The determination of the controlling legal question involved in these cases is a matter of great public concern, gravity, and importance. Laws and constitutions in a government of law as distinguished from an autocracy are not decreed and administered to fit some special occasion after it has happened; but being fashioned in advance to meet all future contingencies, they are more like ready made garments, and for this very reason do not always by specific, as distinguished from general, language fit unusual future contingencies as perfectly as we can afterwards see that they might possibly have been made to do. But there are few indeed in all this land who would exchange their liberty under a government of law for any other system where rights and liberties, if any, are doled out as a matter of grace from some malevolent or even benevolent autocrat.
I would much prefer, if it were possible to do so in a case of such great importance, to join in the majority opinion of my learned colleagues rather than dissent from the conclusions of law at which they have arrived. However, having resolved the questions as best I could, and having reached a decided conviction contrary *Page 891 to that expressed by the majority, with due modesty I trust as one of two dissenters, and with all deference to my majority brethren, I feel it incumbent upon me to state for the record, as briefly as I can but as fully as is necessary, the reasons which have impelled me to arrive at a different legal conclusion. While it is true that the majority opinion is the judgment of the court and therefore becomes the law of the land, it is also true that in the development of American jurisprudence the dissenting opinion is believed to have ofttimes played a useful part.
1. The Lieutenant Governor can not claim, nor does he in factseek to claim under or by virtue of the death of Hon. EugeneTalmadge, but as conceded by his counsel of record and as shownby his pleadings, he bases his claim solely by virtue of theresignation in his favor of the incumbent Governor. The incumbentGovernor, on account of the election having failed, was legallyholding over after his regular term had expired until, but onlyuntil, his successor could be legally chosen.
The Lieutenant Governor, thus claiming under and by virtue of the holdover Governor's resignation in his favor, and having by his pleading in fact asked to be made a party to the suit originally instituted by the incumbent Governor holding over, does not, therefore, even claim to stand in the shoes of the late Hon. Eugene Talmadge; but, claiming as he does under the resignation of the holdover Governor, puts himself squarely inhis shoes, and not only manifestly can not but does not even seek to assert any claim to the office other than that which the resignation of the holdover Governor might give him. Unquestionably, when the election by the people failed, the incumbent Governor was constitutionally authorized to hold over beyond his regular term and for the next four years until the next election as provided for by the Constitution, unless it be that the Constitution, after disqualifying any incumbent Governor to succeed himself, goes further to provide for the termination of his holdover tenure by making provision for a special intermediate election by the General Assembly under such a contingency.
It is quite impossible, however, to so completely close one's eyes and ears as to be wholly unaware of the troubled state of mind of many of the citizens of this State, who appear to reason that, since on the same ticket at the last general election in November there *Page 892 appeared the name of a successful candidate for Governor, and of a successful candidate for Lieutenant Governor, the death of the former, although he did not become Governor, left the latter to succeed him. While this is not the contention of Mr. Thompson or his attorneys of record, since it is suggested and insisted upon by some of the briefs filed in his behalf by attorneys, amicicuriae, it is thought proper to refer to it. This too is the idea that has actually troubled me more than anything else — not as a matter of law, but because at first blush it might seem that way. It is doubtless true that to many the question presented is just that simple and just that plain. It would indeed have been so if the Constitution had declared, as it could have done, that, upon the failure of an election by the people by reason of the death of the successful candidate before being installed, the Lieutenant Governor would take over, and had it not on the contrary provided otherwise, that is, that under such circumstances the incumbent Governor and not the Lieutenant Governor shall hold over until a Governor can be chosen and qualified. A provision for the succession of the Vice President when the successful candidate for President shall die before taking office is contained in the Federal Constitution. The Georgia Constitution, however, not only fails thus to declare, not only does it limit the right of the Lieutenant Governor to succeed to the duties of Governor upon "the death, resignation, or disability of the Governor," not only does it preclude his right to do so by declaring that upon the failure of an election it is the incumbent Governor, not the Lieutenant Governor, who shall hold over "until his successor is chosen and qualified," but to make assurance doubly sure, the Constitution after prohibiting any Governor to succeed himself, although providing that he should hold over until his successor is chosen and qualified, goes on to expressly limit his holdover tenure by providing for a special election for Governor by the General Assembly when it shall appear when the returns are canvassed that the election has failed in that no person shall then have a majority of the votes cast. It is thus easy enough to see why it is that the Lieutenant Governor bases his claim, not by reason of the death of the successful candidate, but wholly under and by virtue of the resignation in his favor of the incumbent Governor holding over.
