
    Supreme Court of Pennsylvania.
    Commonwealth ex. rel. Evans vs. Walsh.
    
      Vacancies — Construction of the Constitution and of the Act of Ylth 0/ April, 1878, in Relation to.
    
    1. — The Act of 17th of April, 1878, entitled, “An act to provide for the division of counties, etc.,” does not create offices for the new county, nor establish a special term of office, but calls into being upon the erection of a county in accordance with its provisions the county offices created by th® constitution.
    2. — In these offices vacancies have happened which it becomes the duty of the Governor to fill by virtue of the power vested in him by the constitution and in accordance with its provisions.
    3. — The Governor's appointees, though filling offices which have never been fi'led, stand upon the same footing as if filling offices which had once been filled and had become vacant by “death, resignation, or otherwise.”
    4. — The constitution has established the unbending rule that three calendar months shall he the shortest period in which to prepare for an election to fill a vacancy, however it may have happened.
    5. — Com. v. Swift, 4 "Wh. 186; Broom v. Hanley, 9 Barr 513; Com. v. King, 4 Norris 103, do not touch the point at issue here.
    March 31st, 1879.
   Opinion by

Woodward, Justice,

On the 17th oí April, 1878, the “act to provide for the division of counties of this Commonwealth, and the erection of new counties therefrom” was passed. Proceedings to provide for the division of the county of Luzerne and the erection of the county of Lackawanna were at once begun. These proceedings were perfected on the 21st ot August, 1878, when the Governor declared by proclamation that a majority oí the votes cast at the election held under the terms of the act on the 13th of August, 1878, had been in favor of the creation of the new county, and that thenceforth in the words of the 9th section “said new county was established, with all the rights, powers and privileges of other counties of this Commonwealth.”

In the 11th section the Governor was required immediately to appoint and commission the officers for the new county, who should continue in office until the next general election, and until their successors should be duly elected and qualified. Patrick Walsh, the defendant in this quo warranto was appointed Surveyor the day the establishment of the new county was proclaimed.

At the general election held on the Stir of November, 1878, the relator Richard Evans received a majority of the votes cast for County Surveyor. The term tor which the defendant was commissioned was “ until the end of the next session of the Senate“and he resisted the relator’s claim to the office because, as he alleged, the election of county officers at the general election of 1878 was undue and illegal. The ground was taken that it had been held in violation of the eighth section of the fourth article of the constitution, declaring that “in any case of vacancy in an elective office, a person shall be chosen to said office at the next general election, unless the vacancy shall hap pen -within three calendar months immediately preceding such election in which case the election for said office shall be held at the second succeeding general election.’’ Less than three calendar months intervened between the date of the defendant’s commission aud the date of the election. Insisting that the office of Surveyor was vacant when he was appointed, the defendant asserted his right to retain it until the final abiournment of the session of the Senate in 1879. The relator, on the other hand,denied that he was such an elective officer as was contemplated in the constitutional provision. He contended that the design of the Legislature in the 11th section of the act was to bridge over the interval between the creation of the county and the next election by directing the Governor to appoint new officers iustead of directing that their duties should be performed by the existing officers of the county of Luzerne. He relied on the second section of the fourteenth article of the constitution requiring that “all vacancies not otherwise provided for, shall be filled in such manner as may be provided by law.”

Invoking that direction as one of the grounds to support his claim, he began this proceeding to obtain possession of the office, and prosecuted it to a judgment, pro forma, of ouster against the defendant.

Was the office of Surveyor of the county of Lackawanna vacant in tire constitutional import, on the 21st of August, 1878 ? The verb “to vacate” in its English form has acquired an active sense through a long period of transition by popular usage and in consequence of its e^rly adoption as a technical legislative and legal term. “To leave empty,” “to cease from occupying,” “to annul,” “to make void,” undoubtedly express the different meanings in which, as a verb, the word has come to be employed. But it does not follow that its derivations have acquired exclusively, equivalent meanings in popular, in legislative, or legal usage. In its original Latin form the word was invariably used to define the state and condition of some exist ing thing at some particular point of time. It had no transitive power, whatever; it meant “to be empty, void or vacaut” to be void oj, liee from or without, to lack or want a thing.” Vacant lands were described as lands that were“uninhabited or uncultivated. ”The Roman law gave the word precisely the same meaning. Vacant possessions were defined by Ulpian in the Pandects to be such as were “free, unoccupied, ownerless.” Dig 3. S. 17. 2. And many of the derivations fiom the English verb retain the exact meaning of the original Latin word. To be “vacant” in its primary sense is to be deprived of con. tents, empty, not filled. The first definition of “vacarí” is “the quality of being vacant, emptiness. The words vacant land, so familiar in the Pennsylvania courts, convey as to description of subject-matter, the precise idea which Caesar conveyed in explaining the public policy of the Suevi. Surrounding their own territories they desired as wide an extent as possible vacarí agros, De Be Gal. IV 3. Usage has warranted the employment of these words in an enlarged and broader sense, but the primary and strictly grammatical meaning which they still retain is identical with their exclusive original signification. The result is that the word “vacancy” aptly aud fitly describes the condition of an office when it is first created and has been filled by no incumbent. The need to strain and torture terms would lie in the opposite direction.

