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  "id": 3284308,
  "name": "In the Matter of the Attorney-General of New Mexico. Territory of New Mexico v. Joseph Stokes and William Mullen",
  "name_abbreviation": "Territory of New Mexico v. Stokes",
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      "In the Matter of the Attorney-General of New Mexico. Territory of New Mexico v. Joseph Stokes and William Mullen."
    ],
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      {
        "text": "Prince, Chief Justice :\nOn the morning of February 14th, 1880, two gentlemen appeared in the district court then sitting in and for the county of Santa Fe, each planning to be attorney-general of the territory and asking recognition as such. The one was lion. Henry L. Waldo, who for a considerable time previous had filled the office of attorney-general, and the other was Eugene A. Fiske, Esq., who presented a certificate of appointment by the governor, dated on that day.\nA formal motion, as attorney-general, was made by one, and objected to by the other on the ground that the former was not rightfully filling that office, in order that the matter might be brought before the court; and thereafter both parties were heard at length on the subject, and by request a number of the counsellors of the court also stated their views, and produced authorities bearing on the question. The material facts, with regard to which there is no dispute, are briefly as follows :\nJudge Waldo was appointed attorney-general in the year 1878, to fill a vacancy occasioned by the resignation of Col. Breeden, the previous incumbent; said resignation and the appointment of Judge Waldo both being subsequent to the adjournment of the legislature of that year. No legislature convened in 1879. The Legislative Council of 1880 finally adjourned about midnight on February 13th, having, failed to confirm the nomination for attorney-gen eral sent to it by the governor. On the morning of Feb. 14th, the governor, alone, appointed Mr. Fiske as attorney-general.\nThree views have been presented to the court, and enforced by argument.\n1. That the governor, alone, had power to appoint Mr. Fiske to fill the vacancy created by the expiration of the term of Judge Waldo ; and that Mr. Fiske is now attorney-general.\n2. That the governor has no power to appoint without the advice and consent of the council, except to fill vacancies resulting from death or resignation; and consequently could not appoint in this case, and that under the circumstances Judge \"Waldo, as last incumbent, \u201cholds over\u201d until an appointment is legally made.\n3. That the governor has no power to appoint under the circumstances; but that Judge Waldo\u2019s term is absolutely limited by statute and has expired; that, consequently, a vacancy exists.\nLet us examine, in the first place, the statutes which relate to the office of attorney-general.\nThe organic act, which established the territorial government, provides as follows:\n\u201c Sec. 8. All township, district and county officers not herein otherwise provided for, shall be appointed or elected, as the case may be, in such manner as shall be provided by the governor and legislative assembly. * * * The governor shall nominate, and by and with the advice and consent'of the legislative council, appoint all officers not herein otherwise provided for; and in the first instance the governor alone may appoint all said officers, who shall hold their offices until the end of the first session of the legislative assembly.\u201d\nThis section is substantially re-enacted in the U. S. Rev. Statutes, being there made applicable to all territories, in section 1857. No such an officer as attorney-general ismamed or \u201c otherwise provided for \u201d in the organic act. ILe is not a township, district or county officer, but a territorial one. As such, therefore, he comes within the scope of the latter half of sec. 8 of the organic act (or Section 1857 of the Revised Statutes), and within that alone. It was suggested in the argument that he was a \u201c district officer,\u201d but the view can hardly be seriously entertained. Under the act of 1859 (Compiled Laws, page 82) the great part of which is still in force, he was the public prosecutor throughout the whole territory, besides being the legal adviser of the governor and other territorial officers. Subsequently (1862 and 1863) district attorneys were provided for, to act in certain districts, but the general duties of the attorney-general as official adviser, etc., have never been disturbed.\nThe legislature, in conformity with the organic act, provided (see Compiled Laws, page 84, sec. 7) that he should be appointed by the governor by and with the advice and consent of the legislative council; and added that he shall hold his office for two years, and until his successor should be appointed and qualified.\n(It is to be observed that the attorney-general mentioned on page 82 of. the Compiled Laws, was an officer created by the Kearney Code, before the organic act, forming the territory, was passed, and not the present official of that name.)\nIt is plain, then, that under section 8, of the organic act, which is the fundamental law of the territory, this officer had to be nominated by the governor, and by and with the advice and consent of the legislative council, appointed. There is but one exception to the strictness of this law, and that is the case of a new territory, in which, m the first instemee, the governor alone may appoint all said officers, who shall hold their offices until the end of the first session of the legislative assembly.