Courts must construe the provision of the Constitution creating *Page 893 the office of Lieutenant Governor as it is written and not as it might have been framed. We are dealing not with "subjunctives," that is, not as to what our Constitution "may, can, must, might, could, would, or should" contain, but only with that which it actually does contain. To do so is not resorting to technicalities. No layman, I am sure, much less a judge, would for one moment believe that it is the duty of courts to Gallup Poll their own minds in order to determine what they think the people think the Constitution ought to have contained. The office of Lieutenant Governor is indeed an exalted one, but since the right of the Lieutenant Governor to take over the duties of Governor has thus been positively limited by the Constitution creating the office in the three different ways which have been indicated to the one contingency set forth, he who takes the office takes only such office as the Constitution gives him, and it is not for courts by taking thought to add one cubit to its stature.
2. The cases before us in my opinion present justiciablecontroversies which it was and is the duty of the courts toadjudicate. Since the year 1824 the Constitution has provided forthe election of a Governor by the people; save and except underthe one contingency set forth by article V, section I, paragraphIV, in which case the General Assembly is given the duty andauthority to elect. The Constitution further declares that undersuch a contingency, that is, when the election by the peopleshall prove ineffective, the incumbent Governor shall hold overuntil his successor is chosen. There is therefore no inherentpolitical right in the General Assembly to elect a Governor. TheConstitution has by its terms sought to cover the whole ground.Such power as the General Assembly has to elect a Governor musttherefore rest solely under and by virtue of the authorityconferred in the paragraph of the Constitution which has beenmentioned and in the light of the other provisions just referredto. It is not merely a question of whether the General Assemblyhas properly exercised a political authority given to it in theelection of a Governor; but the question is presented as towhether under the provisions of the Constitution and under theundisputed facts, it had the constitutional authority to declarethat the election by the people had become ineffective, with theresulting right on its part to elect a Governor and thusterminate the constitutional tenure of the holdover Governor. *Page 894 Since, under the admitted facts, the language of the Constitutionis not wholly free from ambiguity as to the power of the GeneralAssembly thus to act, it becomes the duty of courts when calledupon to determine that question.
No one seems to question the universally recognized doctrine that courts have nothing to do with purely political matters. This principle has been recognized by the courts and has been reiterated from time immemorial. Beall v. Beall, 8 Ga. 210. It is a principle which is conceded by all counsel in this case. But, as I see it, these cases before us involve not merely the manner, form, or the proper exercise of an undoubted political authority, but a constitutional question is made as to whether the General Assembly under the Constitution was authorized to exercise such authority at all. It is thus my view that, while the legislature, together with the executive branch of government, has exclusive authority in the exercise of all purely political functions except as may be prohibited by the Constitution, it seems clear that, should it erroneously construe the Constitution as giving it authority to act in a matter, even though political in character, in which the Constitution by otherwise providing has prohibited it to act at all, it is the duty of courts when called upon so to declare.
