Hendricks v. Hodges, Sec'y State

• Decision Date: 24 January 1916
• Docket Number: 121
• Citation: 182 S.W. 538,122 Ark. 82
• Parties: HENDRICKS v. HODGES, SEC'Y STATE
• Court: Arkansas Supreme Court

182 S.W. 538

122 Ark. 82

HENDRICKS v. HODGES, SEC'Y STATE

No. 121

Supreme Court of Arkansas

January 24, 1916

Appeal from Pulaski Circuit Court; Guy Fulk. Judge; affirmed.

Judgment affirmed.

Rose Hemingway, Cantrell, Loughborough & Miles, for appellant.

The decision in this case rests upon the construction of Act 107 Acts 1915. The history of the act goes back to article 3, section 8 Const. 1874. The Legislature in 1907 changed the date of the election to the 2d Monday in September in even years, etc. The Act of 1915 changed the date to the 1st Monday in November, 1916. The object was to combine State and National elections. The terms of all officers expire October 30. This appeal involves the necessity of circuit judges running for election in 1916.

1. The Constitution fixes the terms of circuit judges at four years. Art. 7, § 17.

2. Circuit judges shall be elected by the qualified electors of the several circuits. Art. 7, § 17.

3. The terms of all officers began October 30, 1874, and circuit judges held for four years from October in the year elected. 112 Ark. 291.

4. The Legislature has no more power to enlarge the term of office than it has to abridge it, and the term of office of a circuit judge is for a fixed period, regardless of who is the incumbent during the different periods. 48 Ark. 82.

There are two well defined lines of decision; (1) one is that a statute making reasonable changes in the terms for holding elections * * * though incidentally it results in extending the terms of present incumbents, does not violate the Constitution. 65 P. 705; 63 Kans. 505; 51 N.E. 117; 43 L. R A. 408.

The other holds that any attempt by a change in the time of election to continue an incumbent in office is void. 71 N.E. 748; 104 N.W. 197.

The main object was to provide for uniformity in elections. The whole act should stand together, and if the act is unconstitutional in this one particular, it should fail as to all. It is plain in meaning and terms. The terms of all circuit judges expire October 30, 1918, and they are required to run nearly two years before their incumbency begins. Const. Art. 19, § 5; Jewett v. McConnell, 112 Ark. 291.

Mehaffy, Reid & Mehaffy, for appellee.

There are no questions of fact involved in this case; its determination rests solely upon the construction of the Act of 1915. It should be construed so as not to conflict with the spirit and intent of the Constitution. It was the intention of the framers of the Constitution that the terms of all officers except Governor, Secretary of State, Auditor, Treasurer, Attorney General and Commissioner State Lands, etc., should begin uniformly. Const. Sched., §§ 20-26; 48 Ark. 82; 112 Id. 291; 172 S.W. 260; Kirby's Dig., § 2850. No time being fixed by the act the terms of all officers ending in 1916 would begin as soon as the election returns are canvassed under section 2850, Kirby's Dig. This would be the latter part of November or first part of December; but if circuit judges be required to run in 1916, they could not take their offices until the terms of the present incumbents expire, which is not in keeping with the Constitution. 107 Ark. 379; 35 Ark. 56; 37 Id. 491; 51 Id. 534; 60 Id. 343; 28 Id. 200; 3 Id. 285; 9 Id. 112; Const. Sched., §§ 20-26; Kirby's Digest, §§ 2850, 647-8; Const. Art. 19, § 20; 3 S.W. 867; 65 P. 705; 51 N.E. 117; 43 L. R. A. 408; 3 L. R. A. (N. S.) 887; 15 Minn. 199; 75 S.E. 866; 104 P. 860; 87 P. 870; 63 Kans. 505; 65 P. 705.

J. C. Hawthorne, N. F. Lamb, Eugene Sloan and J. R. Turkey.

1. The act is unconstitutional. 48 Ark. 82; 172 S.W. 260; 163 Ind. 150; 71 N.E. 478.

2. If constitutional it does not require an election in 1916. 174 S.W. 248; Suth. Stat. Const., par. 139; 58 P. 50; 110 U.S. 629; Ib. 739; 26 A. & E. Enc. (2 ed.) 649.

Abe Collins, Amicus Curiae.

