Gormley v. Taylor , 44 Ga. 76 ( 1871 )

McCay, Judge.

1. The Constitution, Article 5, section 4, declares that, until the Legislature otherwise provides, there shall be a District Attorney and a District Judge in each senatorial district. It defines their duties, fixes the jurisdiction of the Judge, and prescribes how both of these officers shall be appointed, and the qualifications of each of them. The want of certain necessary details, as to the mode of proceeding, and some provisions for raising the salaries, made it proper that no such officers should be actually appointed until legislative action was taken in the premises. This was not done until the Act of 28th October, 1870. This Act, as well as the Constitution, provided that these officers should be appointed by the Governor, by the advice and with the consent of the Senate. The Act, however, in express terms provided that it should not go into effect until the 1st of January, 1871. No nominations were made and no action taken during the session of the Legislature. That body adjourned 25th of October, 1870.

Soon after the 1st of January, 1871, the Governor, considering these offices vacant, appointed incumbents to hold until the next meeting of the Legislature. Mr. Taylor, the defendant in error, was one of these appointees. Was this appointment, not being with the consent of the Senate, legal ? Without doubt, the provision of the Constitution and of the Act of October 28th, 1870, for filling these offices for the full term, does not cover the case of vacancies. The Constitution, in express terms, provides, “that when cmy office becomes vacant, the Governor shall have power to fill it, unless otherwise provided by law: Article 4th, section 2, paragraph 4.

This applies, to all officers of every kind, no matter how or by whom, the office is to be permanently filled. The incumbent is to hold until a successor is appointed, according to the regular method for filling the office : Article 4, section 2, paragraph 4.

If elected by the people, or by the Legislature, or appointed by the advice of the Senate, no matter how it is made the duty of the Governor to fill the vacancy, until it is filled, as provided, either by the Constitution or by the law. Nor does it matter when the vacancy happens. Whenever, or however it happens, it is the duty of the Governor to fill it, until it is filled in the mode and by the power provided for permanently filling it, unless the Constitution or the law points out some other mode.

As to officers elected by the people, the law has generally pointed out a mode for filling vacancies. Sometimes it is by an immediate election; sometimes by appointment of the Ordinary; sometimes by appointment of the Judge of the Superior Court; sometimes by appointment by the Governor. But as to all officers elected by the Legislature, or appointed by the Governor, with the advice of the Senate, no other inode is pointed out by either the Constitution or the law. So that, as to these offices, it is the duty of the Governor to fill every vacancy not, as is often said, until a successor can be appointed, agreeably to the Constitution, but until one is appointed agreeably thereto. Even if the Senate be in session when the vacancy happens, it may be that the Governor fails in his duty to nominate, or he and the Senate cannot agree; or, if the office be one filled by legislative election, they may fail to elect. The Constitution does not intend that there should fail to be an incumbent, since it provides, that in all cases where no other provision is made, if any office become vacant, the Governor shall fill the vacancy until the office is filled in the mode provided for filling it permanently.

Our Constitution is very different from the Constitution of the United States. That only gives the President power to fill vacancies which happen during the recess of the Senate. Our Constitution has no such limitation. It simply provides that, “ when any office becomes vacant, by death, resignation or otherwise,” the Governor shall have power to fill it until it is filled in the mode provided by law. But it is argued that the words here used cannot apply to this case. The words are “ become vacant.” It is said that this implies that the office has been filled, and has “ become vacant.”

It is very clear that in the case under discussion there was in fact a vacancy existing. There was an office; the Constitution provides for that. All the details necessary for the full carrying into effect of the Constitution were provided by the Act of 28th of October, 1870. Nothing was wanting but men to fill the offices. If this was not a vacancy the word is wrongly defined by the law, books and lexicographers. Webster defines it: “ The state of being destitute of an incumbent.” Bouvier: “ A place which is empty.”