It thus seems that the numerous cases cited by counsel for Mr. Talmadge, in support of the contention that the courts are without jurisdiction to adjudicate the constitutional authority of the General Assembly to elect a Governor under the circumstances presented, are not controlling. As I see it, these cases almost without exception go only to hold that the legislative and executive branches of government have exclusive authority in the exercise of an actual political power and authority. It is true enough that in such acts the courts must not presume to interfere. This is far from meaning, however, that courts are entitled to claim exemption from an unpleasant duty and to stand aside when the question is whether the General Assembly under the facts presented had authority to act at all. As I see it article V, section I, paragraph I of the Constitution, providing for an election for Governor by the people every four years, and the provision that authorizes the incumbent to hold over until his successor is chosen and qualified, do actually thus prohibit any intervening election by the General Assembly, unless it be that article V, section I, paragraph IV, *Page 895 provides for a termination of such holdover tenure when an election by the people fails, by setting up a special election by the General Assembly. If it were unambiguously plain, or if the courts should hold, that under the admitted facts the General Assembly under the paragraph last mentioned did have authority when the returns were canvassed to declare that no "person" did then "have" a majority of the votes cast (as I think it did have), it would necessarily follow that it would become the right and duty of the General Assembly to proceed in the exercise of its political function to elect a Governor, and that in the exercise of such function courts would have no authority to interfere, since it would be no concern of courts as to how or in what manner it exercised such exclusive political authority. But authority must be had before it can be exercised. This is true even as to political authority, when the question is whether the Constitution confers or whether it prohibits its exercise. Viewing the different provisions of the Constitution together, the question before this court is whether, under the undisputed facts presented, the Constitution gave or whether it forbade the General Assembly to make such an adjudication as to the failure of the election and, as a consequence of its declaration, thereafter to proceed to elect a Governor. This is what gives jurisdiction to the courts. To my own mind, but contrary to the opinion expressed by my brethren, it is absolutely clear that, if no person had ever received a majority of the votes cast, it would have become the plain duty of the General Assembly so to declare, and that it is by virtue of such adjudication that the duty would thereupon devolve upon the General Assembly to elect a Governor. It is only because the language of the Constitution does not in just so many words provide for the particular contingency presented that any construction of the Constitution relative to the rights and powers of the General Assembly is required. The fact that the General Assembly, as I see it, did in point of fact have all of such authority, is beside the mark with respect to the proposition now being dealt with.
3. The Constitution by article V, section I, paragraph IV,delegates to the General Assembly the exclusive duty andauthority to canvass the returns. This, as I understand, is notquestioned by any one.
This paragraph of the Constitution is in my opinion decisive *Page 896 as to that and other features of the case, but since it has been quoted in full in the majority opinion it will not be repeated here. Since, as stated, it not only seems manifest, but no one seems to question that the duty and responsibility of canvassing the returns is placed solely upon the General Assembly, and that such action on their part is altogether conclusive, there is no need to give further consideration to this admittedly unambiguous phase of the case.
4. Not only is authority clearly delegated to the GeneralAssembly to canvass the votes; but to me it seems just aspalpably clear that it is also made their duty to designate, thatis adjudicate, the "person" "having" a majority of the votescast, if any there be, and thus qualify him to take the oath ofoffice.
This proposition seems disputed by counsel for Mr. Thompson, inasmuch as they contend that the General Assembly acts only in a ministerial capacity in canvassing the returns and publishing the result. However, the very language of the Constitution says that the person so entitled "shall be declared duly elected Governor." This court by a unanimous bench has said that this function of the General Assembly constitutes an integral part of the election itself. Wood v. Arnall, 189 Ga. 362, 368 (supra). Someone ought to be empowered not only to publish the result of the figures, but to adjudicate authoritatively what it is that these figures mean, and who it is that has been "duly elected Governor." The Governor unlike other officers receives no commission. The Constitution in lieu thereof has very wisely committed to the General Assembly complete control of the election process. The Constitution provides that "the Governor-elect" (manifestly after being so declared) "shall beinstalled in office at the next session of the GeneralAssembly." It provides that the returns shall be opened and published by the President of the Senate and Speaker of the House"in the presence and under the direction of the GeneralAssembly," when the "person" "having" a majority of the votes cast shall be "declared duly elected Governor of this State." The Constitution further provides the oath to be administered, which by statutory law perfectly consistent with the Constitution (Code, § 40-104) "shall be taken by the Governor-elect in the presence of the General Assembly." All this constitutes the sole evidence of his right to execute the executive power. It is not left for just anyone *Page 897 who might have the temerity to do so to seek to exercise the functions of the office. He must carry with him the authoritative credentials of the General Assembly. It is thus my view that the Constitution does not constitute the General Assembly mere administrative clerks or "tellers" to tabulate and publish the figures of the election. It was made something more than a mere animated adding machine. The figures merely furnish the basis that is the evidence on which the declaration required of the General Assembly by the Constitution is based. Just as with most officers it is the commission, so here it is the declaration followed by the installation, both by the General Assembly, which enables one actually elected Governor to be recognized as such. While it was the Creator who embedded the granite within the mountain side which makes up the features of General Lee, it took the sculptor's hand to make it stand forth for men to recognize and acclaim.
