1. While the courts have no jurisdiction of purely political matters, or to review actions of the General Assembly done within the powers conferred by the Constitution, yet courts have jurisdiction of all justiciable matters; and questions made in the present cases as to whether the General Assembly had the power to elect a Governor, and as to who has title to that office, are justiciable, and the courts have jurisdiction, which is neither ousted nor impaired by reason of the fact that involved therein are political questions and action by the General Assembly.
2. In 1824 by constitutional provision the General Assembly was divested of its general power to elect a Governor, and that power was retained by the people, where it remains today. The General Assembly was given the conditional power to elect a Governor. A condition precedent to such an election by the General Assembly is a failure of the people to cast a majority of their votes for any person, in which event the General Assembly is given the power to elect one of the two persons *Page 868 having the highest number of votes who are in life and willing to accept election at the time appointed for the General Assembly to elect.
(a) The death of the Honorable Eugene Talmadge after his election by the people and before publication of the returns by the General Assembly did not change the duty of that body to declare his election nor authorize the General Assembly to declare by resolution that because of his death no person had a majority of the votes and to elect a Governor.
(b) Accordingly, where in such circumstances the General Assembly undertook to elect another person as Governor, namely, the Honorable Herman Talmadge, such attempted election was a void act, which did not confer upon him any right or title to the office of Governor.
(c) It follows that upon the resignation of Governor Arnall on January 18, 1947, M. E. Thompson, the duly qualified Lieutenant Governor, became vested with full executive powers of this State.
Nos. 15797, 15792, 15798, 15802. MARCH 19, 1947. Ellis Arnall, as Governor of the State of Georgia, filed on January 15, 1947, in the Superior Court of Henry County a petition naming Herman Talmadge as defendant, and seeking a declaratory judgment, and the equitable relief of injunction against an alleged invasion by the defendant of the office of Governor. The petitioner alleged that he was Governor of the State of Georgia, having been elected at the general election in 1942, and having been duly elected, inaugurated and qualified for the term commencing in January, 1943, and that he was then acting as Governor; that under the Constitution of this State he is Governor for a term of four years and until his successor shall be chosen and qualified, and it is his duty to continue to exercise the executive power until a successor is chosen and qualified. He alleged that the defendant was interfering with and seeking without authority to perform the duties of the office of Governor and to transact the business of the State, and had invaded and was occupying the executive quarters at the State Capitol. He alleged that a general election for Governor was held in this State on November 5, 1946, and that Eugene Talmadge was elected to succeed to the office of Governor, having received 143,279 votes, a vast majority of the votes cast; that Eugene Talmadge died on December 21, 1946, before the convening of the General Assembly in January, 1947; that there were *Page 869 certain "write-in" votes cast in the said general election for Herman Talmadge (675 votes, as shown by "Exhibit C," Petition of M. E. Thompson) and between 600 and 700 votes were cast for D. Talmadge Bowers and between 600 and 700 votes were cast for James V. Carmichael. He further alleged that after the two houses of the General Assembly had organized and certain proceedings were had, including the canvassing of the returns of the election of November 5, 1946, the General Assembly illegally undertook to elect Herman Talmadge Governor of Georgia and he is claiming to have been so elected.
After the filing of the petition by Ellis Arnall, as Governor, M. E. Thompson, who had been elected Lieutenant Governor in the general election of November, 1946, qualified as such and took the oath of office. Thereupon Governor Arnall submitted his resignation to the General Assembly, to be immediately effective. Lieutenant Governor Thompson took a further oath as acting Governor, and then filed his motion and intervention in the case which had been instituted by Ellis Arnall, as Governor, and he asked to be substituted as plaintiff as successor in office to Governor Arnall. This motion or intervention was allowed subject to objection and demurrer. Thompson later filed an amendment setting up in effect that Herman Talmadge continued to interfere with his performance of the duties of Governor and his exercise of the executive power. This amendment was allowed subject to objection and demurrer. In it he alleged that in the joint session of the General Assembly certain resolutions were adopted and proceedings had as shown by the respective journals of the two branches, copies of which were attached as exhibits "A" to "E," inclusive, and made a part of the petition. Exhibit "D" recited: "Whereas, an election for Governor of the State of Georgia was held on November 5, 1946, and the returns of said election have been opened and published under the direction of the General Assembly on January 14, 1947, and Whereas, it appears that no person had a majority of the whole number of votes cast by virtue of the fact that Eugene Talmadge, now deceased, received the highest number of votes cast, Therefore, be it resolved that the General Assembly proceed immediately to elect a Governor viva voce."
The exception here is by Ellis Arnall, as Governor, and M. E. Thompson, as Lieutenant Governor, in this case No. 15797, to the judgment striking the motion of M. E. Thompson to intervene and *Page 870 be substituted as plaintiff and the amendment thereto and sustaining the general demurrer to the original petition on certain grounds.
The following cases involving collateral questions were argued together with the case just above mentioned, and it was agreed by all parties that they be decided together, and that all procedural questions were waived:
No. 15792. Grover C. Byars et al. v. M. E. Thompson. In this case M. E. Thompson sought mandamus to require the members of the Board of Pardons and Paroles to furnish him certain information which under the law was required to be furnished to the Governor of this State.
