Means v. Terral

Decision Date25 October 1920
Docket Number188
Citation225 S.W. 601,145 Ark. 443
PartiesMEANS v. TERRAL
CourtArkansas Supreme Court

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge reversed.

Judgment reversed.

Reid Burrow & McDonnell, for petitioner.

Notwithstanding the failure of the Governor to call a special election, the commission issued to the present incumbent expires upon the election of a judge at the approaching general election to fill the unexpired term. Const. 1874, art. 7, § 50. General elections are more in keeping with our system of government than special elections and in the event a general election occurs before the calling of a special election the necessity of the latter is obviated. 15 Ark. 664.

John D Arbuckle, Attorney General, Silas W. Rogers, Assistant, and Mehaffy, Donham & Mehaffy, for respondent.

1. The vacancy can only be filled at a special election called by the Governor to elect a judge to fill the unexpired term.

Terms of elective officers created by the Constitution begin on the day the result of the election was officially declared, October 31, 1874, and the terms end in regular cycles of the periods enumerated by the Constitution as the duration of the respective terms. 48 Ark. 82; 112 Id. 291; 116 Id. 36; art. 7, § 50, Const. 1874. Here the vacancy occurred more than nine months before the next succeeding general election, and the vacancy should be filled by a special election.

2. This case should be affirmed, because (1) the Constitution provides a fixed and uniform day of expiration of office of circuit judge. 102 Ark. 12. And (2) the Constitution is silent, and the statute gives the Governor authority to fill temporary vacancies in the office of circuit judge. A judge so appointed is a de jure as well as de facto officer. (3) The Constitution has provided that where a vacancy occurs, as here, it shall be filled by special election, but the Governor has failed to call such special election. Art. 7, § 50. (4) The regular biennial election in November next is not a special election, and such an election as is contemplated by art. 7, § 50; and (5) there being no election called to fill the office of circuit judge in the case before the court, and no notice having been given that a special election is to be held to fill the unexpired term of John C. Ross, and the office being filled by an incumbent de facto and de jure officer, no vacancy exists, and the Secretary of State is not warranted to certify the name of H. B. Means as a candidate to be voted for at the general election to be held in November next.

MCCULLOCH, C. J. WOOD and SMITH, JJ., dissent. HART, J. concurring.

OPINION

MCCULLOCH, C. J.

A vacancy occurred in the office of Judge of the Seventh Judicial Circuit by the death of the incumbent in June, 1919, and the Governor made a temporary appointment to fill the vacancy, pursuant to the authority conferred on him by statute. Kirby's Digest, § 7991. The Governor has not called a special election as provided in the Constitution (article 8, section 50) and the question presented in the present case is whether or not an election to fill the vacancy for the unexpired term can be held at the approaching biennial general election on November 2, 1920, without a proclamation by the executive calling for an election on that date to fill such vacancy.

Appellant, H. B. Means, a regular practicing attorney of the bar of that court, has tendered to the Secretary of State a certificate of his nomination for the office in conformity with the election laws of the State, and, on the refusal of that officer to accept the certificate and to certify the nomination to the county election board, Mr. Means brought this action to compel the Secretary of State, by mandamus, to do so.

Circuit judges are elected for terms of four years, and the regular terms of all the circuit judges in the State run contemporaneously and end at the same time. State v. Askew, 48 Ark. 82, 2 S.W. 349; State ex rel. v. Cotham, 116 Ark. 36, 172 S.W. 260.

The section of the Constitution referred to above appears in the article on the Judicial Department and reads as follows:

"All vacancies occurring in any office provided for in this article shall be filled by special election save that in case of vacancies occurring in county and township offices six months and in other offices nine months, before the next general election, such vacancy shall be filled by appointment by the Governor."

The contention of counsel for appellant is that, notwithstanding the failure of the Governor to call a special election as required by the Constitution, the commission issued to the present incumbent expires upon the election of a judge at the approaching general election to fill the unexpired term. On the other hand, the contention of the Attorney General, who appears for the Secretary of State, is that the vacancy can only be filled at a special election called by the Governor to elect a judge to fill the unexpired term. These respective contentions call for an interpretation of section 50, article 7, of the Constitution.

It will be observed that the Constitution does not affirmatively confer power on the Governor to make an appointment at all, unless the vacancy occurs within a specified time before the next general election--that is to say, in case of vacancies occurring in county and township offices, six months and in other offices nine months before a general election. It is only on account of the silence of the Constitution that the Legislature is empowered to confer authority upon the Governor to make a temporary appointment to fill a vacancy until a special election could be held. Cobb v. Hammock, 82 Ark. 584, 102 S.W. 382; State ex rel. v. Stevenson, 89 Ark. 31, 116 S.W. 202. In either event, whether the appointment be made under the statutory authority where the vacancy occurs more than nine months before the next general election, or be made under the constitutional authority where the vacancy occurs within nine months before a general election and the term extends beyond the next election, the appointment is only temporary and not for the unexpired term. This is necessarily implied from the language of that section of the Constitution. It was clearly the policy of the framers of our Constitution to provide for the filling of vacancies in office by election and not by appointment, as was said by Chief Justice HILL, speaking for this court in the case of State ex rel. v. Stevenson, supra: "It was evidently the intention of the framers of the Constitution of 1874 that the appointing power should be limited. Its policy was to fill vacancies by election."

An election by the people to fill a vacancy, whether at a special election or at the succeeding general election, is for the unexpired term, but, as before stated, any appointment made by the Governor is, under the Constitution, temporary. We have just said that an appointment by the Governor within nine months before the next general election expires on the filling of the vacancy for the unexpired term at the next election. The words, "next general election," could not reasonably be construed to mean the general election at the expiration of the term, for, if we put that construction on the language, there would be no power conferred by this section of the Constitution for the Governor to make an appointment, unless the vacancy occurred within nine months before the expiration of the term. It is clear therefore that the framers of the Constitution, pursuant to the policy of having biennial general elections so that all vacancies should be filled by election, did not intend to confer any express authority upon the Governor to make an appointment, except where the vacancy occurred within nine months before the next general election, meaning the next election succeeding the occurrence of the vacancy, and that the commission issued under that appointment should expire at that election. If, therefore, the vacancy in this instance had occurred within nine months before the next general election, the calling of a special election would have been unnecessary, and the people would, by operation of law, be called on to fill the vacancy for the unexpired term at this election.

Viewing the constitutional provision in that light and as bearing that meaning, it is inconceivable that the framers of the Constitution intended to permit the Governor to exercise a greater power because of the silence of the Constitution with reference to a temporary appointment when a vacancy occurs more than nine months before a general election, than under the express provision which empowers him to make an appointment where a vacancy occurs within nine months of the election.

The dominant thought in this provision of the Constitution is that vacancies in office are to be filled for the unexpired term by election, and that only a temporary appointment by the Governor is authorized or permitted. The reference to special elections is solely for the purpose of conferring authority and giving directions for a special election and not to prescribe a limitation upon the method of filling vacancies for the unexpired term, and it is a direct command that it shall be done by that method for the purpose of expedition. In other words, the provision about special elections was intended to obviate delay until the regular election in filling the vacancy, and to accelerate it by having a special election at an earlier date, and the fact that the executive failed to obey the mandate of the Constitution with respect to calling a special election does not enlarge his power over the subject so as to permit him to prolong the temporary incumbency of his appointee beyond the time fixed by law for holding a general...

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