With all due respect to the affirming opinion filed in this case and after giving due consideration thereto, I am of the firm belief that the judgment of the lower court should be reversed.
1. Because the Constitution and laws contain ample authority for filling the vacancy at the next general election after it occurred. Article 5, section 11, of the Constitution; Article 4, section 10, of the Constitution; Article 11, section 6, of the Constitution; Code, section 609, and other provisions of the same chapter; Code, section 1155.
2. Because the provisions of the Constitution above referred to requiring that judges of the Supreme Court SHALL BE ELECTED BY A VOTE OF THE PEOPLE, when considered with our election laws, ARE sufficiently self-executing to validate the election.
The premise of the affirming opinion is that because the Legislature made no provision in section 1157, or elsewhere, in the Code, for filling a vacancy occurring within thirty days prior to the next general election, there was no valid election; that the constitutional provisions in reference to filling vacancies are not self-executing, and therefore even though the constitutional provisions clearly imply that the vacancy be filled at the next general election, they cannot *Page 1113 be enforced because the Legislature made no provision to carry them out.
The opinion says:
"We do not understand counsel to contend that any of the foregoing sections [referring to 609, 1155, 1157, and others] purport, in terms at least, to authorize nominations to fill vacancies to be made where such vacancy occurs less than thirty days prior to the next general ensuing election, but that, when given proper weight and effect in the interpretation of section 1157, permissive authority is shown to do so."
According to my impression the appellant does strenuously contend that there are provisions of the statute which expressly authorize the filling of such vacancies at the next general election.
If it is the manifest intention of the Constitution that this vacancy be filled at the next general election we should, if possible by any reasonable construction, give the statutes such construction as to harmonize them with the Constitution. Appellant does not attempt to evade the provisions of the Constitution; on the contrary, he desires to give them the construction implied thereby. Appellee attempts to read into section 1157 a provision which is not there, in order to avoid the express provisions of the Constitution. It is the well-settled law that all statutes should be construed, if possible, by any reasonable interpretation, so as to give effect to the intent of the Constitution.
Article 5, section 11, of the Constitution provides that,
"The Judges of the Supreme and District Courts shall be chosenat the general election."
Article 12, section 1, which provides,
"This Constitution shall be the supreme law of the State, and any law inconsistent therewith, shall be void."
The Iowa Constitution as amended in 1916 provides:
"The general election for state, * * * shall be held in the same month and on the same day as that fixed by the laws of the United States for the election of presidential electors; * * * and thereafter * * * at such time as the general assembly may by law provide."
*Page 1114Article 4, section 10, provides:
"When any office shall, from any cause, become vacant, * * * the Governor shall have power to fill such vacancy, by granting a commission, which shall expire * * * at the next election bythe people."
Article 11, section 6, provides that:
"In all cases of elections to fill vacancies in office occurring before the expiration of a full term, the person so elected shall hold for the residue of the unexpired term; and all persons appointed to fill vacancies in office, shall hold until the next general election, and until their successors are elected and qualified."
These provisions clearly show that judges of the Supreme Court are required to be elected by the people. Section 11 of Article 5 says they shall be elected at the general election. Section 10 of Article 4 provides:
"That the commission of the person appointed to fill the vacancy shall expire at the next election by the people."
Section 6 of article 11 says:
"That the person appointed to fill the vacancy shall hold until the next general election, and until their successors are elected and qualifed."
They all clearly imply that the vacancy shall be filled at the next general election. The qualifying words "and until their successors are elected and qualified," at the end of section 6, article 11, were no doubt inserted to avoid an interim between the election and the time the new officer was declared elected and qualified.
The vacancy in this case occurred twenty-four days before the election. Steps were immediately taken by both parties to nominate candidates under statutory provisions then existing to fill the vacancy.
Section 1157 provides that where the vacancy occurs more thanthirty days prior to the election, it shall be filled at such election, and there it ends. This section makes no provision to fill a vacancy occurring within thirty days prior to the election; wherefore appellee contends the Legislature intended that vacancies occurring within thirty days should not be filled at the next general election. There might be some excuse for trying to read something into a *Page 1115 statute to make it harmonize with the Constitution, but there can be no excuse for reading something into it for the purpose of defeating its clearly implied intention.
If the Legislature had written into section 1157 a provision that a vacancy occurring within thirty days prior to the next general election could not be filled at such election, it might be held unconstitutional, as violating the provisions of the Constitution above enumerated. If as demonstrated in this case, a nomination to fill the vacancy could reasonably be made between the time it occurred, and the next general election, such a provision in the statute might readily be held unconstitutional. In view of these facts it would be illogical and unreasonable to hold that such a questionable provision should be read into the statute.
