The salient facts may be briefly stated as follows:
Judge W. W. Brandon held the office of probate judge of Tuscaloosa county, and filling that office when the general election occurred in 1934 was the successful candidate to succeed himself. He died after the election and within an incumbency in office, and without qualification for the succeeding term which began in January, 1935; his failure of qualification being by reason of his death prior to the beginning of the new term to which he was elected in succession. His incumbent term did not expire until after the first Monday after the second Tuesday in January next after the election, as fixed by the statute, in the absence of any constitutional interdiction to the contrary. Section 116, Constitution 1901; sections 2567, 9569, Code; 22 R. C. L., page 550.
It has been held, as to the words of this statute, that judicial officers shall hold their respective offices for the prescribed terms until their successors are elected and qualified; that this provision was only intended to prolong the term of incumbency in office until a reasonable time after the expiration of the term in question to enable the newly elected officer to duly qualify, and was not intended to make the office one of indefinite duration. Section 2584, Code; Prowell v. State ex rel. Hasty et al., 142 Ala. 80, 39 So. 164; City Council of Montgomery v. Hughes et al., 65 Ala. 201; Baker et al. v. State ex rel. Green et al., 222 Ala. 467, 133 So. 291.
It is further provided that after a reasonable time has elapsed and the new or succeeding officer or incumbent in office fails to qualify, that office becomes vacant. It would follow from this that such office cannot become vacant, in the sense dealt with here, before the time for a lawful *Page 615 incumbency in that office has expired. Clark v. State ex rel. Graves, 177 Ala. 188, 59 So. 259; State ex rel. Hodges v. Amos, State Comptroller, 101 Fla. 114, 133 So. 623.
The non hold-over policy of this state is declared in our well-considered cases (Prowell v. State ex rel. Hasty et al., supra); and it is likewise established that the appointing power cannot forestall the rights and prerogatives of its own successor by appointing successors to office whose terms do not expire contemporaneous with or after expiration of the term of the appointing power (Oberhaus v. State ex rel. McNamara,173 Ala. 483, 55 So. 898; Roberts v. State ex rel. Bailey et al.,228 Ala. 222, 153 So. 432).
The rule stated in this jurisdiction is that unless some other time is fixed for the beginning of an elective term of office, the general presumption is that the official term dates from the legal ascertainment and declaration of the result of the election, and the officer may assume the duties of the office as soon thereafter as he can qualify and receive his commission. Prowell v. State ex rel. Hasty et al., 142 Ala. 80,39 So. 164.
The converse of this situation is further declared by well-considered general authorities, to the effect that where the length or expiration of the term of public office is not fixed by law, that interpretation of the statute which limits the term of office to the shortest time allowed by law should and will be adopted. State ex rel. Birrell v. Speak, 124 Ohio St. 636,180 N.E. 264, 80 A.L.R. 1286, 1290, 1292.
The phase of the subject for decision — the fixation of the term of office under the statute and Constitution — will be considered later. 46 C. J., pages 964, 965; Thompson v. Holt,52 Ala. 491.
The Constitution only confers upon the Governor the power to appoint officers of the class under consideration, where there is a vacancy, and a vacancy in office can only exist where there is an office to be presently exercised by a lawful incumbent and there is no incumbent to exercise and discharge its duties and functions. When an appointment is made under the law, that appointment, unless otherwise prescribed by law, must be coterminous with the vacated term of the incumbent, for that the Governor has no power to do more than fill a vacancy in the term of that office.
Prior to January 14, 1935, there was no office extending beyond the date of expiration of the term of Gov. Miller and the beginning of that of Gov. Graves that could be presently exercised, except as a mere incident to the office that terminated on January 14, 1935. Until there was an office that could be presently exercised for a part of a term, commencing on the date indicated in January, 1935, there was, nor could be, no vacancy in that office that could then be filled by the Governor. It follows that without such vacancy in office Gov. Miller had no power to appoint as and when he did on the occasion indicated by the record.
