1. On review by the federal courts, a decision of the Supreme
Court of Puerto Rico on a question of local law will be rejected
only on a clear showing that the rule applied by the insular court
does violence to recognized principles of local law or established
practices of the local community.
Diaz v. Gonzalez,
261 U. S. 102,
followed. Pp.
322 U. S.
455-456.
2. The ruling in
Bonet v. Texas Company, 308 U.
S. 463, that, to justify reversal of a decision of the
Supreme Court of Puerto Rico on a matter of local law, "the error
must be clear or manifest; the interpretation must be inescapably
wrong," does not warrant summary disposition of appeals from the
insular court, but imposes on the Circuit Court of Appeals and on
this Court the duty to examine and appraise the local law in its
setting, with the sympathetic disposition to safeguard in matters
of local concern the adaptability of the law to local practices and
needs. P.
322 U. S.
458.
3. The deference due by the federal courts on review of
decisions of the Supreme Court of Puerto Rico to that court's
understanding of matters of local concern is due likewise by the
federal district court for Puerto Rico in cases there pending, and
by the federal courts on appeals therefrom. P.
322 U. S.
459.
Page 322 U. S. 452
4. The decision of the Supreme Court of Puerto Rico that, under
the applicable local legislation, properly construed, the term of
office of the City Manager of San Juan is for "four years, provided
that, during the same, he observe good behavior," was not clearly
erroneous, and must be sustained on review. P.
322 U. S.
464.
136 F.2d 419 affirmed.
Certiorari, 321 U.S. 757, to review the affirmance of a judgment
of the Supreme Court of Puerto Rico staying execution of a prior
judgment which ordered reinstatement of the petitioner in a local
public office.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
In this case, the petition urged as a ground for certiorari,
which moved us to grant it, that the decision of the Court of
Appeals below, as in a companion case,
Mario Mercado E Hijos v.
Commins, post, p.
322 U. S. 465,
"practically closes the doors of the appellate court below" to
appeals which the statutes of the United States allow to Puerto
Rican litigants in the insular courts, and "discriminates in favor
of the fortunate persons" who, through diversity of citizenship,
can take their cases to the United States District Court for Puerto
Rico, [
Footnote 1] instead of
to the insular courts.
Petitioner brought the present proceeding by petition for
certiorari in the District Court of San Juan, Puerto Rico, to
review the action of respondents, the Board of Commissioners
governing the City of San Juan, in removing petitioner from the
office of city manager to which the
Page 322 U. S. 453
Board had appointed him. The District Court of San Juan
sustained the Board. On appeal, the Supreme Court of Puerto Rico
reversed the insular District Court and directed petitioner's
reinstatement. 57 P.R. 149. On appeal to the Court of Appeals for
the First Circuit under 28 U.S.C. § 225, that court affirmed, 116
F.2d 806, and this Court denied certiorari, 314 U.S. 614.
On the remand, the Supreme Court of Puerto Rico, on motion of
respondents, entered judgment staying execution of its first
judgment, insofar as it ordered petitioner's reinstatement, on the
ground that petitioner's term of office had expired in February,
1941, after the decision of the Court of Appeals on the first
appeal. 59 D.P.R. 676 (Spanish Edition). Construing the applicable
statutes of Puerto Rico in the light of the practical construction
given to them by public officials and political parties of the
island and other matters of which it took judicial notice, the
insular court came to the conclusion that "the tenure of office of
the City Manager . . . is that of four years, provided that during
the same he observe good behavior." On appeal from this judgment,
the Circuit Court of Appeals affirmed, 136 F.2d 419. We granted
certiorari, 321 U.S. 757, for the reason already stated and because
some observations in the opinion of the Circuit Court of Appeals
have raised serious questions with respect to the appropriate rule
governing decision of cases involving local laws brought from the
insular courts of Puerto Rico for review by the Court of Appeals
for the First Circuit and by this Court.
