Because of the importance of the question, we deem it proper that this court give definite expression to its views on the constitutionality of Code, § 2567, providing that constitutional officers in the judicial department "shall hold their respective offices for the term of six years from the first Monday after the second Tuesday in January next after their election, and until their successors are elected and qualified."
The contention is that such statute is violative of section 155 of the Constitution, providing that they shall hold office "for the term of six years, and until their successors are elected or appointed, and qualified."
The cases of City Council of Montgomery v. Hughes, 65 Ala. 201, and Prowell v. State ex rel. Hasty et al., 142 Ala. 80,39 So. 164, 166, are relied upon to support such contention.
The holding of these cases touching the meaning of the "hold-over" clause in section 155, and the corresponding section of *Page 612 the Constitution of 1875 (see parallel sec. 15, Code of 1923, page 332), is summarized in the following excerpt from the Hasty Case, supra: "We regard it as the settled law of this state that the words 'until his successor is elected and qualified' were never intended to prolong the term of office beyond a reasonable time after the election, to enable the newly elected officer to qualify. City Council of Montgomery v. Hughes, 65 Ala. 201, 206, 207; Chelmsford Co. v. Demarest, 7 Gray [73 Mass.] 1."
In the Hughes Case, supra, it was sought to hold the sureties on the bond of the city clerk of Montgomery liable for the misfeasance of the clerk for a hold-over term of two years; and in the Hasty Case the incumbent sought to hold over for a year, on the ground that his successor elect, under the statute then obtaining could not take office until Tuesday after the first Monday in November following his election. By change in date of election, the successor had not been elected until later than Tuesday after the first Monday in November, 1904, and the incumbent insisted he could not take office until November, 1905, and that he, the incumbent, was entitled to hold over to the latter date.
In effect the Hasty Case does hold that the Legislature cannot postpone the date upon which the probate judge elect shall enter upon the duties and reap the emoluments of his office for an indefinite and unreasonable time after his election.
We do not question the rule of the cases mentioned. They do not hold that the fixing of a day certain upon which the six-year term shall begin is not a matter for legislative action. The Constitution does not fix such date. The election laws in force throughout our history have fixed the date for holding the election, a later date for canvassing returns, a later date to certify the result from the counties to the central authority, a later date for the central authorities to canvass the full returns, and a later date for certificates of election to be issued to the officers elect, and, finally, where bonds are required, as in the case of the judge of probate, a period of forty days to file a bond.
Likewise, the statutes have from time to time specified the date on which the term shall begin, and the prior term shall end.
It is sufficient, in this regard, to note that in the Hasty Case the court recognizes the end of the term of the incumbent as fixed by the Act of 1876-77 (Acts 1876-77, p. 103), § 8, conforming to schedule 3 of the Constitution of 1875. Under that Constitution the date of general elections was changed from November to August. Judicial officers elected in August did not enter upon their terms until November, some three months after election. Here is a constitutional precedent as to reasonable time between date of election and date of entry into office. The Constitution of 1901, § 116, fixes the date on which the Governor and executive officers elect shall go into office. The statute here in question, first appearing in the Code of 1907, enacted probably to cure the uncertainties brought out in the Hasty Case, supra, fixes the same date for judicial officers to go into office, which the Constitution fixes for executive officers elected at the same time. Another precedent as to reasonable time.
Section 156 of the Constitution empowers the Legislature to change the date of the election of judicial officers. At the same time it safeguards the term of office of the incumbent at the time of such change. It results, as of course, that the Legislature is thus empowered to increase or decrease the interim between their election and entry into office. The Constitution is jealous of the term of office, assures a full term, but does not specify when the term begins. The only officers elect specially interested in the question were those elected, if any, before the statute was enacted. The uniform observance of same for more than a quarter of a century indicates that subsequent officers elect have had the statute in mind when seeking the office.
Without prolonging the discussion, we are of opinion and so hold that section 2567 of the Code is constitutional and valid, and now fixes the date on which the six-year terms of judicial officers elect shall begin; which also fixes the date when the ensuing term shall end.
The hold-over period after that date, in case no one appears, duly qualified, to enter upon the office, it is unnecessary to consider.
Justice THOMAS concurs in this feature of the majority opinion.
Other arguments advanced as to respondent's title to the office by reason of his first appointment may be here laid aside as unnecessary to be determined. This in view of the conclusion reached that, conceding, *Page 613 without deciding, that under respondent's first appointment his term of office ended in January, 1935, his title is established under Gov. Miller's second appointment, which is decisive of the case.
In State ex rel. Harris v. Tucker, 54 Ala. 205, this court, in an opinion by Justice Stone (afterwards Chief Justice), construed and applied section 164, Code of 1867, which is section 2610 of our present Code. The holding was in effect that a failure of one duly elected to office to file the necessary bond within the time required by law creates a vacancy in the office to which he was elected, and that upon the proper certification of such fact to the appointing power, the duty devolved upon the latter to fill the vacancy as in other cases, just as the statute in express language requires. And any expression or holding in previous decisions (Sprowl v. Lawrence, 33 Ala. 674, and State v. Ely, 43 Ala. 568) to the effect that any judicial investigation was a prerequisite to such certification or appointment was expressly disapproved, the court saying: "Failure to file, under section 164, and failure to give, under section 177, Revised Code, each alike 'vacates the office.' "
This statute has been re-enacted, without substantial change, in this respect, and must be viewed in the light of the construction so given it in State ex rel. Harris v. Tucker, supra.