It is noted in section 155 of the Constitution, as to the terms of office of judges, that "except as otherwise provided in this article, the chief justice and associate justices of the supreme court, circuit judges, chancellors, and judges of probate, shall hold office for the term of six years, and until their successors are elected or appointed, and qualified; and the right of such judges and chancellors to hold their offices for the full term hereby prescribed shall not be affected by any change hereafter made by law in any circuit, division, or county, or in the mode or time of election."
And section 158 of the Constitution provides that "vacancies in the office of any of the justices of the supreme court or judges who hold office by election, or chancellors of this state, shall be filled by appointment by the governor. The appointee shall hold his office until the next general election for any state officer held at least six months after the vacancy occurs, and until his successor is elected and qualified; the successor chosen at such election shall hold office for the unexpired term and until his successor is elected and qualified."
The provisions of the Constitution limiting the terms of office to the time when such successor may be appointed and qualified (section 155 Constitution) clearly contemplate cases where the prior term of office is terminated by appointment and the qualification of the appointee; and, as there is no provision for such appointment, except in case of death, etc. (prior to the expiration of the term in question), of the person elected to fill a succeeding term, the Constitution, necessarily, contemplates that the preceding term shall be terminated by the appointment in cases of that kind. *Page 616
It seems clear that the appointment made by Gov. Miller was for a term that is to be terminated by an appointment (by Gov. Graves) to fill the vacancy that will and did result in the subsequent terms by the death of Judge Brandon and his failure of qualification from such cause.
A question to counsel by one of the justices on oral argument suggests that the foregoing general statement by the writer be illustrated as follows:
If A (Brandon) was the presiding judge of probate, and B (whoever he may be other than Brandon) was elected for the succeeding term, and both A and B had died, on different days, prior to the expiration of A's (Brandon's) term, it would clearly be the duty and power of the Governor to fill the vacancy caused by the death of A in office, and the term of such appointee would have been for the remaining portion of that term expiring in January, 1935, and until the appointment to fill the vacancy caused by B's death was made and the appointee qualified. It is obvious that the fact that the same person (Brandon here) filled, or was to fill both offices (one to which he was qualified and that to which he was elected at the last general election in 1934), in the opinion of the writer, can make no difference in the situation under the facts and law that governs.
At this point of the consideration of a vacancy in such office, the writer takes a retrospective view in order to construe the last announcement of this court on the subject and to understand the several provisions of our organic law as to the term of office and the filling of vacancies.
Section 11 of article 6 of the Constitution of 1868 provided for the filling of "vacancies in office" as follows: "Vacancies in the office of the Circuit Judge, Judge of Probate, or Judge of any other inferior court established by law, shall be filled by the Governor; and the person appointed by him shall hold office until the next election day appointed by law for election of Judge, and until his successor shall have been elected and qualified."
And section 12 provided that "the Judges of the several Courts of this State shall hold their office for the term of six years."
It will be noted that in the Constitution of 1868 there was no provision for the termination of a preceding term by an appointment to fill a vacancy in a succeeding term, caused by the death, prior to the commencement of his term, of the person elected as judge. And section 12 of article 6 of the Constitution of 1868 seems to have been amended by section 15 of article 6 of the Constitution of 1875, and by section 155 of the Constitution of 1901, with a view to remedying this defect. That is, section 12 of article 6 (Constitution 1868) provided that the term of judges should be for six years only, while section 11 provided that the Governor should fill vacancies by appointment, and that the office of the appointee should extend to the next election and until a successor was elected and qualified. There was no provision for the termination of the existing term of office by appointment of a successor and his qualification, as we have indicated, and it was to remedy this deficiency that section 12 (article 6, Const. 1868) was amended by section 15 of article 6, Constitution 1875, and section 155 of the Constitution of 1901, the latter section providing for the termination of the term of office by appointment and qualification of the successor. The case of McDonnell v. State ex rel. Jones, 199 Ala. 240, 74 So. 349, supports this view.
