State ex rel. Winter v. Sayre

118 Ala. 1 | Ala. | 1897

Lead Opinion

BRICKELL, C. J.

This was an information in the nature of a quo warranto, in which the appellant was relator, and the appellee was respondent, to test and determine the rival claims of the respective parties to the office of judge of the City Court of Montgomery. The material facts are undisputed. Thomas M. Arrington, by the nomination of the Governor, and the selection of the Senate, at the regular session of the General Assembly of 1892-93, was appointed the judge of the court, for the prescribed term of six years, and until the close of the General Assembly, at Avhich his successor should be appointed and confirmed. He was duly qualified, entered upon and continued in the exercise of the powers and duties of the office until the first day of October, 1895, when he resigned. Upon his resignation, the Governor appointed William S. Thorington, as 'his successor Avho qualified and remained in office until he resigned on the first day of February, 1896, and the relator was by the Governor appointed his successor, Avas duly commissioned and qualified, continuing in office until the close of the regular session of the General Assembly of 1896-97. During the session, the Governor nominated the respondent and tAvo others to the Senate, for the selection and appointment of one to the office of judge of the court. The Senate selected and appointed the respondent, and on the close of the session, lie was commissioned and qualified, and entered into the office, assuming and exercising its powers and duties. The circuit court rendered judgment against the relator, declaring that he Avas not entitled to the office, sustaining the Aralidity of the appointment and of the consequent right of the respondent; and it is from this judgment the appeal is taken.

Tavo questions are involved — the first is, Avliether by force of the seventeenth section of the sixth article of the Constitution, the appointment of the relator was for the unexpired term of Judge Arrington, continuing until the close of the session of the General Assembly of 1898-99, and until a successor was appointed and qualified. The remaining question involves the validity of the clause of the act approA’ud February 13, 1879, (Pamph. Acts, 1878-79, pp. 418-19), prescribing the term of office of the judge of tlie court, and the mode of filling the office, AAdiich, in the event of a A-acancy occurring, confers on the GoA'ernor the power to fill it by .an appointment continuing until the close of the next session of the General Assembly.

The seventeenth section of the sixth article of the Constitution reads: “Vacancies in the office of any of the judges or chancellors of this State shall be filled by appointment by the Governor, and such appointee shall hold his office for the unexpired term, and until his successor is. elected or appointed and qualified.” The article is entitled, “Judicial Department,” and is devotéd principally to the véstiríg of the judicial- power of the State; and in all former' Constitutions a corresponding article bearing the same title, has' been' devoted to the same purpose. The first section of the article rests the judicial poiver “in the Senate sitting as a Court of Impeachment, a Supreme Court, Circuit-Courts, Chancery Courts, Courts of Probate, such inferior courts of law and equity, to consist of not more than five members, as the General Assembly may from time to time establish, and such persons as may be by law invested with powers of a judicial nature.” The section is the counterpart of the same section of the same article of the Constitution of 1868, the immediate predecessor of the present Constitution, and varies from the corresponding section of the like article óf the preceding Constitution — the variance is, however, rather of form than in matter of substance. The original Constitution of 1819, and its successors of 186.1 and 1865, vested the judicial' power “in one Supreme Court, Circuit Courts to be held in each county in the State, and such inferior courts of law and equity, to consist of not more than five members, as the General Assembly may from time to time direct, ordain and establish.” Each declared the power of the General Assembly to establish courts of' chancery, and to establish in each county a Court of Probate, and contained provisions by which the Senate was constituted the sole tribunal for the trial of all impeachments of civil officers. If we omit the words, “and such persons as may be by law invested with powers of a judicial nature,” the section in its present form is simply expressive in a single clause or sentence, of that which was manifested by the several sections of the article of former constitutions creating the judicial department and vesting judicial powers, taken in connection with the sections relating'to impeachments. When these words," “and such, persons as may be by law invested with powers of a judicial nature,” are read and interpreted in the light of prior legislative and judicial history, it is apparent they were introduced into the Constitution, and properly introduced in the connection in which they are found, from an abundance of caution. Until the decision in Gaines v. Harvin, 19 Ala. 491, it was-a vexed question, whether the General Assembly could confer power essentially of a judicial nature on other than judicial officers — the judges of the courts referred to in the Constitution, or the judges of inferior courts of legislative creation. After elaborate argument, and deliberate, mature consideration, in the case referred to, it was decided, that it was within legislative competency to confer such power on mere ministerial or executive officers. To avoid a recurrence of this question; to j)lace legislative power in this respect, beyond the pale of controversy, these words were introduced into the Constitution. — Ex parte Roundtree, 51 Ala. 42.

In the structure of the judicial system of the State, in the creation of judicial tribunals, and in the division and distribution of judicial power, there has been but little of change in the several constitutions of the State. All have provided for a Supreme Court, defining its jurisdiction and powers, as they are now defined, with the exception of the grant to it by the present Constitution of original jurisdiction of the impeachment of particular officers. All have provided for Circuit Courts, for Courts of Chancery, for Courts of Probate, and for the election or appointment of justices of the peace; and have defined with more or less of precision the jurisdiction each court was to exercise, and the extent of the jurisdiction justices of the peace derived from the Constitution itself. The system is in itself and of itself complete; and though there has been a grant or reservation to the General Assembly of power to establish inferior courts of law and equity, there has not been any part, or any fraction, or fragment of the judicial power, left in abeyance, awaiting the happening of any future event, or the exercise of future legislative power, to vitalize or quicken it into activity. If the General Assembly never exercised the power to establish inferior courts with which it was clothed, and its exercise is purely matter of legislative discretion, the whole element of sovereignty known as the judicial power would exist, confided to tribunals which may properly be said to be of constitutional creation. — Perkins v. Corbin, 45 Ala. 118.

Tlie changes in the structure of the system — the more important changes — wrought by constitutional amendment, have been in the tenure of judges, and the mode of their election or appointment. By the original Constitution of 1819, all judges held office during good behavior, and were elected by the joint vote of the two houses of the General Assembly. By an amendment adopted in January, 1830, the tenure or term of office was changed to six years, but there was no change of the mode of election until January, 1850, when an amendment Avas adopted transferring the election of judges of the Circuit Courts to the qualified electors of the circuits, respectively; and the election of judges of the Courts of Probate, and other inferior courts, to the qualified electors of the counties, cities, or districts, for which such courts Avere respectively established. The judges of the Supreme Court and chancellors remained elective by the General Assembly, until the formation and adoption of the Constitution of 1868. By that Constitution, the tenure or term of all judges, was fixed at six years, and judges of the Supreme Court were elective by the qualified electors of the State at large, chancellors by the qualified electors of the division, judges of the circuit court by the qualified electors of the circuit, judges of probate by the qualified electors of the county, and judges of the inferior courts, by the qualified electors of the county, city, tOAvn, or district, for Avhich the court was established. The present Constitution prescribes six years as the term of office of the chief justice and associate justices of the Supreme Court, circuit judges, chancellors, and probate judges; and declares the right of these judges to hold office for the full term prescribed shall not be affected by any change of any circuit, division, or county, nor in the mode or time of election. And these judges are elected by the qualified electors of the State, of the circuits, chancery divisions, and counties, for AAdiicli the courts are established. Departing from the theory and policy of former constitutions, the mode of electing or appointing, or the term of office of judges of inferior courts, is not prescribed. And emphasizing the change of theory and policy, it is declared: “The judges of such inferior courts of laws and equity as may be by law established, shall be elected or appointed in such mode as the General Assembly may prescribe.” And in this connection, it may be observed, former Constitutions had prescribed the mode of electing or appointing, and the term of office, of clerks of inferior courts, never committing the appointment to the judge of the court, while in further manifestation of the radical change of theory and policy in reference to these courts, the appointment of clerk is now committed to the judge, and the appointment endures during the term of the judge by whom it is made.

Granting to the General Assembly this unlimited power to prescribe the mode of election or appointment of judges of inferior courts, by necessary implication, the Constitution confers every particular power necessary to render the grant effectual. When an election or an appointment is prescribed as the mode of filling the office, the power is not exhausted — the term of office may be prescribed, and whatever else may be deemed necessary to subordinate the office and the court to legislative control. Without derogating from, or lessening the force of, the general grant, the Constitution could not have descended to an enumeration of particular powers the grant involved. And if it had descended to such an enumeration, the particular powers not enumerated, would have resided in the General Assembly, if not confided expressly to some other department by the government. In all its elements, under the Constitution, an inferior court is of legislative creation and institution; and it is only as of such creation and institution, there is constitutional recognition of it; and as this is its essential character, it is distinguished and distinguishable from all other courts or tribunals to which the Constitution refers.

