Pittman v. Ingram , 184 Ga. 255 ( 1937 )

Atkinson, Justice.

The constitution of this State contains the following: “There shall be a judge of the superior courts for each judicial circuit, whose term of office shall be four years, and until his successor is qualified.” Art. 6, sec. 3, par. 1 (Code, § 2-3101). “The successors to the present and subsequent incumbents shall be elected by the electors entitled to vote for members of the General Assembly of the whole State, at the general election held for such members, next preceding the expiration of their respective terms.” Art. 6, sec. 3, par. 2 (§ 2-3102). “The terms of the judges to be elected under the constitution, except to fill vacancies, shall begin on the first day of January after their elections. Every vacancy occasioned by death, resignation, or other causes shall be filled by appointment of the Governor until the first day of January after the general election held next after the expiration of thirty days from the time such vacancy occurs, at which election a successor for the unexpired term shall be elected.” Art. 6, sec. 3, par. 3 (§ 2-3103). -These provisions of the constitution are fundamental and controlling. They rank above all legislative or executive powers in relation to the subject to which they refer. They constitute the entire provisions of the constitution as to selection and tenure of office of judges of the superior courts. Formerly the judges were elected by the legislature, under art. 6, sec. 12, par. 1, of the constitution of 1877. McElreath on the Constitution, 380. This provision was so changed by adoption of an amendment proposed by act of the legislature (Ga. L. 1897, p. 16) as to make the judges elective by qualified voters, as stated above. The constitution as thus amended has not been changed. The constitutional design to fill the offices of judges of the superior courts by vote of the qualified, electors must be carried in mind. It is distinctive from executive function, and manifests a policy to select the judges by the electorate. This object should also be borne in mind. When a person has been elected judge for a full term and has qualified by taking the oath and receiving his commission, he becomes judge “whose term of office shall be four years, and until his successor is qualified.” By these plain words the term of the electorate’s choice for judge continues during the prescribed four years and thereafter “until his successor is qualified.” This tenure of office is beyond the reach of the executive department of government, and can not be interrupted by the Governor while it endures. This provision of the constitution can not be taken out by mere legislative act or by construction; nor can it be obviated by executive order. It must be given effect. If during such term of a judge in commission a vacancy occurs “by death, resignation, or otherwise” the vacancy “shall be filled by appointment of the Governor until the first day of January after the general election held next after the expiration of thirty days from the time such vacancy occurs, at which election a successor for the unexpired term shall be elected.” This power’ of executive appointment is for an emergency, and can be exercised only in case of a vacancy. It can not be exercised to be effective while a duly commissioned incumbent is in office.

It has been said: “The office is not vacant so long as it is supplied, in the manner provided by the constitution or law, with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it,” and “the mere expiration of the term of the incumbent does not create a vacancy.” Shackelford v. West, 138 Ga. 159 (74 S. E. 1079). See Gormley v. Taylor, 44 Ga. 76. It was said in another case: “All officers of this State must discharge the duties of their office until their successors are commissioned and qualified. Civil Code (1910), § 261. Where the legislature creates an office and provides for the election of an officer to fill it for a given term of years, the incumbent will hold over and beyond the fixed term until his successor is elected, qualified, and commissioned. Walker v. Ferrill, 58 Ga. 512; Smith v. Meador, 74 Ga. 416 (58 Am. R. 438); Roby v. State, 74 Ga. 812. The office does not expire at the expiration of said term, but the elected officer holds over until his successor is commissioned and qualified. Holding over prevents vacancy.” Stephenson v. Powell, 169 Ga. 406 (150 S. E. 641). In another case it was said: “Applying to the pleadings and the evidence the constitution and laws declaring that the term of office of the ordinary of a county shall be four years and until his successor is elected and qualified, the petitioner was entitled to the office, holding over under his prior commission, and the office was not vacant.” Lee v. Byrd, 169 Ga. 622 (151 S. E. 28). And it was said by Chief Justice Eussell, speaking for the court: “The question then arises whether use of the word 'otherwise’ in section 15, in the clause 'in case of a vacancy by death or resignation or otherwise,’ necessarily includes a vacancy caused by a failure on the part of one selected as a commissioner to qualify, thereby causing a conflict between the provisions of section 3 to which we have referred, or whether there is no necessary conflict between section 3 and section 15. The use of the words 'a vacancy by death or resignation or otherwise’ would seem to be a classification of vacancies which might arise after qualification, because it will not do to say that the word 'otherwise’ would be useless unless it was intended to include every vacancy, no matter what cause may have occasioned the vacancy. A vacancy might be caused after the commissioner had qualified, by removal from the county or the State or by conviction of a felony, or removal from office for any sufficient cause provided by law. Therefore it can not be implied from the use of the word 'otherwise’ that the word ‘vacancy’ as used in section 15 was intended to include all vacancies, so as to exclude vacancies which might not be ejusdem generis with ‘death’ or ‘resignation.’ In a generic sense the word ‘vacancy’ as applied to official positions means an absence of any one to hold the office and discharge its duties. . . The vacancy referred to in section 15, caused ‘by death or resignation or otherwise,’ naturally refers only to those who have qualified after being elected, and not to the two classes, in one of which there was no election, and the other in which there was a failure to qualify after the officer had been elected.” Cason v. Harn, 161 Ga. 366 (131 S. E. 38). Under 'the foregoing authorities, and especially the decisions in Gormley v. Taylor, and Shackelford v. West, supra, the word “successor” in the phrase “until his successor is qualified” must be construed to mean a successor chosen according to “the regular method;” and at the present time the regular method of selecting judges of the superior court is election by the people.

In the instant case Judge Pittman was the duly commissioned incumbent whose term would extend to January 1, 1937, “and until his successor qualified.” In the general election held in November, 1936, James A. McFarland was duly elected to succeed Judge Pittman, but died before January 1, without having qualified by taking the oath and receiving a commission. After his death the Governor, on January 4 while Judge Pittman was occupying and performing the duties of the office, by executive order declared a vacancy to exist, and appointed William A. Ingram as his successor. In these circumstances the election of James A. McFarland was ineffective by reason of his death before he qualified by taking the oath of office and receiving a commission. He never became judge. The fact of his election did not cause a vacancy in the term of Judge Pittman. The appointment of Judge Ingram by the Governor when there was no vacancy was unauthorized. Under the pleadings, in which there was no issue of fact, the judge erred in overruling the demurrer to the petition for quo warranto, and in granting the writ ousting the respondent from the office.

Judgment reversed.

All the Justices concur, except Russell, O. J., and Hutcheson, J., who dissent.