Standeford v. Wingate

JUDGE ROBERTSON

delivered the opinion of the court:

This is a litigation between different persons asserting conflicting titles to tbe same municipal offices in tbe city of Lexington — the appellant, Standeford, and appellee, Wingate, each claiming to be mayor, and tbe appellant and appellee, Young, and tbe appellant and appellee, Gibbons, each claiming to be attorney of said city. The city judge decided that Young is city attorney, and Gibbons appealed from that judgment. In a different procedure, the circuit judge having adjudged that Gibbons is the rightful attorney of the city, Young appealed from that decision; and the same circuit court having decided that Wingate is the legal mayor, and Standeford an usurper, the latter appeals from that judgment.

As all the cases were consolidated on the argument in this court, and all essentially depend on the same facts and principles, we will consider them together, and decide them as one and the same case.

The 6th section of the 6th article of the Kentucky Constitution provides, that “ Officers of towns and cities shall be elected for such terms, and in such manner, and with such qualifications, AS MAY BE PRESCRIBED BY LAW.”

The city charter provided for the election of the mayor and subordinate officers of the city on the first Saturday in January in each year, for the term of one year — positively as to the mayor, and constructively as to the others — and declared that the term should commence immediately after the election, and that the elected officers should be installed on the first Thursday thereafter.

A statute of 1864 extended the term to two years, and, on the first Saturday in the succeeding January of the year 1865 the mayor and council were elected according to the provisions of that enactment, Wingate being then and thus elected mayor; and these officers were installed on the first succeeding Thursday. The same statute having provided that the city attorney — instead of being elected as' before, as the Constitution seems to have contemplated, by the popular vote — should be appointed by the mayor and council, they appointed Gibbons the attorney.

In February, 1866, while all these officers were claiming and exercising their respective functions, the Legislature enacted a statute repealing so much of the act of 1864 as extended the term to two years, restoring the term to the period of one year, and providing that the election should be held on the first Saturday in March in each year, instead of the first Saturday in January. And, according to the provisions of this last enactment, Standeford was elected mayor, and Young city attorney; and, on the first Thursday succeeding their election, they, and the new council elected at the same time, were sworn into office; and, assuming to act officially in their respective spheres, were obstructed by the mayor, council, and attorney whom they were elected to supplant, and who insisted, and still urge, that they are the only legal officers during the term prescribed when they were elected. They stake their claim on three propositions:

1st. That the legislative curtailment of the term was unconstitutional, and therefore void.

2d. That the curtailing act fixed no time for the commencement of its operation; and that, as a general statute provided that, in such a case, such pretermitting enactment should not be in force until the expiration of sixty days after its date, there was no law in force authorizing the election in March, 1866.

3d. That the provision that the elected municipality shall be inducted into office on the first Thursday succeeding the first Saturday in January, was not repealed by the act of February, 1866; and that, consequently, Standeford and Young could not be legally installed before the first Thursday after the first Saturday in January, 1867, until which time their contestants will be entitled rightfully to hold on.

These positions will be considered in their numerical order:

1. None of these municipal offices are established by the Constitution, but all depend for their existence on ordinary legislation which created them, defined their functions, and must prescribe their terms of duration. An office established by the Constitution cannot be abolished by the Legislature, nor can an officer’s term, fixed by the Constitution, be reduced or altered by an act of Assembly. But any office established by statute may be abolished by statute, unless it be a contract, which cannot be impaired by legislation. To the mind of any-enlightened jurist, these contradistinctive principles are self-evident; and no'truths have been more clearly established by authority, or more impressively illustrated by American history.

What the Constitution established the Legislature cannot destroy. This fundamental principle' is now universally recognized, and was impressively consecrated by the “ old and new court ” controversy which agitated Kentucky for years, and finally resulted in the triumph of the “ old court ” of appeals, established by the Constitution, over the new court, instituted by a conflicting act of the Kentucky Legislature, attempting to supplant a tribunal .ordained and established by the Constitution, and to substitute a court merely legislative.

But subordinate courts of the United States, as well as of Kentucky, derive their existence from legislative acts, by which alone they must be created, organized, and limited. And the constitutional power of Congress, and of the Kentucky, Legislature, to abolish these respective courts, by repealing the laws creating them, and thereby to nullify the incidental terms prescribed by the abrogated statutes, is unquestionable.'

This last proposition is authoritatively illustrated by the memorable repeal, in 1802, of the act of Congress of 1801 organizing circuit courts, and also by the prescriptive changes' by legislation, of the inferior courts of Kentucky established by statute.