The Court of Appeals, in affirming the judgment of the Supreme
Court of Puerto Rico, pointed out that § 21 of Act No. 99 of 1931,
which established the government of the City of San Juan, the
capital of Puerto Rico, provided that the city manager "shall be
appointed by the Board of Commissioners created by this Act, and
shall hold office
Page 322 U. S. 454
during good conduct." It said:
"If we were free to take a wholly independent view of the point
at issue, we would be inclined to conclude that the meaning of § 21
is clear, and that the court below went beyond the permissible
limits of interpretation in reading the clause 'and shall hold
office during good conduct' as meaning that 'the tenure of office
of the city manager of the capital is that of four years, provided
that, during the same he observe good behavior.'"
But it felt constrained to affirm the judgment of the Puerto
Rican tribunal by our decision and opinion in
Bonet v. Texas
Company, 308 U. S. 463,
308 U. S.
471.
In that case, in reversing a decree of the Circuit Court of
Appeals,
Texas Co. v. Sancho, 102 F.2d 710, which had
reversed the Supreme Court of Puerto Rico on a point of local law,
we said,
"to justify reversal in such cases, the error must be clear or
manifest; the interpretation must be inescapably wrong; the
decision must be patently erroneous."
And, since the Court of Appeals in this case was not prepared to
say that the judgment now under review is "inescapably wrong," and
as it thought that this Court's statement in the
Bonet
case had reduced the duty of the Court of Appeals to the
performance of a mere mechanical function, it felt compelled to
affirm the judgment. It also suggested that, as the rule of
decision applicable to appeals from the insular Supreme Court, as
announced by the
Bonet case, had not been applied in
appeals from the United States District Court for Puerto Rico,
different interpretations of local law might be established in the
Court of Appeals depending on whether the case was appealed from
the insular court or from the United States District Court for
Puerto Rico.
Our opinion in the
Bonet case was the culmination of
efforts by this Court, beginning with
Garcia v. Vela,
216 U. S. 598,
216 U. S. 599,
216 U. S. 602;
Lewers & Cooke v. Atcherly, 222 U.
S. 285,
222 U. S. 294,
and
Ker & Co. v. Couden, 223 U.
S. 268,
223 U. S. 279,
to insure a review by the federal courts of decisions of the local
courts of our insular possessions in
Page 322 U. S. 455
matters of peculiarly local concern which should leave
appropriate scope for the development by those courts of a system
of law which differing from our own in its origins and principles,
would nevertheless be suitable to local customs and needs. In thus
interpreting the function of the federal appellate courts in
reviewing decisions of the insular tribunals, we only followed a
principle which had long been established for appeals to federal
courts from the courts of our territories within the United States.
[
Footnote 2]
From the beginning, we have recognized that the appellate review
of insular cases was not given to the federal courts for the
purpose of superimposing upon the Spanish law our common law
preconceptions, except so far as that law must yield to the
expressed will of the United States.
Diaz v. Gonzales,
261 U. S. 102,
261 U. S.
105-106. Hence, we have emphasized as a cardinal
principle of review in such cases that the mere fact that our own
system of law and statutory construction would call for the
application of one rule to a given set of facts does not preclude
the adoption of a different one by the insular courts.
See
Waialua Agr. Co. v. Christian, 305 U. S.
91,
305 U. S. 109.
If the rule thus announced by the insular court is one which is not
plainly inconsistent with established principles of the local law,
or, in their absence, is one accepted by the practice of the
community, it will not be rejected here merely because it is not in
logical harmony with the rules which we would apply to
Page 322 U. S. 456
a community within the United States. It will be rejected only
on a clear showing that the rule applied by the local court does
violence to recognized principles of local law or established
practices of the local community.
The guiding principle, which is incapable of statement in a
short formula, has been variously phrased in terms which in every
case must be interpreted in the light of the particular situation
to which they were applied. [
Footnote 3] But the principle which these phrases were
intended to express has not been more accurately and
comprehensively stated than by Mr. Justice Holmes in words which
are completely applicable to the present case, in
Diaz v.