It does seem to me that the distinction between ' “ is vacant,” and “become vacant,” is a distinction without a difference. Mr. Wirt, Mr. Legare and Mr. Taney, in their official opinions as Attorney-Generals, have all concurred in holding that, if a vacancy “ exists ” during a recess of the Senate, it may, in a very fair sense, be said to “ happen ” then, though in fact it occurred before the recess. And this has been the uniform practice and holding of the Executive Department of the United States. Mr. Wirt, in his opinion, insists that the words “ may happen during the recess ” are to be understood as “ may happen to exist during the recess: ” Opinions Attorneys-General, volume 1, page 631. Mr. Roger B. Taney fully agrees with this construction: Opinions Attorneys-General, volume 2, page 525. So, too, Mr. Legare : Ibid. volume 3, page 673. But suppose we admit that an office never yet filled cannot be said “ to become vacant; ” what then ? The most that can be said is, that, though the office is “vacant,” it has not “become vacant,” and the Constitution has not provided in terms how it shall be filled. The Constitution provides for filling offices permanently and for filling offices which have “ become vacant.” Vacancies which are not cases when the office has “ become ” vacant are not provided for by the Constitution.

Are such offices to remain vacant until the Senate meets, or the Legislature elect, or the people choose ? I think not. The law — the Code, section 66 — provides that the Governor shall fill all vacancies, unless otherwise prescribed by the Constitution and the laws.

I conclude, therefore, that the most reasonable construction of the Constitution clothes the Governor with power to fill this vacancy, and that, even if this be an office which, though vacant, did not “ become ” vacant, the power is still in the Governor; since if it be a casus omissus in the Constitution, it is provided for by section 66 of the Code, which authorizes the Governor to fill all vacancies not otherwise provided for. It may not be amiss to say that this is not a new question in Georgia. The Pataula Circuit was created by the Legislature on the 8th of February, 1856. By the laws, as they then stood, the election for Judge was by the people, and did not take place until April, 1857. Governor H. ~V. Johnson appointed Judge Kiddoo to fill the vacancy until the election.

At the same time and under the same circumstances the Governor appointed a Solicitor-General for the Circuit. So,too, when the Talapoosa Circuit was created, February 29th, 1856, the election for Judge and Solicitor-General was provided for to be held in October, 1857, and the Governor, under Ms power to fill vacancies, appointed Judge Hammond, Judge, and Mr. H. Fielder, Solicitor-General. So, too, when the Brunswick Circuit was created, the Constitution provided that the Judge and Solicitor should be elected by the people. The Act creating the Circuit authorized the Governor to appoint a Judge until the election. The Governor appointed the Judge accordingly • but he also at the same time, under his general power to fill vacancies, appointed a Solicitor-General.

In 1838, the Legislature created the office of Commissioners of Banking, providing that they should be elected by joint ballot by the Legislature. Mr. Iverson L. Harris was elected one of the Commissioners, but declined to serve, and no other election was had. After the adjournment Governor Gilmer appointed Mr. White to fill the vacancy. The Legislature, at its session of 1858, created the office of commissioners to revise the Code, providing three commissioners to be elected by the Legislature. Before the adjournment, I. L. Harris, David Irwin and Herschel V. Johnson were elected. Messrs. Harris and Johnson declined to serve, and Governor Brown, after the adjournment, appointed Messrs. T. R. R. Cobb and R. H. Clark. There are, doubtless, other instances, but these are sufficient to show what has been understood to be the meaning of the word “ vacancy,” to wit: An office without an officer, and that in such cases it is within the powers of the executive to fill it. These cases prove, too, that, to make such a vacancy, it is not necessary that the office should have been once filled in the regular mode before such a vacancy as the Governor can fill, may occur.

For these reasons I am satisfied that, under the Constitution and laws of this State, it was within the power of the Governor to make the appointment of Mr. Taylor, and having done so, his right to receive his salary, under the law, is undoubted.

2. It is contended by the plaintiff in error that, admitting the appointment to be properly made under the Constitution and laws, Mr. Taylor is not entitled to his salary, however the Act of the General Assembly to carry into effect the constitutional provisions as to the district Court, was passed and approved, as appears by the journals and the signature of the Governor on the 28th of October, 1870; that this was more than forty days after the commencement of the session, and that, as the session of 1870 was the third session under the Constitution of 1868, any Act passed by the Legislature more than forty days after the commencement of the session, is unconstitutional and void; since it does not appear by the journals of the two houses that any two-thirds vote was had prolonging the session.