An office established ,and held for the public good is not a contract, nor is its tenure secured by any binding contract; and a legislative office should depend for its tenure, as well as its existence, on legislative discretion. No constitutional truth is more obvious, or has been more conclusively settled in this country.

Legislative offices established for the public good depend on the popular will, and may be abolished or changed for the common welfare; and the incumbent functionaries hold, not by contract, but at the will of the Legislature.

The municipal offices of the city of Lexington, including those implicated in this case, are not established by the Constitution, but depend for their existence on legislative discretion. Even the corporation itself lives or dies by legislative will. Nor does the tjonstitution define the terms of any of those offices. It prudently defers that matter of local interest to the discretion of the Legislature, or the judgment of the people of Lexington.

The argument of this case admits that the charter might be revoked, or the offices otherwise abolished, without any violation of the Constitution.. But, nevertheless, the counsel on one side argue, that, as long as the offices exist, the terms prescribed at the time of election cannot be curtailed during the incumbency of the elected. This we cannot admit. Power to abolish an office is power to abolish or reduce its tenure. The office and its tenure are the constituent elements of the incumbent’s title to the honors and profits. This title ceases constitutionally whenever the office is abolished, and he holds it, therefore, subject to the legislative will; and no office dependent on legislative will should have any other tenure than the same will. The Constitution never contemplated such an absurdity as a constitutional right of holding any such office against the public sentiment and public interest as represented and expressed by their legislative organ; and therefore it does not fix the tenure, but leaves it to be regulated by law, which is the authoritative expression of the legislative will; and, consequently, it provides only that the term shall be “such as may be prescribed by law — ” whenever, of course, the Legislature may choose to prescribe it — there being no limitation as to the term; and had it intended any such limitation, as the law existing at the time of the election, it would have said so, instead of saying “for such terms as may be prescribed by law.” Then it does seem to us that, as certainly as the whole includes all its constituent parts, power to abolish the whole is power to reduce any of its parts — that power to destroy the principal includes the power to limit the incident — and that power to annihilate the substance, implies the power to diminish the shadow.

The Constitution explicitly fixes the tenure of other offices, even those of constable. Why did it not, in like manner, put beyond legislative control the tenure of these municipal offices? Only because they were chiefly local concerns, which ought to be regulated by the local will, as from time to time announced by the Legislature.

And although the right to enjoy these offices may be property, in a peculiar sense, and to a qualified extent, yet its tenure depends on legislative will, which may either deprive the dependent owner of that property by abolishing the office, or diminish its value by curtailing the term. When the incumbent accepts and holds by such a precarious tenure, no declamation about liberty, security, and the sacredness of property, is either applicable to his case as a functionary, or befitting the occasion of a constitutional abrogation of the office, or a discretionary curtailment of the term for promoting the common welfare. Nor would it have been compatible with the object of the city charter, or the spirit of the Constitution, in deferring the election of all such officers to the local will, to have elevated either the office, or its tenure, or its salary, above the municipal or legislative discretion. (

But, however this may be, the Constitution did not give fundamental fixidity to such offices, nor, consequently, fundamental stability to their tenure. And the argument in favor of the assumed policy of such stability is altogether irrelevant and futile. The sovereign people, when they made their organic law, were the best and only rightful judges of that; and the inherent sovereignty of the people, and especially over their own agents, limited only by that organic law, should not be circumscribed by speculations about policy, or by any doubtful construction of their supreme law.

The value of the qualified property in an office consists of its salary and its duration; and nothing is more conclusively adjudged than that neither element is secured by contract. And it is self-evident that they both depend on the popular will, when, by their Constitution, the people have .not surrendered their own power over them.

In Butler et al. vs. Pennsylvania, the supreme court of the United States decided, that property in a public office, not being derived from contract, the salary and tenure, unless fixed by the Constitution, are subject to the unlimited discretion of the Legislature. And, in that case, both the term and the salary prescribed by statute when an officer was elected had been reduced, so as to diminish his compensation and curtail his term. The same thing was adjudged by the supreme court of Pennsylvania in the Commonwealth vs. Bacon (6 Sergeant and Rawle, p. 322), and in the Commonwealth vs. Mann (5 Watts Sergeant, p. 418), in which the term and the salary of a legislative office having been reduced retroactively, the court say, that, “if the salaries of the judges and their title to office could be put on the ground of contract, then a most grievous wrong has been done them by the people by a reduction of tenure during good behavior to a tenure for a term of years. The point that it is a contract, or partakes of the nature of a contract, will not bear the test of examination.” This decides, that, unless the tenure and salary of an office are tenured by the Constitution, they both stand on the same frail platform of legislative discretion.

