Johns. Cases, 79; State ex rel. Vienna v. Hyams, 12 La. Ann. 719, cited in 17 La. Ann. 163.

7th. Upon the case made by the pleadings, our conclusion is: that the peremptory writ should be awarded but, in view of the character of the parties, we will suspend until Monday next any formal order in the premises, further than one adjudging the return of the respondent insufficient and sustaining the demurrer thereto.

There is no vacancy at the expiration of the term fixed by law of an officer who is by law to hold over until his successor qualifies. Such an officer holds de jure until the qualification of his successor. See State v. Bulkley, 61 Conn, 287, infra.

4. Power to Fill Vacancies.

FRITTS V. KUHL.

Supreme Court of New Jersey. February, 1889.

51 New Jersey Law, 191.

VAN SYCKEL, J. The facts which have occasioned this litigation are as follows:

On the 15th of February, 1888, a vacancy occurred in the office of president judge of the Hunterdon Pleas by the death of Mr. Sanderson. At the time of his death the senate was in session, and remained in session until the 30th day of March, 1888.

On the 1st day of March, 1888, the governor nominated the defendant, Richard S. Kuhl, to the office of president judge of the Hunterdon Pleas, to fill the said vacancy. The senate held the nomination until the 20th of March, and then refused to consent to it. No other nomination to this office was made by the governor to the senate during its session. In the meantime the chief justice, under a statute passed in February, 1888, appointed Judge Bartine, of the Somerset Pleas, to preside in Hunterdon and perform the duties of president judge of Hunterdon Pleas. On the 7th of April, 1888, during the recess of the legislature, and while Judge Bartine was presiding in Hunterdon, the governor appointed the defendant to fill the vacancy occasioned by the death of Judge Sanderson.

The information is filed to determine whether the governor had the power, during the recess of the legislature, to fill such as existed in this case.

vacancy

Paragraph 1, section 2, article 7, of our constitution provides as follows: "Justices of the Supreme Court, chancellor, judges of the Court of Errors and Appeals, and judges of the Inferior Court of Common Pleas, shall be nominated by the governor and appointed by him, with the advice and consent of the senate."

Paragraph 12, of article 5, provides that "when a vacancy happens during the recess of the legislature in any office which is to be filled by the governor and senate, or by the legislature in joint meeting, the governor shall fill such vacancy, and the commission. shall expire at the end of the next session of the legislature, unless a successor shall be sooner appointed.”

If, therefore, within the meaning of this paragraph of the state constitution "this vacancy happened during the recess of the legislature, "it was the duty of the governor to fill it.

In order, therefore, to ascertain its true meaning, in accordance with the recognized rules of interpretation, we must seek for the reason and spirit of it, having regard to the effects and consequences of the construction adopted, and the source from which the language employed was derived. Was it intended merely to prevent those offices from remaining vacant, which become so during the recess of the legislature by some casualty, or was it to prevent any of the enumerated offices from remaining vacant during the recess of the senate, without regard to when or how the vacancy occurred?

The latter clause of section 2, article 2, of the federal constitution, adopted in 1787, provides that "the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session.'

During the administration of President Monroe, in 1823, the question arose whether he had the power to fill, during the recess of the senate, a vacancy which had begun during the preceding session of the senate. During that session the president had made a nomination which the senate refused to confirm, and then adjourned, leaving the office unfilled.

Mr. Wirt, then attorney general, advised the president that he had power to fill the vacancy. In his opinion, he says:

"Had this vacancy first occurred during the recess of the sen

ate, no doubt would have arisen as to the president's power to fill it. The doubt arises from the circumstances of its having first occurred during the session of the senate. But the expression used by the Constitution is 'happen.' 'All vacancies that may happen during the recess of the Senate.' The most natural sense of this term is, 'to chance to fall out-to take place by accident.' But the expression seems not perfectly clear. It may mean, ‘happen to take place;' this is 'to originate;' under which sense the President would not have the power to fill the vacancy. It may, also, without violence to the sense, mean 'happen to exist,' under which sense the President would have the right to fill it by his temporary commission. Which of these two senses is to be preferred?

"The first seems to be most accordant with the letter of the Constitution; the second most accordant with its reason and spirit. The meaning of the Constitution seems to me to result in this: that the President alone cannot make a permanent appointment to those offices; that to render the appointment permanent, it must receive the consent of the Senate; but that, whensoever a vacancy shall exist which the public interests require to be immediately filled, and in filling which the advice and consent of the Senate cannot be immediately asked, because of the recess, the President shall have the power of filling it by an appointment to continue only until the Senate shall have passed upon it; or, in the language of the Constitution, till the end of the next session. In reason, it seems to me perfectly immaterial when the vacancy first arose; for, whether it arose during the session of the Senate, or during their recess, it equally requires to be filled. The Constitution does not look to the moment of the origin of the vacancy, but to the state of things at the point of time at which the President is called on to act."