No. 15798. Fulton National Bank of Atlanta v. HermanTalmadge. In this case the bank, as holder of certain funds belonging to the State, sought interpleader to determine whether Herman Talmadge or M. E. Thompson was entitled as chief executive of this State to control the disbursement of such funds.
No. 15802. M. E. Thompson et al. v. Herman Talmadge etal., being a cross-bill of exceptions in the case last above named. 1. That the trial courts had jurisdiction in each of these cases to adjudicate all questions there raised that are collateral to the main question as to which of the contending parties is entitled to perform the duties of Governor of this State can not be seriously questioned. But it is stoutly maintained by counsel for Mr. Talmadge that the courts were without jurisdiction to adjudicate the principal question as to whether or not Mr. Talmadge is the lawful Governor of this State. The grounds upon which this contention is predicated are that it is a purely political question; that it has been determined by the General Assembly which under the Constitution has exclusive jurisdiction; and that the action of that body is not subject to review by the courts.
In the oral argument in this court counsel expressly waived all procedural questions, thus enabling us to move at once to a consideration of the main and controlling questions, the first of which is jurisdiction as just above stated. That the judiciary under the Constitution is wholly without jurisdiction to adjudicate a purely political question is not an open question. Also, it is the settled law of this State that actions of the General Assembly taken in virtue of a power conferred by the Constitution and in conformity with the provisions of the Constitution are not subject to review by the courts. The law is equally as well settled that the judiciary is by the Constitution given the power and jurisdiction to adjudicate any and all justiciable questions presented to it in litigation, and that this jurisdiction of the courts is neither ousted nor impaired by the fact that there may be involved in such cases political questions, or actions by the General Assembly. Counsel on each side have filed in this court exhaustive briefs on the question of jurisdiction to adjudicate the principal issue as to the title of Herman Talmadge to the office of Governor and have cited a number of decisions from courts of other jurisdictions, some of which involved the question as to who was the lawful Governor. The cases cited will not here be extensively discussed. We think it sufficient to state that they, in a general way, tend to support the respective positions of the parties citing them. Counsel for Mr. Talmadge cite: Pacific States Telephone Telegraph Co. v. Oregon, 223 U.S. 118 (32 Sup. Ct. 224,56 L.ed. 377); Coleman v. Miller, 307 U.S. 433 (59 Sup. Ct. 972,83 L. ed. 1385, 122 A.L.R. 695); *Page 872 Taylor v. Beckham, 108 Ky. 278 (56 S.E. 177, 49 L.R.A. 258, 94 Am. St. R. 357); Carr v. Wilson, 32 W. Va. 419 (9 S.E. 31, 3 L.R.A. 64); Goff v. Wilson, 32 W. Va. 393 (9 S.E. 26, 3 L.R.A. 58); State ex rel. Brooks v. Baxter, 28 Ark. 135; Dicksonv. Strickland, 114 Texas 176[114 Tex. 176][114 Tex. 176] (265 S.W. 1012). Counsel for Mr. Thompson cite: Bashford v. Barstow, 4 Wis. 567; State ex rel. Morrisv. Bulkeley, 61 Conn. 287 (23 A. 186, 14 L.R.A. 657); Thayer v. Boyd, 31 Neb. 682 (43 N.W. 739); In re Moore,4 Wyo. 98 (31 P. 980); State ex rel. Olson v. Langer, 65 N.D. 68 (256 N.W. 377); State ex rel. Sathre, Attorney-Generalv. Moodie, 65 N.D. 340 (258 N.W. 558); Ex parte Lawhorne,59 Va. 85; Ex parte Smith, 8 S.C. 511; Attorney-General v. Taggart, 66 N.H. 362 (29 A. 1027, 25 L.R.A. 613); State ex rel. Trapp v. Chambers, 96 Okla. 78 (220 P. 890, 30 A.L.R. 1144); State ex rel. Martin v. Heil, 242 Wis. 47 (7 N.W.2d 375); Carr v. Wilson, 32 W. Va. 419 (9 S.E. 31, 3 L.R.A. 64). While it appears from an examination of all of the cited cases that a majority of those courts have exercised jurisdiction in cases similar in some respects to the cases we are now called upon to decide, yet it can not be said that those decisions are sufficient to settle the question of the jurisdiction of our courts to adjudicate the ultimate issue here made. We, therefore, look to the law of this State as embodied in the Constitution and the decisions of this court in arriving at a decision on such jurisdictional question, bearing in mind, however, the decisions of courts of other jurisdictions in so far as they may shed light upon the question.
The Constitution vests all legislative power in the General Assembly. Article 3, sec. 1, par. 1. It vests all judicial power in the courts. Art. 6, sec. 1, par. 1. It commands that these powers remain forever separate and distinct. Art. 1, sec. 1, par. 23. This court in McCutcheon v. Smith, 199 Ga. 685 (35 S.E.2d 144), citing in the opinion a number of older decisions supporting its ruling, held that construing the Constitution and the statutes is the function of the judiciary, and that the General Assembly has no power to make such construction. By this was meant that determining the meaning of the Constitution and the statutes is the function of the judiciary, and that the General Assembly has no power to make such construction. By this was meant that determining the meaning of the Constitution, which is binding upon everyone, was the exclusive function of the courts in the adjudication of cases properly brought before them for decision. Therefore, it must be held that if in the present cases a construction of the Constitution *Page 873 is involved, that is a justiciable question which the courts have the exclusive jurisdiction to adjudicate in determining such cases. While there is presented here no law enacted by the General Assembly, the constitutionality of which is drawn in question, there is a formal resolution which followed publication of the election returns, and this is challenged and must be construed. The power of the judiciary to declare void unconstitutional "acts" of the legislature is expressed in art. 1, sec. 4, par. 2 of the Constitution. Whether or not this provision has reference solely to laws enacted by that body, it is indicative of the supreme power of the judiciary in its field of construction as between parties litigant, and certainly no action of the General Assembly is of higher dignity or importance, or would require greater constitutional power, than that of solemnly enacting the laws of this State. Manifestly a department of the State government vested with the power to declare void laws enacted by the legislature has a power broad enough to declare void other actions of that department, which are of less dignity, if they are found to have violated the Constitution and to be an infringement of right.