\nThe statement of this one case in which the governor can act alone, \u2019 emphasizes the requirement under other circumstances of the concurrence of the council.\nIn 1854, the legislature of New Mexico passed an act, which is reprinted in the \u201c Compiled Laws,\u201d on page 627, which provides that \u201c in all cases wherein the governor is or may be authorized by law to make appointments by and with the advice and consent of the council, he is hereby authorized to make such temporary appointments during the recess of the legislative assembly, to continue until the meeting of the same.\u201d\nIt has been discussed at much length, in the argument, whether this law was within the power of the legislature to pass or not, it being lield on the one side that it was not in contravention, of any provision of the organic act, and on the other that the organic act having stated distinctly the way in which such appointments were to be made, and particularized one single exceptional case in which the governor could appoint without the council, that it was not competent for the territorial legislature to designate a different way, or to add another case in which the executive could act alone.\nIt seems, however, that this discussion becomes comparatively unimportant in view of the subsequent congressional action in 1872. Down to that time the only law as to appointments of such officers as attorney-general had been in the organic act; there was no congressional provision for the fililng of any vacancies during the legislative recess, and there was but the single exception previously referred to\u2014 that of the \u201c first instance \u201d \u2014 to the requirement that the council should concur in order to make a valid appointment.\nOn June 8, 1872, congress enacted the following law (now section 1858 of the Revised Statutes) giving power to the governors of territories to make appointments in certain cases :\n\u201c In any of the territories whenever a vacancy happens from resignation or death during the recess of the legislative council in any office which, under the organic act of any territory, is to be filled by appointment of the governor, by and with the advice and consent of the council, the governor shall fill such vacancy by granting a commission, which shall expire at the end of the next session of the legislative council.\u201d\nIt will be observed that the class of officials herein, referred to is exactly that which includes the attorney-general of this territory.\nHere then was an explicit expression of the supreme will with regard to the filling of vacancies ; and if the appointment now in question had been made to fill a vacancy occurring from death or resignation there could be no doubt of the power of the governor to make it, alone, without the necessity of concurrent action by the council.\nBut the vacancy in this instance, if there is one, has occurred by expiration of term.\nIt may be noted here that Judge Waldo was appointed as attorney-general under this very section, in 1878. And the language is Very explicit, that such terms \u201c shall expire at the end of the next session of the legislative council.\u201d\nIt seems certain, at all events, that no vacancy exists from either death or resignation. It is true that one counsel has taken the ground in argument that this is a vacancy \u201c from resignation,\u201d because it is founded originally on the resignation of Ool. Breeden; and he held that all vacancies that may occur until there is a regular appointment by the governor and council for a full term, will relate back to that event and be vacancies arising from it, and therefore vacancies \u201c happening from resignation.\u201d But this I do not think is tenable. We may safely assume, then, that this is not one of the two classes of vacancies referred to in this section. If there is a vacancy it is because of the expiration of Judge Waldo\u2019s term under the provisions of this very law. The question then arises, whether, since the passage of this act of 1872, the governor, alone, can appoint to fill a vacancy occasioned by expiration of term.\nThe attention of congress was evidently called to this subject of filling vacancies by ajapointment by the governor alone, or the law of 1872 would not have been enacted. It gives that power distinctly in two cases, and no more. It stops there.\nNow no maxim of law is of more general and uniform application than \u201c exjpressio %mius est exclusio alterius,\u201d \u201c the expression of one thing excludes others.\u201d Broom in his \u201cLegal Maxims,\u201d p. 664, says this maxim is \u201cnever more applicable than when applied to the interpretation of a statute.\u201d On the same subject Sedgwick in his \u201c Constitutional and Statutory Law,\u201d says, \u201cIf a new power be given by an affirmative statute to a certain person, all other persons are in general excluded from the exercise of the power, since \u2018 expressio unius est exdusio alterius: \u2019 \u201d See p. 30.\nIn Iowa the same idea is expressed in these words: \u201c Where a statute limits a thing to be done in a particular form, it includes in itself a negative, viz.: that it shall not be done otherwise \u201d (7 Clarke, 265); and in Connecticut it is held that \u201c a statute that prescribes that a thing shall be clone in a particular Avay, carries Avith it an implied prohibition against doing it in any other way:\u201d 36 Conn., 373.\nThis general principle is so fundamental and well understood that it requires no argument to enforce it, the only question being whether it applies to the case in hand.