Was the claim of the relator sustained on other grounds ? Wheu the defendant was commissioned, executive, legislative and popular action had established the county of Lackawanna,and with it the office of Surveyor. It was an existing unfilled elective office. The duty of the Governor to fill it was clear. Hederived his original power to appoint from the constitution, and that had authorized him to issue a commission in the event of a vacancy in any elective office. It is true the statute had directed him to appoint the officers of Lackawanna but without that direction, if the offices had been established by special enactment, it would still have been his constitutional duty to issue the commissions. The llfch section directed that the officers appointed by the Governor should retain their places until the next election and until their successors should be duly elected and qualified. Due election and qualification could only result from action in accordance with the constitution and existing laws. If the county had been organized before the 5th of August 1878, the legality and regularity of the election on the 5th of November would have been unquestionable. But until the 21st of August it was uncertain whether the county would ever have existence at all. The proclamation changed what had been a project into a vital actuality. The moment the lile of the county began there came into being the several county offices specified in the first section of the fourteenth article of the constitution. They were not places to be filled by clerks or agents or deputies pío hac vice. They were elective offices and they were vacant. All the conditions under which the constitution makes it the duty of the Governor to select incumbents subsisted. Is it possible that in view of such conditions the Legislature could have the power, even if they had so intended, to take these offices out of the operation of the constitutional provisions? But they could have had no such intention. When the act was passed it was as uncertain that the organization of the county would be perfected three months ■after the next election as it was that it would be perfected three months before. And on what principle can the second section of the fourteenth article apply in any way to this question. They were “vacancies not otherwise provided for” which were to be “filled in such a manner as should be provided by law. But these, vacancies wrere such as had been provided for. They were vacancies in elective offices which the Governor had power to fill. The provisions of the act of the 17th of 'April, 1878, must be construed in connection with the provisions of the Constitution, and the officers of the county of Lackawanna must stand on the same footing as if the places had previously been occupied, and they had succeeded to them by appointment to supply vacancies produced by causes of ordinary and familiar kinds.

It was strongly urged at the argument that no giound of reaf-on or convenience existed in this case to justify an interference with the right of the people to elect their officers in the autumn of 1878. It was said that there was ample time alter the proclamation to select candidates, and to provide that the rights of parties,individuals and the. community should be secured from hazard. It is true that all formal details relating to assessments, revision of lisle, the furnishing ol l allot-boxes and blanks, and the notice to be given by the sheriff, could have been arranged in the interval of seventy-six days. But cases might occur where the interval would be forty, thirty twenty or ten days. And it would be necessary to go into an inquiry in each instance into the adequacy of time to prepare for the election. To guard against a shifting rule like this fortunately for the community and the courts the constitution has established an abiding and pervading system. It was the opinion of its framers that the work of selecting officers for the government of the Commonwealth, and of the counties of the Commonwealth should be carefully and thoughtfully done. Impulse and evil temper will enter into political contests, whatever safe-guards may be thrown around the ballot, and whatever may be the period allowed for deliberation. But the constitution lias established the unbending rule that three full months shall be the period within which to prepare for an election to supply a vacancy, and during which mistakes may be corrected, prejudices may be overcome, ignorance may he enlightened, excitement may be allayed and passions may subside. It has not been suggested that this election resulted in the choice of a Surveyor who was not entirely competent, and did not possess every requisite qualification for the duties of the position. But it has sometimes happened that in haste and under the influence of prejudice very important offices have been filled not only by very incompetent but by very bad men.

It has not been thought necessary to encumber this opinion with quotations from the authorities bearing on this question. They are overwhelmingly preponderant in favor of the position of the defendant, and they have been marshalled with great ability in his counsel’s original and supplemental briefs. Indeed in this connection the Court has pleasure in acknowledging the benefit they have derived Irom the careful, skillful and thorough preparation of this cause by the counsel for both the parties. Asingle remark in regard to some of the cases, of the Commonwealth vs. Swift 4, Wh. 186; Broom vs. Hanley 9, Barr 513, and the Commonwealth vs. King 4, Norris 103, needs only to be made. The only point ruled in the first was that the constitution of 1838 did not create a vacancy in the office of Recorder of Deeds, and that the power remained in the Governor to appoint under the constitution of 1790 until the general election in 1839 In the second it was decided that the death of a person elected to fill the office of Clerk of the Orphans’ Court before he had qualified himself according to law, did not create a vacancy, but the incumbent who was commissioned to fill the office until his successor should be qualified, held over. In the third case the sheriff of McKean county died about three weeks before the general election of 1875, in the third and closing year of his term. And as the people of the county could have devoted the whole of the three years to preparation for the election of his successor, it was held of course that the appointee of the Governor could retain the office only to the time when the new term began in January, 1876. Nothing decided in either of these cases touches the points at issue here.

The judgment of ouster is reversed at the cost of the relator, And it is now ordered, adjudged and decreed that judgment on the demurrer in favor of defendant be forthwith entered. And it is further ordered, adjudged and decreed that the said defendant recovers his costs of said relator, to be levied bv execution, as in cases of debt.
Mercur and Gordon, J. J., dissenting.  