In Beall v. Beall, 8 Ga. 210, this court, after stating that in measures exclusively of a political, legislative or executive character, the supreme authority belongs to the legislative and executive departments, and that the mode of executing such powers could never become the subject of inquiry and investigation by the courts, further said: "But were this or any other question of a different nature, and capable of judicial inquiry and decision, then it would admit of a very different consideration — the action of either of the other departments, whether legislative or executive, being capable, in its own nature, of being brought to a judicial test, is subject to judicial review. It is, in all such cases, as we conceive, that the judicial authority is the final and common arbiter, provided by the Constitution itself, and to whose decisions all others are subordinate," citing Story on the Constitution.
In Low v. Towns, 8 Ga. 360, this court, speaking of the question of the validity of the title to a public office, said: "The validity of the title to an office created by law, is ajudicial question — one which it is not only the duty of the courts to decide, but one which, in our judgment, it is the exclusive province of the judiciary department to determine, notwithstanding the Governor may have *Page 874 commissioned one of the claimants." In State v. Dews, R. M.Charlton, 397, it was said at page 400: "Legislative power is that which declares what the law shall be; judicial is that which declares what law is, and applies it to past transactions and existing cases; the one makes the law, the other expounds and judicially administers it; the one prescribes a rule of civil conduct, the other interprets and enforces it in a case in litigation." We have in this State a government of laws under a written Constitution. It requires the full discharge of their respective functions by each of the three coordinate departments of government to effectually operate the government and administer the laws. There is provided in this governmental scheme no other authority for the orderly adjudication and settlement of justiciable cases except the judicial department. Failure on the part of the judiciary to function would leave all such matters unsettled, and anarchy would prevail. This is not to say that the judiciary does or can control either of its coequals, the executive and the legislative departments, but in virtue of the power vested in it by the Constitution the judiciary can and must, when called upon in a case before it, adjudicate and decide all justiciable questions, whether they relate to the action of the other departments or not. If any department of the government, including the judiciary, acts beyond the bounds of its authority, such action is without jurisdiction, is unconstitutional, and is void. It is declared in the Code, § 89-903, that the public is not estopped by the acts of an officer done in the exercise of a power he never had. See also Motes v. Davis, 188 Ga. 682 (4 S.E.2d 597, 125 A.L.R. 289). "The judgment of a court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it." Code, § 110-709. And so it must be with any action of the General Assembly that is without the realm of its jurisdiction.
In the field of enacting laws general and broad power is given to the legislative department. If in the exercise of this power, which is unquestionably conferred upon it, the General Assembly merely fails to observe certain rules of internal procedure, the judiciary would not be authorized to review such action; and the same would be true as to any action of the officers of that body within the sphere of their jurisdiction. Compare White v.Forsyth, *Page 875 138 Ga. 753 (2) (76 S.E. 58); Bachlott v. Buie, 158 Ga. 705 (124 S.E. 339); Williams v. MacFeeley, 186 Ga. 145 (197 S.E. 225). There is, however, a marked and fundamental difference between instances of incorrectly exercising unquestioned power and of exercise of a power never possessed.
The cases here presented do not involve an election contest, but they do involve questions as to the title to the highest office in the State government, including construction of the Constitution as to the jurisdiction of the General Assembly to elect a Governor under provisions of the Constitution (quoted infra), and the courts have jurisdiction to decide such questions.
2. As to the election of a Governor the Constitution of 1945 contains the following provisions: "The first election for Governor, under this Constitution, shall be held on Tuesday after the first Monday in November of 1946, and the Governor-elect shall be installed in office at the next session of the General Assembly. An election shall take place quadrennially thereafter, on said date, until another date be fixed by the General Assembly. Said election shall be held at the places of holding general elections in the several counties of this State, in the manner prescribed for the election of members of the General Assembly, and the electors shall be the same." Constitution, art. 5, sec. 1, par. 2 (Code, Ann. Supp., § 2-3002; Ga. L. 1945, p. 32). "The returns for every election of Governor shall be sealed up by the managers, separately from other returns, and directed to the President of the Senate and Speaker of the House of Representatives, and transmitted to the Secretary of State, who shall, without opening said returns, cause the same to be laid before the Senate on the day after the two houses shall have been organized, and they shall be transmitted by the Senate to the House of Representatives." Constitution, art. 5, sec. 1, par. 3 (Code, Ann. Supp., § 2-3003; Ga. L. 1945, p. 32). "The members of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Speaker of the House of Representatives shall open and publish the returns in the presence and under the direction of the General Assembly; and the person having the majority of the whole number of votes, shall be declared duly elected Governor of this State, but, if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline *Page 876 an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately, elect a Governor viva voce; and in all cases of election of a Governor by the General Assembly, a majority of the members present shall be necessary to a choice." Constitution, art. 5, sec. 1, par. 4 (Code, Ann Supp., § 2-3004; Ga. L. 1945, p. 32). The Constitution also provides: "Contested elections shall be determined by both houses of the General Assembly in such manner as shall be prescribed by law." Constitution, art. 5, sec. 1, par. 5 (Code, Ann Supp., § 2-3005; Ga. L. 1945, p. 32).
