I fully concur in both the reasoning and conclusion announced in the foregoing opinion.
Dissenting opinion by Mr. Justice Lawbence :
This case is so important, both in its immediate results’ and in the principles upon which its decision turns, that I deem it proper to state briefly the reasons why I can not concur in the able opinion of the chief justice speaking for the majority of the court.
The 12th section of the 4th article of the State Constitution provides, that “ the governor shall nominate, and, by and with the advice and consent of the senate (a majority of all the senators concurring), appoint, all officers whose offices are established by this Constitution, or which may be created by law, and whose appointments are not otherwise provided for; and no such officer shall be appointed or elected by the general assembly.” The 23d section of the 5th article provides, that the “ election of all officers and the filling of all vacancies which may happen by death, resignation or removal, not otherwise directed or provided for by this Constitution, shall be made in such manner as the general assembly shall direct, provided, that no such officer shall be elected by the general assembly.”
The object of this twice expressed prohibition of legislative appointments to office is apparent. It was to guard the purity of the legislature, by taking from it the power of creating lucrative or important places, and bestowing them on personal or party adherents. This constitutional provision should be so construed as best to effectuate its purpose.
The legislature, at its last session, passed an act for the erection of a new State house. It provided that the building should'not cost a sum exceeding $3,000,000, and authorized the expenditure of $450,000 before the meeting of the next general assembly. The fourth section of the act names certain persons as commissioners to superintend the erection, and requires them, before they enter npon the discharge of their duties, to enter into bond to the governor, with approved securities, in the penal sum of $25,000, conditioned for the faithful performance of said duties, and to take an oath that they will well and truly discharge all their said duties as commissioners. The governor is authorized to fill all vacancies occurring in the board, by the appointment of new commissioners who are to hold their places until the next session of the general assembly. The governor is also authorized to remove any commissioner for cause and fill the vacancy. The commissioners have power, in conjunction with the house and senate committee, to determine upon the plan of the building. They are authorized to expend the $450,000, now appropriated, and will have the same right as to all future appropriations until the edifice is completed, unless the law is changed. They are to receive five dollars per diem for their services.
The question, before us is, are these commissioners officers, in the sense in which that term is used in the clause of the Constitution already quoted, and if they are, was the mode of their appointment in harmony with that instrument ?
What is an office ?
Blackstone defines the word as follows: “ Offices are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging.” 2 Com. 36.
Kent gives this definition: “ Offices consist in a right and correspondent duty to exercise a public or private trust and to take the emoluments belonging to it.” 3 Com. 454.
These definitions are not dissimilar, and they are substantially the same which are given by all the authorities. It will be observed that the legal sense of the .term does not differ from its popular use. '
But in some cases which have arisen in this country, where the question was similar to the one now before us, and it was contended, as in the present ease, that the law had not created an office, it became necessary to define the term with more rigorous accuracy. Thus, in the case of The United States v. Maurice, 2 Brock. 103, Chief Justice Marshall said: “ An office is defined to be a public charge or employment, and he who performs the duties of the office is an officer. Although an office is an employment, it does not follow that every employment is an office. A man may certainly be employed to do an act, or perform a service, without becoming an officer. But if the duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters upon the duties appertaining to his station without any contract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.” It will be observed that Chief Justice Marshall has here added, to the elementary definitions of the books, a means of distinguishing a mere employment from an office. The distinction lies in the fact that, in the one case the duty is a continuing duty, and that the place and duties remain though the person dies, or is changed, and this constitutes an office. But when the service to be performed is an isolated one, where the duty is not continuous, as where the legislature authorizes an individual to sell at auction and convey to the highest bidder a piece of land belonging to the State, this is not an office, but a mere employment. The distinction thus drawn by Chief Justice Marshall has been generally adopted by the American courts.
How, if the meaning of the term “ officer ” is truly expounded by the foregoing authorities (and no cases denying its correctness have been cited), the argument is really at an end. These commissioners are executing a public trust of the highest importance; they are clothed with power to expend the public treasure to an immense amount; their duties are continuous, as they are certain to extend over a term of years, and that term will probably be a long one; and finally, though the person die, the place remains, and is to be filled by executive appointment. I have tried in vain to discover how these things do not make an office, if, indeed, words mean what we suppose.