5. Under the Constitution, when the returns were canvassed itbecame the duty of the General Assembly to determine whether ornot under the undisputed facts there was a person who did thenhave a majority of the votes cast, whom the General Assemblycould properly designate as Governor-elect and thus qualify toappear before it and take the oath and be installed. Not only isthe General Assembly entrusted with the duty of such a decisionby the Constitution, but as I see it under the facts of thiscase, it correctly determined that the election by the people hadin fact failed in that no "person" did then "have" a majority ofthe votes cast.
Here it seems we arrive at a still sharper line of demarcation between the opposing sides. This seems to be the crux of the case, for should it be held that under the facts of this case the General Assembly had the exclusive right to declare, and had in fact determined, that the election had failed, in that no "person" did then "have" a majority of the votes cast, it would follow almost as a matter of course that it thereupon became the duty and function of the General Assembly to proceed to elect a Governor. While the proposition just stated seems clear enough to me, it does involve a construction of the Constitution, which is not absolutely unambiguous, and therefore, as I see it, presents the first of the two justiciable points of controversy.
If the General Assembly, after canvassing the returns and publishing the result, should fail to declare any person "duly elected *Page 898 Governor," so as thus to qualify him to take the oath and be installed in office — should it fail to do this and stop right there, without going on to show why it had failed in its duty to do so by adjudicating the absence of any person whom itcould qualify, there would seem to be a manifest dereliction of trust imposed upon it by the Constitution. The right of the General Assembly to determine when an election has failed and to declare that it has failed when such is the fact is not even a matter of necessary implication, for the language of the Constitution, not only provides that they shall declare who is elected Governor when there shall be a person who has a majority of the votes, but goes right on in the same connection to say what they shall do if no person shall have such a majority. It is conceded that under some circumstances they must proceed to elect a Governor. Would it not be an anomaly for them to do so without any determination as to why? To me, it does not seem possible to conceive that the General assembly should be called upon to pass upon the efficacy of an election under one contingency, but not be called to pass upon the failure of an election upon the other contingency; especially so when it is given an alternative duty according to which contingency may actually exist. Not only does this paragraph of the Constitution thus speak for itself, but it has also been thus construed by another and different paragraph of the Constitution (article V, section II, paragraph I) dealing with other State House officials, which says in just so many words that the General Assembly is given the same duty in those cases of "deciding when there is no election" as is "applicable to the election of Governor." Moreover, it is well to stress here that it is by virtue of this same adjudication of the General Assembly that the election has failed that the incumbent Governor is authorized to constitutionally hold over beyond his regular term, and until his successor can be legally chosen. As already shown, it is only under and by virtue of such holdover tenure of the previous Governor, coupled with his resignation in favor of the Lieutenant Governor that the latter claims. If, as I see it, the Constitution has thus twice spoken for itself, and it seems that it has done so, not in specific terms but in a manner just about as plain as John Alden did ever speak for himself, the General Assembly has been given jurisdiction, not only to canvass the returns and publish the result of the ballots, not only to designate the Governor-elect, and *Page 899 thus qualify him to take the oath of office where there be some person who has a majority of the votes cast; but it seems just about as certain and just about as plain from the language of the Constitution itself that, if and when the election fails and there be no "person" who shall "have" a majority whom it can declare to be Governor-elect and proceed to install as Governor, it becomes its duty to adjudicate that fact. That the responsibility imposed upon the General Assembly is not a mere clerical formality confined to figuring up the votes, especially when the votes have become wholly ineffective, is shown with great uniformity in the rulings made by the courts of last resort in our sister States. See Morris v. Bulkeley, 61 Conn. 287 (supra); Dickson v. Strickland, 114 Tex. 176 (supra); Carr v. Wilson, 32 W. Va. 419 (supra), and Taylor v. Beckham, 108 Ky. 278 (supra).