As we have said, the intrinsic body of the judicial power is lodged, by the Constitution in the courts of its own creation and. protection. The appellate jurisdiction, and the powers incident deemed necessary to render it effectual,, is granted to the Supreme Court. The circuit court has original jurisdiction in all matters civil and criminal, not otherwise excepted, but in civil cases only when the matter or sum in controversy exceeds fifty dollars. Courts of chancery are established, Avithout any special definition or description of the jurisdiction they were to exercise, and such definition or description was not necessary. Such courts were known to the common law, had been instituted here in the earliest days of organized government, exercising the jurisdiction pertaining to such courts in England, whence all our institutions were derived, so far as adapted to our condition, institutions and general jurisprudence. Courts of probate, though that particular designation Avas not given them by legislation until 1850, existed in each county prior to the formation of the original Constitution of 1819; and in that and all succeeding constitutions, the nature and character of the jurisdiction they were to exercise, and the purposes of their creation haAre been' expressed in the same general terms, “for the granting of letters testamentary and administration, and orphans’ business.” The original jurisdiction of these courts — of the courts of chancery, and of the courts of probate — essentially and exclusiArely civil, is excepted from the grant of original civil jurisdiction to the circuit courts. And it is the judges of these courts — the circuit courts, the courts of chancery, the courts of probate — who are protected against legislative invasion, by any change of circuit, or division, or of the county, or in the mode or time of election. These are permanent courts, necessary constituents of the judicial system the Constitution creates, and may be said to organize, when it is read and interpreted, as it must be read and interpreted, in the light of the laws and systems existing at its formation, which are not destroyed, but preserved, so far as not repugnant to or' inconsistent with its provisions. These courts statutes do not create, and Avhatever may be the scope of legislative power to regulate the exercise of the jurisdiction conferred upon them, or in the enlargement of their jurisdiction to meet varying conditions and necessities, statutes cannot destroy them. Inferior courts, whatever may be the title or designation given them, derive existence and vitality from legislative power; and the power that at will creates, may at Avill destroy. The inferior conrts existing at the formation of the original Constitution, known as county courts, Avere abolished by the act of the General Assembly, approved February 9, 1850, and their records and process transferred to the circuit courts of the respective counties. — Pamph. Acts, 1849-50, pp. 24-36. In the course of legislative history, quite a number of these courts have been created and destroyed or abolished at the will and discretion of the General Assembly. The city court of Selma Avas established by an act of the General Assembly, approved December 9, 1864, (Pamph. Acts, 1864, pp. 146-149), and was abolished. by an act approved December 11, 1869, and its records and process transferred to the Circuit Court of the county.— Pamph. Acts, 1869-70, pp. 6-8. The validity, extent and operation of the latter enactment, came before this court for consideration in Perkins v. Corbin, 45 Ala. 103; and after elaborate argument, the enactment was sustained, and its effect declared to be the abolition of the office of judge of the court, terminating all right of the incumbent to salary for the unexpired term. That AAdiich is now of the more importance, is the explicit affirmation by the court of the plenitude of legislative poAver in the creation and abolition of inferior courts, and the exposition of the distinction betAveen such courts and the permanent, continuing courts of the Constitution. This judicial determination of the nature and character of inferior courts — of their dependence upon and subordination to legislative power — was made less than five years before the formation and adoption of the present Constitution. The convention framing, and the people adopting the Constitution, Avere not ignorant of this judicial exposition; and if presumptions are indulged,' the presumption must be, that if they intended any change in the nature and character of these courts — to lessen their dependence upon and' subordination to the legislative power— the intention Avould have been clearly expressed. There is no expression of such intention in the Constitution. On the contrary, all that relates to the institution of such courts is expressed in the same words in which it Avas expressed in all former constitutions. The only change is, that the term of the office of the judge of such courts, or the mode of election or appointment to the office is not prescribed, but is committed, expressly committed, to the General Assembly. When a constitutional provision has received construction, and is substantially adopted, or carried into a succeeding Constitution, the courts apply the rule which prevails in reference to the substantial re-enactment of statutes — that it is the intention of the law-giver to adopt the construction the original statutes had received.

The object of all construction is to ascertain and effectuate the intention of the people in the adoption of the Constitution. The intention is collected from the words of the instrument, read and interpreted in the light of its history. The general rules or principles employed are well defined. A cardinal rule is, that the Constitution’ must be carefully examined in its entirety. As an entirety, complete and harmonious in all ics parts, or believed to be, it was framed by the convention of the representatives of the people. As an entirety, it was adopted by a single expression of the sovereign will of the people. There can be no fair or. just construction or interpretation, if it be limited to 1'articular words or phrases, or the words or phrases of particular clauses. The Avhole. must be considered to ascertain the sense and significance, in Avhich words or phrases are used in particular parts of clauses. — Cooley Const. Lim., 74. As has often been said, the Constitution is not the beginning of Iuav — originally it Avas made by a people and for a people, among whom the common Iuav prevailed, and avIio had statutes, judicial tribunals, a legislature, an executiAre, and all the agencies of gwernment knoivn to American institutions and jurisprudence. There can be, no just construction or interpretation, effectuating the intent of the people, which is not deduced, not only from the words, but, from the history of anj particular part or provision of the instrument. — Cooley Const. Lim. 74; People v. Angle, 109 N. Y. 568; Street v. City of Syracuse, 129 N. Y. 316; People v. Draper, 15 N. Y. 537; Ex parte Roundtree, 51 Ala. 42; Taylor v. Woods, 52 Ala. 474; Mayor v. Stonewall Ins. Co., 53 Ala. 570. Reading and construing succeeding constitutions in connection with the predecessors, Ave discover the changes they introduce— the ends or purposes it is proposed to accomplish, and the real meaning of words or phrases.

Keeping these principles and rules in view, further inquiry into the distinctive nature and characteristics of inferior courts, as they exist under the present Constitution, and as they existed under its predecessors, will aid materially in the solution of the immediate question for decision. The compensation of the judges of the county courts — the original of the inferior courts — was derived from fees, which the legislature could enlarge or diminish at pleasure. — Benford v. Gibson, 15 Ala. 521. The judge was invested with a dual capacity and jurisdiction — he was not only the judge of the County Court, but also of the Orphans’ Court— the designation, so long as the County Courts existed, of the Court of Probate of the Constitution. The judges of all other inferior courts have been, and are now, compensated by salaries; but the salaries were and are payable from the treasury of the county, for which, or a division, or district of which, the court may be established, and not from the treasury of the State. The judges of the permanent, continuing-courts of the Constitution — the judges of the Supreme Court, the chancellors, and the judges of the circuit courts — receive no fees or perquisites, they are compensated bv salaries, payable from the treasury of the State, which cannot be diminished during their official term. A fixed term of office, and compensation incapable of diminution during the term, is deemed essential to preserve the independence of the judiciary of the creation of the Constitution. A like measure of protection could not be extended to inferior courts of legislative creation, without derogating from legislative power, and rendering them constituents of the permanent judicial system of the State. Chancellors, at discretion, may hold courts for each other. The judges of the circuit courts may, and, when required by law, must interchange. Judges of inferior courts have never been authorized to exercise judicial functions except in the particular courts of which they are judges; and it may well be doubted whether it is" within legislative competency to confer such authority. Judges of the Supreme Court, of the circuit court, and chancellors, are prohibited, during the term for which they are elected, from holding any office (except judicial offices) of trust or profit, under this State, or the United States, or any other power; a prohibition not extended to judges of inferior courts. We need not pursue further inquiry into the nature and characteristics of inferior courts, and their absolute dependence on legislative power. for existence. Without a fixed term of office, without constitutional protection of their compensation, free from all prohibition to take other offices, the judges of the courts are separated and distinguished from the judges .of the courts of the Constitution, as plainly as if the separation and distinction had been expressed .in words directed to that purpose.

The Constitution of 1868 provided that 'Vacancies in the office of the circuit judge, judge of probate, or judge of any other inferior court established by laiv, shall be filled by the Governor; and the person appointed by him shall hold office until the. next election day appointed by law for election of judge, and until his successor shall have been elected and qualified.” The judges enumerated, it must be observed, had fixed terms of office, and an election by the qualified electors of the circuit, or of the county, or of the town, city or county, or district for which the court was established, was prescribed as the mode of .filling the office.- There Avas an omission to proiude a mode of filling vacancies occurring in the office of chancellor', and in the office of judge of this court, supplied by an act of the General Assembly, approved March 7, 1873, conferring on the Governor general poAver to fill by appointment vacancies occurring in judicial offices. — Pamph. Acts, 1872-73, p. 83.

The constitutional provision now in question,, is the successor — the substitute — for the corresponding provision of the Constitution of 1868; it relates to the same subject and has a like office to perform. The preceding provision related only to judges having a term of office, and a mode of election, prescribed by the Constitution. Then, as now, there Avas the frailty of the tenure of office of judge of an inferior court — then, as noAv, such courts were of legislative creation and subject to legislative destruction; but the mode of filling the office of judge, the Constitution prescribed;, it was not Avithin legislative power. Bead in the light of the legislative and judicial history of inferior courts; in connection with the corresponding provision of the preceding Constitution; and in connection with other sections and clauses of the article of -which it forms part, the provision in question cannot by any fair, just construction, be extended to every officer exercising judicial power, though he may bear the title of judge or chancellor. It relates to the judges and chancellors nominated in the Constitution, and by the Constitution invested with judicial power. The abstract force of the words, “any of the judges or chancellors of this State,” taken in the largest sense and significance of which they are capable, may comprehend judges of inferior courts, or any judicial officer taking place and authority from the laws of the State. Every public officer, judicial, ministerial, or executive, deriving place and authority from the Constitution or laws, is an officer of this State, and not of any other sovereignty or jurisdiction. If the mere abstract force of words be consulted, the intendant, or mayor, or recorder of municipal corporations, invested with a minimum of judicial power, the exercise of which is localized within narrow, defined territorial limits; or notaries public of the appointment of the Governor, authorized to exercise the jurisdiction of justices of the peace, may be said to be “judges of this State.” Yet, that would not meet and satisfy the popular, familiar meaning of the phrase or expression, nor would it accord with the structure or frame of the government. The Constitution and legislation create two classes of public offices and officers — offices and officers of the State, and county offices and officers. They are agencies and component parts of the government, marked and distinguished by the nature and extent of authority conferred, and the sphere of performance of official duty. — Ex parte Wiley, 54 Ala. 226. Deriving existence and authority from a common source, general words or phrases used in a statute or in a constitutional provision, if taken in the largest significance of which they admit, may comprehend each class. Whether each class is comprehended, or the one only, depends not so much on the generality, or abstract force of the words, but upon the relation in which the words are found, and the purposes of . the statute, or of the constitutional provision.

It is not matter of controversy, that the Constitution reserves, expressly reserves, to the Generál Assembly, the power to provide the mode in which judges of inferior courts shall be elected or appointed. It is not, it cannot be, matter of controversy, that in respect to these judges and these courts, there is a change, a departure from the theory and policy of all former constitutions, which, though the courts were subject to legislative destruction, yet removed from legislative power, the tenure or term of office, and the mode of electing or appointing the judge. Since the abolition of the county courts, there has not been a system of inferior courts having uniformity of jurisdiction throughout the State. Such courts have been established by the General Assembly, to meet the necessities and conditions of particular localities. These necessities and conditions vary, and as they varied, there has been an adaptation of the grant of jurisdiction to meet them. The present City Court of Mobile was originally established as the “Criminal Court for Mobile county,” and invested only with criminal jurisdiction, concurrent with that of the circuit court. — Nugent v. State, 18 Ala. 521. Since, there has been a change of its title, and an addition of civil jurisdiction concurrent with that of the circuit courts, except of actions involving titles to lands; but it has not been invested with equity jurisdiction. The city court of Montgomery, originally, was clothed with criminal and civil jurisdiction, (excepting from the civil jurisdiction, actions involving the title to lands), concurrent with that of the circuit court. Since, it has been invested with jurisdiction concurrent with that of the court of chancery. The jurisdiction of each court is localized and limited, to the particular county for which it is established. There is no necessity to refer to the variety of jurisdiction conferred on other inferior courts. The city court of Mobile and the city court of Montgomery illustrate that such courts are established, and jurisdiction conferred, to meet the varying necessities and conditions of particular localities. Can it be said, that uniformity in the mode of, appointment or election, or in the tenure or term of office of the judges of these courts, would meet the necessities and conditions of every locality for which the court may be established? However that may be, the Constitution speaks for itself — instead of prescribing inflexibly the tenure or term of office of the judges of these courts, or the mode of their election or appointment, it commits to legislative power, as it commits the character or extent of jurisdiction, the determination of the tenure or term of office of the judges, and the mode of election or appointment.

