State ex rel. Smith v. Askew

Decision Date18 December 1886
PartiesSTATE, EX REL. C. W. SMITH, v. BENJ. F. ASKEW
CourtArkansas Supreme Court

PETITION for Quo Warranto.

Petition overruled.

U. M. & G. B. Rose and H. G. Bunn, for petitioner.

Offices are created for the benefit of the people, and not for the advantage of the incumbent. No one can have any vested right to an office. (30 Ark. 566.) The intention of the constitution is to fix the term of office, and not that of any particular officer. Under the constitution of 1868, which contained similar provisions to the present one, it was held that the legislature had the power to abolish the office of a judge, though the constitution declared that the general assembly should not interfere with the term of office of any judge. 30 Ark. 566.

When the constitution provides that certain officers shall be elected at a regular election, at stated periods, the terms of all such officers are controlled by the regular election and whenever a vacancy occurs the election is for the unexpired term only. 33 Gratt., 119; 3 Am. Rep., 776.

Judge Askew was elected to fill a vacancy. Sec. 89, Pa. 419; 33 Am Rep., 771; 5 Nev. 112; 7 Col. 605.

"All vacancies occurring in any office provided for in this article shall be filled by special election." (Const., art. 7, sec. 50.) As soon as the Thirteenth judicial district was created there was a vacancy in the office of circuit judge. See the following cases: 6 How. (Miss.), 582; 19 Iowa 433; 45 Texas, 135; 20 Ohio St. 251.

Sec. 3, Acts 1883, p. 64, is evidently self-contradictory. It is plain the word "after" is a blunder, and the word "before" was intended. This court has corrected mistakes of this character, and given effect to acts which, construed literally, would be meaningless or ineffectual. (See 34 Ark. 26; 35 ib., 56.) This principal has been applied by many courts. 23 Wall. 307; 3 Sumner, 279; 59 N.Y. 53; 77 Ill. 610; 97 ib., 234; 8 La. 732; 74 Mo. 410; 1 Idaho N. S., 349; 18 Fla. 557; 16 Tex. App., 76; 61 Wis. 211; 3 Utah 334; 37 Ark. 493.

Our general statutes of election provide for a general election on the first Monday in September. It provides for the election of circuit judges when the term of office shall expire before the next general election, etc. (Mansf. Dig., sec. 2652.) This was not intended to be repealed by the act creating the Thirteenth circuit. There is no express repeal, and implied repeals are not favored. To warrant a repeal by implication it must clearly appear that the latter statute was intended to abrogate the earlier one. 41 Ind. 364; 53 Mo. 17; 55 ib., 378; 23 Ark. 304; 41 ib., 151; 37 N.J.L. 228.

Where one construction of an act will make it harmonize with the general system of laws, while a different construction will lead to needless discord and disparity, the former should be favored and the latter rejected. 27 Ark. 419; 5 Bush., 302; 33 N. J. L.; 4 Vroom, 363; 2 Abb., U.S. 448; 47 Mo. 382; 16 Kan. 587; Chase's Dec., 364.

But if it were conceded that the legislature intended to repeal the general statute, in so far as it relates to the election of judges and prosecuting attorneys in the Thirteenth circuit, then we confidently assert the proposition that to that extent the special statute is unconstitutional and void.

Our constitution provides as follows: "In all cases where a general law can be made applicable, no special law shall be enacted; nor shall the operation of any general law be suspended by the legislature for the benefit of any particular individual, corporation or association; nor where the courts have jurisdiction to grant the powers, or the privileges, or the relief asked for." Const., art. 5, sec. 25.

A law which does not operate equally on all of the class to which it relates, but creates preferences and establishes inequalities, is not a general law. 40 N.J.L. 1; 46 ib., 173; 39 N.J.Eq. 126; 39, ib., 391; 14 La. 520; 80 Ky. 608; 75 Mo. 341; 88 Pa. 2581; 84 Ill. 590; 71 Ga. 484.

Sam W. Williams, for respondent.

Our contention is, that defendant is in office for four years from date of qualification, and until his successor is legally elected and qualified. Sec. 17, art 7, Constitution, fixes the terms of the circuit judges at four years, and section 13 of that article authorized the dividing of the state into convenient circuits, and that a judge should be elected for each. Under article 18 the general assembly has power to alter, change, add to or abolish these circuits, but none to limit it to less, nor extend the term for more, than four years; but under section 5, article 19, a circuit judge might incidentally hold more than four years, but the legislature could not give a term of less than four years, nor expressly longer, without violating the constitution; though, by providing for an election of the first judge, at the first general election after the expiration of his term, to avoid special elections, the first incumbent might hold over.