Gonzales, supra, 261 U. S.
105-106:
Page 322 U. S. 457
"This Court has stated many times the deference due to the
understanding of the local courts upon matters of purely local
concern. It is enough to cite
Villanueva v. Villanueva,
239 U. S.
293,
239 U. S. 299;
Nadal v.
May, 233 U. S. 447,
233 U. S.
454. This is especially true in dealing with the
decisions of a Court inheriting and brought up in a different
system from that which prevails here. When we contemplate such a
system from the outside, it seems like a wall of stone, every part
even with all the others except so far as our own local education
may lead us to see subordinations to which we are accustomed. But
to one brought up within it, varying emphasis, tacit assumptions,
unwritten practices, a thousand influences gained only from life
may give to the different parts wholly new values that logic and
grammar never could have gotten from the books. In this case, a
slight difference in the caution felt in dealing with the interest
of minors (
Baerga v. Registrar of Humacao, 29 P.R. 440,
442) and a slight change of emphasis in the reading of statutes
explain the divergence between the Supreme Court and the Circuit
Court of Appeals."
Beyond the fact that common law judges in such cases are
reviewing civil law decisions, it is of significance that
considerations relevant for decision must be drawn from an
environment unfamiliar to, and far removed from, that in which the
reviewing court sits. That which is familiar and accepted in the
island forum in construing a statute or formulating a rule of law
may appear strange or unorthodox in a common law setting. In
bridging gaps between legal systems having different origins and
history, and governing two different polities, the rule we have
announced has special importance.
Repeated admonitions that, in cases coming from the Puerto Rican
insular courts to the federal courts for review, where the
Constitution or statutes of the United States were not involved,
great deference must be paid to
Page 322 U. S. 458
local decisions having failed of their purpose,
See Bonet v.
Yabucoa Sugar Co., 306 U.
S. 505, [
Footnote 4]
we restated them in more emphatic form in
Bonet v. Texas
Company, supra, 308 U. S. 470,
in the sentence quoted in the opinion below which we have repeated
here. In order that its true purport might not be misunderstood, we
accompanied the sentence by the statement of Mr. Justice Holmes in
Diaz v. Gonzales, supra, 261 U. S.
105-106, which we have quoted, and, in the light of that
exposition, we added:
"Such judgment of reversal [by the Circuit Court of Appeals]
would not be sustained here even though we felt that, of several
interpretations, that of the Circuit Court of Appeals was the most
reasonable one."
Thus interpreted and read in its context, the principle, as
restated in the
Bonet case, that, to justify reversal by
the federal courts of a decision of an insular supreme court in a
matter of local concern, "the error must be clear or manifest; the
interpretation must be inescapably wrong," is not a mere mechanical
device which requires or admits, save in exceptional cases, of the
summary disposition of appeals from that court. Nor does it
minimize the importance or dignity of the appellate function in
such cases. On the contrary, we think that it imposes on the Court
of Appeals and on this Court the peculiarly delicate task of
examining and appraising the local law in its setting, with the
sympathetic disposition to safeguard in matters of local concern
the adaptability of the law to local practices and needs. It is one
which ordinarily cannot be performed summarily, or without full
argument and examination of the legal questions involved. But if,
in the light of such an examination, it is found that the rule
adopted by the local
Page 322 U. S. 459
tribunal is an intelligible one, not shown to be out of harmony
with local law or practice, it is not to be rejected because we
think a better could have been devised, or because we find it out
of harmony with our own traditional system of law and statutory
construction.
Nor does it follow that the deference due, on appeals from the
local tribunals, to their understanding of matters of local concern
will lead to the establishment of a local law differing from that
developed in decisions in appeals from the federal district courts
sitting in our insular possessions. It is not any the less the duty
of the federal courts in cases pending in the federal district
court, or on appeal from it, to defer to that understanding when it
has found expression in the judicial pronouncements of the insular
courts,
Nadal v. May, 233 U. S. 447,
233 U. S. 454;
Diaz v. Gonzales, supra, 261 U. S. 105;
Waialua Agr. Co. v. Christian, supra, 305 U. S. 109.
