State v. Highfield

Pennewill, C. J.,

dissenting in the court below: I cannot concur in the majority decision reached in this case.

I feel bound by the opinion given to the Governor by all the Supreme Court Judges in 1910 on a question admittedly identical with the one involved in the present case.

That opinion was accepted as the law of the State at the time, and has been generally recognized as such until the present case arose. Indeed, I have never known it to be questioned before.

It is apparently thought now by some persons that the opinion referred to was given hastily and without proper consideration. My recollection of what occurred at the time is clear enough to warrant my saying that the question submitted by the Governor received the careful and conscientious consideration that one coming from *281such a source deserved. Argument by counsel was not deemed necessary.

The. constitutional provision upon which an opinion was requested was so plain and unambiguous on its face that there did not seem to be any good reason for delaying the answer.

The point considered was the meaning of the Constitutional provision in question and not its possible effect. If it was mistaken or unwise it was conceived to be the province of the people and not of the judges to correct it. Other words were not read into the provision—the third paragraph of section 9 of article 3 of the Constitution—so as to make it harmonize with the general intent of the fundamental law respecting the election of public officers and the filling of vacancies.

The second and third paragraphs of section 9, provide as follows:

“He [the Governor] shall have power to fill all vacancies that may happen in elective offices, except in the offices of Lieutenant-Governor and members of the General Assembly, by granting Commissions which shall expire when their successors shall be duly qualified.
“In case of vacancy in an elective office, except as aforesaid, a person shall be chosen to said office for the full term at the next general election, unless the vacancy shall happen within two months next before such election, in which case the election for said office shall be held at the second succeeding general election.”

The question in dispute in the present case is: Whether the concluding and qualifying part of the third paragraph means what it says, and is applicable to a vacancy in any elective office which the Governor is authorized to fill and which happens within two months before the next general election; or whether it applies only to a vacancy that happens in the first two years of a four-year term. The respondent would so limit its application notwithstanding its unmistakable language, and insists that any different construction would be inconsistent with the fundamental theory of the Constitution and the obvious intent of said section.

The question, narrowed down, is this: Whether the general intent of the second paragraph of section 9 is qualified by the express exception contained in the third paragraph in the way its *282language clearly imports. Did the Constitution makers intend what the qualifying words obviously mean, or did they intend what the respondent contends for in this case?

The respondent’s argument is based very largely on the unfortunate results that might follow from a strict and literal interpretation of said concluding words. It seems to me that such an argument should not have weight when the language of the constitutional provision is clear and its meaning plain. ■

Because of the words in the last clause of said third paragraph of section 9, the Supreme Court Judges in 1910 did not confine its application to the first half of a four-year term, but expressed the opinion that if the vacancy occurred, even in a two-year term, within two months before the next general election, a person should be elected to the office, not at the next general election, but at the second succeeding general election.

There were able lawyers in the Constitutional Convention, and presumably they had something to do with framing the provision the meaning of which is now in dispute. Their intention, as clearly expressed, was to provide for a rare, difficult and perhaps embarrassing situation, that would arise if an elective office should become vacant a very short time before the next election. In such case it was provided that the election of a successor should be postponed until the second succeeding general election, trusting the Governor to fill the vacancy in the interim. There is nothing in the provision which shows that the Constitution makers intended to restrict its application to the first half of a four-year term. It might be better if it could be so construed but that seems impossible without reading into the provision other and restrictive words.

It is true that the Supreme Court of Pennsylvania has, in one or two cases, so construed a constitutional provision very similar to our own, but it is not certain it would have done so if the court had been confronted with a unanimous decision directly contrary to their conclusion by the same highest court or all the judges thereof.

The unanimous opinion of the chancellor and law judges of our Supreme Court, expressed to the Governor in 1910, has been *283acquiesced in by the people of the state for almost twenty years, and I cannot agree at this time, in this case, and in this court, that it shall be disregarded.

Harrington, J.,

delivering the opinion of the Supreme Court, the case having been argued in that court before Wolcott, Chancellor, and Rice and Harrington, J. J.:

The question to be determined is whether Mr. Highfield was legally elected to the oEce of Register of Wills for New Castle County for a four-year term, beginning in January, of 1927, at the general election held in November, of 1926, or whether by reason of there being no constitutional provision for an election at that time Mr. Smith was legally elected to that oEce in November, of 1928, and is now entitled to the possession of such oEce.

The determination of this question depends upon the proper construction of the Constitution of 1897. Its provisions were carefully considered in the majority opinion filed by the court below and it is doubtful whether anything of any substantial value can be added to that opinion.

The constitutional provisions particularly in point are section 22, article 3; section 1, art. 5; section 9, art. 3, and section 8 of the schedule.

Section 22 of article 3 provides:

“The terms of office of Prothonotaries, Clerks of the Peace, Registers of Wills, Recorders, Registers in Chancery and Clerks of the Orphans’ Court shall be four years; and the terms of office of Sheriffs and Coroners shall be two years. These officers shall be chosen by the qualified electors of the respective counties at general elections, and be commissioned by the Governor.”