And in Taft vs. Adams (3 vol. Gray’s Massachusetts Reports, p. 126), the court decided that the Legislature, during the incumbency of the officer, have the power to “ shorten the term of office,” the tenure of which is not clearly defined by the Constitution. Many other concurrent decisions might be cited. But, on such a question, adjudged cases are deemed unnecessary, except to show that a North Carolina case, hereinafter referred to, is unsupported by judicial concurrence anywhere.

Power over the salary is power over the tenure; and if the salary be reduced or abolished, why may not the term be reduced? Without salary, the term is of no appreciable value; and as to these municipal' offices, the Constitution makes no allusion to salaries. Plow, then, can the Constitution be construed as inconsistently and uselessly fixing the tenure of the municipal offices beyond the discretion which controls the pay?

The only provision on that subject is the section already quoted, the only object of which was to prescribe popular election as the only mode of appointment. The election itself must necessarily refer to some term of service. But this does not imply that the term, whatever it then was, was fixed, by the Constitution. Tbe mere recital in the Constitution of that which would have been implied, cannot limit legislative discretion or add any stability to the term. Had the section even said that the officers should be elected to' hold “ as may be prescribed by law,” there could be no question that the tenure would depend on legislative discretion. The language of the section, as it is, may be admitted to be the same in effect. In neither case would the Constitution guarantee any definite term against the discretion of the lawmaking power, to which it is, equally in each, confided for regulating, without limit, the terms of these officers. “ Such terms as may be prescribed by law” will be so prescribed by any change which, at any time, the Legislature may enact. And whenever or however changed, they will be, as changed, the “terms prescribed by law.” “Elected for such terms as may be prescribed by law,” neither imports a ■ fundamental limitation on the power to prescribe the law of tenure at any time or in any mode the Legislature, in the exercise of a discretion limited only by its regard for the public welfare, may choose to do so, nor a constitutional guarantee that the elected shall hold by any other tenure than the popular will, however and whenever announced in the form of law “prescribed” by the Legislature. This is the literal construction of the Constitution conclusively fortified by its spirit and aim. Any other interpretation would involve the absurdity of making the tenure of an office, while the office exists, more inviolable than the office itself, and the still more flagrant inconsistency of requiring an abolition of the office before the term of holding it shall be curtailed and limited “ as may be prescribed by law.” And if this be so, then, had the tenure, at the time of election, been for the life of the' incumbent, it could not be reduced against his will without abolishing the office, however unpalatable, such prolonged defiance might be to the taxpaying public, or however hurtful to its interests.

And why should the Constitution require the Legislature to abolish a proper office for the sole end of changing its incidental term? There could be no consistent motive for the ridiculous circuity of abolishing an office for the purpose of re-establishing' it only with, a new and more acceptable term. Besides, what the Legislature may constitutionally do indirectly or subterraneously, it must have equal power to do directly and in open daylight.

In every instance in which the Constitution has established an office it has defined its tenure, and thus placed both the office and its tenure equally beyond legislative power. And, as to all offices created by the' Legislature, the Constitution has left the tenure, as well as the office, to legislative discretion, with plenary power to regulate it by ‘“/mo,” without any limitation as to time; and there is no reason for entrenching the undefined tenure of a repealable office against public opinion, popular interest, and legislative power. It seems clear to us that the letter does not so import, and. that the spirit and context discountenance a mal-interpretation so incongruous and illogical.

Within the range of our researches, the only adjudged case which could give any countenance to such an unreasonable doctrine, is that of Hoke vs. Henderson, in which, as reported in 4th Devereux, page 1, the supreme court of North Carolina decided that the term, of a legislative office could not be reduced below that which was prescribed when the incumbent was elected. That anomalous decision, on a Constitution not in all respects identical with ours as bearing on the same question, is not, in our opinion, sustained by consistent argument, which, with all proper respect, we regard as, in principle, afelo de se, even under the Constitution of North Carolina.

This court, therefore, is Satisfied that the act of 1864, providing for the municipal election on the 3d of March, 1866, was unquestionably constitutional.

And were we even perplexed with doubt, as we are not, becoming deference to the intelligence of the Legislature would not allow the judiciary to denounce, as unconstitutional, a deliberate act of legislation. Even the North Carolina court, in the case just cited, announced the same wholesome and conservative sentiment which is stereotyped on the records of every American judiciary.

This opinion renders it unnecessary to décide whether Gibbons, to be constitutionally elected, ought not, like other city officers, to have been elected by the people of Lexington.

The vexation and municipal interregnum resulting from this litigation have hastened our decision, even though there may be doubt whether the burthens of municipal government are compensated by its blessings to such a city as Lexington.