It is obvious that the terms of all circuit judges "will expire before the next general election" after 1916. 172 S.W. 260. The intent of the lawmakers must be ascertained. 2 Lewis, South. on St. Const., § 348; 76 Ark. 303. Where the language is free from ambiguity, plain and consistent, there is no room for construction. 11 Ark. 44; 46 Id. 159; 93 Id. 42; 35 Id. 56; 24 Id. 487; 104 Id. 583; 102 Id. 205; 28 Id. 200; 97 Id. 38; 20 Wend. 562; 11 N.Y. 602. Compare 46 Ark. 159; 47 Id. 404. The Legislature meant what it said. The law abhors vacancies in office. 113 Ind. 434; Mechem Pub. Officers, § 397; Throop. Pub. Officers, § 308. Each word and phrase of an act should be given meaning and effect. 11 Ark. 44; 30 Id. 135; 99 Id. 149; 89 Id. 378; 76 Id. 303; 76 Id. 303; 15 Id. 555; 2 Id. 229; 17 Id. 608; 28 Id. 200; 71 Id. 556; 67 Id. 552. The question is not what the Legislature meant but what its language means. 104 Ark. 583; 6 Ark. 9-12; See also, 76 Id. 443; 45 Id. 387; 47 Id. 388; 44 Id. 265.

James E. Hogue, Amicus Curiae.

The act is unconstitutional. 112 Ark. 291; 48 Id. 82; art. 3, § 8, Const.; Ib.,, art. 19, § 5.

OPINION

MCCULLOCH, C. J.

The General Assembly of 1915 enacted a statute ^[*] amending the election law of the State so as to change the date of the regular biennial election from the second Monday in September to the "next Tuesday after the first Monday in November," thus fixing a uniform date for all biennial elections, both State and National.

The statute reads as follows: "Section 1. That on the next Tuesday after the first Monday in November, 1916, and every two years thereafter there shall be held an election in each precinct and ward in this State for the election of all elective State, county and township officers whose term of office is fixed by the Constitution at two years; and State Senators in their respective districts when the terms for which senators shall have been elected shall expire before the next general election; and for judges of the Supreme and circuit courts when the terms of office of any judge shall expire before the next general election; and for United States Senators and for Representatives in Congress of the United States for each Congressional District; and for prosecuting attorneys."

Appellant conceives that the new statute requires the election of circuit judges in the year 1916, and as he is a candidate for that office in the Sixth Judicial Circuit he seeks to compel the Secretary of State to receive and file his pledge, conformable to the statute known as the Corrupt Practices Act, ^[+] which requires all candidates for district offices to file with the Secretary of State, more than thirty days before a primary election, a pledge in writing stating that they are familiar with the requirements of said statute and that they will in good faith comply with its terms.

The sole question presented for decision on this appeal is whether or not circuit judges must be elected at the election to be held during the year 1916. The contention is that the terms of circuit judges end on October 31, 1918, and that their successors must be elected in the year 1916 for the reason that it is the election next preceding the expiration of the terms. If that contention be sound, those offices will be filled at the election held nearly two years before the terms end.

It must be conceded that a literal reading of the statute sustains the contention, for the statute provides in so many words that the election shall be "for judges of the Supreme and circuit courts when the terms of office of any judge shall expire before the next general election." There are several reasons why it is apparent that the framers of the statute did not intend what a literal meaning of the statute, as a whole, would imply. In the first place, the statute provides that senators of the United States shall be elected at each biennial election, but we know that the lawmakers did not intend to accomplish that result inasmuch as the Constitution of the United States fixes the terms of senators at six years. In the next place, the interpretation contended for by learned counsel for appellant would require all of the State Senators, those whose terms begin in the year 1918 as well as those whose terms begin in the present year, to be elected at the next election to be held in November, 1916. It is inconceivable that that was the intention of the framers of the statute, for it is certainly contrary to the policy of the State to elect senators so long a time before the commencement of their service. Besides, it would be in direct conflict with the express letter of the Constitution, which provides that the terms of senators shall begin with the dates of their election. Article 5, section 15, as amended by the Seventh amendment. It would also conflict with that section of the Constitution (Art. 5, sec. 2) which provides that terms of senators shall be divided into two classes to be filled at alternate biennial elections. Senators could not, therefore, be elected in 1916 for terms to begin in the year 1918, and that part of the statute is void if we give its language a literal meaning.

The statute would, under that interpretation, also be in conflict with another statute with reference to the election and qualification of officers, which there is little reason to believe that the lawmakers meant to change. We refer to the statute (Kirby's Digest, section 2850) which provides that the State Board of Election Commissioners shall, within thirty days after the time allowed to make the returns of elections by county commissioners, cast up the votes and determine the result, and that all of the officers required by law "shall be immediately commissioned by the Governor." Also Kirby's Digest, section 647, which provides that all State and county officers who are required by law to be commissioned by the Governor "are required to forward the legal fee...