Section 1 of article 5, provides:

“The general election shall be held biennially on the Tuesday next after the first Monday in the month of November, and shall be by ballot. * * *”

Section 9 of article 3 consists of four paragraphs, of which the second and third only are material.

*284Paragraph 2 provides:

“In case of vacancy in an elective office, except as aforesaid, a person shall be chosen to said office for the full term at the next general election, unless the vacancy shall happen within two months next before such election, in which bers of the General Assembly, by granting Commissions which shall expire • when their successors shall be duly qualified.”

Paragraph 3 provides:

“He [the Governor] shall have power to fill all vacancies that may happen in elective offices, except in the offices of Lieutenant-Governor and memcase the election for said office shall be held at the second succeeding general election.”

Section 8 of the schedule annexed to the constitution, provides:

“The terms of office of all State and County officers made elective by this amended Constitution shall commence on the first Tuesday in January next after their election, unless otherwise provided in this amended Constitution or Schedule.”

Section 21, art. 3, also provides:

“The terms of office of the Attorney-General and Insurance Commissioner shall be four years; and the terms of office of the State Treasurer and Auditor of Accounts shall be two years. These officers shall be chosen by the qualified electors of the state at general elections, and be commissioned by the Governor.”

Under the constitution of 1831, for which the present constitution was substituted, county and state officers were appointed by the Governor. Section 8, art. 3.

Some few exceptions to this rule were specifically provided for (section 3, art. 7), but by its general scheme it provided for the selection of state and county officers by appointment and not by the direct vote of the people.

From the sections above quoted, it appears, however, that this procedure was radically changed by the present constitution, and that its general scheme provides for the direct election of both state and county officers instead of their appointment by the Governor. While the terms of such officers vary somewhat in their length, it clearly contemplates their election at general elections in orderly succession for the terms provided for; such terms to begin on the first Tuesday in January following their election.

*285The present constitution, therefore, contemplates the election, at general elections, of Registers of Wills in orderly succession for four-year terms; such terms to begin in the month of January following their election. Section 22, art. 3; section 8 of the schedule.

While regular biennial general elections were provided for, the framers of the Constitution naturally realized that interruptions in its general scheme, with respect to offices, would necessarily occur from time to time, by reason of death, removal, resignation and the like, and at times when the vacancies caused thereby could not be immediately filled in the regular manner.

For the convenience of the public and to prevent any interruptions in the transaction of public business, with the exception of two offices, one of which is to be filled by special elections, paragraph 2, section 9, article 3, therefore, provides that such vacancies shall be filled by the Governor by áppointment.

Bearing in mind that the Constitution not only provides for biennial elections but for offices having two, as well as four-year terms, vacancies in such offices may, therefore, occur within two months next before a general election in the first two years of a four-year term, within two months next before a general election in a two-year term, or within two months next before a general election in the last two years of a four-year term.

The argument made on behalf of Mr. Smith is based entirely on the last clause of paragraph 2, section 9, art. 3.

His counsel contend that the provision in question is plain and unambiguous, and that there is nothing, whatever, to limit its application to any particular class of vacancies.

They further contend that as the death of Isaac R. Brown, Sr., took place within two months next before the general election of November, 1926, this case comes within the strict letter of that provision, and that no election for such office could, therefore, be legally held until the general election of November, 1928, at which time it is conceded that Mr. Smith received a majority of all the votes cast for the office in dispute.

If this contention be correct, it necessarily follows that the vacancy caused by the death of Mr. Brown was not confined to the *286expiration of his regular four-year term but extended to the January following the general election of 1928 and that the whole of such vacancy should have been filled by the Governor by appointment.

The argument made on behalf of Mr. Highfield is that section 9, article 3, was merely intended as an auxiliary or supplemental provision to sections 21 and 22 of article 3 and must be given a construction consistent therewith and not at the expense of the rights of the electorate over those of the Governor.

In its final analysis, the question for us to determine, therefore, is whether the clause relied on by Mr. Smith was intended to apply to a vacancy occurring in an office in the last two years of a four-year term, and within two months before the ensuing general election.

If it does not apply to such a vacancy, the general constitutional scheme for the election of state and county officers in orderly succession by the people could be defeated indefinitely by resignations of such officers within two months next before a general election at which their successors in the natural course of events would be elected.

Supplementing his contention that the language of section 9, article 3, is plain and unambiguous and not in conflict with any other provisions of the Constitution, the relator contends that it is not within our province to consider the result of giving such a provision its 'ordinary and natural meaning. Greencastle Twp. v. Black, 5 Ind. 566; Spencer v. State, 5 Ind. 41; Cooley’s Const. Limitations (6th Ed.), page 87, note.

This rule can, however, have no application where the language in dispute, when read in connection with the entire instrument, is capable of more than one construction. It is a fundamental rule of constitutional construction that if the general purpose of the instrument as a whole can be ascertained, the language of particular provisions mus^, if possible, be construed with reference to that purpose, and so as to subserve it. Knox v. Lee, 12 Wall. 457, 531, 20 L. Ed. 287; Prigg v. Pennsylvania, 16 Pet. 539, 10 L. Ed. 1060; 12 C. J. 703. Thus particular language may *287receive a color from the entire context in which it is found, which but for such context, would be absent from it.