In view of these provisions, did the General Assembly have power to elect a Governor under the circumstances that existed when they proceeded to elect Mr. Talmadge? The resolution adopted by that body is set out in the statement of facts preceding this opinion. It is therein recited that the General Assembly opened and published the returns of the election for Governor held on November 5, 1946. While it declares that no person at that time had a majority of the votes, it shows that the one and only reason for such conclusion was the fact that Eugene Talmadge who received the highest number of votes cast had departed this life. There is nowhere in the resolution a statement of fact that the election returns did not show that some person received a majority of the votes cast in the election.
It is well at this point to decide definitely whether, in publishing the returns and announcing the result, the members of the General Assembly acted in a capacity of higher or lower dignity and responsibility than is commonly possessed by other persons, officials, or boards designated by the law or Constitution as canvassers of state elections returns. To our minds there is no escape from the conclusion that in publishing the returns and declaring the results the members of the General Assembly were performing a strict and precise duty identical in character with that which rests upon any and all persons who are merely authorized to canvass. They were not, while performing that duty, exercising or authorized to exercise any discretion, but were simply performing the ministerial act of disclosing to the public the official election returns that had been prepared by the election managers. By using the simple mathematical process of adding the number of votes appearing thereon for the persons named and seeing whether *Page 877 any person named therein had a majority, they could know whether any person was elected, and, if so, it was their duty to declare that such person had been duly elected Governor. This canvassing of the returns and declaration of the result were constitutional directives to the General Assembly, and its failure to observe them ought not to defeat the right of the person elected or the franchise of the voters who elected him. This court clearly indicated in Wood v. Arnall, 189 Ga. 362 (6 S.E.2d 722), that the will of the people could not be thus defeated. The question in that case was whether the June general election, as provided for by the act of 1937 (Ga. L. 1937, p. 712), was intended by the act to apply to the office of attorney-general. It was held that the regular method of electing an attorney-general would include ascertainment and declaration of the result by the General Assembly as provided by the Constitution for election of Governor, and that since the statute relating to such June election did not provide for election of attorney-general according to such regular method, it should be construed as not applying to that office. It was not held that the General Assembly had any power or discretion to vary the result as shown by the election returns, but on the contrary the following was stated, page 371: "The question here involved is not whether an official regularly elected by the people at the time and place prescribed by law could be deprived of his office by virtue of the mere failure of the General Assembly to canvass and declare the result as directed by the Constitution, for manifestly the will of the people could not be thus defeated."
The General Assembly, as canvassers of the election returns in this case, were subject to the general, if not indeed the universal, rule of law applicable to election canvassers. That rule is that they are given no discretionary power except to determine if the returns are in proper form and executed by the proper officials and to pronounce the mathematical result, unless additional authority is expressed. They can neither receive nor consider any extraneous information or evidence, but must look only to the contents of the election returns. 29 C. J. S. 236, 237; 18 Am. Jur. 347; People ex rel. Sherwood v. Board of Canvassers, 129 N.Y. 360 (29 N.E. 345, 14 L.R.A. 646);Davis v. Warde, 155 Ga. 748 (118 S.E. 378); Bacon v.Black, 162 Ga. 222 (133 S.E. 251). In Davis v. Warde, supra, this court quoted with approval from 20 C. J. 202, *Page 878 § 258, as follows: "It is settled beyond controversy that canvassers can not go behind the returns. The returns provided for by law are the sole and exclusive evidence from which a canvassing board, or official, can ascertain and declare the result. The canvassers are not authorized to examine or consider papers or documents which are transmitted to them with the returns, or as returns, but which under the statutes do not constitute part of the returns. Neither are they at liberty to receive and consider extrinsic evidence, unless the official returns are destroyed before they are canvassed, in which case secondary evidence of their contents may be received." In Bacon v. Black, supra, this court said: "In declaring the result of the election the consolidation managers are governed by the returns made by the superintendents of the several local precincts as to the number of votes cast, and for whom cast; and if these returns be in due form, they have no power to go behind them. . . Their duty is simply to count the votes of the several precincts as the same are shown in the certified returns, and declare the result."
These authorities, which accord with the generally accepted rule, and we may say the universal rule so far as we are aware, show beyond reasonable doubt that the General Assembly, as canvassers, went beyond any authority conferred upon them, and hence, outside their legal jurisdiction, when they gave consideration to and made a finding of fact that the majority candidate had died after the election of November 5, 1946. It necessarily follows that all such action beyond the jurisdiction of the General Assembly was null and void and must be disregarded entirely.