It will be noted that it is provided by section 155 of the Constitution of 1901 that judges shall hold office for the term of six years, and until their successors are elected or appointed, and qualified; and we have indicated that no such provision was contained in the Constitution of 1868 (section 12, article 6). However, the last Constitution (1901) does not in section 155, or any other section, provide or require the time of the beginning of the term of office of such judges. The matter is left to the Legislature, and that body had the power and did fix the time for the beginning of the six-year terms of such judges.
The Act of 1903 (General Acts 1903, p. 493, § 1) fixed the term of judges at "six years from the 10th day of November of the year of their election," and this term was later changed to "six years from the first Monday after the second Tuesday in January next after their election." Section 1463, Code 1907; section 2567, Code of 1923.
We have indicated that in the absence of limitation of power of the Legislature to fix the time for the beginning of the term of office of judges, the provisions of section 155 of the Constitution ex vi *Page 617 termini made the term "six years from the first Monday after the second Tuesday in January next after their election, and until their successors are elected [or appointted] and qualified." Sections 2567, 9569, Code.
The term of Governor indicated in section 116 of the Constitution 1901 is "four years from the first Monday after the second Tuesday in January next succeeding [his] election, and until [his] successors shall be elected and qualified." Those of the justices of the Supreme Court are fixed at six years to be chosen at a time fixed by law, and the Legislature may change the time of holding elections. Section 156, Const. 1901.
By section 149 of the Constitution the Legislature has the power to establish courts of probate.
Section 152 of the Constitution provides that justices of this court, judges of the circuit courts, judges of probate courts, and chancellors shall be elected "at such times as may be prescribed at law, except as * * * otherwise provided" in the Constitution.
The terms of judicial officers as indicated in the Constitution and in the statutes conclude with like words (sections 116, 142, 158, Const.; sections 2567, 9569, Code); thus the terms of Governor and judges of probate expired at the same time in 1935.
Schedule No. 3 of the Constitution did not fix terms of office providing only for incumbents in office.
The phraseology in the two sections of the Constitution (sections 155, 158) was correctly disposed of by Mr. Chief Justice Anderson in McDonnell v. State ex rel. Jones, 199 Ala. 240,74 So. 349, 350. He declared the provisions of section 158 were plain and unambiguous and dealt only with vacancies and the method of filling same, and "cannot be so reasonably construed as to change, alter, or extend the term as fixed by section 155 [of the Constitution]" (six years); that it matters not how many vacancies occur, or when they occur within the six-year unexpired term, the appointee thereunder can in no event hold beyond the election and qualification of his successor. He concludes the matter as follows: "The Lawler term began with his election in November, 1910, and his qualification thereunder and extended to the election and qualification of a successor at the November election in 1916, and it matters not how many vacancies occurred, or when they occurred in the Lawler term, 1910 to 1916, the appointee thereunder could, in no event, hold beyond the election and qualification of the relator Jones, who was elected at the November election, 1916. We think that it is so plain and manifest that section 158 deals only with vacancies and unexpired terms that there is little left for interpretation, and that resort to authorities of other States is not necessary." 199 Ala. 240, 241, 74 So. 349, 350.
It would appear, as stated, that under the Constitution and statutes the six-year term of office and vacancies that occur or may occur therein were dealt with and declared to begin only on expiration of Brandon's term, in which he was the incumbent, and that term expired on January 14, 1935. That is, the Constitution not fixing the beginning of the term, and the Legislature within its right having done so, it follows that the part of the term that Brandon was serving at his death was the unexpired term filled by Gov. Miller's appointee. Such is the result, if it be borne in mind that the statute fixed the term within the grant of the Constitution, and should it be further borne in mind that section 158 of the Constitution was providing for appointment to vacancies for and within unexpired terms. State ex rel. Little v. Foster, 130 Ala. 154,30 So. 477; Clark v. State ex rel. Graves, 177 Ala. 188, 59 So. 259.
The facts of the McDonnell Case, supra, are very similar to the facts of the case before us. There, Judge McDonnell contended for the office for the unexpired term of Lawler, and until his successor had been elected and qualified in the general election, and invoked like construction of section 158 as now insisted upon.