If it is possible to do so, the vacancy clause (section 9, art. 3) must, therefore, be construed in harmony with the general scheme of the Constitution.

Both paragraph 2 of section 9, art. 3, and the first or main clause of the sentence in paragraph 3 of that section are perfectly consistent with the general constitutional scheme, providing for the election rather than the appointment of both state and county officers.

Paragraph 2 provides, in substance, that in case of a vacancy in an elective office, the Governor shall fill such vacancy by appointment, but that the term of his appointee shall expire when his successor “shall be duly qualified.”

One of the chief qualifications of his successor necessarily is his election to such office by the people. The first or main clause of the sentence in paragraph 3, therefore, provides:

“In case of vacancy in an elective office, * * * a person shall be :hosen to said office for the full term at the next general election;”

and this has been construed to mean the next general election in point of time. State v. Hart, 3 W. W. Harr. (33 Del.) 15, 129 A. 691.

Instead of being intended to limit sections 21 and '22" of article 3, both of the above provisions of section 9, art. 3, would, therefore, merely seem to apply to vacancies in unexpired terms and for the filling of which no other provision has been made by the Constitution.

What is there to indicate that the word “vacancy,” as used in the last or subordinate'clause of paragraph 3 of that section is inconsistent with the same constitutional scheme, and, therefore, should be given any other construction?

The words “at the next general election,” above quoted from this paragraph, are followed in the same sentence by the words “unless the vacancy shall happen within two months next before such election, in which case the election for said office shall "be held at the second succeeding general election.”

*288In the absence of.anything indicating a contrary intent, it is a general rule of construction that where the same word or phrase is used on more than one occasion in the same instrument, and in one instance its meaning is definite and clear and in another instance it is susceptible of two meanings, there is a presumption that the same meaning was intended throughout such instrument. Lewis, South. Statutory Construction, vol. 1, § 399; James v. Dubois, 16 N. J. Law 293; State v. Skeggs, 154 Ala. 249, 46 So. 268; N. Y. Central R. R. Co. v. Lazarus (C. C. A.), 278 F. 900; 12 C. J. 706.

While the application of this rule necessarily depends upon the language of the instrument, taken as a whole, and, therefore, upon the facts of each case, when applicable, it would seem to be particularly pertinent to the use of words in the same section and even in the same paragraph and sentence. Silvia v. Scotten, 2 W. W. Harr. (32 Del.) 295, 122 A. 513, minority opinion.

There is nothing, whatever, to indicate that the vacancies referred to in the last clause of paragraph 3, § 9, art. 3, were not of the same character as those referred to in the preceding parts of the same section and sentence, and the same construction already placed thereon would, therefore, seem to apply to that clause.

Further than that, the provision in that clause, postponing an election in case of the happening of a vacancy within two months next before a general election and substituting appointment by the Governor therefor, is perfectly consistent with the general scheme of the Constitution.

At the time that it went into effect there were certain statutory provisions for the designation of candidates for public offices to be voted for at general elections.

The provision in question must, therefore, have been because time for the proper selection of candidates to be voted for was deemed essential in cases of unexpected vacancies. There could have been no reason for the insertion of such a provision with respect to the election of a successor where the vacancy occurred in the last two years of a four-year term. The same reasoning would, also, apply to a vacancy occurring in an office having a two-year *289term. In both of such approaching vacancies the ends of the regular constitutional terms would naturally be anticipated by the political parties and by the people themselves, and, as in this case, provision would be made for the selection of candidates to be voted for to fill them. This, however, would not be true as to other and unanticipated vacancies that could not be covered by sections 21 and 22 of article 3.

While there seems' to be very little authority directly in point, the conclusion above indicated has, also, been reached by the courts of last resort of both Pennsylvania and New York. Commonwealth ex rel. King v. King, 85 Pa. 103; People ex rel. Jackson v. Potter, 47 N. Y 375.1

The relator very largely bases his contention on an advisory opinion involving a similar question given by the then Chancellor and Law Judges, to the Governor, in 1910.

While that opinion was contrary both to our conclusion and to that of the majority of the court below in this case, the facts would seem to indicate that the judges who gave it did not have the benefit of the argument of counsel or the citation of authorities on the question before them, and that the rights of the parties were, therefore, not fully presented to them.

Further than that, as was pointed out by the court below, opinions of that -character, in this state, are usually not reported and are not considered to have the binding effect of a judgment regularly entered in a court proceeding. At any rate, feeling as we do, it is our duty to affirm the judgment of the court below; and judgment must, therefore, be entered accordingly.

The limiting effect of the hold-over clause of the constitution (section 5, art. 15] on the happening of vacancies in elective offices in certain cases was considered by the Superior Court in State v. Caulk, 3 W. W. Harr. (33 Del.) 344, 138 A. 354, but as that case was not cited in the argument of this case, it was not deemed necessary to consider it in this opinion.