\nIn the law of 1872 (Revised Statutes, sec. 1858,), congress, having the Avhole subject before it, distinctly designated two classes of vacancies which the governor can fill without the consent of the council. It seems clear that by designating these two, they have excluded all others. If not, why designate any classes of eases at all ? Why not have said that \u201c whenever a vacancy happens, the governor shall fill,\u201d etc.? But they carefully particularized two kinds of vacancies and two only.\nIt appears to me that the legal construction, as Avell as the reasonable interpretation is to exclude any other kind of a vacancy, as fully as if it were excluded in terms. .\nThis is the only law of congress Avhich gives to the governor authority in any case to act by himself in making such appointment, except at the first organization of each territory. If the power to fill the vacancy in question is not to be found here, it does not exist anywhere in congressional law. This law Avas passed long after the territorial statute of 1854, and if the latter even was valid, it is controlled and modified noAV by the expression of the superior power.\nIt lias been argued in this case, that because the law of 1851 was never directly abrogated by act of congress, therefore it was certainly valid. But this does not at all follow.\nIn a territory the constitution and laws of the United States and especially the organic act of the territory itself, stands exactly in the relation a state constitution occupies in a state. All territorial enactments not consistent with them are null and void. This is stated in terms in 1 Utah Reports, p. 75; in 20 Wallace, 375, and other places, but we do not need any such exposition for the proposition is obvious from the language of the organic act, from sec. 1851 of the Revised Statutes, and self-evident from the very nature and constitution of a territory:\nAction by congress in annulling territorial statutes is rare, and usually only takes place in cases where they are not void of themselves, but simply improper or inexpedient without being illegal per se. The usual way of declaring a territorial statute which is inconsistent with the higher law of congress, inoperative, is through the courts, just as in the states similar enactments would be adjudged to be unconstitutional.\nIt is not even presumptive, therefore, far less conclusive evidence, that the territorial law of 1851 was originally valid, or if so, has continued in force since the enactment by congress of sec. 1858 in 1872, because it has not been formally annulled by congress. ' Each law of congress annuls or modifies every territorial statute with which it conflicts, because it is superior, and overrules it; and it is not necessary that it shall contain a special repealing clause.\nIn two territories there have been adjudicated cases with regard to territorial laws which provided for a different method of appointing officials from that fixed by the organic acts, and in both cases the supreme court of the territory has declared such laws to be void; though in neither case had congress acted in annulling them. One of these cases was in Utah, where the legislature had provided for a territorial officer known as a marshal, who came within the, same class as our attorney-general under the organic act, and consequently should have been, appointed by the governor and council. The Utah law provided for his election by a joint vote of the legislative assembly. The court .decided that the part of the law creating the office was legal, but the portion fixing the method of his selection was void. They reoited the language of the organic act as to such appointments and they say, \u201c The Utah statute in so far as it conflicts with the province of the organic act is null and void.\u201d \u201c They could neither appeal or override an important provision of the organic act: \u201d 1 Utah, 89.\nThis decision is. important as distinguishing between the legal and the illegal part of the territorial statutes; and thereby answers the argument made with much force in this matter during the first day\u2019s hearing, that the legislature had created the office of attorney-general and therefore had equal power to regulate the method of filling it.\nThe case in Montana was analogous. The officer in question was, the auditor, and the legislature had passed an act making him elective by the people. The court decided that this provision was in contravention of the organic act and of no force: 1 Montana, 250,\nThe last mentioned case has another phase, which makes it important in the discussion of the subject before us. \u25a0 The governor had appointed an auditor without the 'concurrence -of the council. This was decided to be illegal. The language is so appropriate that I quote it verbatim:\n\u201c Being an office created by the legislature of the territory, the appointment to which comes under that clause of section 7, of the organic act, (Sec. 8, of New Mexico) of officers not therein otherwise provided for, and which the governor is empowered to nominate and by and with the advice and con. sent of the legislative council appoint, we are of the opinion that the commission given by the governor to the plaintiff, purporting to appoint him to the office of territorial auditor without the advice, and consent of the legislative council, does not confer the right to the possession and emoluments of the said office.