Once understood what deference is to be paid, the problem is
comparable to that presented when, upon appeals from federal
district courts sitting in the states, the federal appellate courts
are required to follow state law under the rule of
Erie R. Co.
v. Tompkins, 304 U. S. 64.
See Wichita Company v. City Bank, 306 U.
S. 103;
Huddleston v. Dwyer, 322 U.
S. 232.
There remains for consideration the appropriate application of
these principles to the facts of the present case. The Act of the
Puerto Rican legislature of May 15, 1931, Act No. 99 of 1931,
established a special form of city government for the capital city,
San Juan. [
Footnote 5]
Legislative powers are vested in a Board of five Commissioners; the
first Commissioners were to be appointed by the Governor with the
advice and consent of the Senate, for terms of one, two,
Page 322 U. S. 460
three, four, and five years, respectively (§ 9), but the
Commissioners so appointed were to hold office only until the first
Monday in January, 1937 (§ 50), and, thereafter, the "Board of
Commissioners created by this Act" was to be elected at the general
election held in 1936 and every fourth year thereafter (§ 50).
[
Footnote 6] The Act provides
that the City Manager, who is the chief executive of the city,
"shall be appointed by the Board of Commissioners created by this
Act, and shall hold office during good conduct" (§ 21). He "may be
removed by the Board of Commissioners, for just cause" after
hearing, and causes for removal are enumerated (§ 22). Five other
administrative officers are appointed by the City Manager (§ 26),
and an Auditor is appointed by the Board of Commissioners (§ 36);
the provisions as to their tenure of office and removal by the
agency appointing them (§§ 27, 36) are identical with those for the
City Manager, [
Footnote 7] save
that only as to the City Manager does the Act specify a tenure of
office "during good conduct." Other employees, appointed by the
officers under whom they serve, "shall be appointed for the term
for which each officer is appointed," and are also removable for
cause after hearing, the causes not being specified, however (§
39). No provision is made for bringing such employees within the
Puerto Rican Civil Service Act, Act No. 88 of 1931, adopted four
days before the adoption of Act No. 99.
The Puerto Rican Supreme Court refused to hold that the
provision that the City Manager "shall hold office
Page 322 U. S. 461
during good conduct" so conclusively established that he was to
hold office for life as to preclude resort to extrinsic evidence of
legislative intention. It held that his term was the same as that
of the Board of Commissioners which appointed him, so that
petitioner, who was appointed in 1937, by a Board of Commissioners
elected for four years, held office for "four years provided that,
during the same he observe good behavior." [
Footnote 8] We cannot say that these holdings were so
clearly wrong as to require a federal appellate court to refuse to
pay deference to the insular court's decision.
While a provision that an office be held "during good behavior"
is generally deemed indicative of an intention to create a life
tenure unless cause for removal arises,
See
Matter of
Hennen, 13 Pet. 230,
38 U. S. 259;
Smith v. Bryan, 100 Va.199, 203, 40 S.E. 652, 653;
Chesley v. Council of Lunenberg, 28 Dom.L.R. 571, 572, it
has not been regarded, even where traditional notions of
Anglo-American law prevail, as a rigid formula precluding any other
construction. [
Footnote 9] And
a tenure for a period of years
Page 322 U. S. 462
during good behavior has not been regarded as a contradiction in
terms by American courts. [
Footnote 10] In
Shurtleff v. United States,
189 U. S. 311,
189 U. S. 316,
this Court recognized and applied the strong presumption against
the creation of a life tenure in a public office under the federal
government. To hold that the City Manager was appointed for life
would, according to the terms of § 39, give to all employees
appointed by him a tenure for his life. An intention to create such
an estate
pur autre vie in a public office would at least
be somewhat unusual. On the other hand, if they are to be deemed
appointed for their own lives, the result would be that, on the
death or resignation of one City Manager, his successor would be
unable to select even his most immediate subordinates, and a life
tenure would be implied for a large group of municipal employees in
disregard of the rule of
Shurtleff v. United States.