It has been urged by counsel for Mr. Talmadge that two reasons why the General Assembly, in making such a canvass and announcing the result, were more than mere canvassers are (1) that the Constitution, art. 5, sec. 1, par. 5, confers power upon the General Assembly to determine contested elections "in such manner as shall be prescribed by law" and (2) that since the Governor has no commission it is necessary to publicly recognize and authoritatively announce his election. We can not accept this argument as being tenable. The first reason is unsound because the matter of determining a contest is wholly independent of and apart from the canvassing of returns, which is merely consolidating the election returns and declaring the result. In this case there was no contest whatever, and the General Assembly had no right to exercise their *Page 879 power to determine contests in the performance of an entirely different duty as canvassers. The second reason is completely answered by the fact that the Secretary of State, the Attorney-General, the State School Superintendent, the Comptroller General, the State Treasurer, the Commissioner of Agriculture, and the Commissioner of Labor receive commissions evidencing their election and title to their respective offices, and yet the Constitution, art. 5, sec. 2, par. 1, declares that all of these officers shall be elected at the same time and in the same manner as the Governor, and that "The provisions of the Constitution as to the transmission of the returns of the election, counting the votes, declaring the results, deciding when there is no election, and when there is a contested election, applicable to the election of Governor, shall apply to the election of the above-named executive officers; they shall be commissioned by the Governor and hold their offices for the same time as the Governor." This demonstrates that the act of canvassing the returns and announcing the result is not designed for the purposes argued by counsel. The election of the officers last referred to is conducted in the same manner as that for Governor. As evidence of their election and title to the office, they are given a commission by the Governor. This evidence in behalf of the Governor is his public inauguration.
This case might be decided without giving consideration to the authority and function of the General Assembly in publishing the returns and announcing the result, since the resolution adopted by that body clearly shows that it made no statement to the effect that the election returns show that no person received a majority of the votes, which fact, as will be pointed out later, is an indispensable condition precedent to its power to elect a Governor. However, we think that either the constitutional limitation on its powers as to publishing the returns, or the inability to show that in fact no one received a majority of the votes in the general election, would constitute a sufficient or valid reason why the General Assembly acted without authority and without power. Together they constitute an insuperable barrier to the exercise of such power.
In this State all power and sovereignty repose in the people. The departments of the State government have and can exercise only such power as the people have conferred upon them by the Constitution. Art. 1, sec. 1, par. 1. More than 120 years ago the people *Page 880 of this State recaptured for themselves the general power to elect a Governor. By an amendment to the Constitution of 1798, adopted in 1824, art. 2, sec. 2, which conferred upon the General Assembly the power to elect a Governor, was expressly repealed, and in lieu thereof a new section reserving the power of electing a Governor in the people was adopted. That amendment, without material change, has been retained as a part of every subsequent Constitution, and is now found in the Constitution of 1945 as art. 5, sec. 1, quoted supra. That portion of the provision over which the present litigation arose is paragraph 4, which is as follows: "The members of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Speaker of the House of Representatives shall open and publish the returns in the presence and under the direction of the General Assembly; and the person having the majority of the whole number of votes, shall be declared duly elected Governor of this State; but if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately, elect a Governor viva voce; and in all cases of election of a Governor by the General Assembly, a majority of the members present shall be necessary to a choice."
By the terms of the Constitution, full and complete power to elect a Governor is reserved to the people, but if the voters fail to elect because they do not cast a majority of their votes for one person, then and then only is the power given to the legislature to elect a Governor.
From what has been said it is evident that the general power or jurisdiction to elect a Governor remains in the people under the present Constitution, and that as related to the election of such an officer by the General Assembly that body is an agency or tribunal of special or limited jurisdiction. As to courts, it is a well-settled principle that every presumption will be indulged in favor of judgments of a court of general jurisdiction, but that a judgment of a court of special or limited jurisdiction must show upon its face such facts as are necessary to give the court rendering such judgment jurisdiction of the person and the subject-matter, otherwise the whole proceeding is coram non judice and void. Gray v. *Page 881 McNeal, 12 Ga. 424; Franklin County v. Crow, 128 Ga. 458 (3) (57 S.E. 784). Like principles are applicable to the General Assembly, so that in electing a Governor it would necessarily act as an agency or body of special and limited jurisdiction, and the facts essential to the existence of its jurisdiction in such matter should affirmatively appear.Aultman v. Hodge, 150 Ga. 370 (1), 374 (104 S.E. 1).
