Commonwealth, Ex Rel., Black v. Fruit

received the highest number of votes cast for the office of jury commissioner in November, 1917.

Respondent's counsel contends that the office of jury commissioner is an office under the constitution, and that respondent's term, by virtue of his election in November, 1913, does not expire until his successor "shall be duly qualified."

In Commonwealth vs. Wise, 216 Pa., 152, the Supreme Court said:

"In construing a constitution, the object is to give effect to the intent of the people in adopting it. Cooley's Const. Lim., 7th Ed. 89.

This is to be ascertained from the instrument itself, and by giving to its words and terms their ordinary and usual signification, unless it appears from the context or entire instrument that another meaning was intended."

The constitution in the enumeration of county officers mentions "commissioners," not county commissioners nor jury commissioners.

It is conceded that this includes the office of county commissioner. Com. vs. Wise, supra. Why this language should be construed to include county commissioners, and to exclude jury commissioners, is not apparent, unless the inference be drawn from the fact that a subsequent section of the constitution provides the manner of electing county commissioners.

It seems that a county office is not defined or determined by its complicated functions, but rather by the fact that the incumbent's duties and election are co-extensive with the county limits.

This doctrine was recognized by our Supreme Court in Taggart vs. Commonwealth, ex rel. Atty. General, 102 Pa. 354. That case involved the question whether the office of city controller, created by the Act of February 2, 1854, P. L. 21, was a county office. The constitution as quoted recognized "auditors or controllers" as "county officers." A vacancy having arisen in said office in Philadelphia, the city councils, pursuant to the provisions of said Act of 154, proceeded to fill it by appointment. The attorney general in the quo warranto proceeding contended that the right of appointment was vested in the governor by the Act of May 15, 1874, P. L. 203, which provided:

"That in case of a vacancy **** in any office created by the constitution or laws of this commonwealth, and where provision is not already made by said constitution and laws to fill said vacancy, it shall be the duty of the governor to appoint," etc.

The Act of March 31, 1876, P. L. 13, provided:

Commonwealth, Ex Rel., Black v. Fruit

"In all cases where a city is co-extensive in boundaries with the county, (which was the case as to Philadelphia), all the officers known therein as county treasurer, city controller, and city commissioners, shall be severally regarded as county officers."

In holding that the city controller was a county officer, and consequently that a vacancy in that office should be filled by the governor's appointment, the Supreme Court said:

"In determining what class of officers should be designated county officers, the convention had manifestly in view those whose duties were co-extensive with the boundaries of the county, and the character of the duties which they performed, rather than the names by which they were called."

The decision of the court that the city controller was in fact a county officer was based upon three facts: (a) The duties of the office were co-extensive with the boundaries of the county; (b) the constitution in its enumeration of county officers included as such in alternative form "auditors or controllers;" (c) declaration in the Act of 1876 that the office of a city controller in Philadelphia should be regarded as a county officer.

In the case before us we have similar facts, viz: (a) The duties of a jury commissioner, being co-extensive with the limits of the county; (b) the office of "commissioners" designated by the constitution as a county office; and (c) the recognition of the office of jury commissioner as a county office by the Act of 1867 by

providing for their election "in the manner

county officers."

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of other

The legislature creating this office having substantially declared that it was a county office, and the constitution adopted subsequent thereto expressly recognizing the right of the legislature to so declare, we do not consider the order in time of conferring the power and its exercise by the legislature as of controlling importance. To the contrary, from the certainty that the framers of the constitution were familiar with the provisions of this general act flows the inference that they used the term "commissioners" advisedly, and in ratification of the declared intent of the legislature to create the office of jury commissioner and provide for an election as "for other county officers."

We are of the opinion there is abundant reason for holding respondent as jury commissioner was a county officer, and therefore that his tenure of office is determined by the constitution under the facts submitted.

The legislature declaring that as jury commissioner he could not be re-elected "more than once in any period of six years" cannot be construed to prevent his holding his office until his "succes

Commonwealth, Ex Rel., Black v. Fruit

sor shall be duly qualified."

The fact that the law declared him ineligible for re-election in November, 1917, is not a declaration that he is ineligible to hold the office he was qualified to exercise under a former valid election, as provided by the constitution, until his successor was duly qualified.

Having concluded that respondent is an officer under the constitution, in determining the tenure of his office the fundamental law if in conflict with the statutory law must prevail.

In Commonwealth ex rel., Broom vs. Hanley, No. 9 Pa. 513, the syllabus states the facts:

"The death of the person elected to fill the office of Clerk of the Orphans' Court, before he has qualified himself accordin to law, does not create a vacancy, but the incumbent who is authorized to hold the office until his successor shall be qualified, holds over."

Upon these facts the Supreme Court said:

"That the respondent is entitled to hold until his successor is duly qualified, are the words of the constitution.

