Means v. Terral

McCulloch, C. J.

A vacancy occurred in the office of Judge of the Seventh Judicial Circuit by the death of the incumbent in June, 1919, and the Governor made a temporary appointment to fill the vacancy, pursuant to the authority conferred on him by statute. Kirby’s Digest, § 7991. The Governor has not called a special election as provided in the Constitution (article 8, section 50) and the question presented im the present case is whether or not an election to fill the vancancy for the unexpired term can be held at the approaching biennial general election on November 2, 1920, without a proclamation by the executive calling for an election on that date to fill such vacancy.

Appellant, H. B. Means, a regular practicing attorney of the bar of that court, has tendered to the Seeretary of State a certificate of his nomination for the office in conformity with the election laws of the State, and, on the refusal of that officer to accept the certificate and to certify the nomination to the county election board, Mr. Means brought this action to compel the Secretary of State, by mandamus, to do so.

Circuit judges are elected for terms of four years, and the regular terms of all the circuit judges in the State run contemporaneously and end at the same time. State v. Askew, 48 Ark. 82; State ex rel. v. Cotham, 116 Ark. 36.

The .section of the Constitution referred to above appears in the article on the Judicial Department and reads as follows:

“All vacancies occuring in any office provided for in this article shall be filled by special election save that in case of vacancies occurring in county and township offices six months and in other offices nine months, before the next general election, such vacancy shall be filled by appointment by the Governor.”

The contention of counsel for appellant is that, notwithstanding the failure of the Governor to call a special election as required by the Constitution, the commission issued to the present incumbent expires upon the election of a judge at the approaching general election to fill the unexpired term. On the other hand, the contention of the Attorney General, who appears for the Secretary of State, is that the vacancy can only be filled at a special election called by the Governor to elect a judge to fill the unexpired term. These respective contentions call for an interpretation of section 50, article 7, of the Constitution.

It will be observed that the Constitution does not affirmatively confer power on the Governor to make an appointment at all, unless the vacancy occurs within a specified time before the next general election—-that is to say, in case of vacancies occurring in county and township offices,- six months and in other offices nine months before a general election. It is only on account of the silence of the Constitution that the Legislature is empowered to confer authority upon the Governor to make a temporary appointment to fill a vacancy until a special election could be held. Cobb v. Hammock, 82 Ark. 584; State ex rel. v. Stevenson, 89 Ark. 31. In either event, whether the appointment be made under the statutory authority where the vacancy occurs more than nine months before the next general election, or be made under the constitutional authority where the vacancy occurs within nine months before a general election and the term extends beyond the next election, the'appointment is only temporary and not for the unexpired term. This is necessarily implied from the language of that section of the Constitution. It was clearly the policy of. the framers of our Constitution to provide for the filling of vacancies in office by election and not by appointment, as was said by Chief Justice Hill, speaking for this court in the case of State ex rel. v. Stevenson, supra: “It was evidently the intention of the framers of the Constitution of 1874 that the appointing power should be limited. Its policy was to fill vacancies by election.”

An election by the people to fill a vacancy, whether at a special election or at the succeeding general election, is for the unexpired term, but, as before stated, any appointment made by the Governor is, under the Constitution, temporary. We have just said that an appointment by the Governor within nine months before the next general election expires on the filling of the vacancy for the unexpired term at the next election. The words, “next general election,” could not reasonably be construed to mean the general election at the expiration of the term, for, if we put that construction on the language, there would be no power, conferred by this section of the Constitution for the Governor to make an appointment, unless the vacancy occurred within nine months before the expiration of the term. It is clear therefore that the framers of the Constitution, pursuant to the policy of having biennial general elections so that all vacancies should be filled by election, did not intend to confer any express authority upon the Governor to make an appointment, except where the vacancy occurred within nine months before the next general election, meaning the next election succeeding the .occurrence of the vacancy, • and that the commission issued under that appointment should expire at that election. If, therefore, the vacancy in this instance had occurred within nine months before the next general election, the calling of a special election would have been unnecessary, and the people would, by operation of law, be called on to fill the vacancy for .the unexpired term at this election.

Viewing the constitutional provision in that light and as bearing that meaning, it is inconceivable that the framers of the Constitution intended to permit the Governor to exercise a greater power because of the silence of the Constitution with reference to a temporary appointment when a vacancy occurs more than nine months before a general election, than under the express provision which empowers him to make an appointment where a vancancy occurs within nine months of the election.

The dominant thought in this provision of the Constitution is that vacancies in office are to be filled for the unexpired term by election, and that only a temporary appointment by the Governor is authorized or permitted. The reference to special elections is solely for the purpose of conferring authority and giving directions for a special election and not to prescribe a limitation upon the method of filling vacancies for the unexpired term, and it is a direct command that it shall be done by that method for the purpose of expedition. In other words, the provision about special elections was intended to obviate delay until the regular election in filling the vacancy, and to accelerate it by having a special election at an earlier date, and the fact that the executive failed to obey the mandate of the Constitution with respect to calling a special election does not enlarge his power over the subject so as to permit him to'prolong the temporary incumbency of his appointee beyond the time fixed by law for holding a general election in the State.