Much has been said by counsel on both sides regarding the word "person" and other words and phrases as they appear in the provision under consideration. The contentions urged by counsel for Mr. Talmadge, if sustained, would have the effect of isolating a few words from the entire paragraph and giving to them a refined definition without due consideration of the context in which they are used. This, under all the recognized rules of construction, can not be done. The true meaning of such words can be ascertained in no other way except by a consideration, inter alia, of the subject-matter to which they relate as disclosed by the entire paragraph. Of course, the words "person having" standing alone and independent of the subject-matter would indicate a person alive at the time of hishaving, and the words "if no person shall have," considered in the same manner, would indicate the present tense as of the time the returns are canvassed, but when these words are considered, as they must be, in connection with and as a part of the entire paragraph, which discloses the plan for publication of the returns and declaring the results as to elections to be held in the future, but which will already have occurred at the time of such publication and declaration, it is very apparent that they refer to elections by the people that have already taken place at the time of such prescribed action by the General Assembly. It is equally plain that all mention of a person who received votes refers only to such past election by the people and to the person who receives the votes at that time. We can not insert by implication the phrase "who shall be in life" immediately following the word "person" as it appears in this paragraph twice before the word "person" which is followed by that phrase. United States v. Atchison, T. S. F. Ry. Co., 220 U.S. 37 (31 Sup. Ct. 362, 55 L. ed. 361); 50 Am. Jur. 274, § 262. When thus construed, the word "person," as used in the first two clauses refers to a living person as of the time of the election by the people, and his subsequent death is immaterial, *Page 882 so far as any power of election by the General Assembly is concerned. By the subsequent use of the words "who shall be in life," the Constitution marks the first and only time when the General Assembly shall take note of or consider the fact that a person voted for at the election by the people might have subsequently died. The reason for this is obvious. At this point, the General Assembly is not concerned with the election returns further than to ascertain whether there are any two persons from whom it may effectually elect a Governor within the terms of the Constitution, but it is now concerned with the performance of such constitutional duty, that is, in a case where no person received a majority of the votes, and it is here informed by the Constitution that although a person might be one of two who received the highest number of votes, it should not be required to do the perfectly futile thing of electing as Governor one who is not still in life. Hence, it would thus finally become material for the General assembly to ascertain the two persons (if there be such) having the highest number of votes "who shall be in life."
Much argument has been offered to the effect that since Eugene Talmadge died before his election was declared, it would have been futile for the General Assembly to declare that he had been duly elected Governor since it would have been impossible for him to assume the duties of that office. We will not here depart from the central, controlling question for the purpose of discussing whether or not the General Assembly should have followed the direction of the Constitution and declared that the man who was elected Governor but later died had been duly elected Governor of this State, but some reference to that question will be made later. If on publication of the returns it is disclosed that the voters have cast a majority of their votes for some person for Governor, the Constitution means that such person has been duly elected Governor of this State and directs the General Assembly to so declare. When this has been done the question is closed, so far as any present election is concerned. The constitutional provision for conferring conditional and limited power upon the General Assembly to elect a Governor remains dormant, does not come into operation, and can not become effective. "If no person shall have such majority," then and in no other event, "from the two persons having the highest number of votes, who shall be in life, and shall not *Page 883 decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately, elect a Governor viva voce." Thus the General Assembly was limited not only to a specified event, but also to the two persons receiving the highest number of votes, who were still in life. If it had not been the very definite and clear intention that in every case the matter of electing a Governor must be as completely as possible governed by the expressed choice of the people, would it be reasonable to limit and restrict the General Assembly specifically to a choice between the two persons who receive the greatest number of votes, who are still in life? Is such manifest purpose to effectuate the will of the people reconcilable with the election by the General Assembly of one of two persons who receive some small number of votes, while the voters gave an overwhelming majority to another person who was in life on the date of the election?
Referring again to the meaning of the word "person," it may not be amiss to observe that just because this word may be defined in dictionaries as a living human being does not necessarily mean that it should be so construed in the foregoing provision of the Constitution or any other document or instrument. Everyone concedes that there was a living person who received a majority of the votes cast in the election of November 5, 1946. If the word "person" in the foregoing provision must be construed in all instances to mean a living human being, then it was pure surplusage to interpolate the phrase "who shall be in life" as a part of the clause referring to "the two persons" having the highest number of votes. If it was necessary to insert these words in this part of the provision in order to make the intention of the framers of the Constitution absolutely clear, then why was it not used in the preceding clause referring to the person receiving a majority? The answer is that the phrase was not intended to be even implied in the preceding clause.
There are two settled rules of construction that are applicable. One is that where a qualifying word or phrase is found in one provision and not in some other provision, the presumption is that the other provision was not intended to have such qualification. This seems to be universally recognized as a sound rule of construction. The other rule is that qualifying words are presumed to apply to the immediate antecedent and not to apply to a remote *Page 884 antecedent, where they are omitted from the latter. Both rules, of course, are subject to the general rule that instruments must be considered as a whole, and there are doubtless other qualifications and variations, but it seems to us that both rules are applicable here. See, in this connection: 50 Am. Jur. pp. 257-261, §§ 267, 269, 271, 274; 69 C. J. 985, § 583. The clause "the person having a majority of the whole number of votes shall be declared duly elected Governor," is not absurd as applied to the present situation. Its true meaning is, that the General Assembly shall declare such person to have been duly elected Governor. That is what it means under any and all circumstances, for it refers always to a past fact.
Moreover, we are authorized, if indeed not required, to give consideration to the history of elections for Governor over a period of approximately half a century before the drafting and submission of the present Constitution, and its ratification by the voters in 1945. Throughout that period there had been one and only one dominant political party in this State. That party was and is the Democratic party. Every Governor throughout that period was a Democrat, nominated by the Democrats of Georgia in a Democratic primary, after a campaign in which vital issues were discussed throughout the State and embodied in a platform of principles upon which he sought nomination. The only opposition in the general election that any Democratic nominee had ever encountered throughout such period was an "Independent," or a member of some minor opposing party, and some write-in votes for persons who were not candidates. Such opposition candidates were not only opposing the choice of the Democrats of Georgia, but were opposing the platform of principles upon which he had been nominated. It could not, therefore, in reason be asserted that any person, whether a member of the Constitutional Commission, a member of the General Assembly, or a voter who had a part in the adoption of the present Constitution, desired or intended that in the event the person nominated by the Democratic party as a candidate for Governor, and overwhelmingly elected in the general election, should thereafter die before the result is declared, the General Assembly must thereupon under language of the Constitution, ignore all qualified Democrats of the State and limit themselves to a choice between two persons for whom votes were cast in opposition to the Democratic nominee for Governor. To attribute *Page 885 such an intention to the great hosts of Georgians who had a part in adopting the Constitution when the language they employed does not imperatively demand it would be unreasonable, if not unthinkable. It would mean that they were willing and intended that all concern about the qualifications of the chief executive and principles for which he should stand may be wholly disregarded and abandoned. This conclusion is inescapable if it be admitted that a person who did not appear before the people, or who was a member of some minor opposing political party, or whose name had been written in, should be elevated to the high office of Governor, to the exclusion of all other Georgians eminently qualified to occupy that exalted office.
