Gormley v. Htaylor
| Decision Date | 31 July 1871 |
| Citation | 44 Ga. 77 |
| Parties | MICHAEL GORMLEY, Ordinary, plaintiff in error. v. JOSEPH H.TAYLOR, defendant in error. |
| Court | Georgia Supreme Court |
Constitutional Law. Tax. Before Judge Harrell. Randolph Superior Court. May Term, 1871.
This cause was submitted to the Court below upon the following agreed statement of facts: An order was sued out by Taylor against Gormley, as Ordinary of said county, calling on him to show cause why he should not levy and collect the taxes on the persons and property of the Eleventh District of said State taxable by law, for the payment of the salary of Taylor, as District Attorney of said district. Taylor was appointed to said office by the Governor of this State, and commissioned on the 18th of January, 1871, in the recess of the General Assembly. Gormley admitted that, by the Act organizing the District Courts, it is his duty to levy such tax and pay said salary, if Taylor be legally and constitutionally appointed and holding said office. But Gormleysays that, under the constitution and laws of Georgia, Taylor is not legally and constitutionally apointed and holding said office. It is admitted that Taylor\'s appointment was never ratified or confimed by the Senate of Georgia, and that there has been no session of said Senate since 18th of January, 1871.
The Court held that Taylor's appointment was constitutional, and ordered that the tax be raised and his salary paid. This is assigned as error, upon the ground that the office had not become vacant when said appointment was made, and the Governor had no power to commission Taylor until his appointment was ratified by the Senate.
H. Fielder, for plaintiff in error. This is not an office under the contitution, because it took an Act of the Legislature to establish the Court. There is no apportionment of the tax between the counties of the district, by law. The *Act of the 28th of October, 1870, organizing these Courts, is void, because it was passed after the General Assembly at its third session had sat forty days, and no two-thirds vote prolonged the sec Constitution of 1868; Dwarris on Stat.tes, etc., 67-69 ^84; 1 Denio, 9; 2 Ibid., 97; 22d Wend., 9. The office did not become vacant: Acts of 1870, page 77; Constitution of 1868; 2 Story on Con., sec. 1559; Paschal on Con., 182, 183; People v. Forgerer, Brees., 68; 1 Cong. Elec. Cas., 874; 2 Ibid., 613; 16 Am. L. R., 786; 8 Inter. Rev. Dec, 137; Schlash v. Peavy, Circuit Court, Ark., April, 1869, pamph. 11; 2 Abbott's Dig., U. S. R., title Office.
J. H. Taylor; Hood & Kiddoo, for defendant. This is a constitutional Court: Constitution 1868, Art. 5, sec. 4, pars. 1-7. Appointment: Ibid., 39. Vancancy: Ibid., Art. 4, sec. 2, par. 4. Prior superior Act controls later inferior Act: No. 78 Federalist, page 358; Contitution 1868, Art. 11, sec. 2. Salaries, how paid: Act of 28th October, 1870. sees. 2, 3, pages 77, 78. Tax, how levied: Constitution 1868, Art. 5. sec. 5, par. 2; Code, sec. 548. This was second session of General Assembly: Constitution 1868, Art. 3, sec. 2, par. 3. As to power of General Assembly over this Court: Constitution 1868, Art. 5, sec. 16, par. 1.
1. The Constitution, Article 5, section 4, declares that, until the Legislature otherwise provides, there shall be a District Attorney and a District Judge in each senatorial district. It defines their duties, fixes the jurisdiction of the Judge, and prescribes how both of these officers shall be appointed, and the qualifications of each of them. The want of certain necessary details, as to the mode of proceeding, and some provisions for raising the salaries, made it proper that no such officers should be actually appointed until legislative action was taken in the premises.
This was not done until *the Act of 28th October, 1870. This Act, as well as the Constitution, provided that these officers should be appointed by the Governor, by the advice and with the consent of the Senate. The Act, however, in express terms provided that it should not go into effect until the 1st of January, 1871. No nominations were made and no action taken during the session of the Legislature. That body adjourned 25th of October, 1870.