\u201d\nThe arguments which have been made at a considerable length on this hearing as to the general power of the executive to appoint, under the clause which makes it his duty to i( see that the laws are faithfully executed,\u201d or under the doctrine of ex necessitate, are, I think, shown not to be controlling, by the decision in this same Montana case, in which they are discussed fully.\nIt appears then, from a consideration of all the statutes and decisions affecting the matter, that the governor has no authority conferred upon him to make any appointment to the office of attorney-general, without the concurrence of the council, after the first organization of a territory, except to fill vacancies occurring during the recess of the legislative council, from resignation or death; and the present circumstances not falling within that limitation, that he had no power to make the appointment of Mr. Fiske on February 14.\nThis brings us to the second question, viz.: If the governor has no power to appoint, under the circumstances, does Judge Waldo, the late incumbent, \u201c hold over? \u201d\nIn favor of this proposition, language of the Compiled Law's, page 84, sec. 7, is quoted:\n\u201c The governor by and with the advice and consent of the legislative council shall appoint an attorney-general who * * * shall hold his office for two years, and until his successor shall be appointed and qualified.\u201d\nAnd also a section on page 514, as follows: \u201c All officers appointed or otherwise, shall continue in office and in the discharge of their duties until others are appointed or elected and qualified according to law,\u201d as well as certain California decisions.\nThe first section cited, however, does not seem to apply to an official appointed by the governor to fill a vacancy; and the latter, which was adopted in 1851, was shown to have reference in all probability only to persons then in office and to the peculiar circumstances of that time.\nIn opposition to the California decisions, others from the same state, together with some from different sources, and the opinions of distinguished annotators on the constitution, were produced.\nBut the plain language of section 1858, under which Judge Waldo was appointed, really seems to leave little to conjecture in the matter.\nIt says distinctly that the commission in such cases \u201c shall expire at the end of the next session of the legislature; \u201d and the reason of this in case of appointments made under such circumstances, seems plain. The appointee was never confirmed by the council, and the obvious intention is that he shall not continue in office, longer than the exigency occasioned by the vacancy requires, without their concurrence.\nThe language is so distinct that it caunot well be misunderstood or explained away, and I think makes it clear that the term of Judge Waldo expired with the end of the session of the legislative council, on the night of February 13th last.\nThis leads to the conclusion that a vacancy exists in the office, which, under existing laws, can only be filled by the nomination by the governor and confirmation by the council; and it is urged that no council session is soon to be held, and that the existence of such a vacancy is most unfortunate. As to this there can be little question, but it is not a matter with which the court has to do, or which it can remedy. In tin's connection I quote the language of the opinion in the Montana case previously referred to. \u201c In reply to the queries of counsel, that if the governor has not the power of appointment to fill vacancies during the recess of the legislature, who has ? We would say * * that it is not the province of the court to legislate for a contingency.\u201d\nIt is certainly very desirable that some provision should be made for the filling of such vacancies, and tliis, of course, can only be done by congress. In the act of 1872 they either supposed that they had covered every possible case that could occur, when they designated the two kinds of vacancies that might be filled, or else they intentionally withheld the power in other instances. In either view, it seems right that their attention should be called to the inconvenience arising from the inability to fill such a vacancy as that now before us, under existing laws.\nIt is true that the court has power to appoint some suitable person, as occasion arises, to represent the territory in the prosecutiqn or defense of cases before it; and this it will endeavor to do in each instance until a lawful attorney-general appears, in such a manner as best to subserve the public interests in the locality where the emergency may arise; but this covers but a part of the duties of an attorney-general, and was never intended to be more than a temporary expedient.\nIt is earnestly to be hoped that congress will take some action to meet such cases before the summer term of our courts.\nThe decision of the court is that the office of attorney-general of New Mexico is vacant, the term of the late incumbent having expired by operation of law, and the governor having no power to fill vacancies, except those occasioned by death or resignation, without the concurrence of the council.",
        "type": "majority",
        "author": "Prince, Chief Justice :"
      }
    ],
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    "corrections": "",