"Was there a successor duly qualified within the spirit of the constitution, is the point on which the question mainly, if not entirely, depends. Being duly qualified in the constitutional sense, and in the ordinary acceptation of the words, unquestionably means that he, the successor, shall possess every qualification; that he shall, in all respects, comply with every requisite before entering on the duties of the office; that in addition to being elected by the qualified electors, he shall be commissioned by the governor, give bond as required by law, and that he shall be bound by oath or affirmation (vide 8th article of constitution) to support the constitution of the commonwealth, and to perform the duties of the office with fidelity. Until all these pre-requisites are complied with by his successor, (for if you can dispense with one, you can dispense with all), the respondent is de jure, as well as de facto, the Clerk of the Orphans' Court."

The foregoing doctrine was cited and approved in Commonwealth vs. Sheatz, 228 Pa. 301.

In Commonwealth vs. Sheatz, supra, the Supreme Court said: "The right of a county officer to hold over 'until his successor shall be duly qualified' was discussed and affirmed. In all our cases where the right to hold a county office was involved, we have recognized the constitutional right of the elected incumbent to hold over until his successor was duly qualified. A county officer is not elected or commissioned for only three years, but for such additional period as may inCommonwealth, Ex Rel., Black v. Fruit

tervene between the end of the three years and the time when his successor is duly qualified. The additional period is, by an express provision of the constitution, as much a part of his official term, as his definite number of years fixed in his commission. When he holds over, therefore, his term is extended in exact compliance with the constitution, and the period during which he holds over is a part of his constitutional tenure. It necessarily follows that no vacancy can occur in a county office so long as the elected incumbent continues to perform the duties of the office. This rule prevails when the officer elected or appointed has for any cause whatever failed to qualify, and is recognized not only in our own but in other jurisdictions of this country. It is the settled interpretation of such constitutional provisions. Of course, in the absence of a fixed and definite term or other constitutional restriction, it is competent for the legislature to authorize a public officer to hold over until his successor is qualified. In such cases, like those where the right to hold over is expressly authorized by the constitution, the additional period during which the incumbent performs the duties of the office is a part of his official term, and there is no vacancy to be filled by the appointing power."

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shall

The constitution provides that "No sheriff be eligible for the term next succeeding the one for which he may be elected," yet the cases cited, Com. vs. Wise, Com, vs. Sheatz, and Com. vs. Hanley, supra, while not directed to the office of sheriff, all seem to justify the conclusion that our Supreme Court were announcing a uniform and unqualified rule as to all county offices.

In Commonwealth vs. Hanley, supra, the Supreme Court said: "It is enough for the incumbent who holds the office by a constitutional tenure, that for some cause, with which he has nothing to do, the requirements of the constitution and laws have not been complied with." See Com. v. King, 85 Pa. 103 (110).

In McKinley's case, 28 C. C. 90, Attorney General Elkin held in a well sustained opinion that the death of the sheriff-elect before he had qualified for his office created no vacancy authorizing an appointment, but that the then incumbent held the office until his successor should be elected.

Our conclusion is, that the office of jury commissioner is a county office under the constitution, and as such its term and tenure is to be determined by the constitution and not by the statute.

Insofar as the constitution is silent concerning the qualifications of this officer, or as to the number of terms he may exercise Commonwealth, Ex Rel., Black v. Fruit in succession, these remained subjects of legislative consideration. In substance the legislature said a jury commissioner should not exercise the duties of that office for more than two successive terms. The legislature as affected by the amended constitution fixed the term of office as four years. So far the statute agrees with the constitution, but the constitution adds to the four years the cognate term or tenure "and until his successor shall be duly qualified."

If a sheriff ineligible under the constitution to succeed himself continues in office until his successor is elected and qualifies, the statutory ineligibility of relator to be twice re-elected in succession as jury commissioner, would require a like construction, and therefore, no vacancy has occurred in said office.

While the case stated does not expressly state that there were only two candidates for jury commissioner voted for at the November elections, 1917, for Mercer County, such is the inference. The respondent, Robert W. Fruit, though apparently re-elected, was not so in law, for the reason that it would be his second reelection within six years, contrary to the express terms of the statute. His disqualification as a candidate, but not as an officer, made his candidacy and apparent re-election a nullity, and left Mercer County with but one jury commissioner elected at the November elections, 1917. This fact, however, did not create a vacancy in the office under the constitutional tenure. Fruit's term of office expired the first Monday of January, 1918, only upon the condition that his successor at the time could duly qualify which due qualification depends upon the election, not the appointment, of a successor.

It appears in the argument of counsel, but not in the case stated, that the court, in appointing the relator jury commissioner as a successor to Fruit, acted upon respondent's concession that his term had expired. While this concession naturally invited the Court's action and led to relator's appointment, yet these facts do not appear in the case stated, and even if so, they are lacking in the formality that would amount to an abandonment of respondent's right to continue in his office.

As indicated, we are of the opinion that the failure to nominate and elect an eligible candidate does not create a vacancy in said office while a properly qualified person is still exercising the duties of said office; hence the appointment of T. A. Black should be vacated, and judgment should be entered in favor of respondent.

Now, November

ORDER.

1918, the appointment of T. A. Black is vacated and judgment is entered in favor of Robert W. Fruit, respondent.