It is true, in fact, that, under the orders of General Mead, the then military commander of Georgia, under the Act of Congress of March 2d, 1867, there was a session of the Legislature, commencing on the 4th of July, 1868. It is also true that there was a session, as the Constitution provides, commencing on the second Wednesday in January, 1869.

It is difficult to say when the session of 1870 commenced. The body met on the 10th of January, 1870, under a call of the Governor, two days before the second Wednesday, as required by the Constitution. It proceeded to reorganize as a new body, and its organization was reported complete on the 30th of January, 1870. On the 14th of February it adopted the amendments to the Constitution of the United States, as required by Act of Congress of December, 1869. It then took a recess until the 14th February, then met again, and elected Senators, passed various resolutions, and took a recess until the 18th of April. It had, at this recess, been in session thirty-nine days. It met again the 18th of April, continued in session, doing nothing until the 4th of May, when it took a recess until the 6th of July. It then met, but did nothing until the 18th of July, when it proceeded to business formally, Congress having at length declared the State to have fully complied with the Reconstruction Acts.

If the session of 1870 commenced, by law, on the second Wednesday in January, (the 12th of that month,) forty days expired on the 21st of February, 1870. If only the days actually consumed, not counting recesses, are to be considered, the forty days expired on the 19th or 20th of April. If the session is to be considered not to have commenced until the 18th of July, when it proceeded regularly to business, then the forty days expired on the 28th of August, 1870. In any event, not only the Act referred to, but almost all of the other Acts passed at the session of 1870, were passed after the forty days had expired. After the 28th of August the Legislature passed many Acts of the most important character — Acts which have been solemnly acted upon by the people and by the Courts, and if these Acts are void, consequences almost revolutionary in their character must inevitably result. It may be that this Court must do its duty, no matter what may be the consequences. But it is also true that it is the solemn duty, not only of this but of every Court, when called upon to determine any question, and especially when called upon to declare an Act of the General Assembly void, to look to the consequences, and if they be of almost a revolutionary character, to be very clearly satisfied, before producing such startling and revolutionary results. After forty days had expired the session of 1870 changed the time for the meeting of the Superior Courts in twenty-five counties of the State. It changed the time for the meeting of the Supreme Court from the first Mondays in June and December to the second Monday in January and the first Monday in July. It directed a revision of the jury boxes all over the State. It created three new Judicial Circuits, and created four or five new counties. It authorized bills of exceptions to be brought to the Supreme Court on the granting or refusal to grant injunctions, and changed the mode of proceeding in the Supreme Court in many particulars. It altered the day fixed by the Constitution for electing members of Congress, members of the Legislature, and county officers. It altered the day fixed by the Constitution for the meeting of the General Assembly. These Acts have all been treated by the Courts and by the people as of force for nearly a year. The Superior Courts have met under these Acts; the jury boxes have been revised under them ; the new circuits and the new counties have gone into practical operation, and for nearly a year have been proceeding as legal bodies under these Acts. This Court has held one full session, and is far advanced on another, in obedience to these Acts, and has constantly recognized and acted upon the Acts of the session of 1870, after the forty days, as legal Acts. The people, in obedience to one of these Acts, allowed the election day fixed by the Constitution, to-wit: the Tuesday after the first Monday in November, 1870, to pass, and no election was held to fill these important offices until the 20th of December, 1870. So, too, the day fixed by the Constitution (to-wit: the second Wednesday in January) for the meeting of the Legislature in 1871, has, in obedience to one of these Acts, been allowed, by the members elect, to pass, with the understanding .that the proper day for the meeting is in November, 1871, as provided by the session of 1870, by an Act approved October 28th, 1870, after forty days had expired.