It is clear, not only from this provision of the Constitution, but also when considered in connection with other provisions of the Constitution on like subjects, that it was intended that the people should have an opportunity at the regular biennial election to fill vacancies in offices which had not been theretofore filled by special election. For instance, in article 6, which deals with the Executive Department, there is a section (23) which reads as follows: “When any office from any cause may become vacant, and no mode is provided by the Constitution .and laws for filling such vacancy, the Governor shall have the power to fill the same by granting a commission which shall expire when the person elected to fill said office, at the next general election, shall be duly qualified. ’ ’

It is unnecessary for us to determine under what circumstances the section just quoted would apply, but its language shows that its framers had in mind that all commissions issued by the Governor should expire not later than the next general election. This provision is in conformity with the one with which we are dealing in this opinion in fixing the next general election as the limit of time for the incumbency of the office under appointment from the Governor. The statutory provision (Kirby’s Digest, section 7991) with reference to conferring upon the Governor the power to make an acl interim appointment where the vacancy occurs more than nine months before the next general election, was an act of the General Assembly of 1877, which was less than three years after the adoption of the Constitution in 1874, and that statute provides that the commissions issued by the Governor shall expire “when the person elected to fill such office at such special election shall be duly qualified.” There is certainly no reason to believe that the framers of the statute, which was enacted so soon after the adoption of the Constitution, meant to limit the commission to a special election, and yet contemplated that appointments under it might continue beyond the next general election by reason of the failure of the Governor to call a special election.

Our election laws afford the machinery and a comprehensive scheme for the filling of all offices at the general elections, and the law fixing the time for the election gives full notice and authority to the electors. The Constitution itself, under the interpretation we give it, makes the general election the time for filling vacancies not theretofore filled by special election. A proclamation or notice of such an election is not essential to its validity, and the election can not be defeated by the failure of any official to give notice by proclamation. Mechem on Public Offices, sections 173-174.

The decision of the Supreme Court of Oregon in the case of State v. Johns, 3 Wilson (Oregon) 533, is instructive, and sustains the views we' have expressed. In that case the only distinction was that the Constitution contained the provision that a vacancy filled by appointment of the Governor “shall expire when his successor shall have been elected and qualified.” This is not a material distinction, for such is clearly the meaning of our Constitution, which contains substantially the same provision, and provides that all officers shall continue in office until their successors are elected and qualified. The converse of it necessarily is that the right to hold shall cease when the successors are elected and qualified. The Oregon court in the case just referred to held that the Governor had the right to make a temporary appointment to fill a vacancy, but that the appointment did not extend beyond the general election following it. In disposing of the matter the court said:

“The persons so appointed merely hold office temporarily, so that public business may not be retarded or disturbed by the death or resignation of the elected incumbent. As to the appointive power of the Governor, it appears from the Constitution and from our system of government, that it was the manifest intention of the framers and founders thereof to restrict the same within the narrowest limits. * * * To hold that the power of the Governor is so great that he can prevent the people from selecting their officers at any time, when in so doing the fundamental law is not infringed, would be contrary to the spirit of our form of government. * * # The people of Oregon by their Constitution made their judiciary elective, and only gave the executive power to fill temporary vacancies, which should occur between elections. If the people had intended to part with this power of appointing county judges, they would have expressed it. It can not be inferred. No inference or intendment is ever presumed against the sovereign. Such is the universal rule for the construction of statutes, for the}? emanate from the sovereign power which, in this State, is the people. They appoint the executive, and he only acts by delegated authority, and this authority can not be presumed beyond the express words of the grant. And I think the power in this case only extends to the filling a vacancy until the next general election, when the people can regularly exercise their authority in electing officers.”

The Supreme Court of Nevada in the case of Sawyer v. Haydon, 1 Nevada 75, held that there was no inherent right in the people to fill a vacancy in an office for the unexpired term merely because the office was an elective one, where there was no express provision for such election by the people to fill the vacancy. The distinction here is that our Constitution expressly reserves to the people the right to fill vacancies for unexpired terms and by necessary implication a temporary appointment made by the Governor does not run beyond the next general election. The power to make appointments to office emanates primarily from the people, either by express provision conferring the authority or by implication. On the other hand, the people may reserve power by express provision or by necessary implication, and we are of the opinion that under a fair and reasonable interpretation of the Constitution the people have so reserved their right to fill all vacancies at a general election, when a term has expired or when there is a vacancy to be filled for an unexpired term. Any other view of the law would enable the executive to bid defiance to the mandate of the Constitution and prevent the people from exercising at •all their right of filling vacancies by election.

There is nothing in the language of the court in the case of Cobb v. Hammock, supra, which is against the views here expressed. The point in that case was whether or not the Governor had power to make an ad interim appointment where the vacancy occurred more than the specified time before the next general election. We spoke of it being a case where the vacancy was to be filled by special election, but that language does not imply and does not carry the meaning that a vacancy can'not be filled except at a special election.

Appellant shows himself to be qualified as a candidate for said office, and that he tendered his certificate of nomination to the Secretary of State. He is therefore entitled to be certified as such candidate. The judgment of the circuit court is therefore reversed, and judgment will be entered here in favor of appellant in accordance with the prayer of his complaint.

Wood and Smith, JJ., dissent.