9 S.E.2d 275 | Ga. | 1940
The statute providing for a June State-wide election (Ga. L. 1937, p. 712), "in which vacancies shall be filled in any and all State and county offices, which vacancies may have occurred by reason of the death or resignation of the incumbent or nominee therefor, or otherwise, since the last preceding general election," does not apply to the election of a judge of the superior court to fill a vacancy for an unexpired term caused by death of the incumbent. The court did not err in dismissing the proceeding for a writ of quo warranto, on general demurrer to the petition.
A controlling question is whether the June election at which Brackett claims to have been elected was one at which under the constitution and laws of this State a judge of the superior court could be elected to fill a vacancy in that office for the balance of an unexpired term. In article 6, section 2, paragraph 8, of the constitution (Code, § 2-3008) it is declared: "The Chief Justice and the Associate Justices of the Supreme Court shall hereafter be elected by the people at the same time and in the same manner as the Governor and the Statehouse officers are elected. . . In case *217
of any vacancy which causes an unexpired term, the same shall be filled by executive appointment, and the person appointed by the Governor shall hold his office until the next regular election, and until his successor for the balance of the unexpired term shall have been elected and qualified." In Stephens v. Reid,
The statute does not expressly or by necessary implication declare that it applies to vacancies in the office of judge of the superior *218
court, and should not be construed in a manner that would render it obnoxious to the provision of the constitution that requires election of judges of the superior court at elections at which members of the General Assembly are elected. This question was not involved or ruled on in Aycock v. State,
Judgment affirmed. All the Justices concur. *219The decision in Pittman v. Ingram,
184 Ga. 255 (190 S.E. 791 ), is not a precedent that affects the instant case. The controlling question there involved was whether there was a vacancy in the office; whereas in the instant case, Judge Thomas died while in office, thereby creating a vacancy, as to which there is no question. The case differs also from Mitchell v.Pittman,184 Ga. 877 (194 S.E. 369 ), in which the Justices were divided as to whether the June election was applicable, and in which four opinions were delivered. In that case, there was no death of an incumbent followed by appointment of a successor, as in the instant case. Each of the four opinions was based upon the peculiar facts there under consideration. The present decision does not conflict with any of such opinions, as a careful reading and comparison will show. The petition failed to allege a cause of action, and was properly dismissed on general demurrer.