And yet, had no constitutional question been involved, the opinion might have followed the argument without more than one day’s consideration; for ..we do not think that on either of the other propositions there is reasonable ground for judicial difficulty or doubt. And these we will now, therefore, very briefly consider and dispose of.

II. Although the statute of 1864 does not expressly, yet it does constructively, provide that it shall be in force before the election -on the 3d of March, 1866, and long enough before to afford time for giving the required notice of ten days; and we might presume that it was intended, according to former construction, when no day was fixed, to' commence operation from its passage. The legislative intent of a con» stitutional statute is law, whatever may be the phraseology of the enactment; and that intent must' be ascertained by the language, the end, the spirit, and the context.

The provision in this statute for an election under its authority clearly and necessarily implies that it was then to be vital law, operating as legal authority for the election as prescribed by it. And this inevitable deduction is as effectual, and ought to be as satisfactory, as an express, and explicit declaration to the same effect could have been; and it is equally evident that the Legislature intended that it should operate as law more than ten days before the election.

Therefore, the required notice having been given, and the regularity of the election in every other respect not being-questioned, the election on the 3d of March, 1866, was legal, and entitled the persons then elected to assume, on taking the official oath, and to hold for a year succeeding their election, the respective offices to which they were called by the voice of the citizens of Lexington.

III. The statute contemplated the first Thursday after the election as the proper day for qualification and induction. As the term would expire one year after the election,- it was important to fix the inauguration on an early day. For that reason, as all the antecedent elections were on the first Saturday in January, the prescribed time for qualifying was the succeeding Thursday. For the same reason the statute extending the term to two years, and fixing the same day in January for each biennial election, designated the first Thursday for taking the oaths of office. Then, manifestly, the first Thursday after the first Saturday in January was synonymous with the first Thursday after the election: the first Thursday after the first Saturday in January, because that was the day of the election, was tantamount to the first' Thursday after the election. The day of the election being changed by the act of 10th February, 1866, to the first Saturday in March in-every year, and the law fixing the first Thursday after each election as the inaugural day, the first Thursday after the first Saturday in March is that legal day. Any other construction would be inconsistent and suicidal; for, if the first Thursday after the first Saturday in January be the prescribed day for induction, the officers elected in March of each year would hold their offices only about two months instead of a year, and there would either be an interregnum from March till January, or the officers would be elected nearly a year before they could do any official act. We therefore adjudge that the installation of the last elected officers was not premature.

Wherefore (Judge Williams dissenting), the judgment of the city judge in the case between Young and Gibbons is • affirmed; and that of the circuit judge between the same parties, and that also between Standeford and Wingate, are reversed, and these last cases are remanded to the circuit court, with instructions to dismiss the petitions of Wingate and of Gibbons.

CHIEF JUSTICE MAB.SHALL

demverep the eollowing separate opinion:

The offices in question in these cases, though forming a part of the municipal government of the city of Lexington, are not private but public offices, created principally to meet the necessities and convenience of the local community, but forming also a part of the instrumentality by which the power and protection of the State, due to all within its territory, is to be extended to those who are within the particular municipality, and to be exercised for the preservation of their peace and safety, and for the promotion of their convenience and prosperity.

Such offices cannot themselves be the subject of private property. They are essentially public; belong to the public; are to be filled and held by the persons appointed or elected to them for the benefit of the public, whose interest requires the performance of the duties and services which, by the public will, are annexed to them; and it is to have reasonable assurance that these services will be properly performed that such compensation is allowed to the officer as is deemed sufficient -and proper. It is the compensation alone that gives to the office a pecuniary value, and thus imparts to its tenure a semblance of proprietary right. And if the appointment or election to an office could be regarded as creating a contract between the public and the office; that he should hold the office according to the terms, as to time and compensation, which the law prescribed at the time of his election or appointment, the constitutional guaranty .of the contract from legislative' infraction would also be a guaranty of his rights under the contract. But it is well settled that no such contract arises in that way; and therefore', in those cases in which it has been considered essential to the public interest that the officer shall have a right to hold the office-for a fixed period, the Constitution itself, in creating the office, has fixed the period for which it is to be held. So, where it has been deemed essential that the compensation of particular officers, as fixed when they take the office, shall be assured to them during their continuance in it, the Co.- stitution has prohibited the diminution of it during th. t period. These provisions are restrictions upon. the legislative power; and there are no such restrictions with regard to municipal offices, which, by the sixth section of the sixth aiiicle of the Constitution, are to be filled by officers to be “ elected for such terms, and in such manner, and with such qualifications, as may be prescribed by law.”