Soon after the 1st of January, 1871, the Governor, considering these offices vacant, appointed incumbents to hold until the next meeting of the Legislature. Mr. Taylor, the defendant in error, was one of these appointees. Was this appointment, not being with the consent of the Senate, legal? Without doubt, the provision of the Constitution and of the Act of October 28th, 1870, for filling these offices for the full term, does not cover the case of vacancies. The Constitution, in express terms, provides, "that when any office becomes vacant, the Governor shall have power to fill it, unless other wise wided by law: Article 4th, section 2, paragraph 4
This applies to all officers of every kind, no matter how or by whom, the office is to be permanently filled. The. incumbent is to hold until a successor is appointed, according to the regular method for filling the office: Article 4, section 2, paragraph 4.
If elected by the people, or by the Legislature, or appointed by the advice of the Senate, no matter how it is made the duty of the Governor to fill the vacancy, until it is filled, as provided, either by the Constitution or by the law. Nor does it matter when the vacancy happens. Whenever, or however it happens, it is the duty of the Governor to fill it, until it is filled in the mode and by the power provided for permanently filling it, unless the Constitution or the law points out some other mode.
As to officers elected by the people, the law has generallypointed out a mode for filling vacancies. Sometimes it is by *an immediate election; sometimes by appointment of the Ordinary; sometimes by appointment of the Judge of the Superior Court; sometimes by appointment by the Governor. But as to all officers elected by the Legislature, or appointed by the Governor, with the advice of the Senate, no other mode is pointed out by either the Constitution or the law. So that, as to these offices, it is the duty of the Governor to fill every vacancy not, as is often said, until a successor can be appointed, agreeably to the Constitution, but until one is appointed agreeably thereto. Even if the Senate be in session when the vacancy happens, it may be that the Governor fails in his duty to nominate, or he and the Senate cannot agree; or, if the office be one filled by legislative election, they may fail to elect. The Constitution does not intend that there should fail to be an incumbent, since it provides, that in all cases where no other provision is made, if any office become vacant, the Governor shall fill the vacancy until the office is filled in the mode provided for filling it permanently.
Our Constitution is very different from the Constitution of the United States. That only gives the President power to fill vacancies which happen during the recess of the Senate. Our Constitution has no such limitation. It simply provides that, "when any office becomes vacant, by death, resignation or otherwise, " the Governor shall have power to fill it until it is filled in the mode provided by law. But it is argued that the words here used cannot apply to this case. The words are "become vacant." It is said that this implies that the office has been filled, and has "become vacant."
It is very clear that in the case under discussion there was in fact a vacancy existing. There was an office; the Constitution provides for that. All the details necessary for the full carrying into effect of the Constitution were provided by the Act of 28th of October, 1870. Nothing was wanting but men to fill the offices. If this was not a vacancy the word is wrongly defined by the law, books and lexicographers. *Webster defines it: "The state of being destitute of an incumbent." Bouvier: "A place which is empty."
It does seem to me that the distinction between "is vacant, " and "become vacant, " is a distinction without a difference. Mr. Wirt, Mr. Legare and Mr. Taney, in their official opinions as Attorney-Generals, have all concurred in holding that, if a vacancy "exists" during a recess of the Senate, it may, in a very fair sense, be said to "happen" then, though in fact it occurred before the recess. And this has been the uniform practice and holding of the Executive Department of the United States. Mr. Wirt, in his opinion, insists that the words "may happen during the recess" are to be understood as "may happen to exist during the recess: " Opinions Attorneys-General, volume 1, page 631. Mr. Roger B. Taney fully agrees with this construction: Opinions Attorneys-General, volume 2, page 525. So, too, Mr. Legare: Ibid, volume 3, page 673. But suppose we admit that an office never yet filled cannot be said "to become vacant;" what then? The most that can be said is, that, though the office is "vacant, " it has not "become vacant, " and the Constitution has not provided in terms how it shall be filled. The Constitution provides for filling offices permanently and for filling offices which have "become vacant." Vacancies which are not cases when the office has "become" vacant are not provided for by the Constitution.
Are such offices to remain vacant until the Senate meets, or the Legislature elect, or the people choose? I think not. The law—the Code, section 66—provides that the Governor shall fill all vacancies, unless otherwise prescribed by the Constitution and the laws.
I conclude, therefore, that the most reasonable construction of the Constitution clothes the Governor with power to fill this vacancy, and that, even if this be an office which, though vacant, did not "become" vacant, the power is still in the Governor; since if it be a casus omissus in the Constitution, it is provided for by section 66 of the Code, which *authorizes the Governor to fill all vacancies not otherwise provided for. It may not...
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