There are judges and chancellors, who may with propriety be denominated judges and chancellors of this ¡átate, having fixed terms of office, the mode of election to which the Constitution prescribes, and to whom a' measure of protection, adapted to the nature of their respective courts, against legislative invasion or interference, the Constitution extends. Elective by a vote of the people, at the same time, there is uniformity in the duration of their official term; a uniformity first introduced by the Constitution of 1868, and preserved by the present Constitution. Naturally and logically, it is to these judges and chancellors the constitutional provision refers. By construction, there cannot be an extension of it to judges of inferior courts. The extension would be a limitation upon, and in derogation of, the plenary power of the General Assembly, to prescribe the mode of election or appointment, and the tenure or term of office, of these judges. The office is now, as it has been at all times, of statutory creation; the mode of filling it and the duration of the term now lie exclusively in legislative discretion. The power to create, accompanied Avith the express power to provide the mode of filling and the tenure or term of office, involves the poAver to provide the mode of filling vacancies occurring before the lapse, of the appointed term. The conclusion is, that reading and interpreting in its entirety, the article of the Constitution of which the section in question forms part, it does not invest the Governor Avith poAver by appointment, to fill vacancies occurring in the office of judge of an inferior court. As to the office of judge of the City Court of Montgomery, the poAver exists; derived, not from the Constitution, but frcm tlie act of February 13, 1879, to which reference has been made.

The act is entitled, “An act to authorize the Governor by and with the advice and consent of the Senate, to appoint the judge of the City Court of Montgomery.” There was, at the passage of the act, an incumbent of the-office, elected on the first Tuesday of November, 1874, having under the Constitution of 1868 a fixed, defined term of office; entitled to hold office, if there was not legislative abolition of the court, until the next general election of judges, and until the election and qualification of his successor. Under that Constitution and the existing legislation, the next general election would have occurred on the first Tuesday of November, 1880. The present Constitution entitled the incumbent to remain in office until that time — the expiration of the term for which he had been elected. It is in reference to, and in connection with these facts, the act must be interpreted. When analyzed, and so interpreted, the intention of the General Assembly is plain. There was before it a single subject, not naturally or logically divisible — the office of judge of the City Court of Montgomery, and the mode of filling it — and to this subject and no other, the act is devoted. The first section provides the mode of filling the office, upon the expiration of the term of the then incumbent. Until the expiration of that term, a new, original term of office could not commence — could not commence, because the Constitution provided for the continuance of that term, until its expiration according' to the preceding Constitution. And it is the mode of filling the office in the future, after the expiration and without disturbance of the unexpired term of the incumbent, to which the section relates. The first section, with its limitation, having provided or prescribed, which word is used is not material, the mode of filling the office, the second section provided the tenure or term of office — it is “six years, and until the close of the session of the General Assembly, at which his successor is appointed and confirmed,” as is provided in the first section. The two sections, therefore, exhaust the subject to which the act is devoted, with the exception of supplying, or 'providing the mode of supplying possible vacancies, the term of office continuing. .The clause of the second section, the 'validity of which is now assailed, relates to the filling of 'vacancies, and is in these words: “And in case of any vacancy in said office of judge of said city court, after the passage of this act, such vacancy shall be filled by the Governor, and the person thus appointed shall hold the office until the close of the next ensuing session of the General Assembly, and until his successor is appointed and confirmed.” The act is in itself complete; it meets every condition and phase of the one subject to which it is devoted. • Recognizing the continuance of the term of the prior incumbent, it first provides the mode of filling the office when that term has expired— it then provides the tenure or term of office; and then, it provides the mode of supplying possible vacancies, whether the vacancy is of the unexpired term of the then incumbent, or vacancies of subsequent occurrence; and it provides the duration of an appointment to fill a vacancy. The power of the General Assembly to enact the statute, is not the matter of controversy. The controversy is, whether the single subject to which the act is devoted is expressed in its title; or, to state the proposition precisely, whether the title is broad enough to comprehend the clause conferring on the Governor the power to fill vacancies.

The clause of the Constitution supposed to be offended, that “each laAv shall contain but one subject, which shall be clearly expressed in its title,” excepting particular laws it is not now necessary to enumerate, lias been of frequent consideration in this and other courts, and the rules governing the determination of all questions arising under it, are well settled. In passing upon the constitutionality of statutes, it is a universal rule, that all reasonable presumptions are indulged in favor of legislative action; before sentence of nullity is pronounced against it, the infraction of the Constitution must be clear; and to this unvarying rule, statutes supposed to be violative of this clause of the Constitution are not an exception.- — State v. Rogers, 107 Ala. 444. It is not within the province of the courts to sit in judgment upon the title, and determine whether it could not have been drawn in some other form, more clearly or definitely indicating the subject to which the body of tbe act relates. Tbe legislature is not subject to judicial control in respect to the form or mode-in which the subject of a law shall be expressed in the title. If the subject be expressed, the mandate and all the purposes of the Constitution are satisfied. — People v. Banks, 67 N. Y. 568. In Ex parte Pollard, 40 Ala. 77-98, it was said by A. J. Walker, C. J.: “It is impossible ho prescribe any standard of particularity for the legislature. The Constitution has not attempted to do so. It exacts from the legislature an announcement in the title of the subject, but does not dictate any degree of particularity. This is a matter left to the legislative discretion. * * * * * The object of the Constitu-

tional provision was to prevent deception by the inclusion in a bill of matter incongruous with the title. The evil contemplated was not the generality and comprehensiveness of title. These faults do not tend to mislead or deceive.” Further: “The particular subject selected by the legislature and put in the title must embrace-every part of the law. The question must always be, whether, taking from the title the subject, we can find anything in the bill which cannot be referred to that subject. If we do, the law embraces a subject not described in the title. But this conclusion should never be attained, except bjr argument characterized by liberality of construction and freedom from all nice verbal criticism.” The thought last expressed, that this clause of the Constitution must be liberally, not closely or narrowly construed, embarrassing legislation, has guided and controlled judicial decision. As is said by Mr. Freeman in note to Davis v. State, 61 Am. Dec. 339: “All the cases involving a discussion of this constitutional restriction are guided by this generous principle of liberal construction. While in a large number of decisions this doctrine is not announced, their tenor and effect show that the court in rendering them were controlled by its overshadowing influence.”

Another of the rules observed, is that declared by Stone, J., in Ballentyne v. Wickersham, 35 Ala. 536: “That the title of a bill may be very general, and need not specify every clause in the statute. Sufficient if they are all referable, and cognate to the subject expressed. And when the subject is expressed in general terms, every tiling wliich is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in, and authorized by it.” The rule was announced and applied in State v. Harrub, 95 Ala. 176; Ex parte May & Ald. of Birmingham, 116 Ala. 186.

Tested by.these general rules, we conclude, the title of the act must be construed as expressing but one general subject, comprehending all that constitutes its body. It would be mere clinging to the letter and words, to construe the title as restrictive, or limiting the subject of the act, to an appointment of the judge by and with the concurring action of the Governor and Senate, in all events and contingencies. The members of the General Assembly knew, that the term of office of the then incumbent would expire upon the meeting of the next session of the Geheral Assembly. They knew that the office had ceased to be elective — they knew, if an interregnum in the office was not suffered, that the mode of filling it must, be prescribed at that session, in the exercise of the exclusive power to prescribe the mode of filling it, the Constitution granted to the General Assembly. The title of the act gave notice to the members of the General Assembly, and to all specially interested, that the purpose was the performance of the duty devolved by the Constitution; and it is not partial or fragmentary performance, the title, expresses. In general terms, it expresses as the subject of the act, authority to the Governor by and with the advice and consent of the Senate, to appoint, the. judge. But it is' not to be conceived, that it was unknown to the General Assembly, that vacancies in the office might occur, when the General Assembly was not in session, and there could not be an appointment by the concurring action of the Senate and the' Governor. Nor can it be conceived, that it was supposed from the title, the filling of such vacancies was intended to be the matter of other additional or supplementary legislation. Beading the title in relation to and in connection with the legislative necessity inducing the passage of the act, and indulging the .liberality or generosity .of construction it is a duty to indulge, the clause conferring on the Governor the power to fill vacancies occurring during the recess of tlie General Assembly is within the scoj>e of the title — a mere subsidiary power, having relation to the general, main power conferred on the Governor and the Senate.

Let the judgment of the Circuit Court be affirmed.

McClellan and Haralson, JJ., 'concurring.

---

Dissenting Opinion

HEAD, J.,

dissenting. — We are asked by the information, in the nature of quo warranto, exhibited by the relator, John Gindrat Winter, to determine the constitutionality vel non. of so much of the act of the General Assembly of Alabama, of February 13, 1879, as provides for the filling of vacancies in the office of the judge of the City Court of Montgomery. — Acts, 1878-79, p. 418. The question has been zealously and ably argued by the counsel of the respective parties, and I approach its consideration, I trust, with a due sense of its importance, and in recognition of the principle that statutes are not to be set aside as offensive to the organic law, except for cogent reason.

The City Court of Montgomery was created by act of the General Assembly, as an inferior court, under the authority of the constitutional provision which will appear further on; and the act of the legislature of February 13, 1879, now in question (which was amendatory of previous acts on the subject), fixed the term of office of the judge at six years, as it had formerly been, and provided for his appointment, by the Senate, from three persons to be nominated to that body by the Governor. The second section of the act (the validity of which is now in controversy) provided, that “in case of any vacancy in said office of judge of said city court, such vacancy shall be filled by the Governor, and the person thus appointed shall hold the - office until the close of the next ensuing session of the General Assembly, and until his successor is appointed and confirmed.”

