70 Ga. 390 | Ga. | 1883
The sole question made in this case is, whether that portion of section 2 of the act of the general assembly of 1881 (p. 112), establishing the Northeastern judicial circuit, in the words following: “ That a judge shall be elected by the general assembly at the present session, to hold office until the next regular election for half the judicial circuits
“ The- terms of the judges to be elected under the constitution (except to fill vacancies), shall begin on the first day of January after their elections. But if the time for the meeting of the general assembly shall be changed, the general assembly may change the time when the terms of judges thereafter elected shall begin.”
By section 12, par. 1, of the same article, it is provided that, “The judges of the superior court” (among other officers named) “ shall be elected by the general assembly, in joint session, on such day or days as shall be fixed by joint resolution of both houses. At the session of the general assembly which is held next before the expiration of the terms of the present incumbents, as provided in this constitution, their successors shall be chosen; and the same shall apply to the election of those who succeed them. Vacancies occasioned by death, resignation, or other cause, shall be filled by appointment of the governor, until the general assembly shall convene, when an election shall be held to fill the unexpired portion of the vacant terms. Oode, §5161.
By an ordinance of the convention which framed this
The act of the 8th of August, 1881, organizing and creating this judicial circuit, after fixing! the term of the first judge elected and commissioned under it, further provides that, after his term expires, “ at the next regular election of judges for the circuits of the state, a judge for said northeastern circuit shall be elected for the full term, who shall hold office as the other judges then elected for the other existing circuits, and his successors shall be thereafter elected as provided by the constitution and laws.” Acts 1880-1, p. 113.
The plaintiff in error, who was the first judge elected under the act creating the circuit, and who was commissioned in pursuance of the act, to hold Ms office from the date of his election in August, 1881, until the first day of January, 1883, contends that so much of the act as limited his official term to that date, and provided for the election and qualification of his successor at the session of the general assembly next preceding that period, was repugnant to the above recited provisions of the constitution and of the ordinance of the convention that framed the constitution; and that the requirements thereof could only have been complied with by extending his term to the first day of January, 1885; that his successor'could not have been legally elected, except at the session of the general assembly next preceding this date, viz.: at the session of 1884; and that, inasmuch as his office was created by the constitution, and the term thereof was fixed by the
In determining questions of such moment and delicacy as those here presented, we feel bound to proceed with great caution, and not to set aside the action of a co-ordinate department of the government, except where the conflict .between that action and the fundamental law is clear aud palpable. It must be so apparent as to leave no reasonable doubt as to its existence, upon the judicial mind. We hold, with an eminent judge and learned commentator, that “ constitutions are not designed for meta physical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.” 1 Story’s Com., §451. Hence results the rule that “ every word employed in them is to be expounded in its plain, obvious and common sense, unless something else in them furnishes ground to control, qualify or enlarge it.” Ib. “ The familiar rule,” says Sharkey, C. J., in Smith vs. Halfacre (6 Howard, Miss. R., 600), “ that all instruments must be construed according to the sense of the terms used, and the intention of the parties, is as applicable to constitutions as anything else; perhaps it is more so, as a constitution is but a general form of government, the details being left to legislation. One of the primary objects of a constitution is a harmonious order in the operations of the several departments of the govern
“We must, in the next place, look to ‘the scope and design of the instrument, viewed as a whole, and also viewed in its component parts.’ If the design and object be clear, although the provisions may seem to be doubtful, we have a sure guide to a proper construction.
“Where a constitution is not entirely explicit in itself, and requires construction, it ought .not to be so construed as to cripple the government and render it unequal to the objects for which it is declared to be instituted.” Citing 9 Wheat. R., 1.
The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. “The tiling which we are to seek is the thought which the constitution expresses. “The whole instrument is to be examined with a view to arriving at the true intention of each part. In comparing one part of the instrument with another,” it is not to be supposed that any words have been employed without occasion, or without intent that they should have effect as part of the law. The rule applicable here is, that effect is to be given, if possible, to the whole instrument and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which makes some idle and nugatory.
The rule is applicable, with special force, to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise where a court would be justifiable in declaring any portion of a written constitution nugatory because of ambiguity. One part
So solicitous have the courts been to avoid everything that even looks like thwarting a portion, however small, of the sovereign will, as embodied in this fundamental law, that they have not only called to their aid implications from the instrument itself, but have even gone outside of the constitution to find reasons for avoiding it; they have availed themselves not only of the proceedings of the convention which framed it, but have sought for the practice of other departments of the government, and paid great deference to their action, and especially to the action and opinions of those who were cotemporaneous with it, which would seem to have peculiar claims to our regard upon the question under discussion, because “ they
A writer of eminence and authority has said, "After all, the most unexceptionable source of collateral interpretation is from the practical exposition of the government itself, in its various departments, upon particular questions discussed and settled upon their single merits. These approach the nearest in their own nature to judicial expositions, and have the same general recommendation that belongs to the latter. Thejr are decided upon solemn argumentare re nata, upon a doubt raised, upon a lis mota, and a deep sense of their importance and difficulty, in the face of the nation, with a view to present action in the midst of jealous interests, and by men capable of urging or repelling the grounds of argument, from their exquisite genius, their comprehensive learning, or their deep meditation upon the absorbing topic. How light, compared with these means of instruction, are the private lucubrations of the closet, or the retired speculations of ingenious minds, intent on theory, or general views, and unused t.o encounter a practical difficulty at every step.” 1 Story, Com. Const., §403. Cooley Const. Lim., marg. p. 69.
