State ex rel. Birdsey v. Baldwin

Granger, J.

The first question made in this case is, *142 whether the act of March 22d, 1877, is constitutional. It is claimed by the relators that the act is unconstitutional and void, on the ground that the legislature in removing the relators assumed the powers of the judicial department of the state government. We think this claim is not well founded. It nowhere appears upon the record that the legislature assumed any judicial functions; no charges were preferred against the relators, so far as this record discloses, and no trial was had, and there was nothing upon which the legislature could-have acted in a judicial capacity. The legislature acted only in the discharge of its legislative functions in passing the act under consideration. That it had the constitutional right to pass the act we think is beyond question, upon the principle that it is incident to the power of a legislature to repeal all prior laws, except those which are in the nature of grants.

The relators’ counsel also claim that Birdsey and Lake had such a vested title to the office that they could not be removed; but we think they confess away this claim when they say in their brief that “ the legislature has a right to repeal the law, as they are the judges whether a law is necessary, and if the law falls the office falls with it;” but they claim that the law under which the relators were appointed was not repealed by the act under consideration, and that the office of county commissioners for New Haven County was not thereby abolished. The counsel for the defendants claim the contrary, and say in their brief that “ for some reason the legislature was dissatisfied with Lake and Birdsey as county commissioners for New- Haven County, though their terms of office had not expired, and abolished the board of county commissioners as it stood March 22d, 1877; and that this action put an end to their official life.” And again they say: “Having legislated Lake and Birdsey out of office, the General Assembly proceeded by public act and resolution to provide for the appointment of, and to appoint, other suitable persons to act as county commissioners for New Haven County, with all the powers incident to that office.” If the law under which the relators were appointed was in fact repealed and the office *143 actually abolished, then the relators could not successfully claim that they were county commissioners, for, as we have already seen, the legislature may repeal any law, with the exception before stated, passed by its predecessors, and may abolish any office created by legislative enactment.

But has the legislature by the passage of this act accomplished either of the above results ? This is the vital question in the case, and to determine it we are to look at the act itself, in order to ascertain what effect is to be given to it. In the first place, in looking at this act, we observe that it is quite peculiar in its form, and we are confident that acts of this character are unusual in this state. We recall no instance where the legislature prior to this act has undertaken to legislate one board of officers out of office and another board in, before the expiration of the term of office, and we think there is no case in our own reports in which such an act has been brought to the attention of this. court. The first section repeals “ so much of section one, chapter two, title three, of the General Statutes of 1875, as provides that county commissioners shall be appointed for New Haven County,” and abolishes the board of county commissioners for New Haven County. The second section creates a board of commissioners, the language of this section being, “A board of commissioners for New Haven County is hereby created, to be appointed by the General Assembly, and said board shall have all the powers and perform all the duties provided by chapter two, title three, of the General Statutes for county commissioners.” In regard to the last clause of the second section, neither party claims that the powers and duties of the defendants were intended to be limited to those powers aiid duties specified in the section referred to in the General Statutes. The relators allege that the respondents have assumed all the duties of county commissioners, that they lave taken possession of the office, property, books, &c., of the county, and the respondents in their plea allege and admit in substance the same, and claim a right to do so under the act in question. Have these words then in this second section^ “ said board shall have all the powers and perform all the *144 duties provided by chapter two, title three, of the General Statutes for county commissioners,” no significance and no meaning ? It would seem that they must have been used for some purpose, and we think the purpose was to revive the force of the statute, section 1, chapter two, title three, so far as it related to commissioners for New Haven County. ¡¡

We have then this condition of things — an act of the legislature repeals by its terms a certain section of the General Statutes and abolishes a board of officers appointed tinder it, and the same act creates precisely the same board and clothes them with the same powers and duties enumerated in the section repealed. Can this be done? We think not. The act in question contains the elements of its own destruction. It attempts to kill and make alive at the same instant, an impossibility. There must be some appreciable space of time between the repealing act and the re-enactment of the same act. In this case not a second intervened, and there was never a moment when the relators were out of office, or when the office of county commissioners for New Haven County was abolished.

Eor these reasons we advise the Superior Court to render judgment for the State.

In this opinion the other judges concurred.