A vacancy in the office having arisen by the resignation of the incumbent, shortly prior to the meeting of the session of the General Assembly of 1896-97, the relator, Winter, was appointed by the Governor to fill it. At that time, there remained near two years of the current term of six years. Winter accepted the appointment, qualified and entered upon tlie discharge of his official duties, and continued therein, unmolested, until the close of the next ensuing session of the General Assembly, in February following. During the sitting of the Senate, the Governor, responding to the requirement of the act of February 13,1879, above copied, nominated to that body three persons, including the respondent, A. D. Sayre, as the persons from whom should be appointed a judge of the said city court. The Senate, likewise treating the said act as a valid enactment, received the nominations from the Governor, and appointed the respondent to be judge of said court. The relator, as we have said, now questions the constitutional validity of the enactment, and the proceedings under it, basing his contention upon alleged violations "of two constitutional provisions; and contending thereon,

I. That section 17, Article VI, conferred the power of appointment, in such cases, upon the Governor exclusively, covering the entire unexpired term of the office; and,

II. That the title of the act does not conform to the requirements of section 2, Article IV, that “each law shall contain but one subject, Avhich shall be clearly expressed in its title.”

In the division of the poAvers of the State government 'into three departments, the Constitution, in section 1, Article VI, ordains, that “The judicial power of the State shall be vested in the Senate, sitting as a court of impeachment, a supreme court, circuit courts, chancery courts, courts of probate, such inferior courts of lato and equity, to consist of not more than five members, as the General Assembly may from time to time establish, and such persons as may be by law invested with poAvers of a judicial nature.” (Emphasis mine.)

The remaining provisions of the article provide for the organization, jurisdiction, powers, rights, etc., of the seA'eral tribunals, and the judges thereof. Beaching sections 12 and 13, Ave find them devoted to providing how the judges of these tribunals are to be selected. Thus, by section 12, the justices of the supreme court, the judges of the circuit and probate courts and chancellors shall he elected by the qualified electors, etc.; and by section 13, the judges of such inferior courts of law and equity as may be by law established shall be elected or appointed in such mode as the General Assembly. may prescribe.

To this point, no reference is made to vacancies in the offices of any of the judges, nor how the same shall be filled, but, after making some other essential provisions in sections 14, 15 and 16, we find section 17 introduced, devoted to that subject. It reads thus: “Vacancies in the offices of any of the judges or chancellors of this State shall be filled by appointment by the Governor; and such appointee shall' hold his office for the unexpired term, and until his successor is elected or appointed and qualified.” (Emphasis mine.)

These are the provisions of the Constitution which bear directly upon the first question presented, and are of controlling importance in its solution.

Preliminary to a discussion of the question presented, I remark, generally, that in the imrestigation of the constitutionality of an act of the legislature, it is the duty of the court to determine, first, what the Constitution, in express terms, or by just implication, means or requires, touching the subject of legislation under review, and this must depend upon the reading of the Constitution itself. The provisions of the enactment assailed, cannot be consulted to give interpretation, shade or coloring to the language of the Constitution, except in so far as the same may be regarded as the expression of opinion of a body, entitled to consideration at the hands of a court. The meaning and requirements of the Constitution being ascertained from the language of the instrument itself, taken as a whole, there is a general presumption that legislative enactments are conformable to them; and such enactments will be so held by the courts unless they plainly appear to be otherwise. Any reasonably fair construction of an act, conforming it to the Constitution, will be adopted, rather than an obnoxious one, though the latter might seem more plainly to have expressed the legislative intent.

In expounding the Constitution, it is elementary that the intention of the framers must be sought f-or in. and be deduced from a consideration of, every provision of tlie instrument having any legitimate bearing upon the question involved, giving proper effect to every word and clause. If a positive requirement, expressed in ordinary and unambiguous language, be found, effect will be given to it according to the ordinary meaning of the words employed, unless qualified by some positive provision of the context, or some provision clearly evincing, by implication, a purpose so to qualify it. In other words, the constitutional convention will be supposed to have understood ordinary words employed by it, according to their usual and ordinary signification, and a requirement of the instrument, couched in language of this character, conveying within itself a certain and definite meaning, will not be made to yield to implications which may be reconciled to the positive requirement, or which do not evince an adverse spirit, so manifest, as to force the mind to conclude that the positive requirement -was not intended to mean what it declared.

Again, sectional or other subdivisions of a constitution are, generally speaking, for the sake of method and convenience. The instrument itself is an entire thing, composed of its several subdivisions. In determining what its framers intended to ordain on a given subject, as a rule, we blot out subdivisions, and look to the whole, having any relation to the given subject, as one declaration; and if any part of the whole qualifies or explains another part, we recognize that effect and give it operation accordingly.

As said by Brickell, C. J., in Carroll v. State, 58 Ala. 396: “The safe rule of constitutional construction, is to regard, not so much the form or manner of expression, as tlie nature of its provisions, and the end to be accomplished, giving its words their just and legitimate meaning.”

These are elementary truths concerning the exposition of all written laws, constitutional or statutory, and in the light of them, it is proper to consider the special provisions now brought in question.

It is to be noticed tlxat said section 13, above referred to, viz., that which provides that, “The judges of such inferior courts of law and equity as may be by law established shall.be elected or appointed in such mode as the General Assembly xxxay prescribe,” is silent as to the duration of the terms of the judges, and as to vacancies occurring in their offices. The only express mandate of the whole provision is, that the judges referred to, shall be elected or appointed in such mode as the General Assembly may prescribe.

As to the term of office, it will not, I think, be doubted that the constitutional convention not only realized the implied, inherent power of the legislature, in the absence of action on its oavu part, to prescribe the terms of judges of such inferior courts, but that it actually contemplated that, whenever such a court should be established, the legislature would affix to the office of the judge a definite term. From the long history and practice of governments, in this country, anti as essem tial to orderly administration of government, in all its departments, fixed duration of official tenure is inseparable from the conception of a public office. The Constitution gave further evidence of this contemplation, when in section 22 of the same article, it provided that the clerks of such inferior courts shall hold office during the terms of the judge, etc. I doubt if a public office was ever created in this State, Avithout a provision fixing the term of the incumbent. It was fixed at six years, in the creation of the City Court of Montgomery, and such is and has ever been, the recognized official term of the judge of that court.

Nor can it be doubted, for an instant, that said section 13, uninfluenced by any provision of the context excluding the power, left open, and in full force, the implied, inherent power of the legislature to provide how vacancies in the office of a judge of an inferior court created by it, should be filled; and if there be, in the Constitution, no such restraining or qualifying provision, that implied power necessarily operates; and, of consequence, any mode of filling such vacancies Avhich the legislature might prescribe, would be unassailable. Placing the section, then, by itself, upon its broadest ground, it provides, expressly, that the legislature, when it establishes an inferior court, shall prescribe hoAV t'he judge thereof shall be elected or appointed, and, impliedly, how vacancies occurring in his office shall be filled.

So that, we see, plainly, the whole controversy turns upon the inquiry whether this implied authority is restrained or controlled by any other provision of the Constitution; and this inquiry narrows itself to one other, Adz.: Does the expression, “any of the judges or chancellors of this State ” found in section 17, include “judges of such inferior courts of law and equity, * * * * as the General Assembly may from time to time establish?”

Going back to section 1 of this judicial article, and the scheme of the convention, in creating and defining the judicial department of the State government, is apparent. The purpose, manifestly, was, first, to create, as fixed organisms beyond legislative control, such tribunals for the administration of justice, as would ordinarily and reasonably answer the necessities and demands of the people. These were to be the people’s tribunals, fixed by the organic laAv; irrepealable by any mere legislative power. They were intended to secure to the people the all important function of a stable and reasonably sufficient judicial system, without which Avell administered government could not exist. Hence, after declaring the functions of the Senate as a court of impeachment, section 1 established, as such fixed tribunals, a supreme court, circuit courts, chancery courts and courts of- probate; other sections defining their jurisdictions and poAvers; and, to render the system more efficient, the convention proceeded, in other sections, not only to form plans and machinery of organization, prescribe qualifications of officers, etc., but to adopt safeguards against legislative interference, touching rights of judicial incumbents, providing, for them, fixed and unalterable terms of official tenure, and, except as to judges of probate, securing to them a compensation for their services which shall not be diminished during their official terms; and to make these tribunals essentially the people’s, it was provided, as we have seen, in section 12, that the judges of them shall be elected by the people. Secondly: The conArention Avisely contemplated, indeed, experience had taught its members, that recurring exigencies, fluctuations of trade and business, etc., would give rise, in some localities, to necessities for additional tribunals, of greater or smaller jurisdiction, and of longer or shorter duration, hut which it was not in the wisdom of the conven-. tion to well anticipate, and not within the economy of the State to provide as permanent courts. Hence, to meet these wants, as they might arise, the convention left it to the legislature to provide such additional tribunals, with such jurisdiction, either of territory or subject matter, and to be continued in being so long, as, in its wisdom, might be determined. It thus seems plain, why no term of office was fixed, by the Constitution, for the judges of these courts; for the term, if so fixed, might extend beyond the existence of a necessity for the continuance of the court; and why such judges were not required to be elected by the people; for a court might necessarily be created at a time when no general election was near at hand, necessitating a special election, howsoever limited in’jurisdiction and importance the , court might be.

