184 Ga. 877 | Ga. | 1937
The bill of exceptions which brought this case before the Supreme Court was filed as a writ of error to a judgment rendered by his Honor, John D. Humphries, who, in a proceeding in the nature of a writ of quo warranto, refused to oust his Honor, Claude C. Pittman, from the office of judge of the superior courts of the Cherokee Circuit. Judge Pittman was elected judge of the Cherokee Circuit in November, 1932, for the constitutional term of four years and until his successor should qualify. In 1936 in the usual preliminary Democratic primary election he was opposed by Mr. James A. McFarland, who defeated Judge Pittman for renomination. In consequence, at the general' election in November, 1936, Mr. McFarland was_ elected judge for the next succeeding term, without opposition. , He died on November 25, 1936, without qualifying by taking the oath prescribed by law and without having received a commission; and the question arose whether there was a vacancy in the office of judge of the superior courts of the Cherokee Circuit. Governor Talmadge, on January 4, 1937, appointed William A. Ingram, under the provisions of art. 6,' sec. 3, par. 3, of the constitution (Code,
In his judgment Judge Humphries held: “Aside from constitutional provisions regarding the election of judges of the superior courts, it is not to be overlooked that at the time of the passage of the act of February 24, 1937, there was no vacancy in the office of judge of the superior courts of the Cherokee Circuit, as has already been held by the Supreme Court in the case of Pittman v. Ingram, supra, and no vacancy existed at the time of the election of June 8. Whatever rights Judge Pittman may have in and to that office, they existed prior to the passage of the act referred to. There is no occasion to assume that if the act of February 24, 1937, does not apply to the election of a judge of the superior courts, it would mean that Judge Pittman could hold that office indefinitely. It is not necessary to decide in this case whether an election for that purpose can be held at the general election in November, 1938. The constitution provides for the quadrennial elections for judges of the superior courts, and such an election for the Cherokee Circuit must be had at the general November election in 1940, whether or not one can be had at the general election
The case of Compton v. Hix, 184 Ga. 749 (193 S. E. 252), involved the title to the office of county commissioner oil Madison County, a statutory and not a constitutional office, and is not in point. The case of Moore v. Smith, 140 Ga. 854 (79 S. E. 1116), involved the vote on a constitutional amendment' providing for the creation of the County of Wheeler, and this election was not under the provisions of art. 6, sec. 3, par. 2, of the constitution, requiring that the voters be “the electors entitled to vote for members of the General Assembly of the whole State at the general election held for such members.” The same distinction is true as to the case of Aycock v. State ex rel. Boykin, 184 Ga. 709 (193 S. E. 264).
The opinion of Judge Humphries so nearly conforms to the rulings of the majority of this court in the Ingram case, supra, as to the principles of law applicable to the case at bar, that we adopt without comment those - portions which we have quoted herein as part of this opinion, and consequently hold that the legislature was without authority to provide for the election of a judge of the superior court at any time other than at one of the biennial November elections provided’by the • constitution of 1877.
This is a quo warranto proceed-ing in which John C. Mitchell sues to oust Claude 0. Pittman from the office of judge of the superior courts of the Cherokee Circuit. The case is substantially as follows: Pittman was the
“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 con•stitute 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
“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). . . 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
The case of Mitchell v. Pittman, now under consideration, does not involve executive appointment, but does involve the questions as to whether there was a vacancy in the office of judge, and of the effect of the election under the act of 1937 (Ga. Laws, 1937, p. 712), supra, and whether Judge Pittman’s term which commenced on January 1, 1933, still continues. Upon these questions the foregoing excerpt from the opinion in Pittman v. Ingrclm is pertinent. In this connection it is not amiss to quote further from Shackelford v. West, supra, where it was said: “The term of the city-court judge is fixed at four years certain, with a contingent extension. When this contingency happens, this extension is just as much a part of the term as the antecedent fixed term.” This was said with reference to a provision for a term of “four years” in a statute creating the office, taken in connection with the provision of the general law (Code, § 89-105) that all officers of this State must “discharge the duties of their offices until their successors are commissioned and qualified.” The principle stated in that opinion is all the more applicable in the instant case, where the constitution declares that the term of the judge of the superior court shall be “four years, and until his successor is qualified.” The situation in the Pittman v. Ingram case was not different from what it would have been if, on account of providence, war,
This decision does not bring about any practical difficulty, even if such could justify departure from the constitution. All that
I agree with the Chief Justice and Justice Atkinson that the judgment should be affirmed, but not with all that is said in the opinion of the Chief Justice. I do not consider it proper for this court now to determine the duration of the period for which Judge Pittman will continue to serve as judge of the Cherokee Circuit; nor am I prepared now to hold that under the law he may continue in office until the end of the four-year term which began in January. The only question before this
The ruling in Pittman v. Ingram may not be the “law of the case,” which should control the present controversy between Mitchell and Pittman, but it is a decision by this court relating to the identical subject-matter now under consideration, which, if not an absolutely binding precedent, should at least be treated as highly persuasive. If there was no vacancy in the office of judge of the superior courts of the Cherokee Circuit in January, it seems altogether logical to say that there is none now, and that there was none when Mitchell was a candidate in June. As was said by Justice Atkinson in Pittman v. Ingram, the constitution is controlling here, as it is in every case where constitutional provisions or principles are involved. Before the amendment of 1897, superior-court judges were elected by the legislature for four-year terms. That amendment provided that the successors of the judges then in commission should 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.” Code, § 2-3102. The terms of the judges begin on the first day of January after their election. Constitution, art. 6, sec. 3, par. 3 (Code, § 2-3103).