The counsel for the respondents, feeling the difficulty arising from these authoritative definitions, have offered another. They say, in one of their printed arguments, “ an officer, within the meaning and intention of the constitutional provisions, is one who exercises continuously, and as part of the regular and permanent administration of the government, important public powers, trusts and duties by whom the county or State performs its usual political functions,—its functions of government.”
The idea sought to be here conveyed is, that a public trust, no matter how momentous, is not an office unless it is “ a part of the regular and permanent administration of the government.” This definition I consider radically erroneous, and its error is best shown by bringing it to the test of conceded facts. I take, as an illustration, an instance cited in another part of the same argument. The counsel say the legislature of Illinois have repeatedly appointed an attorney, by name, to attend to a particular litigation, and this did not create an office, but a special agency or employment. They also say, that at the last session, the legislature created the place of attorney general and provided for its being filled by executive appointment, and this was an office. But suppose the legislature had expected the State to be largely involved in litigation for the next four years, and that such litigation would terminate within that period, and, acting on this supposition, in creating the place of attorney general,.had provided that it should continue four years and no longer. Counsel would not deny that the legislature had created an office, but yet the office would not be “ a part of the regular and permanent administration of the government.” On the contrary, the place created would be exceptional and temporary. Again, suppose, during the, late war, the State had thought proper to organize a force of home guards, to be made up of men exempt from the conscription of the general government, and had provided in the law that all offices connected therewith should terminate with the suppression of the rebellion, and the force should be then disbanded. Would there have been no offices here, but only agencies or isolated employments ? And yet these offices would not have been “ a part of the regular and permanent administration of the government.” It is plain that, if this definition of counsel be accepted, the legislature could create the most important public trusts, and fill them by its own appointment, by merely avoiding the use of the term “ office ” and limiting the duration of the place or trust. The constitutional prohibition would thus be frittered away.
But, while I deem this definition fatally defective, yet, if I were to accept it, it would not change my judgment that these commissioners are public officers. They are clothed with what the definition terms “ important public powers, trusts and duties,” and these powers, trusts, and duties are “ a part of the regular and permanent administration of the government.” In every civilized and wealthy State, the erection of public edifices for the transaction of the vast business pertaining to the various departments of the government, or for the advancement of public charities, such as asylums for the blind, the insane, the idiotic, the deaf and dumb, or for the benefit of public instruction, form no mean part of “ the regular and permanent administration of the government.” In some countries, what is known as the bureau or department of public works constitutes an important branch of the administration. The State house in question is of course intended to furnish accommodations for transacting the business of the senate and house of representatives, the governor, the secretary of state, the auditor, the treasurer, the superintendent of public instruction, and of the Supreme Court. How, to furnish requisite facilities for the business of these great departments of the government is necessarily a part of “ the regular and permanent administration of the government.” If the legislature should create a board of public works, and should define their duties to be, to build an edifice, first, for the accommodation of the general assembly, and, then, another for the use of the Supreme Court, and to continue until a building had been erected for the convenience of each of the offices above named, with no limit as to time, and clothed with power to expend three millions of the public money, with the probability, drawn from all past experience, that in the end it would amount to a vastly larger sum, it would hardly be denied that such a board had been intrusted with a most important part of the duties of the State government, or that they were officers even in the sense of the definition I am considering. Tet it does not change the principle to call them “ commissioners ” instead of “ the board of public works,” or to direct them to build one vast edifice, whicli shall accommodate all the departments of the State, instead of erecting one for the benefit of each. In the light, then, even of the definition furnished by the counsel for the plaintiffs in error, I am obliged to regard these commissioners as officers.
Various adjudicated cases have been cited by counsel on both sides in support of their respective views. As I desire only to state the grounds of my dissent, I shall not enter into a review of these authorities. In my opinion, while there is some conflict in the cases, the great weight of authority is in favor of the proposition that these commissioners are officers. The leading case upon this subject is that in 2 Brockenbrough, already quoted, in which Chief Justice Marshall held an agent of fortifications to be an officer of the United States. In Shelby v. Alcorn, 36 Miss. 273, a levee commissioner was held to be an officer, and in The State v. Kennon, 7 Ohio St. 546, the same was held as to certain persons authorized by the legislature to appoint commissioners to build a State house. In Dickson v. The People, 17 Ill. 191, this court held a director of .the State asylum for the deaf and dumb to be an officer in the meaning of the Constitution.