Moreover there is no provision that the other municipal officers
are to serve during good conduct, and § 39 seems to assume that
they shall have defined terms of office. To hold that they could be
appointed for life would be inconsistent with the rule of
Shurtleff v. United States, supra, which the insular court
accepted and approved. Since the Act is silent as to their terms of
office, they can presumably
Page 322 U. S. 463
be appointed for any term not exceeding that of the officer
appointing them. The interpretation contended for by petitioner
would seemingly produce the result that all of the other city
officers, save the Auditor and the employees in their respective
offices, could be appointed for the life of the City Manager unless
he should, as the Puerto Rican court assumed he could, decide to
appoint them for a shorter term (
see §§ 26, 39). In the
latter case, appointees of other officials, themselves appointed
for short terms, would necessarily have a like tenure of office (§
39), while those of the City Manager would have a tenure for his
life, and those of the Auditor, a tenure of four years. Such
incongruities the Puerto Rican court thought weighed heavily
against the contention that petitioner's tenure was for life. This
is the more so because the appointees of the City Manager and of
officers appointed by him include most of the municipal officers
and employees, none of whom is subject to the insular civil service
laws, but who could be appointed for petitioner's life should
petitioner's construction of the Act prevail.
In addition to considering the consequences of such a holding,
the Puerto Rican Supreme Court looked to the practical construction
placed on the Act by the political parties of Puerto Rico, as shown
by facts of which it could properly take judicial notice. It said
that
"the political parties of the Island have always construed this
statute in the sense that the term of office of the City Manager of
the capital is that of four years."
It pointed out that, at the general election held in 1936 and at
that held in 1940, each of the political parties participating
proposed a candidate for the office of City Manager, although that
office did not appear on the ballot. It said that it was well known
that petitioner was the candidate of the winning party at the 1936
election, and was appointed City Manager by the newly elected Board
of Commissioners to replace the then incumbent, and that another
was the
Page 322 U. S. 464
candidate of petitioner's party at the 1940 election, and was
appointed City Manager by the newly elected Board of Commissioners.
This practical construction by the electorate and political
parties, of which petitioner was himself the beneficiary, [
Footnote 11] strongly supports the
interpretation of the Act as conferring on the City Manager a
tenure no longer than that of the Board of Commissioners which
appointed him.
In view of these considerations and of the principles long
observed by this Court in reviewing decisions of the insular
courts, which we have stated, we cannot say that we should not
defer to the view of the Supreme Court of Puerto Rico that the
meaning of § 21, when examined with the related provisions of Act
No. 99, in the light of the prevailing practical construction of
it, is not so plain and unambiguous as to preclude resort to
extrinsic aids to interpretation. Nor can we say that the practical
construction given the Act, together with the strong presumption
against life tenures and the principle, accepted by the Supreme
Court of Puerto Rico on the authority of numerous American
decisions, that ambiguities should be resolved in favor of the
shorter term of office, [
Footnote 12] were clearly insufficient to support the
construction which it adopted.
Petitioner calls to our attention an opinion of the Attorney
General of Puerto Rico, dated January 30, 1937, stating that "The
administrative officers of the Capital
Page 322 U. S. 465
. . . were appointed during good behavior," and that the
appointments "participate of the nature of a life tenure." He also
refers to correspondence of the first City Manager which could be
taken as supporting respondent's position as much as it does
petitioner's. It does not appear that these were called to the
attention of the Supreme Court of Puerto Rico, but, in any event,
they do not, in our opinion, counterbalance the weight rightly to
be given to the decision of the insular Supreme Court as the
ultimate insular interpreter of the local law. We have considered,
but do not find it necessary to discuss, other contentions of
lesser moment, most of which were dealt with in the opinion of the
Court of Appeals below and none of which call for a conclusion
different from that which it reached.