But it is urged and insisted by counsel for Mr. Thompson both in the written and oral arguments, that such can not be the proper interpretation of the decisive paragraph, not only for the reason that the duties of the General Assembly are purely clerical in character, but, as I construe the effect of the argument, it has power to act in a reminiscent way only. That is, they say that the language of the paragraph forbids the General Assembly to do aught else than uselessly to show that "once upon a time" there was a person who prior to his death, had a majority of the votes cast, and who therefore, if he had not died, would still "have" a majority. Their more specific argument is that the paragraph provides with reference to electing a Governor that, if no person shall have a majority, then the General Assembly shall elect from the two persons having the highest vote who shall be in life; whereas the preceding portion of the paragraph merely declares that the person having the highest number of votes shall be declared duly elected Governor without including the italicized words who shall be inlife. It is thus urged that the framers did not intend to require the successful candidate to be in life when the time should come for the General Assembly to declare him duly elected Governor. In other words, we seem to be asked to construe the quoted paragraph to mean that, when the successful candidate dies before qualifying, it is nevertheless the duty of the General Assembly to solemnly declare him to be "Governor-elect." There would seem to be no more reason to try to declare a deceased person Governor-elect than *Page 900 there would be to attempt to swear him in as Governor. The use of the words "who shall be in life" in one phrase and not in the other avails nothing. The provision in the Constitution is that the General Assembly shall declare the "person" "having" the majority vote as "duly elected Governor of this State." Why should the Constitution be expected to say that the person whom it shall name as Governor-elect so that it can install him in office should be in life? It did take the proper precaution of saying that, if and when the General Assembly came to elect a Governor itself, that deceased persons should not be counted in determining who had received the two highest votes from whom it was to elect. There is nothing strange about its language in either instance.
Before leaving this phase of the discussion, it might be proper to observe that from my viewpoint, that is, construing the Constitution as I have, to mean that the General Assembly did in fact have the delegated right and exclusive authority to declare whether or not under the circumstances existing in this case any person did then have a majority of the votes cast, theexecution of that authority, that is, the determination of whether the election had or had not failed was a political function, of which the General Assembly was the sole arbiter. But in view of the holdings made by the majority opinion that it did not even have the power to say whether the elections had or had not failed, I will seek to show, not only that it had the exclusive right and duty to declare whether or not the election had failed in that no one did then have a majority, but that its determination that it had failed was in fact correct, and therefore for that reason it had the right to elect. If I be right as to both or right as to either of these propositions, the action of the General Assembly should be sustained.
Passing on then from the proposition that the General Assembly was exclusively authorized under the only reasonable interpretation of the language of the Constitution to adjudicate under the facts of this case whether or not the election had failed in that no person did then have a majority of the votes cast, let consideration now be given to the question as to whether or not the General Assembly was correct in adjudicating that it had failed.
As I see this case, it does not hang solely upon the proper construction to be given to the word "person" and the word "have" when the Constitution says that the General Assembly shall proceed *Page 901 to elect a Governor when no "person" shall "have" a majority of the votes cast. To me the proper meaning and purport of the Constitution, as shown by all of its provisions, is that the General Assembly shall elect a Governor when at the time the returns are canvassed there shall be no "person" who shall "have" a majority of the votes cast whom the General Assembly can declare "duly elected Governor of this State" and whom it can proceed to install in office. But it is also true that the use of the words "person" and "have" are most highly significant and about as strongly indicative as any two words could be.