This court properly held that McDonnell's appointment was limited to the unexpired term of Judge Lawler, and did not extend into the new term of office of the judge of probate of the county in question. It is insisted that since Judge Jones was elected and not appointed, the McDonnell Case is not the rule of this case.
A careful consideration of sections 155 and 158 of the Constitution is convincing to the writer that the expression "until his successor is elected and qualified" (section 158) should not be given a different construction where the contest is with an elected rather than an appointed contender; it should be given the same meaning in all cases, as we illustrated at the outset. *Page 618
The result is not different under the insistence that the provisions of section 2610 of the Code be considered. This statute comes unchanged from the Code of 1852, with its provisions that the failure to file bond within the time fixed by law vacates the office, and that the appointing power must fill the vacancy as in other cases. The latter provision has application only when there is a term of office in which there is a vacancy by reason of such failure. When this statute was adopted and has been construed, no appreciable time elapsed between the declaration of election, the required qualification to be filed, and the assumption of that office.
In the case of State ex rel. Harris v. Tucker, 54 Ala. 205, where the earlier cases are reviewed, the sheriff was elected in November, the result declared and his bond tendered and refused as insufficient; notice of refusal certified to the Governor, and his successor appointed — all done within the four-year term of that office. That is, in that case the actual vacancy in office was dealt with and considered under materially different circumstances, Constitution, and statutes from those which now exist and obtain. Judge Stone indicated in his decision the lack of any statute to investigate and contest the controverted bond or the sufficiency vel non of the bond tendered by the official-elect and declined of approval. He rested that decision on the observation that "no machinery whatever is provided by law for a judicial investigation of the question of failure to execute or renew official bonds," and declared that the decisions in Sprowl v. Lawrence, 33 Ala. 674, and State ex rel. v. Ely, Judge, etc., 43 Ala. 568, "are each erroneous expositions of the statutes, so far as they seem to require, in the given cases, judicial ascertainment of the vacancy before the appointment of a successor can be made." Such was the basis of discussion of the statute under the Constitution of 1868, §§ 11 and 12, article 6, fixing the term of office from the declaration of the result of the general election in November. In each of the cases considered by Judge Stone there were statutory failures to qualify to office, or to give while in office the required additional bond (for reasons other than death in office). Such failures were within the term of the office, and required incumbency therein; in the case of an actual vacancy, and not that of a prospective vacancy in office of a succeeding term.
In Yarbrough et al. v. Hightower et al., 211 Ala. 262, 263,100 So. 126, the statute was adverted to and held that a tax collector failing to file bond within the time required by law was, nevertheless, a de jure collector and was removed by the general revenue law from the operation of section 1495 of the Code of 1907, § 2607, Code of 1923. The court said:
"The failure to file the bond within the time fixed by law vacated the office. Code 1907, § 1498. On this premise it is argued that Robison vacated and lost all right to the office, that his subsequent assumption of the duties of the office was wrongful, a mere usurpation; that his bond was not a statutory bond and created no lien on his property, unless by way of estoppel in favor of the state and county; that the sureties were joint wrongdoers in executing a bond in aid of the usurpation of a public office; that their loss resulted from their own wrong, and hence they do not come into equity with clean hands.
"We need not pass upon the soundness of this position for the following reasons:
"Section 2160, Code 1907, codifying Acts 1903, p. 370, made the term of office of the tax collector to begin on the first day of August next after his election.
"Section 2161, Code 1907, as amended by the Code committee, required his bond to be filed on or before the first day of July next after his election.
"The General Revenue Law of 1915 (Acts 1915, p. 386) re-enacted and amended section 2160, Code 1907, so as to make the term of office of the tax collector begin on the first day of October next after his election, and extend the terms of those in office to October 1, 1917. Gen. Acts 1915, § 143, p. 447. Section 2161, Code 1907, was also re-enacted and amended so as to require the bond of the tax collector to be filed on or before the first day of September next after his election. Gen. Acts 1915, § 144, p. 447. These statutes remove the tax collector's bond from the provisions of section 1495, Code 1907."