There are still other rules of interpretation that have been established by experience and which we think should be applied in this instance. In 11 Am. Jur. 684, § 67, it is said: "Framers of a new Constitution who adopt provisions contained in a former Constitution, to which a certain construction has been given, are presumed as a general rule to have intended that these provisions should have the meaning attributed to them under the earlier instrument. The embodiment in a Constitution, without change of verbiage, of provisions found in previous constitutions, precludes the court from giving their language a meaning different from that ascribed to the previous constitutional provisions, notwithstanding the construction referred to is that placed on the old Constitution by the legislature and not by the judicial department of government." It may be that the rule just quoted is stated more strongly than we would be willing to put it. It is unnecessary to go that far here. We would prefer to say that the meaning placed upon the language by such legislative construction will be presumed to have been the meaning intended by those who adopted a constitution, rather than that, as the quoted rule states, the courts are precluded by such construction. The rule is perhaps more correctly stated in 16 C. J. S. 76, § 35, as follows: "It is an established rule of construction that, where a constitutional provision has received a settled judicial construction, and is afterwards incorporated into a new or revised constitution, or amendment, it will be presumed to have been retained with a knowledge of the previous construction, and courts will feel bound to adhere to it. Prior legislative construction is likewise, presumed to have been adopted by subsequent *Page 886 adoption of the provision so construed. The language of an existing statute adopted into a constitution is presumed to be taken with its established construction."
What was the situation confronting the drafters of this Constitution as related to legislative interpretation of the language here employed? The provision of the Constitution, as stated above, was made a part of the Constitution of 1798 by amendment, and has constituted a part of every Constitution since that time. It was, without change in any respect, written into the present Constitution exactly as it appeared in the Constitution of 1877. There had at no time been a judicial construction of this language, but there had been legislative interpretation which, under either of the above rules, presumably shows the meaning intended by the framers of the present Constitution. By an act approved November 22, 1871 (Ga. L. 1871, p. 27), providing for a special election for Governor, it was required that the election be held in the same manner, and the returns published and the result declared, as provided in the Constitution. Section 4 of the act declared that "if no person be found to have received a majority of the whole number of votes cast at said election, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election," the legislature shall elect a Governor. We repeat, for emphasis, the words, "if no person be found to have received a majority of the whole number of votes cast at said election," since it unmistakably refers to the date of the election. Under the rule above cited, the framers of the Constitution of 1877 presumably intended that its language, "if no person shall have such majority," which was taken from the Constitution in force on the date of the above legislative enactment, meant precisely what the legislative construction had said it meant. After the adoption of that Constitution, by an act of July 22, 1879 (Ga. L. 1878-79, p. 173), now Code, § 40-102, which provided for an election to fill a vacancy in the office of Governor, it was provided that the General Assembly should canvass the returns of such special election and declare the result, or elect a Governor "in case no person shall receive a majority of the whole number of votes cast at such special election." Thus it appears that the language in the present Constitution about which this controversy arose had its meaning declared by legislative construction prior to its incorporation in the *Page 887 Constitution of 1877. Also, the meaning as thus stated was given to the same language as it appeared in the Constitution of 1877, by a subsequent act of the legislature construing the same; hence, when it was lifted from that Constitution and inserted in the present Constitution, presumably it was intended to have the same meaning.
In Massenburg v. Commissioners, 96 Ga. 614, 617 (23 S.E. 998), this court said: "Where the Constitution prescribes the manner in which a particular public functionary is to be elected, or prescribes the terms during which he shall hold office, the legislature is thereafter powerless to modify, enlarge or diminish that which is established by the Constitution. . . If, therefore, the people in their sovereign capacity, in convention assembled, do by the terms of an organic law, established by them and for them, reserve unto themselves the right of election to particular offices, the legislature can not thereafter interfere with this reserved right, and provide other means than those established by the Constitution for the election of incumbents to such offices, even though there be no negation of this right of legislative interference expressly stated in the terms of the Constitution. The reservation of the right itself is a sufficient safeguard against the encroachments of legislative power, inasmuch as such reservation of itself operates as a denial to the legislature of the right of interference." There this court was announcing a fundamental principle of our State government under the Constitution. A departure from that high principle might well endanger the stability of the entire governmental structure. It declares a rule of law that denies any implied or inherent right or power in the legislative department to exercise any power that has not by the sovereign people, through that Constitution, been reposed in the legislative department of government. At the very point where any department of the State government fails to recognize the truth asserted in the first paragraph of the Constitution, to the effect that in this State the people are the masters and the officials the servants, liberty is imperiled. Since the duty and the responsibility to construe the Constitution has by the people been laid upon the judicial department in cases involving the rights of litigants, the constitutional limitation upon the power of each coordinate branch of the government must be adjudicated by the courts in cases calling that matter in question. *Page 888 Until such an adjudication has been made, neither the legislative nor the executive department may be presumed to have intended to exceed its power, but they should welcome and willingly abide by the limitation when fixed by an adjudication. This court spoke again in Morris v. Glover, 121 Ga. 751, 754 (49 S.E. 786), as follows: "In those governments where the lawmaking power is not fettered by a written constitution limiting its authority, offices may be created, consolidated, or abolished, at legislative will. . . But where an office is created or guarded by express constitutional provision, its scope can not be enlarged or lessened by statute, nor can the office be filled inany manner other than that prescribed by the constitution." (Italics ours.)