Affirmed.
[
Footnote 1]
See 48 U.S.C. § 863.
[
Footnote 2]
Sweeney v.
Lomme, 22 Wall. 208,
89 U. S. 213;
Northern Pacific R. Co. v. Hambly, 154 U.
S. 349,
154 U. S. 361;
Fox v. Haarstick, 156 U. S. 674,
156 U. S. 679;
Armijo v. Armijo, 181 U. S. 558,
181 U. S. 561;
Copper Queen Consol. Min. Co. v. Territorial Board of
Equalization, 206 U. S. 474,
206 U. S. 479;
Lewis v. Herrera, 208 U. S. 309,
208 U. S. 314;
English v. Arizona, 214 U. S. 359,
214 U. S. 361,
214 U. S. 363;
Santa Fe County v. Coler, 215 U.
S. 296,
215 U. S. 305,
215 U. S. 307;
Albright v. Sandoval, 216 U. S. 331,
216 U. S. 339;
Treat v. Grand Canyon R. Co., 222 U.
S. 448,
222 U. S. 452;
Clason v. Matko, 223 U. S. 646,
223 U. S. 653;
Gray v. Taylor, 227 U. S. 51,
227 U. S. 56-57;
Phoenix R. Co. v. Landis, 231 U.
S. 578,
231 U. S.
579-580;
Santa Fe Central R. Co. v. Friday,
232 U. S. 694,
232 U. S. 700.
[
Footnote 3]
Given the conditions, which, as we have pointed out, call for
the acceptance here of the decision of the local court, this Court
has said that its decree must be accepted here unless "we thought
it clearly wrong,"
Santa Fe Central R. Co. v. Friday,
232 U. S. 694,
232 U. S. 700,
unless "constrained to the contrary by a sense of clear error
committed,"
De Villanueva v. Villanueva, 239 U.
S. 299;
Matos v. Hermanos, 300 U.
S. 429, unless "manifest error be disclosed,"
Fox v.
Haarstick, 156 U. S. 674,
156 U. S. 679;
English v. Arizona, 214 U. S. 359,
214 U. S. 363;
Santa Fe County v. Coler, 215 U.
S. 296,
215 U. S. 305;
Treat v. Grand Canyon R. Co., 222 U.
S. 448,
222 U. S. 452;
Waialua Agr. Co. v. Christian, 305 U. S.
91,
305 U. S. 109,
"except upon an unescapable conclusion that it is wrong,"
Diaz
v. Gonzales, 261 U. S. 102,
261 U. S. 105,
unless "plainly incorrect,"
Puerto Rico v. Rubert Hermanos,
Inc., 315 U. S. 637,
315 U. S. 646.
In other cases, in affirming the decision of the local court, we
have said that we will accord to its decision "great, if not of
controlling weight,"
Lewis v. Herrera, 208 U.
S. 309,
208 U. S. 314,
or "great weight,"
Lewers & Cooke v. Atcherly,
222 U. S. 285,
222 U. S. 294;
cf. Cordova v. Folgueras y Rijos, 227 U.
S. 375,
227 U. S.
378-379; or that we would "lean toward the
interpretation . . . adopted by the local court,"
Copper Queen
Mining Co. v. Board of Equalization, 206 U.
S. 474,
206 U. S. 479;
English v. Arizona, supra, 214 U. S. 361;
Clason v. Matko, 223 U. S. 646,
223 U. S. 653;
Gray v. Taylor, 227 U. S. 51,
227 U. S. 57; or
that we were "not disposed to disturb" its construction,
Albright v. Sandoval, 216 U. S. 331,
216 U. S. 339;
Armijo v. Armijo, 181 U. S. 558,
181 U. S. 561;
cf. Phoenix R. Co. v. Landis, 231 U.
S. 578,
231 U. S.
579-580, and have spoken of the "caution to be used
before overruling" local decisions,
Fernandez & Bros. v.