But, notwithstanding these large powers given to the legislature, in respect of these inferior courts, it is of the utmost importance to remember, that said section 1, which ordains óf what the judicial department of the State shall consist, declares, in terms incapable of two meanings or constructions, that these inferior courts when established shall constitute a part of the State judicial department; and the judges thereof, when elected or appointed, are as much' a part of the State judiciary — “judges of this State” — as the judges of this —the Supreme Court — or any other court defined by the Constitution as being a part of the judicial clepartment. This is not only conclusively shown by said section 1, but it is enforced ancl emphasized by provisions which follow, regulating, in certain respects, such inferior courts. Thus, as in section 13, providing how the selection of the .judges of inferior courts shall be made; and, as in section 14, that judges of the city court" shall have been citizens of the United States and this State for five years, next preceding their election or appointment, and shall not be less than twenty-five years of age, and learned in the law; and in section 16, that the judges of the inferior courts, within their respective jurisdictions, shall be conservators of the peace; and, as in section 18, regulating the appointment of special city court judges when the incumbent is incompetent to sit in a cause; and, as in section 20, which provides that “No judge of any court of record in this State shall practice law1' in any court of this State, or of the United States;” and lastly, as in section 22, that the clerks of said inferior courts shall be appointed by the judges thereof, and shall hold office during the terms of the judges making such appointments.

I will remark just here, in passing, in reference to said section 20, that, in laying its injunction upon the members of the judiciary engaging in the practice of law, it uses, practically the same general character of expression, to denote the judges intended to be restrained from practicing law, as is used in section 17, in reference to the filling of vacancies. Section 20, has, of course, no reference to judges (if there were such) who are not State judges — judges recognized by the Constitution as being members of the State judiciary' — -and yet, no one would, for a moment, insist that the inferior court judges are not such as are restrained by this provision from practicing law. If there is a practical difference between the manner in which the judges who are intended to be restrained from practicing law are designated by section 20, and the manner in which section 17 defines the judges who are subject to its provisions, as to vacancies, I am unable to perceive it; and as the majority hold that, "any of the judges of this State/-' as expressed in section 17, does not include inferior court judges, it seems to me to follow, upon the same principle, that, “ho judge of any court of record iu this State/’ as expressed in section 20, does not include them, and that, consequently, those judges may practice law. I cannot agree to either conclusion. Beyond all question, it seems to me, these courts, and the judges thereof, by virtue of these provisions, are of the same constitutional recognition, as parts of the State judicial department, and State judiciary, as any of the other courts or judges provided for. It would have been impossible for the convention to have demonstrated the fact, more effectually, unless it had said, in set phrase that “the judges of said inferior courts shall be deemed judges of the State.” Hence, it would, I think, be doing violence to a demonstration to say, when the framers of the Constitution wrote and adopted section 17, and declared therein that vacancies in the offices of “any of the judges or chancellors of this State” shall be filled by appointment by the Governor, etc., that they did not intend to include judges of the inferior courts. Can it be conceived that a deliberative body, so solemn as a constitutional convention, met to ordain a system of government for a great State, used words so plain and unambiguous, as to be capable of but one grammatical, logical, or practical meaning — words not in the least conflict with any other provision of the instrument, but in strict accord with every other provision thereof — without intending the natural import of the words so used? I have yet to find a canon of construction by which such a proposition may be supported.

Following the general rules of construction expressed in a former part of this opinion (the correctness of which, I apprehend, none will deny), let us, as a further test, do away with form and method, strike out sectional numbers, bring the sections, material to be considered, together as one provision, and formulate it thus:

“The judicial department of the State shall consist of the Senate, sitting as a court of impeachment, a supreme court, circuit courts, chancery courts, courts of probate, such inferior courts of law and equity, to consist of not more than five members, as the General Assembly may from time to time establish, and such persons as may be by law invested with powers of a judicial nature. The judges of said supreme, circuit and probate courts, and chancellors, shall be elected by the people, and shall hold their offices for six years, which shall not be affected by any change afterwards made by law in any circuit, division or county as to the mode or time of election; and, except the judges of probate, shall receive for their services a compensation which shall not be diminished during their official terms. The judges of said inferior courts of law.and equity shall be elected or appointed in such mode as the General Assembly may prescribe; and vacancies in the offices of any of the judges or chancellors of this State, shall be filled by appointment by the Governor,” etc. -Does not this fdrmulation truly (almost literally) state the substance and portray the meaning of the several sections which bear upon the question under discussion? There cannot, it 'does seem to me, be a well founded doubt of. it; and, if not, the correctness of the conclusion I am endeavoring to maintain cannot be denied.

In the application of section 17 to them, there can be, in my opinion, no distinction whatever, between sections 12 and 13 of this judicial article. Section 12, which provides for election of certain of the judges by the people, standing alone, leaves open, and in force, the Implied, inherent power of the legislature to provide the .mode of filling vacancies occurring in the offices of those judges, precisely as I said was true of section 13, which provides that the judges of the inferior courts shall be elected or appointed in such mode as the General Assembly may prescribe. The implications of both sections are the exact equivalents of each other. If, because section 13 provides that inferior court judges shall be elected or appointed, in such mode as the General Assembly may prescribe, it necessarily follows that the filling of vacancies in their offices shall be subject to the same rule, why, upon the same principle, should w» not declare, that because section 12 provides that the other judges shall be elected by the people, it follows that vacancies in their offices shall be filled in the same way? I think neither conclusion is sound. Eliminate section 17, and it would be within legislative power to prescribe how vacancies in the offices of any of the judges shall be filled; those elective by the people under section 12, as well as those elective or appointive, at the will of the legislature, under section 13. Then, (if I may be permitted to be emphatic) what conceivable, possible reason is there for saying that section 17 is applicable to the elective judges under section 12, but not to those elective or appointive, at the will of the legislature, under section 13? Why not as well say that it is applicable to the latter and not to the former? If section 13 is to be isolated from the other provisions of the Constitution, and the implied legislative powers .which arise from it, so isolated, are to be regarded as in force, why should section 12 be not, in like manner, isolated, and its implied legislative powers regarded as in force also, leaving section 17 no field of operation at all?

When we consider reasons and motives for the adoption of section 17, it was most natural and proper, I think, for the convention to apply it to the entire State judiciary. The section is both a self-executing legislative provision, and a limitation upon the power of the legislature. It places it beyond legislative power to provide for filling vacancies in the offices to which it refers. — Fox v. McDonald, 101 Ala. 51. The manifest purpose was to fix a convenient, expeditious and inexpensive method of filling these vacancies, by conferring the appointing power upon the chief executive, placing it beyond the power of the legislature to require expensive and disturbing special elections, or other less convenient or expeditious means of filling them. It was of the highest importance, and so contemplated by the convention, that the administration of justice should not be seriously delayed by sudden or unforeseen casualties or events occurring to render vacant judicial offices; and this incentive applies, with equal force, in respect of all courts organized and engaged in the administration of justice — a city or other inferior court of law or equity, as well as a circuit or chancery court. But, whatever may have actuated the convention, it is certain that its members, impelled by some motive, saw it wise and proper to withdraw from the control of the legislature the subject of filling vancancies occurring in the offices of “any of the judges or chancellors of this State,” and to regulate that subject themselves. The vei’y fact of the constitutional requirement that vacancies in the State judicial offices shall be filled by the Governor, is conclusive of some necessity for withdrawing legislative control of the subject; and whatever that necessity may have been, none can be thought of which is not as applicable to judges of city and other inferior courts, as any other tribunals. Can we conceive of a necessity for a vacancy in the office of the circuit judge who presides in Montgomery county, for instance, or in the office of the judge of probate, being filled by appointment by the Governor, which does not apply, with the same force, to the City Court of Montgomery, for instance? If it was unwise, I repeat, that some of our triburials, engaged in administering justice, whenever a sudden, unexpected vacancy might occur by death, resignation or removal, should be subjected to the changing notions of recurring legislatures, in respect of filling vacancies, entailing, it might be, delays of justice, public inconvenience and expense, it was, in the same degree, unwise to have our city and other important tribunals so subjected. So, the Constitution, not only,, in plain, unambiguous and unequivocal language, made the provision apply to all alike, but it was most natural and wise that it should have done so. We know, from many years’ experience, that our city courts, which have existed in the larger cities, are among our most important tribunals. Their jurisdictions usually' combine both law and equity, concurrently with the circuit and chancery courts, and, territorially, extend to the limits of the counties in which they exist. They administer the same public justice of the State that the circuit and chancery courts do. .