It would not necessarily cause a governmental breakdown, if, at the time fixed for the election of a Governor, no one was chosen Governor. The constitutional arrangement, while not sufficient to insure that there could not possibly occur a vacancy in that office, nevertheless makes reasonably sure that it shall be lawfully occupied at all times. Paragraph 1 of art. 5, sec. 1, fixes the term of the office of Governor at four years and until his successor shall be chosen and qualified. The phrase "until his successor shall be chosen and qualified," has a recognized and definite meaning, as declared by numerous decisions of this court. Shackelford v. West, 138 Ga. 159 (74 S.E. 1079); Pittman v. Ingram, 184 Ga. 255 (190 S.E. 794); Roan v. Rogers, 201 Ga. 696 (40 S.E.2d 554). That time in excess of the four-year period which a Governor may be required to serve is a part of his constitutional term. His installation in office is for a term embracing, not only the four years mentioned, but such additional time as may be required for his successor to be chosen and qualified. The further provision rendering him ineligible to succeed himself has no bearing whatever upon the duration of his term. Its primary object is to prevent the necessity of the Governor engaging in a political campaign during his term. Certainly it is not for this court to fix the policy and the law about choosing a Governor. We merely construe the law which the people have adopted. A construction of the Constitution that would sustain the election of Mr. Talmadge by the legislature would place a controlling meaning upon the pertinent portion of the Constitution, which might compel some future General Assembly to elect as Governor a person wholly undesirable, because of his communistic *Page 889 or other alien philosophies of government, in any case where the majority candidate died before the returns were published by the legislature and where two of such undesirable persons received the next highest number of votes. It would not constitute a worthy solution of the stated hypothetical case to suggest that the General Assembly in such a case may simply make no election. Those members are under the solemnity of an oath, obligating them to obey the Constitution. In a case where the Constitution authorizes the General Assembly to elect a Governor, it declares that if the condition precedent exists "the General Assemblyshall immediately elect a Governor viva voce." (Italics ours.) Such a construction as that above mentioned would mean that the General Assembly when acting as canvassers of the election returns, are supreme, and their action is not subject to review. To thus hold would mean that had Mr. Eugene Talmadge been living, and despite the knowledge of everyone of his overwhelming election, the canvassers of those election returns could with immunity and finality assert that some other person was elected, and the people's right, together with the right of Eugene Talmadge to have his election recognized, could be thus destroyed, leaving them without any recourse whatever. This hypothetical case may never arise, and indeed we are all hopeful that it will never arise, but it is within the realm of future possibility and can not be ignored or overlooked when a construction of the Constitution is being made by a court.
From what has been said we must hold that in the circumstances appearing the General Assembly had no jurisdiction to elect the Honorable Herman Talmadge or any other person as Governor.
Under the Constitution, art. 5, sec. 1, par. 1, above cited, Governor Arnall was authorized to occupy the office of Governor until his successor was chosen and qualified. A successor was chosen, but his death prevented him from qualifying at the time fixed by law, thus creating the necessity for Governor Arnall to continue in office. But Mr. Thompson was elected in the general election in 1946 as Lieutenant Governor of this State, and he is required, in case of a vacancy in the office of Governor, to perform the duties of Governor. Constitution, art. 5, sec. 1, par. 7. The voluntary resignation of Governor Arnall on January 18, 1947, immediately imposed upon the Lieutenant Governor the duties of Governor. *Page 890 He is now entitled to perform all of the duties and exercise all the authority which by the Constitution and laws are imposed upon the Governor of this State.
For the foregoing reasons the judgment is affirmed in Case No. 15792, Byars et al. v. Thompson, and reversed in Case No. 15797, Thompson, Lieutenant Governor, et al. v. Talmadge. In Case No. 15798, Fulton National Bank of Atlanta v. Talmadge etal., the bank, as holder of a large sum of money belonging to the State, sought to require Mr. Thompson and Mr. Talmadge to interplead and show which of them was entitled to recognition as chief executive of the State. It also involved the uncertainty of questions of law and fact, and the allegations were sufficient to justify the interpleader, and the court erred in sustaining a general demurrer to the petition. Accordingly, that judgment is reversed. Since the petition for interpleader was thus not subject to demurrer, the court did not err in overruling the demurrer thereto of Mr. Thompson. Accordingly, the judgment is affirmed as to the cross-bill, Case No. 15802.
All the Justices concur, except Jenkins, C. J., and Candler,J., who dissent.