If the law under which Mr. Taylor was appointed is void, because passed after forty days, then the sessions of the Superior Courts, changed by the said session, have been illegally held; the last session of this Court was illegal, this session is illegal; and we (holding an illegal session) are called upon to determine the session of the Legislature, when these Acts were passed, illegal. The Clerks, Sheriffs, Tax Collectors, and other county officers, now in office, are all illegally in office. The jury boxes have been illegally revised, the Legislature elect is illegally elected, and the old Clerks, sheriffs and county officers are still the legal officers. Nay, more, the old Legislature, elected in 1868, is still the legal Legislature ; since the Constitution, in express terms, Article 3, section 1, paragraph 2, provides that the members of both Houses, though elected for two years, shall continue to hold until their successors are elected and qualified; a conclusion so extraordinary, and involving results so momentous, a conclusion resulting in the illegality of the sessions of the Superior Courts and of this Court, and in the illegality of the elections of all the Clerks, sheriffs, county officers, members of the Legislature, and members of Congress, and in the loss of any session of the Legislature for 1871, should only be the result of the clearest convictions, and be unaccompanied by any, even the most trifling, doubt of its correctness. Every intendment should be made that is at all compatible with sound reason or fair construction. We have been at sea long enough. Even one day of an illegal government is au evil that it may take years to see the consequence of, but from a whole year of illegal Courts, and a whole session of an illegal Legislature, who can calculate the evils that must ensue ?

If it be possible to prevent this by any fair and just construction ; if this Court is not driven by the clear and incontestible rules prescribed for its action so to determine, it is its solemn duty to the public and to the law to sustain, and not to overturn, the Acts thus assailed.

3. Eor myself, I have great doubts as to the power of the Courts, under the Constitution, to pass upon the legality of a session of the Legislature. We are bound, it is true, to declare laws not in conformity to the Constitution void. But there is a plain distinction between an A.ct of the Legislature and a session of the Legislature. It seems to me a very dangerous thing, and one not contemplated by the Constitution, for one of the branches of the government to set in judgment upon the legality of another. The Constitution expressly clothes each House with the power to judge of the qualifications of the members, and if they may do this as to each member, it would seem to follow that they may do it of the whole combined. Is this Court to step in to scan its daily proceedings, watch its journals, and set, as a censor, upon its doings ? We are compelled to say, whether any separate Act, passed by it, conforms to the Constitution, but whether the body itself is in session at the proper time, seems to me to be left to the conscience and judgment of the body itself. And this, I think, is the tenor of the authorities.

4. But I do not rest my judgment upon, this view of the matter alone. It is a fact, as appears by the journals, that the Legislature, by a vote taken in each House, determined that the session of 1870 was not a session after the second, under the Constitution. The Senate declared, that the session of 1870 was the first session: Senate Journal, page ...... The House declared simply that it was not a session after the second: House Journal, page ...... We have thus the solemn judgment of each branch of the General Assembly, that, under the circumstances, no vote of two-thirds was necessary to authorize the session of 1870 to continue longer than forty days. Was not this a matter proper for the judgment of the Legislature, and having been deliberately made, is not the judiciary bound by it?

5. Nor is it all clear to my mind that this judgment was not right, or that the session of 1870 was one which was required to be prolonged by a two-thirds vote, in order to continue in session longer than forty days. The clause' of the Constitution is as follows: Article 3, section 1, paragraph 3 : “Thefirst meeting of the General Assembly shall be within ninety days after the adjournment of this Convention, after which it shall meet annually on the second Monday in January, or on such other day as the General Assembly shall prescribe.” “No session of the General Assembly after the second, under this Constitution, shall continue longer than forty days, unless prolonged by a vote of two-thirds of each branch thereof.”

The Convention adjourned on the 12th of March, 1868. Ninety days after this would be the 10th of June, 1868. No session of the General Assembly wafs held until the 4th of July, 1868, so that the first regular appointed session under the Constitution was not held at all. The session which met July 4th, 1868, was not provdied for by the Constitution, but was aalled under the orders of the military commander, and met at his behest. That session did not meet by virtue of the Constitution.

6. Indeed, this Court decided in Foster vs. Daniels, 39 Georgia, 39, that the Constitution did not go into effect until the 21st of July, 1868, and that the County Court, which the Constitution in terms abolishes, was a lawful Court on the 20th of July, 1868, but unlawful on the 22d of the same month. Can that be fairly said to be a session' according to and by virtue of the Constitution which met seventeen days before the Constitution became the law of the land ? The truth is that a state of things occurred for which the Constitution made no provision, it was a state of things not contemplated by the Convention. It supposed Congress would immediately ratify the Constitution, and it expressly provided that the first session should be within ninety days after the adjournment. Congress did not ratify the Constitution within ninety days, and the first session, as provided for, was not held at all.