It could be very strongly argued that the situation , in the Cherokee Circuit is such as to create an unexpired term for which a judge may be elected at the proper time. Should it lie so held, speaking for myself alone, I should be strongly inclined to the view that the proper time for electing a judge for the unexpirod term will be in November, 1938, when “members of the General Assembly for the whole State” are elected. The amendment of 1897 so fixes the time-for electing judges for regular terms; and it would seem a strained construction to hold that the amendment contemplates one general election in one paragraph and another general election in another paragraph. The June general election is not a general election “for members of the General Assembly of the whole State,” within the meaning of the first paragraph of the constitutional amendment of 1897; nor would it seem that the Juno election is the general election contemplated by the second paragraph of that amendment. However, none of these questions is now before the court. As already stated, the only question we have for determination is whether the plaintiff is presently entitled to the office. This is the only question he could present, or upon which he is entitled to invoke a ruling from this court; and I think we should so limit our ruling. The question whether he may have a right to the office in January, 1938, may
We are unable to agree to the opinion as prepared for the court by the learned Chief Justice, or to either of those submitted respectively by Presiding Justice Atkinson and Justice Hutcheson. We will first rehearse the facts briefly, and then state what we think is a correct solution of the case. Claude C. Pittman was elected judge of the superior courts of the Cherokee Circuit in November, 1932, for the regular term of four years beginning January 1, 1933, and ending December 31, 1936, and until his successor is qualified. In the general election held in November, 1936, James A. McFarland was elected for the ensuing term beginning January 1, 1937. McFarland died on November 25, 1936, without having taken the oath of office and receiving a commission. Pittman continued to occupy the office and to discharge the duties thereof as one holding until his successor is qualified. On January 4, 1937, Honorable Eugene Talmadge, the Governor of Georgia, passed an order purporting to declare a vacancy and to appoint William A. Ingram to fill' it. In a subsequent action between Ingram and Pittman, it was held in effect by this court, two Justices dissenting, that the facts did not create a vacancy authorizing an appointment by the Governor, and that Pittman was entitled to retain the office until his successor is qualified. Pittman v. Ingram, 184 Ga. 255 (190
In the case at bar it is contended by Pittman: (1) That no vacancy existed in this office, and therefore the legislature was without authority to authorize an election as in the act of February 24, 1937, and this act if applied to such office would be unconstitutional. (2) That under the constitution of this State as construed in Pittman v. Ingram, supra, and other decisions, the term of this office is for the period of four years and until a successor is qualified, and that such tenure by Pittman can not be interrupted while it endures, by either the Governor or the legislature. (3) That the act of February 24, 1937, is by its terms inapplicable to the office of the judge of the superior courts of the Cherokee Circuit, under the facts of this case. These questions were raised by the demurrer filed by Pittman to the suit of Mitchell, and are stated here substantially as they are expressed in the brief of counsel.