Thus the term of office and his incumbency therein were held important and determining factors.
In Head v. Hood, 214 Ala. 353, 355, 107 So. 854, 855, the petition was for mandamus by an alleged superintendent of education elect against the prior incumbent, where there had been an election, certification, and an official bond tendered and *Page 619 approved, and the term of office entered upon. This court observed that "the scope of these statutory provisions [sections 2683, 2684, Code of 1923], and the nature and limitations of the issues raised by a proceeding thereunder, were fully discussed and settled in the case of Thompson v. Holt, 52 Ala. 502, and the conclusions of law there stated were reaffirmed and applied in Chambers v. Stringer, 62 Ala. 596." Mr. Justice Somerville observed that so far as advised, this is the only provision of law for the automatic vacation of office by default of the officer elect, with respect to the qualifying acts required of him before his assumption of official duties; that "except where that result is declared by a statute, it has been held by this court that such a default does not ipso facto vacate the office, though it would be a ground for removal in a proper proceeding. Sprowl v. Lawrence, 33 Ala. 674, 689"; that "if the state board of education, through its executive officer, the state superintendent, had certified that the petitioner had failed to file a certified copy of his official bond in the office of the state board, as required by law, such a certificate would have authorized the county board to proceed to fill the apparent vacancy, and the record evidence of that appointment would have been prima facie evidence of the appointee's title to the office, supervening the apparent antecedent title of the petitioner, and, in this proceeding, superior thereto. But the certificate or declaration of vacancy relied on by respondent does not emanate from the state board of education; nor does the alleged educational disqualification of the petitioner, upon which the declaration of vacancy is based, operate ipso facto as a vacation of the office by him. Very clearly, therefore, the principle declared in Plowman v. Thornton, 52 Ala. 559, is not available to respondent in this case."
In State ex rel. Gunn v. Argo, 227 Ala. 657, 151 So. 844,845, the effort was to remove the tax collector from office for insufficiency of bond by reason of the failure of the surety company and proceedings to require a new bond. A new bond was not accepted and approved until after the institution of the instant proceedings; held under circumstances of that case there was no abandonment of the office which would justify his removal; that "this record conclusively shows respondent was tenaciously holding on to it and endeavoring in every manner possible to remove any obstacle to a clear title thereto. The receivership of the surety on respondent's original bond did not operate as an automatic vacation of the office. To that end the above-noted statute, or possibly some judicial proceeding, was necessary. Head v. Hood, 214 Ala. 353, 107 So. 854. The notice given respondent was fatally defective, if, indeed, it was intended as a compliance with this statute. We conclude no waiver of its essential details appears. Nor has there been any abandonment of the office." The notice given in that case was: "In a written communication to Argo, bearing date January 20, 1933, the county commission for Walker county, calling attention to said receivership, 'requested' that he 'forthwith file another bond.' A new bond was not accepted and approved until after the institution of these proceedings, though tendered a short time previously."
We have no case of the failure of qualification by reason of the death of the official elect, or that of death certified before the term of office began.
In State ex rel. Freeman v. Carvey, 175 Iowa, 344,154 N.W. 931, the decision was that where the incumbent of an office, reelected for a succeeding term, dies before the beginning of such term, there is a vacancy in the term he was serving, but not in the term upon which he had not yet entered; that where one is appointed to office to fill a vacancy, and there is a further vacancy in the ensuing term, before he may hold over, he must qualify anew for the second term.
In People ex rel. Callaway v. De Guelle, 47 Colo. 13,105 P. 1110, 1113, 1114, the court held: "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; 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."
It follows that the appointment of Judge Rice should be limited to the unexpired *Page 620 term of Judge Brandon that came to an end on January 14, 1935, and that thereafter the vacancy in office existing was properly filled by Gov. Graves in his appointment of Foster.
I therefore respectfully dissent.