Ayllon y Ojeda, 266 U. S. 144,
266 U. S.
146.
[
Footnote 4]
See also Diaz v. Gonzales, 261 U.
S. 102;
Fernandez & Bros. v. Ayllon y
Ojeda, 266 U. S. 144;
Matos v. Hermanos, 300 U. S. 429;
Puerto Rico v. Rubert Hermanos, Inc., 315 U.
S. 637, and similarly as to review of decisions of the
Hawaiian Supreme Court,
Waialua Agr. Co. v. Christian,
305 U. S. 91.
[
Footnote 5]
The form of government for other municipalities in Puerto Rico
is prescribed by Act No. 53 of 1928, which provides for a Mayor to
be elected "in the same manner required by this Act for members of
the municipal assembly" (§ 29), and hence presumably to serve a
term of four years (
cf. § 17).
[
Footnote 6]
By Act No. 10 of 1937, the Board was increased to nine,
beginning in 1941, four Commissioners to be appointed every four
years by the Governor with the advice and consent of the Puerto
Rican Senate, and five to be elected as previously provided.
[
Footnote 7]
In the English text, the City Manager is removable for
"inexcusable
negligence in the performance of his duties,"
the officers appointed by him for "inexcusable
ignorance
in the performance of their duties" (italics added). In the Spanish
text, the word is "
negligencia" in both cases.
[
Footnote 8]
We need not consider what, under this construction, was the term
of office of the City Manager first appointed in May, 1931. An
admissible construction would be that the Board of Commissioners,
appointed by the Governor to serve until January, 1937, was
regarded as a single body with a five-year term, despite the annual
changes in its membership, and hence the City Manager, whose term
of office was that of the body appointing him, also had a tenure of
some six and one-half years. At least this conforms to what in fact
occurred.
[
Footnote 9]
State courts have held that a provision for tenure "during good
behavior" does not preclude the termination of the tenure by good
faith abolition of the office,
Shira v. State, 187 Ind.
441, 119 N.E. 833, 834; that such a provision is not necessarily
inconsistent with a constitutional restriction on the number of
years for which the office can be held, but will be read as
creating a tenure for a term of years during good behavior,
Callaghan v. Tobin, 40 Tex.Civ. App. 441, 448, 90 S.W.
328, 331;
Callaghan v. Irvin, 40 Tex.Civ.App. 453, 459, 90
S.W. 335, 338;
Callaghan v. McGown, Tex.Civ.App. 90 S.W.
319, 322;
Neumeyer v. Krakel, 110 Ky. 624, 640, 62 S.W.
518, 523;
but cf. Stuart v. Ellsworth, 105 Me. 523, 75 A.
59;
Roth v. State, 158 Ind. 242, 266-268, 63 N.E. 460,
468, 469, and that a provision that officers appointed by the Mayor
and Council shall hold office "during good behavior, or until they
may be severally removed by the Mayor, or by three-fifths vote of
the council . . . " authorizes removal at will by the Mayor or
Council,
Smith v. Bryan, 100 Va.199, 40 S.E. 652, 653;
cf. People ex rel. Maloney v. Douglass, 195 N.Y. 145, 150,
87 N.E. 1070, 1072.
Contra, Chesley v. Council of
Lunenberg, 28 Dom.L.R. 571. And, in construing such
provisions, the courts have attributed weight to the practical
construction placed on them by the public officials concerned,
Klink v. State, 207 Ind. 628, 633, 194 N.E. 352, 354;
Smith v. Bryan, supra, and to supposed anomalies resulting
from a contrary construction,
Smith v. Bryan, supra.
[
Footnote 10]
Bruce v. Fox, 1 Dana, Ky., 447, 452
et seq.;
see cases cited
supra, note 9
[
Footnote 11]
The courts below did not consider, and the facts before us do
not enable us to decide, whether, should petitioner have prevailed
in his construction of the Act as providing a life tenure, he could
also establish his right to the office over that of the first
incumbent, whom he superseded.
[
Footnote 12]