In determining the meaning of the word "person" as used in the quoted paragraph of the Constitution, the fact that the successful candidate though dead when the votes were canvassed was in life when the votes were cast by the people is, as I see it, a matter of historical interest only. This for the reason that he died, not only before becoming Governor, but even before the election itself was completed by a canvass of the returns by the General Assembly. This being true, it seems impossible to see how, when the time arrived for the returns to be canvassed, it could reasonably be said that any "person" did then "have" a majority of the votes cast. As to the construction of laws, our Code, § 102-102 (1) lays it down as a fundamental rule of construction that, except as applied to words of art, etc., "The ordinary signification shall be applied to all words." Webster's New International Dictionary (2d edition) defines the word "person" as "A being characterized by conscious apprehension." It in no way treats the word as referring to one who had become deceased. Giving then to the word "person" as used in the quoted paragraph of the Constitution its usual and natural interpretation, there is no obscurity. In the work entitled Words and Phrases, vol. 32, page 204, in digesting a Wisconsin case with respect to a primary election law which provided that theperson receiving the greatest number of votes at a primary should be declared the candidate of that party, the authors of the work mentioned quote that court as follows: "A dead man is not a `person' within the statute; such word meaning a living human being," citing Bancroft v. Frear, 144 Wis. 79 (128 N.W. 1068, 140 Am. St. R. 992). See also Brooks v. Boston N. St. Ry. Co., 211 Mass. 277 (97 N.E. 760), where the Massachusetts court makes the somewhat gruesome statement that "A corpse is not a person." It would seem needlessly *Page 902 tedious and perhaps confusing to attempt too much analysis of this phrase of the paragraph in question. To seek to make that clear which is already clear can only lead to confusion. As someone once remarked, "The Scriptures often throw great light upon the commentaries." But before dismissing any further discussion as to whether in using the word "person" the Constitution really means a person whom the General Assembly could qualify to appear before it and take the oath of office, it might be helpful to briefly call attention to just one thing more. The paragraph says that the General Assembly shall elect when no "person" "shall have" a majority. Note the present tense of the words "shall have." What the Constitution actually says is therefore a far cry indeed from what it would have said had it been written that the General Assembly shall elect when no person shall have and no deceased person ever did have a majority. True enough that a person now deceased once had a majority of the votes, but his narrow cell of six feet of earth owns nothing now — rather be it said nothing akin to lands, goods, tenements, or offices.
6. As I view the law as applied to the admitted facts, it wasjust as much the duty of the General Assembly, after correctlydeciding, upon the returns being canvassed, that no "person" didthen "have" a majority of the votes cast, to proceed to theelection of a Governor as it would have been if no person hadever received such a majority.
It is well to observe at the outset that the paragraph of the Constitution giving the General Assembly the right and duty to elect a Governor when the election by the people has thus failed, whether wise or unwise, antiquated or not, is not mere cast-up driftwood littering the shore line of today. It may in a way seem startling, but it can not be doubted, and is in fact conceded on all sides, that there are contingencies when this may be done. Until the year 1824 the sovereign people had expressly given to their General Assembly the entire duty and responsibility of electing a Governor. While in general the method of election has been changed, one small remnant of this ancient authority clearly adheres in our Constitution of today. It is true that the application of this paragraph of the Constitution to the particular state of facts actually presented requires construction, for the reason that it is not so palpably and transparently clear as it would have been had no person, *Page 903 since deceased, ever received a majority of the votes cast; and it is true that it is only when the votes are canvassed and no "person" "shall have" a majority that the General Assembly is empowered to elect. But as already stated in discussing the preceding closely related phase of the case, the fact that there was a successful candidate who had received a majority of the votes cast, but who was dead when the General Assembly canvassed the returns, is a matter of historical interest only. If it be conceded, as I believe has been shown, that there was then no "person" who did then "have" a majority of the votes cast, the language of the Constitution seems explicit and direct that the General Assembly must proceed to elect, and this is true even though in doing so it may thus curtail the constitutionally extended tenure of the incumbent Governor who when an election fails holds over after his regular term has expired until, but only until his successor is chosen and qualified. Here again we get back to a fundamental principle of construction. Where the Constitution or constitutional statutes speak plainly, we must take them according to what they actually say and let them mean just that and nothing more. It is only when the language of the Constitution is in and of itself susceptible to two or more interpretations, each equally permissible, that courts are at liberty to consider the comparative reasonableness or unreasonableness of the two constructions in order to arrive at what must have been the true intent of such ambiguous language.Standard Steel Works Co. v. Williams, 155 Ga. 177, 181 (116 S.E. 636). Where it speaks for itself, that is the end of the matter. The rule is thus a mandatory one, even though a different interpretation from that actually expressed might seem to better meet future contingencies, and thus afford a safer general rule to serve the public welfare.
