State v. Askew

• Decision Date: 18 December 1886
• Citation: 2 S.W. 349
• Parties: STATE <I>ex rel.</I> SMITH <I>v.</I> ASKEW.
• Court: Arkansas Supreme Court

2 S.W. 349

STATE ex rel. SMITH

v. ASKEW.

Supreme Court of Arkansas.

December 18, 1886.

Petition for quo warranto.

U. M. & G. B. Rose and H. G. Bunn, for relator. S. W. Williams, for respondent.

SMITH, J.

The relator invokes our original jurisdiction, under section 5 of article 7 of the constitution of 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 twenty-sixth 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: (1) Has the term for which Judge Askew was elected in 1883 expired? and (2) has the relator been duly and legally 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 section 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 "the judges of the circuit courts shall be elected by the qualified electors of the several circuits, and shall hold their offices for the term of four years." Article 7, § 17. And it is no more in the power of the legislature to enlarge the constitutional term of an office than it is in their power to abridge it. Any attempt in either direction would be a plain usurpation. People v. Bull, 46 N. Y. 57; S. C. 7 Amer. Rep. 302; Com. v. Gamble, 62 Pa. St. 343; State v. Thoman, 10 Kan. 191; Ex parte Meredith, 33 Grat. 119; S. C. 36 Amer. Rep. 771; State v. Lyles, 1 McCord, 239; State v. Hutson, Id. 240; State v. McClintock, Id. 245; Keys v. Mason, 3 Sneed, 6; Lowe v. Com., 3 Metc. (Ky.) 237; State v. Wiltz, 11 La. Ann. 439.

There is no reason to suppose, however, that the legislature intended to extend or to shorten the term of the first judge of the new circuit. Their meaning is reasonably certain, viz., that his term should expire on or about October 30, 1886, and that his successor should be chosen at the general election immediately preceding that date; the apparent inconsistency being the result of a blunder in writing the word "after" instead of the word "before." However, we lay no stress upon this legislative declaration, further than as it shows what the general assembly understood that the constitution meant; for, the term of office of circuit judges being, as we have seen, fixed by the organic law, and beyond the control of the legislature, no enactment that they might indulge in would cause the term to end a day sooner or a day later. All that portion of the third section of the act above quoted which prescribes the duration of the term, and the time when the office is to be filled by a second election, may therefore be stricken out as superfluous; these matters being regulated by the constitution and general laws of the state.

The term of the circuit judges being, then, four years, no authority can be found in the constitution for an election for a shorter period, except the following clause: "All vacancies occurring in any office provided for in this article [the article relating to the judicial department] shall be filled by special election." Article 7, § 50. At the time of the adoption of this instrument, it had been settled in the case of State v. Sorrells, 15 Ark. 664, under provisions of the constitution of 1836 not essentially different from the present constitution so far as concerns this question, that upon the happening of a vacancy the election is for the unexpired portion of the term, and not for a full term of four years.

The controversy is thus narrowed to the point whether, upon the creation of an additional circuit, there is a present vacancy in the office of circuit judge. Can a vacancy occur in an office which has never been filled? Vacancy is the state of being empty or unfilled. Vacant lands are unoccupied lands. A vacant house is an untenanted house. A vacant office is an office without an incumbent; and it can make no difference whether the office be a new or an old one. An old office is vacated by death, resignation, or removal. An office newly created become ipso facto vacant in its creation. Stocking v. State, 7 Ind. 326; Collins v. State, 8 Ind. 344; Walsh v. Com., 89 Pa. St. 419; S. C. 33 Amer. Rep. 771; Gormley v. Taylor, 44 Ga. 76; State v. County Court of Boone Co., 50 Mo. 317; People v. Osborne, 7 Colo. 605; S. C. 4 Pac. Rep. 1078; State v. Irwin, 5 Nev. 112; State v. Johns, 3 Or. 537. In support of the opposite theory—that when a new judicial district is erected, the first judge of which is to be elected by the people, there is no vacancy prior to such election —defendant's counsel has cited no case, and we have been able to find only one,—State v. Messmore, 14 Wis. 177.

The case of Smith v. Halfacre, 6 How. (Miss.) 582, accords with the view we have taken, as will appear by reference to the statement of facts, and the conclusion reached, which are here given in the language of Chief Justice SHARKEY, who delivered the opinion of the court: "The Eighth district was formed by act of the legislature in 1836, and the act provided that an election for judge and district attorney should be held on the first Monday and day following in July of that year; at which election Frederick W. Huling was elected...