mentions only one date — the time for holding the general election in 1892. It is silent on the question of filling the office until that time. We must suppose the legislative mind took in the situation, and that it was manifest that the statute being enacted would create a vacancy at the - expiration of the incumbent’s term, or that he would hold over eleven months, until his-successor was elected and qualified. We can not indulge the presumption that the functions of this important office were intended to be left dormant and without an incumbent for eleven months. They, then, must have expected and intended, either that the Commissioner in office should hold over, or that the statute theretofore in force which made the office appointive, should remain in operation until August 1892, or that the intervening term of eleven months should be filled by special election. They could not have intended a special election, for reasons which we think we have shown. The provisions of the statute repel that interpretation. Expresswm facit eessare taciturn. Can we presume that because they made no such provision, they intended, at once, to so far repeal section 130 of the Code as to take away the Governor’s power of appointment, yet leave it in force and unrepealed to the extent that the incumbent shall continue in office, without bond, until his successor is elected at the general election in 1892, and qualifies pursuant thereto ? Does the language of the statute show that the legislature intended this?. Does not the language of the statute force the conclusion that the intention
We have attempted to show that the interpretation contended for would lead to results at once unreasonable, and, in theory, at least, opposed to the public welfare. The opposite view gives the legislature credit for an intention to inflict no inconvenience or hardship, but to conserve the public interest. ~We have thus the alternative presented to us of following an asserted legal intendment, not expressed in words, which tends to public inconvenience and detriment, or, of declaring that the legislature intended the best conservation of the public interests, and expressed that intention by postponing action under the law until August 1892.
We have contended that the express direction to elect the Commissioner of Agriculture at the general election in 1892, is an implied inhibition of the right to elect before that time. Our dissenting brothers claim that the effect of this argument, if carried to its logical results, will be to deny all right to fill that office by special election for all time. This, because the statute, after directing the election to be held in 1892, adds the words, “ and every two years thereafter.” This we conceive to be an entire misapprehension. There was, until this enactment, no general law declaring this to be one of the elective State offices. The command of the statute we are considering is, that the Commissioner shall be elected “ at the general election in 1892.” If the statute had stopped there, there could have been no subsequent election to the office, because no provision would have been made for it. And a serious question might have arisen, as to the length of the term of the office. The super-added direction to elect every two years thereafter, was necessary to place this office in line with the bulk of the State executive offices, filled by popular vote. That was its purpose,'that the extent of the direction. Being made elective and the elections ordered every two years, and at the same times as the elections of other State officers take place, the consequence
Certain decisions of other courts are relied on in support of the proposition, that section 130 of the Code was immediately repealed by the approval of the act of February 18, 1891. The strongest cases cited are those from Illinois. In that State there is a constitutional provision' that “no public act of the General Assembly shall take effect, or be in force, until the expiration of sixty days from the end of the session at which the same may be passed unless, in case of emergency, the General Assembly shall otherwise direct.” The first case which seems to have arisen under this provision is Wheeler v. Chubbuck, 16 Ill. 361. In that case, as we gather from the opinion, the contention was that part of a statute, less than the whole, became operative before the expiration of the sixty days, by force of a certain expression found in the act. This contention did not succeed. As we understand the ruling of the court, it is rested on two grounds, viz : First, the uniform practice of the Illinois legislature, whenever it was intended to fix a different time from that named in the Constitution for the statute to take effect, to express that intention directly in the statute itself. Second, that this intention, to be effective, must embrace the whole statute, and not a part of it. The principle involved arising, as it did, out of a constitutional provision — a law which the legislature could not change — this, it would seem, should rightfully have exerted some influence. Speaking of the practice of the Illinois legislature, the court said: “Wherever it is designed that a law shall go into force before the -expiration of the sixty days, we universally find a separate clause at the end of the act, of the following purport: ‘This act to take effect and be of force from and after its passage.’ I find one hundred and twenty-seven acts, passed at the same session of the legislature, terminating with substantially the same distinct and unequivocal clause. There is one, ■declaring by a separate and distinct clause, also at the end of the act, that it should take effect on the first day of August. There are two in which it is declared, in a similar way, that they should take effect on the first day of April;
The later case of The Board of Supervisors v. Keady, 34 Ill. 293, is rested oil the authority of the older case of Wheeler v. Chubbuck, and is not distinguishable from it in the principles it declares. We think each of these decisions is eminently sound, when applied to the constitutional principle involved and the facts of the cases before the court. And the cases cited from Missouri and New York we fully approve. None of them, as we understand them, are opposed to the principles herein above declared.
The constitution of Massachusetts contains the following clause: “Each branch of the legislature, as well as the governor and council, shall have authority to require the opinions of the justices of the supreme judicial court, upon any important questions of law, and upon solemn occasions.”
The legislatures of the years 1854 and 1855 proposed amendments of their constitution, which were voted on and adopted in May, 1855. Proclamation was duly made of their adoption, and they thereby became parts of the Constitution of Massachusetts. Those amendments made a radical change in the mode of electing certain State officers, yet, under its provisions, it was not possible to elect those officers, to serve during the year 1856. No provision had been made to meet the emergency, and if the election could not be held under the then displaced clauses of the old constitution, those offices must remain vacant for the year 1856. The governor and council propounded, inquiries to the justices of the supreme judicial court, to obtain their opinions
The following question was also asked : “ Terms of office at present appointed, but by said articies made elective, expiring, can new appointments be made by Governor and ■council, and for what term shall said officer be appointed ? ” •and was answered as follows : “ In case the terms of office of any of the said officers, who hold the .same by appointment of the Governor and council, shall expire before the said offices shall be filled by election pursuant to said articles of amendment, and the laws made pursuant thereto, we are of the opinion, that new appointments can be made by the Governor and council, and for such terms respectively as they would have been appointed for under the constitution and laws as they existed when said ■amendment was adopted, subject only to be sooner determined by the election and qualification of other persons to the same offices, conformably to these articles of amendment, and the laws made pursuant thereto.” — People v. Wilson, 72 Nor. Car. 155; Plumstead Board of Works v. Spackman, Law Rep. 14 Q. D. 878.
It was contended in argument before us, that when (he act to make the office of Commissioner of Agriculture elective was pending before the legislature, an amendment was ■offered, providing thq,t the incumbent then in office should ■continue in office until his successor was elected at the gen
While we do not consider it a legitimate subject, of inquiry in the case we have in hand, it is gratifying to know that in arriving' at our conclusions, we do not run counter to what appears to have been the intention of the legislature.
There is no disagreement among the members of the court-on the proposition that the office of Commissioner of Agriculture was vacant on or from September 1,1891. We differ as to the manner of filling the vacancy. The majority of the-court hold that in the appointment and qualification of H. D. Lane the statutes then of force were conformed to. It-follows, that, in our opinion, the petitioner was and is entitled to the office, with all that pertains to it; and we, therefore, reverse the judgment of the Probate Court.
The decision in the court below was pronounced on the-pleadings. We can not certainly know that no issue of fact can or will arise in the future progress of the case. We therefore remand the cause for further proceedings in the Probate Court.