Much has been said about changed conditions since the language of the quoted paragraph of the Constitution was embedded within our organic law in the year 1824. It is true many things have come to pass since then, but what has all this to do with the language of the Constitution requiring the General Assembly to elect a Governor under a named contingency? Language has not changed. Dictionaries were in vogue then just as they are now. The language under discussion has five times been carried forward and five times solemnly embedded within our organic law. The last time that this was done was but as yesterday, after the horses *Page 904 and buggies were mostly put away. There in clear cold print it stands, and there it should remain until the power that wrote it in shall write it out. Having, as I myself believe, construed the only possible ambiguities of the paragraph in the only way reasonably possible, the remainder, commanding the General Assembly to elect a Governor under the contingency stated, is as plain as language can make it, and is as plain now as it was in 1824. As it seems to me, the attack on the action taken by the General Assembly seems based, not so much on the theory that the Constitution fails to say what it means, as on the supposition that it does not mean what it says.
But it is insisted that the legislature, by the now obsolete Code, § 40-102, has itself construed this paragraph of the Constitution, as it was contained in the old Constitution prior to its being carried forward to the present Constitution. The argument is that the people when carrying it forward into the present Constitution must have had in mind the interpretation previously made by the legislature. It is urged that this Code section shows that the legislature had construed the paragraph of the Constitution to mean that it did not have power to elect a Governor except when at the General Election no person did then receive a majority. It will be seen that the legislature by this Code section was not dealing at all with the General Election dealt with by the paragraph of the Constitution, but was providing for a Special Election for Governor on account of a vacancy occurring in the office of Governor before the office of Lieutenant Governor had been created. This Special Election was under its own control, and it was privileged to depart from what the Constitution provided with respect to a failure under the General Election in any way it saw fit. Referring to this Special Election provided for by itself, the General Assembly declares that it shall elect when no person "shall receive a majority . . at such Special Election, as provided in the Constitution." It is manifest that it did not cover the whole ground even as to such Special Election, as was done by the general language in the provision of the Constitution relating to the General Election. The language of the statute was apt enough as dealing with living persons who were concerned in the Special Election, but its language does not cover and does not take into account, as the Constitution does, the possibility of the successful candidate dying prior to taking office. So far as the statutory reference to the *Page 905 Constitution is concerned, it manifestly refers to the mannerand method to be employed by the General Assembly when electing a Governor where such a Special Election shall fail. This reference is the means and the only means by which provision was made as to the method of procedure to be followed by the General Assembly. It would seem to be a strained construction to seek to make it apply as an interpretation as to other matters which the General Assembly evidently did not have in mind. It would therefore seem a slender thread indeed to hang an argument on, that the people in ratifying the present Constitution had this provision in mind as amounting in some sort of way to a vague and indefinite interpretation of the constitutional provision now under review.
7. The right and duty of the General Assembly to adjudge whenan election by the people has failed not only being in theGeneral Assembly under the facts here existing, but that bodyhaving not only adjudged but correctly adjudged that suchelection had failed in this case, it follows that under suchcircumstances it was its duty to elect a Governor. Therefore itis wholly unnecessary for us to speculate as to what the lawwould have been had the General Assembly sought to elect someperson other than one of the two "persons" in life whom it hadadjudicated had received the highest number of votes and whowould not decline to serve. This is true for two reasons: first,because under the facts presented the question is purely academicand is not presented by the record, since the General Assemblyafter publishing the returns and declaring that the election hadfailed, then proceeded to follow the exact language written intothe Constitution; and second, because the execution of its power,if it had the power, and I have sought to show that it did, was apurely political function concerning which courts are notprivileged to interfere.