It is insisted that the clause of the act of 1879, which would provide for the filling of vacancies in the office of the judge of the City Court of Montgomery, is no more than the exercise of the power which it is said that the legislature had, (a power which no less a judge than the eminent Ruffin, of North Carolina, most ably combated. — Hoke v. Henderson, 4 Dev. Law, 104; 25 Am. Dec. 677), of changing the term of the office of the judge of the said court — a power thought to be akin to that of abolishing the court entirely. This is evidently a mistaken conception. The act did not touch the subject of changing the term of office; indeed, it expressly re-affirmed pre-existing acts fixing the term at six years. There was no indication, either in the title or tlie act itself, of a purpose to change the term. The term had the same beginning and the same ending after as before the act. The act, conceding it valid, in its entirety, did not pretend to have such an effect, as that the term which Winter was filling out as the appointed successor of the successor of the incumbent in chief, would expire at the close of the ensuing session of the General Assembly; but its effect was such that Winter’s incumbency of the unexpired term should then cease — the remainder of the unexpired term of six years to be filled out by the appointee to be made by the Governor, by and with the advice and consent of the Senate. The changing of the duration of the term of an office, and the filling of vacancies during the term, are quite different subjects. The title of the act is “An act to authorize the Governor, by and with the advice and consent of the Senate, to appoint the judge of the City Court of Montgomery.” The court was then an existing tribunal, created long before, with the term of the-judge fixed by law at six years. This title, it is plain, has no reference to a change in the term of office. It relates alone to the appointment of the judge. This is not only true of the title, but there is not a word or expression in the act itself indicating any intention whatever to change the existing legal term of six years. The beginning and the ending of the term, I repeat, were the same as before the passage of the act. The first section provides that after the expiration of the term of the then incumbent (thus preserving his full term) the judge of said court shall be appointed, etc.; providing for his appointment by the Governor, by and with the advice and consent of the Senate, as before stated. The second section provides, that the judge, so appointed and confirmed, shall hold his office dor six years, and until the close of the session of the General Assembly at which his successor is appointed and confirmed. Here, it plainly appears, that the legislature intended that a successor of the said judge first chosen, shall be chosen by the Governor and Senate at the session next before the expiration of the term of six years of such first incumbent; and so on, thereafter, every six years; thus recognizing the six years term of the office. I suppose such has been the universally received interpretation of the act, and such the practice under it, ever since it was passed. By virtue of it, Judge Arrington was elected at the session of 1892-93, and his term will have expired at the close of the session of 1898-99. Those appointed on his resignation or death, were appointed, as in all other such cases, to fill vacancies — to fill out Judge Arrington’s unexpired term; and, in no sense, to take and hold new six-years terms of their own. The said section then proceeds with the clause, in controversy, to the effect that if a vacancy in the office occurs it shall be filled by tlie Governor, and tbe person appointed shall hold the office until the close of the next ensuing session of the General Assembly, and until his successor is appointed and confirmed. This is the clause which it is contended for respondent, that the legislature did not enact in the exercise of a power to provide for filling vacancies occurring in the term, but in the exercise of the power, not taken away by any provision of the Constitution, to change the dioration of the term, or to abolish the court entirely. It is manifest, to my mind, that this clause evinces no such legislative thought or intention. The subject of changing the official term as it was then fixed and established by law never entered into the mind of the legislature, enacting this clause. If the contrary contention should be accepted, let us see the results to which it would lead. For illustration: Judge Arrington was elected at the session of 1892-93; his term, as then fixed by law, was six years, expiring at the end of the session of 1898-99. If he had died, say, one year after entering upon his term, his successor to be appointed, under the act in question, to fill the vacancy, would hold until the close of the next ensuing session, and then, by virtue of tlie accident of Judge Arrington’s death, the existing law would be changed, the existing legal term of. six years would be cut down to two years, and a new term of six .years would then begin. If Judge Arrington had lived, say, three years of his term and then died, his successor, to fill the vacancy, would hold until the close of tlie next ensuing session, and then, by the same accident, the existing law would likewise be changed, and Judge Arrington’s term of six years would be cut down .to four years, and a new term would likewise begin. Again in the first contingency above mentioned, the new term which began tico years after the beginning of Judge Arrington’s term, would be filled by an incumbent in chief appointed by the Governor, by and with the advice and consent of the Senate, to hold the new term of six years; and, in the event of his death, say, a 3rear after his election, the same proceedings would go on as in the case of Judge Arrington’s death, and the person elected to succeed him, at the next session after his death, would, himself, be an incumbent in chief, also entitled to a full six years term. Thus it might he, that the six. years term, fixed by law, which Judge Arrington started out to fill, would be divided up into as many new terms, entered, upon by new incumbents in chief each beginning with the right of six years, but liable to end at any time, as there might be vacancies to occur by reason of the death, resignation or removal of a judge; and the length of these terms, which may be actually held, will vary according to the length of time the several incumbents may continue in office. The beginnings and ending of. the official terms of the judges of the City Court of Montgomery will dep.end on the contingencies of deaths, resignations and removals from office of men. Can any one suppose that the legislature ever conceived of anything so unusual and impracticable? No, if there had been any intention to make any change in the laAV, in this respect, there Avould have been at least some allusion to it, in the act. It is important that the terms of office haA7e a legally ascertained beginning and ending. The courts are required to take judicial notice of the officers of the State. They are bound to knoAV Avhen the term of every officer begins and when it ends. With the laAV in the remarkable shape above depicted, it might strain the judicial power of the courts to find out and Iciioav Avhen the term of office of a particular judge of the City Court of Montgomery began, and, surely so, when it Avould end. I quote here some pertinent observations of the Supreme Court of Missouri on this subject: “I. As to the first question : The phrase ‘term of office/ in ordinary parlance, means the fixed period of time for which the office may be held. And Ave have a statutory rule for the construction of statutes, requiring that, in construing statutes, ‘words and phrases shall be taken in their plain, ordinary or usual sense/ except that ‘technical words and phrases, having a peculiar and appropriate meaning in laAA7, shall be understood according to their technical import/ R. S. 1879, Sec. 3126.

“Going to the standards of our language, we find that a term means ‘the time for Avhich- anything-lasts; any limited time; the term of life.’ Webster’s Diet. And turning to authorities, they announce that ‘the expression, term of-office, uniformly designates a fixed and definite period, of time.’ — Anderson’s Law Dict., 1023; People v. Brundage, 78 N. Y. 403, 407; Baker, Governor v. Kirk, 33 Ind. 517. So that whether wé take the phrase ‘term of office,’ in its ordinary or popular sense, or in its technical import, it means one' and t'he same thing: ‘A fixed and definite period of time.’

“Of course, every such period of time, in order to be ‘fixed and definite,’ must have a point of beginning and a point of termination equally fixed and'definite. Now, if it can be ascertained when'the ‘term of office’ of the first appointee of the Governor under the revision of 1871) began, it would seem' not difficult to reach a cor-red; conclusion as to when the terms of office of the successive and subsequent appointees of the executive began and ended. '

“The statute is silent on the point as to the beginning of the first appointee’s term, and the reason' for this is most obvious, since, the power of appointment being lodged in the executive, it belonged to him in fact, if not in law, to determine the time of the inception of the actual official term of such appointee; the duration of that term was already fixed by law. But if the legislature, being possessed of the power, had fixed the date of the commencement of the first appointee’s official term, it would not be questioned that such initial point, being once made sure and steadfast, would recur at eA'ery corresponding period of two years. This must be true, or else the premises from which this conclusion is drawn,' sustained as it is by' authority, that a ‘term of office uniformly designates a fixed and definite period of time,’ must be false. As the legislature did not fix t'he date Avhen the official term of the first appointee under the new law was to begin, this date was necessarily left to be fixed by t'he appointing power; but, when fixed, the determination thus reached must have been as effectual in all its incidents and consequences as if previously made by the legislature. This also must be true, or else it must be true that the executive was incapable of fixing such initial point, 'and that, therefore, it never teas fixed, svlúch is an impossible, as well as an absurd, supposition.” — The State ex rel. Withers v. Stonestreet, 99 Mo. 361, 372.

At the time of the passage of said act the existing law required the judge of said court to be elected by the people, as circuit judges were. — Acts of 1863, p. 121; Acts of 1869-70, p. 47. The purpose of the act in question was simply to change that requirement by providing for the appointment of the judge in the manner therein specified. It had no other object.

It has been argued also, that to accord to said section 17 the meaning I give it, would be to declare that so long as the incumbent in chief was in office the legislature would retain its power to abolish the court, or to shorten the term of the judge, whereas, when the appointee of the Governor, to fill a vacancy, is in office, that power would not exist; producing the unnatural result of giving to the appointee a more stable tenure than had the incumbent in chief. This is an error growing out of a misinterpretation of the provision of section 17, to the effect that the appointee shall hold for the unexpirecl term. This provision does not undertake to point out what constitutes an “unexpired term.” It does not say that the appointee shall hold for the unexpired portion of the term for which the incumbent in chief was appointed or elected, as the same was fixed by law at the time of such election or appointment, nor anything of that import. It merely gives to the appointee of the Governor so much of the term, as fixed by law, as may lawfully remain after his appointment. If the court should be abolished the next day, his tenure would cease with it. If the legislature, (conceding it the power to do so) should shorten the term, his tenure would expire at the end of the term as so shortened.

I was, at one time, disposed to think that, under the act itself, the person appointed by the Governor, viz., the relator, by virtue of the provision that such an appointee shall hold until his successor is appointed and confirmed, was entitled to hold until the appointment of a judge, to be regularly made by the Governor and Senate, at the regular session for that purpose,.viz., the session'of 1898-99. A strict construction of the act might lead to this conclusion, but upon due consideration, I am of opinion that, taken in connection with the other limitation of such appointee’s tenure, viz., that he shall hold until the close of the next ensuing session of the General Assembly, a legislative intention is shown to'make the appointment provisional only, to be effectual until the Governor and Senate, could, by the meeting of the General Assembly, exercise their implied power of filling the vacancy. The principle is clear that the power to appoint to an office, in the absence of a provision to the .contrary, includes, by implication, the power to fill a vacancy in it, (19 Am. & Eng. Ency. Law, 430); and applying this rule to the present case, the Governor, by and with the advice and consent of the Senate, being invested with the appointing power, was impliedly invested with power to fill vacancies in the same manner. So that, if the act is not subject to the objection, that the Constitution confers npon the Governor the exclusive power to fill vacancies, and secures to the appointee the entire unexpired portion of the term, as I have endeavored to show is true, the course pursued by the Governor and Senate, leading to the appointment of the respondent, was the proper one, and the respondent is entitled to hold for the unexpired term.

This consideration also leads to the conclusion, that it is immaterial whether the other constitutional objection raised by the relator, viz., that the vacancy clause of the act was not included in the title, is well taken or not; for, if we eliminate that clause, as being unconstitutional, in the respect mentioned, the first section of the act, as I have said, impliedly authorizes the Governor, by and with the advice and consent of the Senate, to fill vacancies. There was in the statutes existing at the time of the passage of the act, so far as I am advised, no special mode provided for filling vacancies in the office of judge of this court, which, it can be said, was continued in force after the act. Prior to the act, the office was elective. By it, the office was made appointive, and the change carried to the appointing power, by implication, authority to fill vacancies.

Profoundly impressed, as I am, with the great importance of the principles involved in this controversy, and being unable to entertain a doubt, in my own mind, that my brethren of the majority are in error in the conclusion they announce,. upon the principal question herein discussed, I am, with diffidence, constrained to express this my piost earnest dissent.

Coleman, J., concurring.

---

Concurrence Opinion

MCCLELLAN, J.

I concur, in the result flowing from the opinion of the Chief Justice, viz., the affirmance of the judgment of the circuit court.

I also' concur in the 'conclusion reached by him that section 17 of Article VI of the Constitution has no relation to appointments to fill vacancies in the office of judge of the City Court of Montgomery; and this both upon the considerations adverted to by him, and upon others to which I will presently refer.'

Whether the provision of the act of February 13th, 1879, entitled “Ail act to authorize the Governor, by and with the advice and consent of the. Senate, to appoint the judge of the City Court of Montgomery,” .which is in the following words: '“And in case of any vacancy in said office of judge of said City Court, after the passage of this act, such vacancy shall be filled by the Governor,” etc., etc., is within the title of said act, is a question upon which I have doubts. They are, however, of a nature which might be controlled by the rule which requires the resolution of doubt in favor of the constitutionality of legislative enactments, if it were essential to this case that that question should be decided. But, as I shall endeavor to demonstrate, that inquiry is not involved in this case.