7. As I have said, the session of July, 1870, was a called session, not a regular one, according to the directions of the Constitution, and it met seventeen days before the Constitution had. any existence, as a rule for the government of the day of meeting. Indeed, the Constitution, as it now stands, did not exist at all until the 21st of July, 1868, since upon that day the Constitution was so altered as to comply with the requirements of the Act of Congress of June 1st, 1868. After that day the Constitution was of force, and the General Assembly controlled by it. But it is very clear that the meeting of the session of 1868 was not only not provided for or pointed out by the Constitution, but the meeting was by virtue of the order of the military Commander, who then exercised supreme power in the State.

I do not say that the session of 1870 was illegal, or that its laws and actions are not to be considered as passed under the Constitution, though that is a view taken by many. The idea I intend to convey is, that though a legal session, it was not a regular, but a called session, and was not one of the two sessions which, by the Constitution, might hold more than forty days without a two-thirds vote of prolongation. The language of the Constitution is peculiar. It first provides for a session within ninety days after the 12th of March, 1868, and this it calls the “ first session.” It then provides that after this the meetings shall be on the first Wednesday in January of each year, until otherwise provided by law. Then, in the same Article, section and paragraph, come the words now under discussion, to-wit: “ no session of the General Assembly, after the second under this Constitution, shall continue longer,” etc. What is the obvious meaning of this, taking the whole paragraph together ? It can hardly be supposed that the Convention contemplated a meeting of the Legislature which should not, in its deliberations, be controlled by, and be in this sense under the Constitution. Something must have been meant by the words, “ under this Constitution ” other than this. In that sense, the words are surplusage, since in no event, then conceivable, could it be imagined there would be a session of the Legislature “not to be controlled by the Constitution.” The reason for using this language is plain; the Constitution had provided for a first session, to-wit: within ninety days. It had provided for other regular annual sessions, to-wit: on the 2d Wednesday in January in each year, or such other day as the General Assembly may prescribe. It then adds: “'No session of the General Assembly, after the second under this Constitution shall,” etc.; that is after the second, as pointed out and directed, and provided for by this Constitution. The object was to exclude from the two sessions contemplated any called, extra or irregular session, and to declare that the two sessions meant, were two sessions held at the times provided for by the Constitution.

Such is the natural grammatical construction of the words. The words “ under this Constitution ” qualify the word “ session,” and not the words “ General Assembly,” and mean “session,” as provided for, fixed by this Constitution. And the object was, as we have said, to exclude from the two sessions any called, extra or other sessions which, though lawful, were not nominated and pointed out specifically in the Constitution. Such a construction is, at any rate, a fair one, and, even if it be doubtful, it is sufficiently fair and plain, under the well established rules controlling the judiciary in their judgment of constitutional questions, to make it proper for us to adopt it. It is the settled rule that, in cases of doubt, the Courts will alway decline to declare a law unconstitutional. Respect for a co-ordinate branch of the government, and, in this ease especially, the almost total revolution which the holding a whole session of the Legislature illegal, would produce, not only justifies, but imperatively demands, a very clear ease. We do not think this is such a case. On the contrary, the strength of the argument is in favor of the legality of the session after forty days.

8. We think the Act of October 28th, 1870, is sufficiently definite. It fixes the salary according to the population of the district. That is easily ascertained. The Constitution recognizes the United States census as an official mode of ascertaining the population of a district, since it clearly contemplates that the representation of the counties in the lower House shall be based upon it. Constitution 1868, Article......

That census was taken in 1870, and can be easily procured. The tax is, by this Act, to be raised upon the taxable property of each county proportionably. That can be officially ascertained at the office of the Comptroller-General.

Under the rule that “ that is certain which might be made certain,” we think this sufficient data upon which to ascertain and assess the salary and the share due from each county.