    "head_matter": "In the Matter of the Attorney-General of New Mexico. Territory of New Mexico v. Joseph Stokes and William Mullen.\nJanuary 13, 1881.\nConsuitutional Law. (1) Special act of congress not necessary to cmtml territorial statute.\nSame. (2) What is the constitutional lam of a territory.\nSame. (3) What classes of official vacancies governor of territory can fill without consent of council.\nOffice of Attorney-General. (4) What is not a vacancy in, \u201cfrom resignation.\u201d\nSame. (5) Governor cannot fill without consent of council.\nSame. (6) Incumbent does not \u201chold over\u201d in case no successor named. Same. (7) Nature of.\nSame. (8) Vaeaney in, power of court to appoint some one to perform . duties.\nSame. \u25a0 (9) Held vacant.\n1. It is not true that because a territorial statute has never been directly abrogated by act of congress, it is, therefore, certainly valid. Action by congress in annulling territorial statutes is rare, and only takes place where they are not void of themselves, but simply improper or inexpedient without being illegal, per se. The usual way of declaring a territorial statute which is inconsistent with the higher law of congress inoperative, is through the courts, just as in states statutes would be adjudged unconstitutional.\n2. In a territory the constitution and laws of the United States, and especially the organic act of the territory itself, stand exactly in the relation that a state constitution occupies in a state.\n3. Congress having, in the law of 1872, relating to appointments by the governer (Rev. Stat., U. S., sec. 1858), distinctly designated two classes of vacancies which the governor can fill without the consent of the council, the maxim expressio umus est extclusio alternes,\u201d and the legal construction as well as the reasonable interpretation of this enactment is to exclude the governor from filling any other kind of a vacancy than these two, without the consent of the council, as fully as if he were expressly excluded in terms from so doing.\ni. Where one incumbent of the office of attorney-general of New Mexico resigned, and the vacancy thus created was filled by the governor whose appointee held until the expiration of the term and then the office became vacant, owing to the failure of the territorial council to confirm the governor\u2019s nominee for the next term, held, that such vacancy was not a vacancy \u201c from resignation,\u201d because founded originally on the resignation of an incumbent of the office.\n5. The governor of the territory of New Mexico has no authority conferred upon him to make any appointment to the office of attorney-general without the concurrence of the council, after the organization of the territory, except to fill vacancies occurring during the recess of the legislative council, from resignation or death.\n6. The incumbent of the office of attorney-general does not \u201chold over \u201d in case his term expires and no person is appointed to succeed him.\n7. The attorney-general of New Mexico is not a township, district, or county officer, but a territorial one. He is the legal adviser of the governor and all other territorial officers.\n8. In case a vacancy in the office of attorney-generai, the court has power, as occasion arises, to appoint some suitable person .to represent the territory in the prosecution or defense of cases before it.\n9. The office of attorney-general of New Mexico is vacant, the term of the late incumbent having expired by operation of law, and the governor having no power to fill vacancies, except those occasioned by death or resignation, without the concurrence of the council.\nAt the expiration of the legislative session of 1880 a controversy arose as to the office of attorney-general of the territory. Hon. Henry A. Waldo had been holding that office for nearly two years under an appointment made by the governor to fill a vacancy occurring while no legislature was in session. On February 14,1880, Eugene A. Fiske, Esq., appeared in the district court in the first district claiming said office by virtue of a commission from Governor Wallace dated on that day, the legislative term having expired the evening before.\nThe following authorities and acts of Congress and of the Legislative Assembly of New Mexico were cited by Mr. Fiske: Organic Act N. M., Sept. 9, 1850 (9 U. S. Stats., p. 449); Rev. Stats. U. S., secs. 1858,1841,1850 and 1857; Const, of the U. S., art. 2, sec. 3; Pascal\u2019s Annotated Const. U. S., p. 182; Act Rel. to Jesuits, 20 U. -S. Stats., p. 280; Pascal\u2019s Annotated Const, of U. S., p. 174, note 198; Rev. Stats. N. M., sec. 23, Act Feb. 28, 1862, pages 86, 88; sees. 4 and 5, art. 6, chap. 10, pages 82; 84; Session Laws N. M., Act Jan. 8, 1874, sec. 2, p. 16; Rev. Stats. N. M., Act 1854, pages 62S, 744; U. 8. v. Kirkpatrick, 9 Wheat., 734 ; Id., 4 Sawyer, 593; Cate v. Ross, 2 Duval (Ky.), 244; People v. Pain, 6 Cal., 509 ; Peppin v. State, 2 Sneed, 45 ; 4 Op. Attorney-General U. S., p. 523; Clinton v. Englebreoht, 13 Wal., 446; Miner\u2019s Bank v. Iowa, 12 How., 8; 5 Op. Attorney-General, 525; Beebe v. Robinson, 52 Ala., 74.\nThe chief justice, before whom the matter was thus presented, invited expressions of opinion on the subject from members of the bar, as amici curice, and arguments were made by several counsel. The discussion was adjourned to February 23d, in order to have all views thoroughly heard, and on that day various arguments were made and authorities produced. On the succeeding day Chief Justice Prince delivered the following opinion, which is given entire, as it contains a synopsis of the arguments advanced on all sides of the question. Although this opinion was rendered in the district court, its importance and the thoroughness with which it discusses the subject seem to warrant its insertion here. Relow will be found the opinion of the supreme court in relation to the same matter, delivered in the case of the Territory of Mew Mexico v. Stokes and Mullen, infra, p. 63."
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