It is our opinion that the election of June 8, 1937, was a valid election as applied to this office, and that John C. Mitchell, the person elected therein, comes as a successor lawfully chosen and qualified, thus terminating the hold-over tenure of Pittman which has existed since January 1, 1937. The constitution of this State provides as follows; “There shall be a judge of the superior
The first of the provisions quoted provides for a definite term of four years, plus a contingent term of indefinite duration until a successor of the regular incumbent is qualified. In Pittman v. Ingram, supra, it was held that the word “successor” as used in this clause means a successor elected by the people. While it has been said that such additional tenure after the regular term is just as much a part of the incumbent’s term as the antecedent fixed term, it is yet different in character, being indefinite in extent and conditional in quality. Shackelford v. West, 138 Ga. 159, 162 (supra); Crovatt v. Mason, 101 Ga. 246 (28 S. E. 891); McCleskey v. Zimmer, 144 Ga. 834 (88 S. E. 188); Rowe v. Tuck, 49 Ga. 88 (99 S. E. 303, 5 A. L. R. 113); 33 C. J. 940,
When the quoted provisions of the constitution, which are the entire provisions on the subject, are carefully analyzed, it is plain that none of them can be construed as providing within themselves for an election in the present situation; nor on the other hand do they contain anything to prohibit the legislature from providing therefor. In other words, the constitution has left a definite hiatus, “as to selection and tenure of office of judges of the superior courts,” which could be supplied by the General Assembly under its power to pass any law consistent with this constitution and not repugnant to the Federal constitution. Code, § 2-1822. We refer to hiatus, not in the sense that there was no one to function as judge until a successor qualified, but in the sense that no provision is made by the constitution for electing a successor. The act of February 24, 1937, contains nothing which is inconsistent with the foregoing provisions, and there are no other constitutional reasons why it may not be applied to the facts of this case. This brings us to the question whether the act should be reasonably construed as applying by its terms to the facts of this record, and therefore as covering a field not inhibited by the constitution. The act provides for a general election to be held at times specified, for the purpose of filling vacancies in any and all State and county offices which “may have occurred by reason of the death or resignation of the incumbent or nominee therefor, or otherwise, since the last preceding general election.” To our minds it would have been difficult to describe the existing status of this office in general terms more suitable, so far as this language refers to death of a “nominee.” James A. McFarland had been elected as judge, but had died without qualifying. He was therefore the nominee of the people for that office for the term beginning January 1, 1937, in that he was the person named or designated by the electors therefor. See Webster’s New International Dictionary, the word “nominee.” Clearly the legislature did not employ this’ word in the sense of a party nominee, because the death or resignation of a mere nominee of a political party would not cause a vacancy either in office or in term. Any such construction would result in an absurdity, and it is not presumed that such a result was intended by the lawmaking body. Bunger v. State, 146 Ga.
In Pittman v. Ingram, supra, it was said, “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.” Since it is thus the constitutional policy that judges should be selected by the people, it follows as a corollary that such policy of selection should be exercised at the first opportunity provided by law. It was also said in that decision that the “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.” But it is earnestly contended by counsel for the defendant that this statute did not authorize the election of a judge of the Cherokee Circuit on June 8, 1937, for the reason, as held in Pittman v. Ingram, supra, that there was no vacancy in this office at the time of such election. As pointed out in that decision, there are several classes of vacancies. There may' be a vacancy in office or a vacancy in term. The former creates an emergency; the latter does not. In other words, in order to warrant an appointment by the Governor, there must be a vacancy in the sense that the office is actually unoccupied by any person authorized to discharge the duties thereof; whereas there may be a vacancy in term, as where the regular term has not been filled in the manner contemplated by law, although a prior incumbent may retain the office and discharge the duties thereof as a hold-over; and in the latter case, as related to this office, there is a vacancy which may be filled by an election pursuant to law, even though there was no such vacancy
A vacancy may occur so as to permit the appointing or electing power to appoint or elect some person to the office, although the incumbent' continues physically to occupy it, and has the right to do so until the qualification of his successor. The power to fill vacancies in elective offices is sometimes vested in an appointing officer. In such cases and for the purpose of making a temporary appointment to fill vacancies, something more is required than the mere absence of any incumbent in the office. The mere expiration of the term of the incumbent does not create a .vacancy which can be filled by such appointment. Especially when it is provided that there shall be a new election in the case of a tie vote, the failure of an election by reason of the fact that the opposing candidates have an equal number of votes will not constitute a vacancy to be filled by appointment for the residue -of the term.” 22 R. C. L. 437-8, §§ 91-92, quoted in special concurrence by Mr. Jus-, tice Gilbert in Lee v. Byrd, 169 Ga. 622, 626 (151 S. E. 28).
The act of February 24, 1937, so far as it refers to death of “nominee” clearly describes a vacancy in term, and provides for supplying it by an election by the people. Properly construed in the light of the facts, the decision in Pittman v. Ingram, supra, simply held that there was no such vacancy as to authorize an appointment by the Governor. This was the only question then before the court, and a decision of more would have been without authority and obiter. Since no election was then under consideration, that decision did not hold, and could not have held, that the same facts would not constitute such a vacancy as might be filled by an election by the people, pursuant to law. See, in this connection, McCleskey v. Zimmer, 144 Ga. 834 (supra); Cason
While we have not discussed the contentions of the defendant in error numerically or separately as they were stated by counsel, they have all been considered; and on the facts stated in the petition it is our opinion that the plaintiff, John 0. Mitchell, is entitled to the office in- question, and that the court erred in sustaining the demurrer and dismissing the petition.