Appellee proceeds with the assumption that there are no other provisions of the statute authorizing the filling of a vacancy occurring within thirty days before the election. If our statutes reasonably authorize filling the vacancy at the next general election, then the person duly elected would be entitled to his office. Appellant contends that sections 609, et seq. and 1155 do make such provisions.
Section 609 provides:
"Nominations occasioned by vacancies in office when such vacancies occur after the holding of the county, district, or state convention, * * * shall be made by the party centralcommittee for the * * * state."
Other sections provide for certifying the nomination, and placing the names of such nominees on the ballot and the certification of the election of the successful candidates.
The nominations so provided for are undoubtedly to fill vacancies occurring any time after the regular state convention. The vacancy in this case occurred after the regular state convention of both parties. The administrative officers of the entire election machinery of the state, including the Governor, the secretary of state, the Attorney General, and others construed this statute as requiring both parties to make the nominations. Appellant and appellee were both placed in nomination pursuant thereto.
Recognizing the party central committee's authority to make such nominations, the Governor and secretary of state issued and filed certificates of nomination, to which no objections were made. The names of the candidates so nominated were placed upon the *Page 1116 ballot at the same time along with all the other state candidates. Appellant was elected by an overwhelming majority. This plainly shows that the electors of the state were duly advised of the nominations made, and no objection to the election for want of notice could now be sustained. Dishon v. Smith,10 Iowa 212. Still further recognizing the legality of the election the executive and administrative officers of the state issued certificates of election to appellant.
Section 609 not only impliedly, but expressly permits, filling the vacancy at the next general election.
This section makes no distinction as to the offices for which nominations can be made, but fairly and reasonably includes alloffices in which a vacancy occurs. It would be absurd to deny that a vacancy existed. If one existed the party central committees were authorized to fill it. For what other purpose could the nominations be authorized but to fill the vacancy? This is impossible of comprehension.
Section 609 permits nominations to fill vacancies occurring after the regular state convention was held, and is not limitedto those occurring more than thirty days prior to the election. It is unlimited and unrestricted, and expressly includes nominations, to fill all vacancies occurring after the state convention, and prior to the next general election. The only limitation that could reasonably be placed on it would be one where the vacancy should occur so shortly before the election as not to allow a reasonable time to make them, and advise the general public thereof. No other limitation should be permitted, and no other restriction should be read into the statute. To hold this election invalid would be to invalidate a mandatory constitutional provision by a legislative enactment.
There can be no doubt that such a reasonably sufficient time elapsed between the vacancy and the election as to reasonably enable making the nominations and placing the names on the ballot for a sufficient length of time before the election to advise the electorate thereof. If the lower court was justified in reading something into section 1157 which might make it unconstitutional, then by the same token it would be more justified in construing section 609 and 1155 as permitting the nominations made, in order to harmonize the statutes with the Constitution.
Section 609 apparently gives full and complete power to the *Page 1117 party central committee of each party to make nominations to fill the vacancies created. There is nothing uncertain about it.
Appellant contends that section 1155, especially when re-enforced by section 609, affords ample authority to fill the vacancy at the next election. Section 1155 provides:
"An officer filling a vacancy in an office which is filled byelection of the people shall continue to hold until the nextregular election at which such vacancy can be filled."
This office is by the Constitution required to be filled "byelection of the people at the general election." This statute may be subject to two constructions. The first can be made clear by transposing the words as follows:
"Where an office is filled by election of the people a vacancy therein can be filled at the next regular election."
In other words, such a meaning can be read into this statute without changing one word. The provision that the person filling a vacancy in an office continues to hold it until the next regular election at which such vacancy can be filled, is capable of meaning that the vacancy can be filled at the next regular election. By giving it such construction nothing need be read into it because the words are all there. If this meaning can be implied from the words, and the words do reasonably imply such meaning, then the authority for the election is complete.
This statute permits the electorate to fill the vacancy at the next regular election at which such vacancy can be filled. As another construction of this section appellant contends that if it is reasonably possible to fill the vacancy at the next election, then permission so to do is granted by the statute. That the election was held, is uncontrovertible proof that itcould be held.
When section 1155 is considered with and re-enforced by section 609, expressly providing that nominations to fill vacancies occurring after the holding of the state convention can be madeby the party central committee, it is clear they constitute a sufficient statutory authority to validate the election. And when they are further construed in connection with the constitutional provisions providing for the filling of the vacancies at the next general election, there can be no doubt that the statutory permission to carry out the implied provisions of the Constitution was fully given. *Page 1118
Wherever the language of the constitution is obscure, doubtful, or ambiguous, or by the generality of its terms leaves fair room for implication, it is open to construction in aid of which courts may properly consult the general spirit of the Constitution as indicated by its terms.