So much with regard to the opinion of the Chief Justice and the points therein discussed. I now proceed to state my own position in the premises. In brief it is this: Under the act referred to there is and can be no such thing as an unexpired term of a judge of the City Court who dies' or resigns. To the contrary, while every incumbent of that office appointed by the Governor, with the advice and consent.of the Senate, is entitled to hold for the term of six years, unless he sooner dies or resigns, yet, if during that term he does resign, his term — the term covered by his. commission — thereupon instantly ends, and if he dies, his term dies with him; and upon such death or resignation of the incumbent, no part of his term remains as an “unexpired term” to be filled by appointment.

Section 1, Article VI of the Constitution leaves the power of creating inferior courts — such as is the City Court of Montgomery — to the unlimited discretion of the General Assembly. Section 13 of Article VI provides that “the judges of such courts may be elected or appointed in such mode as the General Assembly may prescribe.” There are no organic limitations. upon the power of the General Assembly in respect of the terms of such judges. That the legislature might provide for life tenure — in which case, of course, there would be no “unexpired term” on the death or even resignation of the incumbent — cannot be seriously questioned. For like reason, it cannot be seriously doubted that the legislature might in express language provide that the term of, the judge should be six years, and that upon .the death or resignation of an incumbent, a successor should be appointed for .a new term of six years and so on. Clearly in this latter case, as well as in the first suggested, there could never be any unexpired term of a judge going out of office by death, resignation, or removal pending the six years for which he was appointed. In such case the term would culminate upon the' termination'of his. incumbency of the office, and the succeeding judge would, by the words of the law, take, not for that part of the original term of six years which his predecessor failed to serve because of his death, resignation or removal — not for any unexpired term— but for a new and independent term of full six years. There would in such case be no “unexpired term” to be filled by appointment, just as there would be no “unexpired term” upon the death of an officer appointed for life; and hence it is most clear in both the cases supposed that there would be no field for the operation of section 17, Article VI of the Constitution; upon a vacancy occurring from any cause the Governor could not appoint for the unexpired term since there could be no such thing; and having power under that section to appoint only in case of an unexpired term, .the provision could have no application to the cases hypothesized.

Now the .case last supposed is essentially the case under, consideration. It is true that the act of February 13th, 1879, does not in so many words declare that each term in the office of jndge of the City Court of Montgomery shall end upon the death, resignation or removal of the incumbent, and that there shall be no such thing as an “unexpired term” in said office; but it does, in the plainest language, expressly declare that the Governor and Senate shall appoint a judge of the court at the next session of the General Assembly after the death, resignation or removal of an incumbent, and that every judge appointed by the Governor and Senate, whether in succession to a judge going out of office before the expiration of the time for which he was appointed, or to succeed a judge who had served for six years, shall hold the office for six years — not for any unexpired part of a precedent term of six years, but for full six years — and until the close of the session of the General Assembly at which a new appointment is made; and this provision is obviously as clear and unmistakable to the utter exclusion of the idea that there can be any such thing as an “unexpired term” in said office, as if the law-makers had said: “There shall be no unexpired terms in the office of the judge of the City Court of Montgomery.” It requires only an examination of the act itself to demonstrate this. It is as follows:

“An act to authorize the Governor, by and with the advice and consent of the Senate, to appoint the judge of the City Court of Montgomery.

“Section 1. Be it enacted by the General Assembly of Alabama, That after the expiration of the term of •the present incumbent, the judge of the City Court of Montgomery shall be appointed in the following manner : The Governor shall nominate to the Senate three persons, learned in the law, for said office, from whom the Senate shall select one, and the person thus selected shall be the judge of said City Court; but in case no one of the three shall receive a majority of the votes in the Senate, the Senate shall notify the Governor of its refusal to confirm any one of the persons named, and the Governor shall thereupon nominate three other persons, and so on, from time to time, until one of the persons thus nominated is confirmed by a majority of votes in the Senate.

“Sec. 2. Be it further enacted, That the judge of the City Court of Montgomery, appointed and confirmed as provided in the preceding section, shall hold his office for six years, and until the close of the session of the General Assembly at which his successor is appointed and confirmed as above provided; and in case of any vacancy in said office of judge of said City Court, after the passage of this act, such vacancy shall be filled by the Governor, and the person thus appointed shall hold the office until the close of the next ensuing session of the General Assembly, and until his successor is appointed and confirmed.

“Sec. 3. Be it further enacted, That all laws and parts of laws in conflict with this act be and the same are hereby repealed.”

Upon the terms of this statute, I take it that nobody lean be found to deny or question that in case of any vacancy in the office of judge of the City Court of Montgomery, the Governor, filling the place temporarily meantime, shall at the next ensuing session of the General Assembly nominate three persons to the Senate for said office from whom the Senate shall select one, and the person thus selected shall be the judge of .said court. This is not only the clear and necessary intendment supplied by the words used, but the intendment is reasonable in itself and in precise accordance with the whole history of the State in all cases where the legislature or the Senate constituted the appointing power in whole or in part, and also in accord with the State’s history, at least prior to 1868, in respect of the electioof judges by the people, as Ave shall see more particularly further on. To reach a different conclusion as to the meaning of this act, the legislature would have to be convicted of the absurdity o.f abolishing this court, by an act expressly intended to provide for its continuance, in failing to provide for any incumbency of the office after the session of the General Assembly next ensuing the death, resignation or removal of an incumbent, since it is clear that the pro tempore appointee holds only to the close of such session, Avhen his successor is to be appointed if the court is to be maintained. We have then this case: A judge is appointed for six years. He serves three years and dies between sessions of the General Assembly. His successor cannot immediately be appointed by the Governor with the •advice and consent of the Senate, because the Senate is not in session, and the matter was not deemed of sufficient -consequence to justify a provision for the convention of .that body in extra session. A successor cannot be appointed subject to future confirmation by the Senate, since that would be to defeat the legislative purpose to give the Senate an original choice between three persons. Hence, it is provided that -a person shall be appointed to discharge the duties of the office ad interim, until the Senate convenes and can 'exercise its discretion upon the nominations made by the Governor. When the. Senate does convene, the act requires the Governor to submit or nominate to it three persons, ¡from whom, or from other three persons if they do not ¡confirm one of the first three, the Senate- selects one, and -that one is the judge of the City Court, according to the provisions-of the first section of the act. The second section of the act provides that every judge of the City Court appointed and confirmed as provided in the first section; that is every judge of said court selected by the Senate from any three persons nominated to.that body by the Governor, shall hold his office, not for any part of an existing term, not for any unexpired term, but for the full term of six years. The words are: “That the judge of the City Court of Montgomery, appointed and confirmed as provided in the preceding sectionf shall hold'Ms office for six years, and until his successor is appointed and confirmed as above providedIt would seem superfluous to suggest that a .judge appointed in succession to one who -dies, resigns or is removed before he serves out the six years for which he was appointed, is “the judge of the City Court of Montgomery,”- as fully in every conceivable sense as if the preceding judge had held out the six- years and he had then-been appointed. And being “the judge” of said court, and having been “appointed and confirmed as provided in the preceding section,” he is as clearly within the terms of the further provision that he “shall hold his office for six years,” a new and independent and full term, as if he had succeeded a judge who held for his full term- of six years. It -is not denied by anybody, but, to tlie contrary, conceded on all- hands, that the legislature had full power as to the terms of office of the judges of the City Court -of Montgomery. They could have made the tenure for life, as we harm seen, or during good behavior, and in such case there could never be an unexpired term. They could have provided that the judge should be appointed at a stated time and every six years thereafter for the term of six years', and in such case there would be an unexpired term upon the death or resignation of an incumbent within six years from the date of his appointment. They equally had the power to provide that the term of each judge, the term each judge was entitled to hold, should be six years unless he died, resigned or was removed meantime, in which case, of course, the term would end with the incumbency, and there would be no unexpired term. How can it be said with any show of reason that section 17 of Article VI of the Constitution applies to the judge of the City Court of Montgomery, when the Constitution itself left it with the legislature to make that section impossible of application? The proposition seems to me to be palpably groundless; and this without regard to what the legislature has provided in the premises. Having under the Constitution this undoubted power to provide for an incumbency of office in such way that there could never be an unexpired term to be filled by the Governor, it is to my mind absurd to say that the same Constitution provided for the filling of an unexpired term in such office; and the absurdity is accentuated and emphasized when it is considered that the legislature acting within its constitutional powers has in fact provided for the incumbency of this office in such a way as that there never can be any unexpired term to be filled by executive appointment. For what the legislature lias done as clearly shown by the act is this: They have provided that each incumbent, by executive and senatorial appointment shall hold his office for six years, not that each term shall endure for six years — the word term is not used in the act except in reference to the then incumbent who .was in for a fixed term of six years — not that the incumbency of the office shall be divided into terms of six years each, but that each judge so appointed shall be entitled to liold the office for that period. The legislature could not make him hold it for that period, it could not keep 'him from dying or resigning; but it could secure to him the right to hold for that length of time if he chose, and lived, to exercise it. And that is what they have done and all they intended to do in this statute. And they have done this with respect to every judge appointed by the Governor by and with the advice and consent of the Senate. They have not marked the office off into fixed terms with fixed times of election with equal periods between. They have secured to the incumbent the right to serve for a given period. If he ¡serves that period it is all well and good. If he dies, or resigns or is removed, the period ceases; and the appointee who comes after him takes for a like period, not for so much of the time his predecessor was entitled to hold as he did not in fact hold, but for the full period of six years initiated upon his confirmation by the Senate. The period which an incumbent is entitled to serve — his term of service — ceasing on his death, resignation or removal, even the ad interim appointment is not for an unexpired term, or any part of an unexpired term. In such case there is an office without an incumbent, and a permanent appointment to it in the way the legislature has prescribed canfiot be immediately made. It is, therefore, further provided that the Governor; acting alone, shall fill the vacant judgeship till the Senate meets. Such appointment may cover a period of nearly two years or of only a few days; but, however long or short the period may be, it is not for any unexpired term; the term of service to which the preceding incumbent was entitled having fully expired upon the instant of his death, resignation or removal.