Counsel for the respondents have dwelt at some length upon what they term contemporaneous construction, and have cited various acts of the legislature, passed since the adoption of our present Constitution, in which that body has exercised the same power which is challenged in the present case. While many of the acts cited are wholly unlike the one before us, it must be admitted some of them are, in principle, the same. It is urged that inquiry into the constitutionality of the present law is thus foreclosed.
That long acquiescence by all the departments of the government in a particular construction of a constitutional provision should not be readily overturned, is incontrovertible. But to say that the legislature has acquired a prescriptive right to violate a constitutional prohibition, intended as a limitation of its own powers, because, in a few instances it has violated it without exciting sufficient feeling to cause the question to be brought before the courts, is a proposition which, thus plainly stated, counsel would hardly venture to assert. Under such a rule the Constitution would soon become of little worth, as some of its. most important provisions could be abrogated by the very body they were intended to restrain. Our present Constitution had been in force when this act was passed, not nineteen years. If, during that time, the legislature had trans-grossed one of its plain provisions much oftener than it has, does it follow, when the question is for the first time brought before the courts, that these legislative precedents can release the obligation of the fundamental law ? Only in cases of doubtful interpretation are such precedents entitled to grave respect. If the constitutional rule is clear, and its violation plain, the fact that such violations have been repeated is rather an argument in favor of a stern application by the judiciary of the supreme law, when the opportunity is presented, than one in favor of its relaxation. But in all these cases the plain and simple duty of the court is, to inquire how the law is written in the Constitution.
We are told by counsel that the legislature is entitled to great respect from the other departments of the government, and that it is a matter of extreme delicacy to pronounce one of its acts void. We show our respect for the legislature by endeavoring faithfully to apply to the cases that come before us the acts of that body, in harmony with the Constitution. But we sit in this place merely to declare the law, and if legislative enactments are unconstitutional they are simply not the law, and we must so pronounce. That our judgment on matters of this sort should be biased by our respect for the general assembly, I deny. One of the chief reforms sought to be' attained by the present Constitution, as those who were in the State when the convention of 1847 was called will well remember, was to take from the legislature the power of appointing judges, and thereby to render the judiciary more untrammeled in bringing legislative acts to the test of the Constitution. Whatever respect may be due to the legislature, that due to the Constitution is still greater.
But it is urged, finally, by counsel for respondents, that, even if these commissioners are officers, their appointment is not to be considered an act of the legislature alone, but the joint act of the legislature and of the governor, and as much of the latter as of the former. It is thence insisted, that their appointment was not a violation of the Constitution. The argument is sophistical and would sacrifice the substance to the shadow. The object of the Constitution was to keep corruption out of the legislative chambers so far as the strife for legislative appointments might tend to introduce it there. This clause should be so construed as to promote its object. Tet, is it not apparent, that the power of appointment by a bill to be approved by the governor would be in all respects as objectionable and as much within the mischief sought to be cured as an election of officers by a vote? And, indeed, the Constitution seems to have anticipated this position of counsel, for it expressly provides, that “ no such officer shall be appointed or elected by the general assembly.”
Nothing can be clearer than that the convention intended the legislature should have no voice' in filling offices, either by appointment, as in the present case, by an act or bill, or through the medium of an election. It would be a perversion of language to say that the governor has here exercised his appointing power. What right of selection has been offered to him, or what nomination has life made ? A bill is presented to him with the names of certain persons embodied therein, who are to execute the law. He could not veto one section by itself. His only choice was to approve the entire bill, or to return it with his objections. If he failed to do either, the bill became a law in ten days by the mere lapse of time. If he had returned it, a majority vote could have passed it over his veto. It was the legislature, and not the governor, that passed the law, and it was the law that named the commissioners.
I have said all I desire to say for the purpose of showing why, in my opinion, this case should have received a different adjudication. I regret to differ from the opinion of my brethren, whose convictions are as decided as my own; and such is my respect for their opinions, that I have carefully re-examined the entire case. But the more I have reflected upon the questions at issue, the firmer is my opinion that the legislature has plainly violated the Constitution, and that it is our duty so to pronounce. Neither can we be met here by the cry of private rights acquired upon the faith of the law, and to be overthrown by an adverse decision. No such rights have been acquired. A case could hardly arise in which the constitutional question would be less trammeled hy considerations of this character. If a new State house is desirable, another legislature can direct it to he built, but let them do so without trampling upon the Constitution. In my opinion, the judgment of ouster pronounced against the respondents hy the Superior Court should he affirmed.