II. The foregoing discussion is made upon the assumption, indulged in by appellee, that the provisions of the Constitution are not self-executing. This assumption is also indulged in when the affirming opinion says "the Constitution, as stated, is in no sense self-executing". This statement is made as the settled law on that subject.
Many authorities, however, hold that many provisions of the Constitution are self-executing.
"Constitutional provisions are self executing when there is a manifest intention that they should go into immediate effect and no ancillary legislation is necessary to the enjoyment of a right given, or the enforcement of a duty imposed. 12 C.J. 729, section 106.
"That a right granted by a constitutional provision may be better or further protected by supplementary legislation does not of itself prevent the provision in question from being self executing; nor does the self executing character of the constitutional provision necessarily preclude legislation for the better protection of the right secured. A constitutional provision which is merely declaratory of the common law is self executing. A constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on legislative will." 12 C.J. 729, 730, section 106.
Innumerable cases are cited in the notes to the foregoing reference, supporting the doctrine that many provisions of the Constitution are self-executing, and need no further supplemental legislation to carry them into effect. Such constitutional provisions are the supreme law of the land.
Section 11 of article 5 provides that, "The Judges of the Supreme and District Courts shall be chosen at the generalelection." There is no uncertainty as to the mandatory character of this provision. It will hardly do for us to hold that this provision of the Constitution is illegal simply because the Legislature did not supplement it by further legislation. If there is time and opportunity for electing a judge of the Supreme Court to be chosen at the next *Page 1119 general election, it will hardly do to say it is illegal to do it. This section of the Constitution requires the judges of the Supreme Court to be elected at the general election. At what general election? This can be implied from the other sections of the Constitution in reference thereto.
Article 4, section 10, authorizes the Governor to fill a vacancy "by granting a commission which shall expire * * * at thenext election by the people."
Article 11, section 6, provides that all persons appointed to fill vacancies in office shall hold until the next generalelection, and until their successors are elected and qualified.
From a consideration of the provisions of our Constitution, it seems apparent that the Constitution itself provides the manner and time of electing judges. A judge elected to fill a vacancy is just as much a judge as one elected to fill a full term. It is therefore just as necessary to fill vacancies created in that office by election as it is to elect one at the expiration of a full term.
The Iowa Constitution as amended in 1916 provides:
"The general election for state, * * * shall be held in the same month and on the same day as that fixed by the laws of the United States for the election of presidential electors; * * * and thereafter * * * at such time as the general assembly may by law provide."
Section 504 of the Code also provides:
"The general election for state, district, county, and township officers shall be held throughout the state on Tuesday, next after the first Monday in November of each even-numbered year."
In the case of State v. Thoman, 10 Kan. 191, the court, speaking through Justice Brewer, says:
"It is insisted, that the constitution is not self-executing, and that some legislation authorizing an election, prescribing place and manner, and establishing rules and regulations, must be had before any valid election can be held. It is unnecessary for us to inquire how far the absence of all legislation would affect an attempted election, for the legislature has by the election law * * * established all necessary rules and regulations, and provided all requisite machinery for conducting elections, ascertaining their results, *Page 1120 and contesting the same. The constitution * * * fixes the time for general elections on the Tuesday succeeding the first Monday in November of each year, so that time and place, manner and machinery, are all provided. Indeed, the only thing wanting, if anything be wanting, to make valid this election is express statutory authority therefor. The term of office is, as we have seen, four years. This being a constitutional provision is beyond legislative change. * * * At the expiration of a term there arises no vacancy which can be filled by appointment. An election must be had, or the then incumbent continues. * * * A simple omission of the legislature to act might thus give to an incumbent a life lease of his office. While the possible abuse of a power is no ground for questioning its existence, (for power must be lodged somewhere, and there is always possibility of its abuse,) yet where grave doubts exist as to the meaning and effect of a certain constitutional provision, the balance may sometimes properly be turned by a consideration of results. The constitution is the paramount law. It is above legislatures, and courts. It was intended as a paramount rule, to be changed only by the people in their sovereign capacity. By it they have expressed their purpose, a purpose not to be thwarted by their representatives. As between the will of the people expressed in the constitution, and that expressed in the statute, the former always prevails. As between two constructions of the former, that which gives stability and force is preferred to that which makes it simply an expression of desire, subject to the omissions or caprices of each succeeding legislature. The manifest purpose of the constitutional provisions is to secure not merely a fixed term of office to judges, but also to the people at stated intervals