State Ex Rel. Edelstein v. Foley , 6 Wash. 2d 444 ( 1940 )

I am in accord with the majority in holding that, for the purposes of this case, a judge of the superior court is a state officer. On the other phase of the case, I am not in accord with the opinion of the majority.

In my opinion, § 5, Art. IV, of the state constitution, quoted in the majority opinion, in so far as it provides for the filling of a vacancy in the office of the judge of the superior court, does not create any elective term. It simply provides for an appointment by the governor to fill an existing vacancy, and for the election of a judge to fill the vacancy, to "hold office for the remainder of the unexpired term," whatever under the law that may be. Manifestly, the framers of the constitution desired the terms of judges of the superior court to remain constant, and that all the superior court judges in the state should be elected for four year terms, those first elected for that term to take office the second Monday in January, 1892, others to take office on that day in four year periods thereafter. The terms having been established at four years, were it not for the last portion of the section, the terms throughout the state would soon become staggered, some four year terms expiring at one biennial general election, other terms expiring at the following biennial election. This the framers of the constitution guarded against by the language used.

What might be called two different classes of vacancies may occur in the office of judge of the superior court. Assume the election of Judge A to take office the second Monday of January, 1892, his four year term to expire on the same day in January, 1896. If Judge A resigns after one year's service, three years of his term remain. The governor appoints Mr. B to the vacancy. Under the constitution, an election to fill the unexpired term must be held in the fall of 1893, the person elected to hold office until the second Monday in January, 1896. This court held, in the case of State ex rel.Linn v. Millett, 20 Wn. 221, 54 P. 1124, cited in the majority opinion, that the person elected at the general election in 1893 could assume office as soon as he was elected and qualified, displacing at that time the judge who was holding the office by appointment. The constitution does not say when the person elected under these circumstances shall or may qualify; it simply says that the appointee shall hold office until the person who has been elected shall qualify. In such a case as has been supposed, the election is to fill the unexpired term. It seems to me that it might reasonably have been held, under the constitutional provision, that the person elected should qualify on the second Monday of January following his election, but in the case cited this court reached a different conclusion.

The other situation which often follows the creation of a vacancy happens when a judge elected as the supposed Judge A,supra, holds his office for three years, past the first biennial general election following that at which he was elected, and then resigns, Mr. B being then appointed as his successor. At the next general election, which would be held in November, 1895, a superior judge would be chosen, not for any unexpired portion of Judge A's term, but to fill a new term, to commence the second Monday of January following. The person elected to that office is not concerned with any unexpired portion of Judge A's term; he is elected to fill a new term of his own.

This is the situation presented in the case at bar. The judge elected for the new term cannot, by reason of his election, displace the appointee filling the unexpired term of Judge A, because he was not elected to fill any unexpired term. It seems to me that the framers of the constitution had in mind the first situation, and that they inadvertently failed to consider the possibility that someone would claim the existence of a tag-end term, commencing at some uncertain date after the election (when the canvass of votes should be completed) and ending on the second Monday in January following.

Of course, at the time of the adoption of the constitution, nominations for judicial office were made by party conventions, no individual having the right to, by his own act, place his name upon the ballot. An entirely different situation is presented under the direct primary law now in force.

Laws of 1937, chapter 15, p. 41, § 2, is quoted in the majority opinion, and therein held unconstitutional. As has been repeatedly held, an act of the legislature should be held void, as contravening the constitution, only when such a holding is necessary. Every presumption is in favor of the validity of an enactment of our legislature. The statute attempts to accomplish an eminently desirable objective in the interest of orderly judicial procedure. It is highly advantageous that a judge of the superior court know definitely some time in advance when his service will end, in order that he may see to it that he brings to an end litigation pending before him, in so far as the superior court is concerned.

The statute by its terms applies with equal force to the election of a judge who shall serve the last two years of a term, and to a situation such as is presented by the case at bar. In both cases, a judge elected to serve the balance of the unexpired term cannot qualify, if the statute be valid, until the second Monday in January following the election. In such a situation as is here presented, this would probably operate to prevent one elected as was relator here from ever qualifying, as the person elected to fill the new term would probably qualify on the date referred to. If, however, he should not qualify on that date, it seems to me that the person occupying relator's position could then qualify and serve until the person elected to fill the new term does qualify. With this particular question, we are not here concerned.

Section 5, Art. IV, of the state constitution, quoted in the majority opinion, is not self-executing. In the case of State exrel. Sampson v. Superior Court, 71 Wn. 484, 128 P. 1054, Ann. Cas. 1914C, 591, it was held that votes cast at a general election for the relator for an unexpired term of one of the positions of judge of the superior court for King county, a vacancy having been created by resignation, did not constitute a valid election, entitling the person voted for to the position of judge for the remainder of the unexpired term, no notice of the holding of an election to fill such vacancy having been given.

In the later case of State ex rel. Ferguson v. SuperiorCourt, 140 Wn. 636, 250 P. 66, it was directly held that the constitutional provision above referred to is not self-executing, and that:

"It is for the legislature, and not the courts, to provide the notice for and the method of conducting elections, general or special. The only express limitation we see in the constitution is that such an election, as is here drawn in question, shall be held at the time of the general election. It is plain, we think, that some notice must be given, and we think it equally plain that it is for the legislature to prescribe the time and manner of giving such notice. A minimum of thirty days having been expressly prescribed by the legislature as the time for the giving of such a notice and it being impossible to give such a notice for want of time, we conclude that the proposed election here in question cannot be lawfully held."

If the constitutional provision is not self-executing, and is subject to the limitations referred to in the cases above cited, it seems to me that the legislative authority may also be exercised in prescribing the date at which one elected for an "unexpired term" may assume office.

The legislature has by law provided an election machinery for carrying out the constitutional provisions laying down the fundamental laws for elections of state and county officers. The legislature has required that citizens qualified to vote, and desiring to exercise the franchise, must register as voters a certain period before the date of an election. The canvass of the votes has also been provided for, and the making of due returns thereof.

The constitutional provision here in question says nothing concerning the date at which one elected to fill an unexpired judicial term may qualify. Of course, he cannot qualify until the votes are counted and canvassed, and the result of the election determined — an uncertain date, save as provided by legislative enactment. In my opinion, the act of 1937 nowise contravenes the constitution, but provides for carrying the constitutional provisions into effect in a perfectly reasonable and orderly manner.

My view finds support in the decisions of the supreme courts of Indiana and New Mexico, referred to in the majority opinion. These authorities are, of course, not binding upon this court, but are persuasive, and, in my opinion, correctly declare the law.

I am convinced that Laws of 1937, chapter 15, § 2, is a valid exercise of legislative authority, and nowise contravenes any constitutional provision. Believing that the application for the writ should be denied, I dissent from the conclusion reached by the majority.

MAIN, SIMPSON, and STEINERT, JJ., concur with BEALS, J.