The general power of the Legislature to create axid to alter the municipal governments of cities and towns, to determine from time to time of what offices they shall consist, and to abolish such as in its opinion may be dispensed with or better supplied by othex-s which it may create, is not denied; and that it may, from time to time, fix or alter the terms for which, the qfficers are to be elected, and fix. or alter the compensation to be received for their services, or evexi delegate this last power to some department of the municipal government itself, is also evidexxt.

These powex-s, it is true, should always be exex*cised with a view to the interest of the local and general public, and we should not deny, that, in legislating for the promotion of the peace and prosperity of the local community, the feelings and judgment of that community should be to soxne extent regarded. The presumption must be that the Legislature, in exercising its discretion in relation to the municipal offices, acts with a view to the public good; and the question now presented is, whether a legislative act which shortens the terms for which certain officers were elected, under a previous act which had itself lengthened prospectively the pre-existing and long-established terms of the same offices, shall be deemed unconstitutional and void, because the incumbents under the preceding statute must, before the expiration of the terms as fixed by the said preceding statute, yield the offices to persons elected under the more recent act.

The idea of a contract being put out of the way, the objection made to the recent statute is, that it deprives the officer^ previously elected of their property or vested rights, and is, on that ground, unconstitutional. But, although the incumbents had, at all times, a vested right in the compensation previously earned, which may be regarded as px’operty of which they could not be deprived without consent or compensation, I cannot perceive how the incumbents of offices which are created and exist, not for their benefit, but for the benefit of the public, which the Legislature may abolish at will, and the emoluments of which may, at any time, be reduced at the legislative discretion, can have a vested or absolute right to be regarded as property, either in the office or in the term yet unexpired, or in the future compensation or emoluments for services not yet performed.

The right to an office is but the right to perform the duties pertaining to it, and to receive the appointed compensation therefor. As this right cannot exist in any incumbent beyond the term for which he was elected, and as, even during the continuance of the term, the duties of the office may be changed, and the compensation of the officer may be reduced, or the office itself may be abolished, whereby the term is necessarily cut off, and the right of the incumbent to perform the duties of the office is abruptly terminated, it is clear that the election of the officer, though in terms'it be to hold the office for a stated period, still leaves in the Legislature the power to be exercised at any time according to its own discretion, not only of regulating the duties and emoluments of the officer, but of annihilating the office itself, and with it the term and all future rights of the officer as such. The tenure of these offices is limited to a term and to a succession of terms, not for the benefit of the' officer, but obviously for the benefit of the public,.and to the end that the successive .incumbents may be frequently subjected to the peremptory judgment of the public which is interested in the performance of their duties. The power of prescribing the terms for which municipal officers should be elected having been committed to the Legislature, it belongs equally to every succeeding Legislature. If, therefore, the first Legislature which acted on the subject had directed, that, at the first and each successive election, certain of these officers should be.elected for ten years, and others for shorter periods, the succeeding Legislatures might unquestionably have shortened such of the terms as they deemed too long, by fixing an earlier time for the election and induction of successors to the same offices; unless by the election for a term, the first incumbents would have had such an absolute right in the offices for the entire period or term for which they were elected, as could n'ot be destroyed or impaired during that period by legislative act. But as the right of the incumbents, whatever may be its precise character, is too feeble and uncertain to preserve, on the ground either of contract or of property, the office itself from repeal, and their right in it from destruction by the Legislature, before the end of the term, my mind cannot reconcile with this admitted truth the proposition that the same right is of so firm and stable a character as to be in the constitutional sense a property in the office during the term (if the office be so long in existence), and is therefore protected against the abridging of the term by legislative act, which would, if effectual, deprive them of a portion of this property.

If the right in question be property, it is so from the time the incumbent takes the office under an election for a term, and it is no more a taking of his property to abridge the term, and thus deprive him of the office before the regular expiration of the term, than it would be to abolish the entire office, and thus to take it from him before the end of the term.

The municipal offices in this, and the terms for which they are to be held, being subject to the discretionary regulation of the Legislature, I am of opinion that the election.of certain individuals for terms prescribed by one Legislature, communicates to them no such right in their respective offices as precludes a subsequent Legislature from exercising, with a view to the good of the local community, its discretionary power over the terms or tenure of the same offices; and that although, by the operation of a statute enacted under this power, the incumbents under the' previous law may necessarily be deprived of their offices if other persons are elected to fill them under the new statute, they are not thereby deprived of any right which the Constitution protects from legislative action.

With these views, to which other reasoning might be added, I concur in the opinion that the statute brought in question in these cases does not violate the Constitution, and must therefore have its effect according to the construction given to it in the principal opinion, in. which I also concur.