the opportunity of changing the incumbents. Now, if the constitutional term has no force till re-enacted in the statute, the latter would seem the paramount authority; and all constructions which make the former dependent on the latter tend to belittle the permanent law. The constitutional provision is, that in each district `there shall be elected by the electors thereof, a district judge, who shall hold his office for the term of four years.' This does not apply to the first district judges alone, but establishes a permanent rule. * * * Of course, where it speaks its words declare its meaning; but it is impossible, in the general terms in which it is couched, to provide expressly for all possible contingencies. It must be so construed as to give force to and uphold its several provisions; and in so construing it, it not unfrequently happens that something must be *Page 1121 implied to give force to that which is expressed. It says the people shall elect the judges; that the term of office of district judges shall be four years; that general elections shall be held on the Tuesday succeeding the first Monday in November. IS IT NOT A FAIR implication that it authorizes an election at the general election last prior to the commencement of each term? Implied authority similar to this is spoken of approvingly in the cases of the State ex rel. Crawford v. Robinson, 1 Kan. 26, and the State ex rel. Watson v. Cobb, 2 Kan. 54. We are aware of the difficulties attendant upon this construction, and that in some respects it savors of judicial legislation, something which all courts should be careful to avoid. But in no other way can we uphold the various provisions of the constitution, and carry into effect the will of the people clearly expressed therein. Our conclusion therefore is, that the election of 1871 for district judge was valid."
These provisions of our court clearly imply that the judges to be elected shall be chosen at the next general election. Our own court has held that some provisions of the Constitution are self-executing. Halsey Co. v. Belle Plaine, 128 Iowa 467,104 N.W. 494. In that case we held that,
"Section 3, Article 11, of the constitution, limiting municipal indebtedness, became self-executing on its adoption, withoutsubsequent legislation to give it force and effect."
Our Constitution in mandatory language requires that the judges of the Supreme Court shall be chosen at the general election. Therefore if there was reasonably sufficient time to nominate them, place them on the ballot, and elect one of them, the election should be held valid.
The security of our government depends upon the preservation of the Constitution; and the duty of preserving the Constitution rests in our courts. This is a duty we cannot evade regardless of consequences to litigants. In this case not only the implications of the Constitution require the election of judges by the people at the next general election, but the plain, unambiguous, and mandatory language thereof requires it. If therefore an election occurs at such a reasonable time after the vacancy, then an election by the people to fill that vacancy through the election machinery of the state should be held valid. The filling of this vacancy requires the election *Page 1122 of a judge of the Supreme Court by the people at the next election following the vacancy. The election in this case was held twenty-four days after the vacancy occurred. There was ample time between the creation of the vacancy and the election to fully advise the electorate of the candidates for that office. Where the provision is mandatory it is self-executing.
"A provision that a certain question may be submitted to a vote of the electors in the manner that shall be provided by law is not self-executing. But a clause providing that an officer shallbe elected at election of members of the General Assembly, when taken together with the statutes governing elections of members of the General Assembly, is self-executing." 12 C.J. 735, section 125.
"Where the term of an office is fixed by the constitution, and its commencement is once prescribed by law, the constitutional provision is self executing to the extent of rendering valid anelection to fill such office held at the last general election before the expiration of the term, although no provision has beenmade by the statute for an election to fill this office." 12 C.J. 735, last par. of section 125.
See, also, State v. Thoman, 10 Kan. 191.
Regardless of the fact that no statutory provisions were enacted by the Legislature authorizing the filling of this vacancy, which I do not concede, we have a case here where the time of holding the election was duly fixed, the election machinery provided by statute was set in motion, both candidates for judge of the Supreme Court were duly nominated by their respective parties long enough before the election to give ample publicity to such nomination, the election was held, and the people by decisive majority elected appellant to the office.
In view of the fact that such election was held, and in view of the further fact that the Constitution expressly provides that the judges of the Supreme Court shall be chosen by the people, we cannot escape the conclusion that the election was valid. To hold otherwise would have the effect of holding such constitutional provision illegal simply because, as contended by the ingenious argument of counsel, that no statutory provision was made to fit this particular case. A constitutional provision cannot be heldillegal by a legislative enactment, much less can it be heldineffective by no such enactment. *Page 1123 Such a holding would do violence to both the spirit and the letter of the Constitution.
For these reasons, to say nothing about the question of estoppel, I respectfully dissent from the affirming opinion. I am abidingly convinced that the ruling of the lower court should be reversed, and the election of appellant be held valid.
The foregoing dissent is joined in by JUSTICE MITCHELL.