This case furnishes a striking illustration of the force and propriety of these remarks. Doubtless the questions here involved did not escape the scrutiny of the general assembly that passed this law and elected the first officers under its provisions; nor could it be supposed, with propriety, that the executive, who sanctioned and approved the law and commissioned the officers elected under it, failed to give them due consideration. Certain it is, that the general assembly of 1882, which elected the plaintiff’s successor, did not act without consideration; the questions here involved were fully dismissed and thoroughly investigated by that body, and settled, upon great deliberation, as the journals of both houses fully attest, and after the
But expounding the constitution by its own terms, and giving full effect to each of the provisions above set forth, it is manifest that the purpose of that instrument was to give to each judge of the superior courts thereafter to be elected:
1st. An official term of four years, provided he was chosen as the successor of one who wras an incumbent at the time of the election.
„ 2d. That the judges were to be so classified as to bring on the election of one-half of the number, as near as might be, at each regular biennial session of the general assembly.
3d. That the term of each one so elected, at the close of the full term of his predecessor, should commence on the first day of January next thereafter.
4th. In case of a vacancy in the office, from any cause, it was to be filled by appointments of the governor, to last until the general assembly should convene.
5th. When the general assembly should so convene, they were required to fill, by election, the unexpired portion of the vacant term.
This circuit was created at a prolonged session of the general assembly, held in a different year from that when the body is regularly convened on the day fixed by law
That it was the purpose of the convention that framed the constitution to make this classification the policy of the state, is evident from the debates and proceedings of that body. Mr. Hammond, a delegate from Fulton county, addressing himself to this subject., said: “ I desire to make an amendment of this paragraph, which reads, ‘ that the successors of the present incumbents shall be elected by the general assembly, as their terms expire, beginning in 1880.’ The paragraph, as it stands, makes all of the judges and solicitors come before the legislature at the same time. The general assembly, in 1881, would elect all these officers, and the general assemby of 1883, would elect none. In the meantime you will have a new governor and a new general assembly, but nothing new as to the judiciary. It makes the machinery of the state work unevenly. I think we should bring on the election of one-half of these judges during each executive term. The governor holds for two, and they hold for four years. In order that each one of these legislatures may equal each other in power, I move this amendment as a substitute for par. 3, §3. My amendment is, £ the successors of the present in
He then moved to insert in the blanks “ 1880 and 1882.” Mr. Brown moved to insert “ 1878 and 1880.” This motion finally prevailed. Before it was put, however, Mr. Matthews asked if that would not prolong the terms of some of the judges ? To which Mr. Hammond responded, “I understand it would prolong the term of one of them a few months.”
Mr. Matthews: “Would it not prolong the term of two of them at least ?”
Mr. Hammond: “ I was after fixing the date, without regard to men.”
Mr. Nisbett: “Wouldn’t the gentleman now accept {unless their terms sooner expire,’ as an amendment ?”
Mr. Hammond: “I have no objection to receiving the idea, but the language is not such as I would use. I will amend by saying: ‘ In case the terms sooner expire, the governor shall fill them by appointment, until the day of their election arrives.’ ” As thus amended, this paragraph was adopted without a division. Proceedings of Convention, 1877, pp. 232, 233.
But, apart from this, there cannot be a doubt, from the language of the constitution, that each legislature was to fill the terms of half the judges (as near as might be) by election, and that each of these full terms was to commence on the first day of January next after the election; and that this time for the commencement of such terms should continue so fixed unless “ the meeting of the general assembly should be changed,” in which event, that body
The only interpretation we can put upon these several provisions of the constitution, which will harmonize them and give effect to all and every part of them, and preserve intact the policy which they establish, is to treat this office as a vacancy as soon as it was created, and then to fill it by election of the general assembly. We do not deem it at all doubtful that the leading purposes of the constitution was to have these terms expire at different times, so that one-half of them, as nearly as practicable, would be supplied by each legislature that assembled; that they should commence on the day named, and that there should be a full term assigned to each one elected, save only in the case of a vacancy. But if it were doubtful, then, under the rule of -construction above set forth, it should be- our purpose so to interpret it -as to give effect, if possible, to the whole instrument and to its every section and clause. If portions seem to conflct, we should, if practicable, harmonize them, and we must lean to that construction which will bring about this result; for, we. repeat that it is scarcely conceivable that a case can arise where a court would be justifiable in declaring any portion of a written constitution nugatory because of ambiguity, or so treating it as to render any word there “ inoperative,” or “ idle ” or “nugatory.” We only adopt rules which have obtained in all other courts, who have dealt with these questions,
We do not propose to enter upon the discussion of the much mooted and stubbornly contested point of whether these are legislative or judicial questions, but content ourselves with quoting the explicit terms of our constitution: “ That legislative acts in violation of this constitution or the constitution of the United States are void, and the judiciary shall so declare them” (Code, §5028), with the qualification that this “ violation ” must be clear and unequivocal. In the clear and forcible language of Judge Story, (more strictly applicable to the state than the Federal constitution), it should be constantly borne in mind, that “ the most important rule in cases of this nature is, that a constitution of government does not and cannot, from its nature, depend in any great degree upon mere verbal criticism, or upon the import of single words. Such criticism may not be wholly without use; it may sometimes illustrate or unfold the appropriate sense; but unless it stand well with the context and subject-matter, it must yield to the latter. While, then, we may well resort to the meaning of single words to assist our inquiries, we should never forget that it is an instrument of government we are to construe; and, as has been already siated, that must be the truest exposition which best harmonizes with its design, its objects, and general structure.
“The remark of Mr. Burke may, with a very slight change of phrase, be addressed as an admonition to all those who
Judgment affirmed.