Judge Brandon died on December 6, 1934, without having qualified for the office to which he had been elected, and on December 19, 1934, the clerk of the circuit court certified to Gov. Miller that Judge Brandon had not filed in the office of said clerk of Tuscaloosa county the official bond required by law for the term to which he had been elected in November. Thereafter, on January 5, 1935, Gov. Miller appointed respondent to the office of probate judge, and after said appointment, and before January 9, 1935, respondent (without waiving any right to the office under his prior appointment) duly accepted and qualified for such office as required by law, and on said latter date a commission was duly issued to him.
Under the undisputed and agreed facts, the law as to qualification for office was not complied with, for there was a failure to file a bond within the time fixed by law. True, there was no dereliction of duty, nor negligence in this regard, on the part of Judge Brandon. He died before the expiration of the time for filing his bond, and his failure in this respect was due to no fault of his own, but to all-wise Providence. But, nevertheless, there was a failure to file a bond, and the certification under section 2610 of the Code stated an obvious fact. The statute makes no reference to any cause for such failure, and, as observed in State ex rel. Harris v. Tucker, supra, "failure to file * * * 'vacates the office.' "
The language is plain, emphatic, and comprehensive. It includes all cases of "failure to file," and no previous judicial investigation is necessary for certification or appointment. State ex rel. Harris v. Tucker, supra.
A simple illustration will suffice. If one duly elected is so stricken by disease, either in mind or body, so that the execution of a bond is impossible, and for such reason there is a failure to file a bond within the time required by law, can it be seriously questioned that upon the certification of such failure the appointive power could immediately proceed to fill the vacancy thus created? The evident purpose of the statute is to have some one ready to take the office, as it is well understood that "the law abhors vacancies in public offices, and great precautions are taken to avoid their occurrence." Prowell v. State ex rel. Hasty, supra.
Between the illustrated case and the present, there can be no distinction in principle. In neither instance was the elected officer at fault, yet there was a clear failure to file the bond. The statute speaks not of causes, but of effect. Though the question does not appear to have been previously here presented, yet it has been considered in other jurisdictions (see Gibbs v. People, 66 Colo. 414, 182 P. 894, and People v. DeGuelle, 47 Colo. 13, 105 P. 1110, 1113, where the holding was that a failure to qualify created a vacancy in the office, though the power to qualify "was ended by death." In the DeGuelle Case, supra, was the following observation: "True, as said in State v. Hopkins, 10 Ohio St. 509, 511: 'This failure was caused by the act of God, and not by the laches of the party; but its effect upon the office is the same whatever may have been its cause.' " The opinion in that case concludes as follows: "That an appointee to fill a vacancy under our law holds until the next general election, if no new term intervenes between the time of his appointment and the time of such election; *Page 614 but, if a new term commences during the interval, the term of the appointee ends, and the one entitled to the new term has a right thereto; but if such one on the arrival of the term does not appear and qualify, though the reason thereof be death, there is a vacancy in the office for the term. That until an appointment is made the incumbent of the previous term holds over; but when an appointment is made, and the appointee qualifies, the previous term and the rights of the incumbent to the office are ended."
We are persuaded, therefore, that the certification of a failure to file bond was justified under section 2610, and that by virtue of said statute a vacancy existed to be filled by the appointing power — the Governor. State ex rel. Harris v. Tucker, supra.
Judge Brandon had been elected to the office of judge of probate in the November election, his term to begin in January, 1935. He and he alone had the inchoate right to become the actual incumbent of the office for the term beginning in January. He could have qualified prior to the date of his death. Had he duly qualified for the office, and then died, it would seem clear that a vacancy would have been created for the new term, subject to be filled by the Governor. A like result is reached upon his failure to qualify, and the certification thereof as provided by section 2610 of the Code. This vacancy occurred, therefore, during Gov. Miller's term. The statute prescribes that the vacancy be filled by the appointing power, and that power was Gov. Miller.
"The general rule is that a prospective appointment to fill a vacancy sure to occur in a public office made by an officer who * * * is empowered to fill the vacancy when it arises, is, in the absence of a law forbidding it, a valid appointment, and vests title to the office in the appointee." 46 Corpus Juris 952.
This rule was recognized by this court in Oberhaus v. State,173 Ala. 483, 55 So. 898, 902, where it was said: "But where, by law or personal action, the office to be filled by appointment must become vacant by the expiration of the incumbent's term or by his withdrawal during the term of the appointing power, a prospective appointment thereto, if not forbidden by law, may be made at a convenient season before the actual expiration."
We are at the conclusion, therefore, that Gov. Miller properly exercised his appointive power when he appointed respondent on January 5, 1935, and that under the commission issued January 9, 1935, respondent, Rice, has the right to hold the office during the new term, to which Judge Brandon had been elected, and until the next general election.
For the reasons herein indicated, we are of the opinion the trial court correctly ruled, and that the judgment should be here affirmed.