These considerations leave me without a shadow of doubt that section 17 of Article VI of the Constitution has no application whatever to appointments to the office of judge of the City Court of Montgomery; and that the act authorizing the appointment of the respondent to that office as and viren he was appointed is entirely constitutional and valid. And I am with equal assurance of correctness of the further opinion, that his appointment entitles him to “'hold his office for six years, and until the close of the session of the General Assembly at Avliich his successor is appointed and confirmed” as proAdded in the first section of said act.

I propose noAv to notice, as briefly ,as may be, the objections that are urged to the views I entertain on this matter and to the conclusion I have just announced.

It is said that an office Avitliout fixed terms commencing find ending at stated dates is such an anomaly in our jurisprudence it is unreasonable to suppose that the legislature could ever have intended its creation. A sufficient ansAver to this suggestion is, that Avhen the language of the legislature is plain and unambiguous, the reasonableness, the policy, the wisdom of the enactment, if within organic competency, are not matters for the consideration of the courts. The people in convention assembled haAdng seen fit to leave these matters to the legislature, the courts palpably transgress the well defined limits of their altogether different poAvers Avhen they undertake to meddle Avith them.

But it is said that such a conclusion, that is that terms of an office — or, more accurately in this case, the terms incumbents of an office are entitled to seive — begin Avith the appointment of an incumbent and end either at the end of a given number of years thereafter, or 'with his death, resignation or removal during those years, Avould lead to such confusion and incoirvenience that Ave cannot suppose the laAv-makers to have ever so intended. This is much the same as the last objection, and the ansAver to it is much the same. The argument of inconvenience, of confusion and difficulty in the execution of a statute, can never prevail or be of any consequence against the plain Avords of an enactment.

It is said that it is of much importance for the public, and especially other courts, to knoAV AAdiat are the terms of office of the judges of the City Court of Montgomery, and that upon this act, as I construe it, much difficulty Avould be experienced in that regard, since tAvo or three or more full terms might have their inception. AA’ithin a single period of six years, etc., etc., and that it AA'ould be specially onerous upon the judges of this court, as of other courts, to have to keep their judicial knoAvledge abreast of the changes in judges, terms, etc. of said City Court. I am not inclined to increase the difficulties we already labor under on account of the violent legal presumption which, obtains as to the éxtent and accuracy of our common knowledge; but it does seem to me that if I can know and am forced to know the signature of a man whom I have never seen or heard of before simply because he is a public officer, if I must know the prominent facts of all history, of the sciences, of geography, of all the courses of nature, etc., etc., that I would experience little difficulty, comparatively speaking, in ascertaining from the journals of the State Senate, one of the very few records which is required to be and is printed and published broadcast, who was appointed and confirmed a judge of the City Court of Montgomery, when he was so appointed, and consequently when his term began find would end, if he survives and does not resign and is not removed.

But back of these considerations is one which completely overturns the whole argument of unwisdom, inconvenience and absurdity made against giving to this act the meaning its words require. Judicial office with new and full terms commencing -with the incumbency of every appointee of the original appointing power, and ending with the death, resignation or removal of such appointee, so far from being anomalous or unheard of in this State, have been provided for in every Constitution of the State, certainly down to 1868, and have been tenanted from time to time by different incumbents entitled to hold and holding for terms in no sense uniform as to the initial or final dates thereof; and the courts have not been sorely put to in respect of their judicial knowledge of such terms, nor has anybody ever supposed the system was unwise, or inconvenient or absurd. Under the Constitution of 1819, as amended in 1830, all judges were elected by the legislature for six years. By another amendment adopted in 1849, circuit, probate and inferior court judges were made elective by the people for six years, and it was provided that judicial elections should be held in November (immediately changed by the legislature to May) of each year whenever necessary to fill'vacancies, or rather to elect successors to such judges as might die, resign or be removed before serving out the six years they were entitled to serve. There wras further provision of law for the Governor to make temporary appointments, the appointees to Fold for the ensuing session of the General Assembly when the primary appointing power was in that body, and to the next annual election when the judges were elected by the people. And thus the law stood from 1830 and 1849 at lease to 1868, the constitutions of 1861 and 1865 making no change therein. See amendments to Constitution of 1819 adopted January, 1830, and in 1849, §§177 and 626, Code of 1852; Constitution of 1861, Art. V, §§11 and 12; Constitution of 1865, Art. VI, §§11 and 12; Code, 1867, §§218, 744, 745. Under these provisions, and perhaps also under the Constitution of 1868, all judges elected by the legislature or the people, as the case might be, were entitled to serve six years, and this whether the election in a particular case was in succession to a judge who had held for six years, or to one who had died, resigned or been removed at any time during the six years for which he had been elected; and in all cases the term ended with the incumbency, and the succeeding incumbent took a new, independent and full term of six years if he should so long live, and not resign or be removed. There was in no case nor under any circumstances any such thing as an “unexpired term” consequent upon the death, resignation or removal of an incumbent. The operation of this system is fully illustrated in the following instances: Judge Henry Goldthwaite Avas elected to the supreme bench in the winter of 1836-37, and again in the Avinter of 1842-43 to a second term. In June, 1843, in the first year of his second term he resigned; but in the winter of 1843-44 he was elected to succeed himself for a term of six years, thus having entered upon two separate terms of six years Avithin a year. Judge Ohilton resigned in 1855, in the midst of a term of six years. The legislature Avas then in session, and elected Hon. A. J. Walker to succeed him. Judge Walker held under this election, not for that part of the time for which Judge Ohilton had been elected, Avhich had not expired, but for the full term of six years. And so it was with the judges — circuit, probate and of inferior courts — elected by the people. They each had terms of six years, that is, each of them was entitled to “hold his office for six years,” t'he language of the law then of force and of the statute we have here being identical in this respect. The constitutional amendment of 1849 required all these judges to be elected by the people, and that the “first election” thereunder should be held on the same day throughout the State. The legislature at once fixed the first Monday in May in each year for these judicial elections. And so in May, 1850, all the circuit judges were elected, and each one so elected was entitled to “hold his office for six years.” Among others elected at this time were L. P. Walker for the 4th circuit, William R. Smith for the 7th, and George Goldthwaite for the 8th. Judge Walker resigned in February, 1852. On February 27th, 1852, John E. Moore was appointed by the Governor, to hold until the election in May following; and at that election Judge Moore was elected, and held under that election not until the time Walker’s term would have ended had he remained in office, but until May, 1858, a full term of six years. He was then re-elected for a new term of six years and resigned in 1863.

Judge Goldthwaite also resigned in February, 1852. John Gill Shorter was appointed by the Governor to hold till the following May. Then Judge Shorter was elected by the people for a full term of six years, and continued in office under that election until May, 1858, when he was re-elected.

Judge Smith resigned in September, 1851. On the 15th of that month, Turner Reavis was appointed to succeed him till next election in May, 1.852, when B. W. Huntington was elected for six years. Judge Huntington resigned, and was succeeded ad interim by Judge Reavis August 25th, 1853. Judge Reavis failing to hold until the time of election, A. B. Clitheral was appointed February 14th, 1854; and at the election in May following Edmund W. Pettus was elected for a term of six years. He, however, resigned in 1858, having served only four years of his term, but two years beyond the term of liis predecessor, Judge Smith, elected in 1850. Thus there were two ad interim and three permanent judges of the 7th circuit within four years, and there was the initiation within that time of three separate and distinct full terms of six years each — the very case put by those opposed to my Anew to show that sucli a thing is preposterous, unheard of, and impossible of conception. Many other instances might be given, but these will suffice.

Such was the law, therefore, in this State for many years, and such its uniform practical operation. It was never supposed to be an absurd law, and its execution did not put any insuperable burden upon the judicial knowledge of this court, or others, in respect of the terms of circuit and inferior court and probate judges in office; and this, though the record of their elections, etc., were not as accessible as if it had been embraced in the Senate journal. That it is not the laiv now as to all judges — of this court with the rest — is not due to any difficulties along the lines suggested; but to the consideration of the trouble and expense of holding so many elections, a consideration which became all the more important when Supreme Court judges and chancellors were also made elective by the'people in the Constitution of 1868. This consideration has obviously no force in respect of offices filled by the legislature, or by the Senate or by the Governor in conjunction with the Senate; and in respect of such offices — in respect of all offices indeed as to which the original, primary and full appointing power can be conveniently invoked upon the death, resignation or removal of an incumbent — there is no reason or occasion for having fixed terms of tenure, extending beyond the death or resignation or removal of an incumbent, no reason or occasion whatever for “unexpired terms.”

In view of the history of the State on this subject, and especially in view of the fact that no judge primarily elected by the legislature, or by the Senate, or appointed by the Governor with the advice, and consent of the Senate, had ever in the life of the State been given a fixed term extending beyond his own incumbency, involving an “unexpired term” on his death, resignation or removal, it would have been surprising to the last degree and wonderful indeed if the General Assembly of 1878-79 had not intended just what they have expressed in this act, that judges appointed under its first section, whether succeeding a judge who has served six years or one who had died, resigned or been removed in that time, should hold for full terms of six years if they should so long continue in office, thus wholly excluding the possibility of anything like an unexpired term.

I deem it unnecessary to pass upon the question whether the provision as to ad interim appointments is within the caption of the act. I am inclined to think it is, and should probably so hold if the decision of the point were necessary to a disposition of the case. But conceding it is not, the effect would be to invalidate the relator’s ad interim appointment and to leave unaffected the permanent appointment of the respondent by the Governor and Senate. Thus my only doubt in the case goes to the integrity of Winter’s temporary incumbency. Of Sayre’s right to the office for six years from the time of the'adjournment of the session of the General Assembly of 1896-97, I have no sort of doubt.

The foregoing opinion had not been reduced to writing when the case was decided; but I then stated my position orally, and said I would write down my opinion and file it in the cause. On consideration of the views above set forth, Brickell, C. J., and Haralson, J., concur with me, that there can be no such thing as an unexpired term in the office of judge of the City Court of Montgomery, that for this additional, and itself quite sufficient reason, section 17 of Article VI of the Constitution has no application to the office of judge of said court, and that the respondent, Sayre, was appointed, and is entitled to hold the office, for the full term of six years.

Case Details

Case Name: State ex rel. Winter v. Sayre

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1897

Citation: 118 Ala. 1

Court Abbreviation: Ala.