In 1885, Attorney General Cushing, referring to the opinions of his predecessors in office, says:

"They have thoroughly demonstrated and conclusively established, as a doctrine of administrative law, that the expression of the Constitution, 'all vacancies that may happen,' signifies 'all vacancies that may happen to exist in the recess,' or 'when there happen to be any vacancies in the recess.' And they concur in the general statement, that howsoever a vacancy happens to exist, if it exist it may be filled by temporary appointment of the President. They all agree that it is the true spirit of the Constitution. to have the offices, which Congress indicates to be needful by creat

ing them, filled, though provisionally, rather than remain vacant or force a special call of the Senate." Vol. 7 of Opinions, p. 187.

Ten years later, Justice Woods, of the United States Supreme Court, sitting in the Georgia Circuit, refused to concur in the opinion of Judge Cadwalader. Farrow's Case, 3 Fed. Rep. 112.

And Attorney General Devens, in 1880, after an elaborate discussion of the subject, concluded that the opinions of his predecessors, and the practice under them, had settled the construction of the Constitution, that appointments might rightly be made through the vacancy first began during the session of the Senate, and he declared that the contrary view of Judge Cadwalader could not be considered of great authority or weight against these opinions, and an administrative usage which commenced as early as the time of President Monroe, and in reference to which such usage has been invariable. Vol. 16 of Opinions, p. 522.

All these opinions are based upon the idea that the power involves the performance of a duty, intended for the public good, and necessary for the effective administration of the government, and they discard the notion that the point of time at which the vacancy occurs has anything to do with the power of the President to make a provisional appointment.

The first Constitution of this State contained no express provision for filling vacancies in State offices, which might exist during the recess of the Legislature. In 1802, in State v. Parkhurst, 4 Halst. 528, the question was submitted to this court, whether an appointment to the office of clerk of Essex county, made by Governor Bloomfield during the recess of the Legislature, to fill a vacancy which existed in that office, was a constitutional exercise of his power.

The Constitution provided that the office of county clerk should be filled by the Legislature in joint meeting, and the Supreme Court therefore denied the power of the executive. Chief Justice Kirkpatrick dissented, on the ground that by the eighth section of the Constitution the Governor was vested with the supreme executive power, and was thereby charged with the duty of filling all such vacancies during the recess of the Legislature. In this dissenting opinion the Court of Errors afterwards unanimously concurred. 4 Halst. 537, note.

Thus it appears that when the framers of our Constitution of 1844 were assembled to consider the question of providing for the temporary filling, during the recess of the Senate, of vacancies existing in those offices which were to be permanently filled by the Governor, with the advice and consent of the Senate, or by the Legislature in joint meeting, they had in view the fact that the power had been denied, and they wisely made express provision for it in the fundamental law.

That they carefully considered the language which should be used in incorporating into the new Constitution an express provision for the temporary filling of vacancies in State offices during the recess of the Legislature, cannot be doubted. Instead of attempting to formulate for themselves a clause which would express their purpose, they prudently adopted the language of that clause of the Federal Constitution which authorizes the President to fill vacancies which happen during the recess of the Senate.

The question, therefore, which confronts us is far different from that submitted to Attorney General Wirt and that passed upon by Judge Cadwalader.

It is a safe rule of construction that when the convention, in framing the organic law of the State, thought proper to borrow provisions from the Constitutions of other States, which provisions had already received a judicial construction, they adopted them in view of such construction and acquiesced in its correctness. People v. Coleman, 4 Cal. 48.

In 1844, there had been no judicial exposition of this language of the Federal Constitution, but the reason which underlies the decisions in the cases cited make them applicable to the case before us.

In State v. Kelsey, 15 Vroom 1, this court declared that "a statute of uncertain meaning, which has been enforced in a certain sense for a long series of years by the different departments of government, will be judicially construed in that sense." This rule has been held to apply, with equal reason, in expounding the Constitution. Briscoe v. Bank, 11 Pet. 257, 318; Moers v. Reading, 21 Penna. St. 188.

Not only has this language acquired, by long established usage, a well settled meaning in the exercise by the President of his func-. tions under the Federal Constitution, but it has received a like in