I am unable to agree that a delegated political function ceases to be such even if in its exercise the legislative branch of Government should find it necessary to construe the Constitution. The General Assembly and the executive branch of government are given all political authority not actually inconsistent with the Constitution. The General Assembly no less than courts must support the Constitution of the people; but the people have entrusted to it and not the courts the duty of keeping itself within bounds in the administration of its actual political duties and powers. In this case *Page 906 not only did the General Assembly, in the performance of what I have sought to show was its political authority, keep within the exact letter of the Constitution, but since courts have no authority to intervene in the execution of an actual political authority, it would be fruitless for them to even speculate as to whether, under the special circumstances of this case, it would have correctly performed its political duties had it sought to do otherwise.
From all that has been said in this dissenting opinion, it will be seen: (a) Mr. Thompson could not possibly claim, nor does he in fact seek to claim office by virtue of the death of Hon. Eugene Talmadge, since Mr. Talmadge at the time of his death had not become Governor, nor had Mr. Thompson become Lieutenant Governor. He bases his claim solely by virtue of the resignation in his favor of the incumbent Governor, who when the election became ineffective was entitled by the Constitution to hold over beyond his regular term until, but only until, his successor could be chosen and qualified. Mr. Thompson therefore stands in the shoes of the Governor holding over and could occupy no better position than he under whom he claims. (b) I am convinced that, when the General Assembly comes to canvass the returns of an election for Governor, it is made their duty, under the scheme of the Constitution of this particular State at least, to determine whether or not the election has failed. If there be any person having a majority of the votes cast, it is made their duty to declare him "duly elected Governor," and to proceed to "install" him in office. If, on the other hand, there shall be no "person" who shall then "have" a majority vote, whom it can declare "duly elected Governor" and whom it can proceed to install, it seems manifest to me that it should so declare. It is not a mere teller to tabulate the figures. (c) If no "person" shall "have" a majority of the votes cast, whom it can declare Governor-elect and proceed to install in office, it becomes the duty of the General Assembly under the mandate of the Constitution to proceed to elect a Governor in the manner therein prescribed. (d) Under ordinary circumstances, all this, though disputed, seems perfectly plain to me; but under the somewhat ambiguous language of the Constitution as applied to the factshere presented it was and is, as I believe, a justiciable question, that is, subject to court adjudication as to whether or not the General Assembly was authorized to determine whether the election had or *Page 907 had not failed; and whether, therefore, it should or should not proceed to elect a Governor under its delegated political authority. (e) The answer to these questions, as in this opinion I have sought to show, is that it does have the right to determine one way or another each of these questions as a part of its delegated political authority. (f) The General Assembly thus having the right as a part of its political authority to determine whether or not under the facts here presented the election had or had not failed for the reason indicated, and it also having in my opinion the right to determine as a part of its political authority the question as to whether under the facts presented it must proceed to elect a Governor (both of these questions as to the right to decide at all being, as stated, justiciable and therefore subject to review by the courts) — it follows just as plainly that in each instance the exercise of this authority, if it had the authority, that is, the determination either that the election had failed or that it had not failed, and that the General Assembly must or must not elect a Governor, is not subject to review, the only question open to review being whether it had the right to decide the questions at all. (g) Accordingly, while I differ with my majority colleagues as to whether the General Assembly had political authority to adjudicate those questions at all, for I think that it did, while they by the controlling majority opinion have adjudicated that it did not, I did not, I do not differ with them on the proposition that authority to adjudicate must be first had before it can be exercised. My disagreement is that, on this justiciable question as to whether or not the General Assembly had the right and power to determine these questions, it not only had the exclusive political authority to do so, but in the exercise of such authority it in fact determined them correctly.