Under section 8, article 3, which provides for biennial elections, the legislature might well provide, as it did, that the election of a successor of the first judge in a new circuit should be at the first general election after the close of the term. The legislature had no power to make a term shorter than four years, or expressly longer; but it had the power to provide for succession in the Thirteenth circuit, by either special or general election before or after their close. The latter is the one adopted by Act 1883, page 64. Under this section the first general election after the expiration of Judge Askew's term will occur in 1888, and Judge Smith could not be elected in 1886. It is the legal election which gives the right to succession, and not the commission. 17 Ark. 407; 46 N.Y. 57; 9 Humph., 208; 2 Wend. 272; 11 Wend. 132; 2 Ala. 31.

Whenever the term of an officer is prescribed clearly by constitutional provisions, and there appears any effort to abridge or extend by ordinary legislation, such effort at legislation is unconstitutional. 33 Gratt., 119; 36 Am. Rep., 771, 776. See, also, 11 La. 439; 2 Denie N.Y. 272; 10 Wis. 525; 7 Jones Law, 545; Cooley Const. Lim., 4th Ed., 78, note 5, ib., p. 336, note 2; 46 N.Y. 57; 10 Kan. 191; 52 N.Y. 374, etc.; 9 Ark. 273.

There was no vacancy in this case to be filled. There had been no predecessor, but Judge Askew was himself the beginner of terms, and would hold for a full term of four years. See cases supra.

OPINION

SMITH, J.

The relator invokes our original jurisdiction, under sec. 5, of article 7, Constitution 1874, to determine by what authority Benjamin F. Askew assumes to exercise the functions of judge of the Thirteenth judicial circuit.

His petition sets forth that under an act of the general assembly, entitled "an act to create the Thirteenth judicial circuit, and fixing the times of holding the courts," approved February 27, 1883, defendant was elected judge of the circuit court in that circuit at an election held on the first Monday in June, 1883; that he qualified and has continued to act as circuit judge ever since; that at the regular election held on the first Monday in September, 1886, the relator, being competent to hold that office, was duly elected thereto, and that he has qualified as required by law; but that Askew unlawfully holds over, though his time has expired.

Defendant, in his answer, says that he qualified as judge on the 26th day of June, 1883; that his term of office is for four years, and that his successor can only be elected at the general election in 1888. He also demurred to the petition, but no ground of demurrer is stated. Petitioner has demurred to the answer.

It is not averred in the petition that a commission has been issued to the relator. On the contrary, it was stated in the argument that the governor, acting upon the advice of the attorney- general, had refused to commission him. But of course it is the legal election behind a commission which gives the right of succession, and not the commission itself. State v. Johnson, 17 Ark. 407. The relator's right to the office depends, then, on the answer to be given to these questions:

First--Has the term for which Judge Askew was elected in 1883 expired? and,

Second--Has the relator been duly elected to succeed him?

The Thirteenth circuit was carved out of the territory which, before that time, had belonged to the Ninth circuit. And the act creating the new circuit contained these provisions:

"Sec. 3. That an election shall be held on the first (1st) Tuesday after the first (1st) Monday in June, A. D., eighteen hundred and eighty-three (1883), in the several counties in the Thirteenth (13th) judicial circuit, in the mode and manner now prescribed by law for holding elections for similar officers, for the office of circuit judge and prosecuting attorney for the said circuit; and the terms of office of said officers shall expire at the same time that the terms of office of other circuit judges and prosecuting attorneys expire, and shall be filled at the first general election which shall be held after the expiration of their term."

This section is manifestly self-contradictory and repugnant; for, interpreted literally, it would make Askew's term end on or about the thirtieth day of October, 1886, whereas his successor would not be chosen until the general election to be held in September, 1888.

It is argued that, as sec. 5 of article 19 of the Constitution directs all officers to continue in office after the expiration of their official terms until their successors are elected and qualified, therefore it was the intention of the legislature that the judge to be chosen at the special election which was ordered should hold over until the autumn of 1888. But the same instrument ordains that...

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