dissenting.
I am unable to agree with the majority opinion.
It is conceded by petitioner that he could not be lawfully elected by the practicing lawyers of Dallas County under the provisions of Revised Statutes Article 1887, as special judge, to fill the place of Judge Dixon, the regular district judge, if Judge Dixon had abandoned or forfeited the office as such regular judge. This brings us to a consideration of the question as to whether Judge Dixon had abandoned or forfeited the office/
In the outset, it must be remembered that our Constitution, Article 16, Section 40, as amended in 1932, prohibits the holding at the same time of more than one civil office of emolument, with certain exceptions therein enumerated. Since the general provision of this section of the Constitution condemns the hold*289ing or more than one office at the same time, the exception which permits such practices, being contrary to the general rule, must be strictly construed. 59 C. J. 1089-1092. The petitioner must bring his case within one of the exceptions — otherwise his petition must be denied.
The Constitution contains exceptions in favor of three general classes, as follows: (1) National Guard, including officers and enlisted men thereof and National Guard Reserve; (2) Organized Reserves, including the Officers’ Reserve Corps and Enlisted Reserve Corps; and (3) certain retired officers. It is not contended that Judge Dixon is an officer or enlisted man in the National Guard, or that he is in the National Guard Reserve, or that he is a retired officer. Petitioner’s sole contention is that Judge Dixon is exempted from the inhibition of the Constitution solely because he is an officer in the Officers’ Reserve Corps. If the exemption allowed by the Constitution is to be applied, it must be shown that Judge Dixon is a member of that particular organization.
We look to the statutes of the United States creating the Officers’ Reserve Corps, as they existed at the time of the amendment of our Constitution in 1932, to ascertain what was meant by the people when they adopted the amendment exempting members of the Officers’ Reserve Corps. At that time Section 2, Title 10, U. S. C. A., defined the Army of the United States as follows:
“Sec. 2. Composition of Army of United States. The Army of the United States shall consist of the Regular Army, the National Guard while in the service of the United States, and the Organized Reserves, including the Officers’ Reserve Corps and the Enlisted Reserve Corps.” (June 4, 1920, c. 227, sub-chapter I, Sec. 1, 41 Stat. 759.)
It will be noted that this statute divides the Army into three classes, as follows: (1) Regular Army; (2) National Guard; and (3) Organized Reserves, including the Officers’ Reserve Corps and the Enlisted Reserve Corps.
As before stated, Judge Dixon, in order to be entitled to the benefit of the exception, must bring himself within the exception. It is not sufficient to show that he is not a member of the Regular Army as it existed in 1932; he must bring him*290self within the exception and show that he is a member of the Officers’ Reserve Corps. The Officers’ Reserve Corps was defined as follows:
“For the purpose of providing a reserve of officers available for military service when needed there shall be organized an Officers’ Reserve Corps consisting of general officers and officers assigned to sections corresponding to the various branches of the Regular Army and such additional sections as the President may direct. The grades in each section and the number in each grade shall be as the President may • prescribe.” (As amended June 15, 1933, c. 87, Sec. 3, 48 Stat. 154.) Section 351, Title 10, U. S. C. A.
The pay of members of the Officers’ Reserve Corps was fixed as follows:
“A reserve officer shall not be entitled to pay and allowances except when on active duty. When on active duty he shall receive the same pay and allowances as an officer of the Regular Army of the same grade and length of active service, and mileage from his home to his first station and from his last station to his home.” (June 3, 1916, c. 134, sec. 37a, as added June 4, 1920, c. 227, Subch. I, sec. 32, 41 Stat. 776.) Section 361, Title 10, U. S. C. A.
Judge Dixon’s appointment was evidenced by letter. The essential part of the letter is as follows:
“1. By direction of the President you are temporarily appointed and commissioned in the Army of the United States, effective this date, in the grade and section shown in address above. (Temporary Appointment, Major AUS). Your serial number is shown after A above.
“2. This commission will continue in force during the pleasure of the President of the United States for the time being, and for the duration of the present emergency and six months thereafter unless sooner terminated.
“3. There is inclosed herewith a form for oath of office which you are requested to execute and return promptly to the agency from which it was received by you. The execution and return of the required oath of office constitute an acceptance of your appointment. No other evidence of acceptance is required.” (The initials AUS mean Army of the United States.)
*291There is not a word in the above letter to indicate that Judge Dixon was appointed as a member of the Officers’ Reserve Corps. The Officers’ Reserve Corps is not mentioned in the letter, and it is difficult to see how it is claimed that by virtue of such appointment he became a member of the Officers’ Reserve Corps. It is equally as reasonable to say that he thereby became a member of the Regular Army or of the National Guard.
As a matter of fact, long after the adoption of the amendment to our Constitution, Congress, in 1941, adopted an Act creating a new class, which I will call the 4th class in the Army of the United States. That Act was as follows:
“During the present emergency, temporary appointments as officers in the Army of the United States, may be made, under such regulations as the President may precribe, from among qualified persons without appointing such persons as officers in any particular component of the Army of the United States.
“All persons so appointed as officers shall be commissioned in the Army of the United States and may be ordered into the active military service of the United States to serve therein for such periods of time as the President may prescribe. Such appointments in grades below that of Brigadier General shall be made by the President alone, and general officers by and with the advice and consent of the Senate: provided, that any appointment made under the provisions of this act may be vacated at anytime by the President and, if not sooner vacated, shall continue during the present emergency and six months thereafter ; PROVIDED FURTHER, that any person appointed as an officer in the Army of the United States under the provisions of this Act shall receive the same pay and allowances and be entitled to the same rights, privileges and benefits as members of the Officers Reserve Corps of the same grade and length of active service, and provided further, that nothing contained in this Act shall be construed to prohibit the appointment of officers in the various components of the Army of the United States in accordance with existing laws.” (Italics mine.) Chap. 414, 1st Sess. 77th Congress, Public Law 252, 55 Stat. 728, H. J. Res. 199, adopted by Congress on September 22, 1941.
Very clearly Judge Dixon was appointed under the above Act, but there is nothing in that Act to indicate that those appointed thereunder should be members of the Officers’ Reserve *292Corps; in fact, the contrary is shown by the very wording of the Act itself. It provides that those appointed thereunder shall receive the same pay as members of the Officers’ Reserve Corps. If Congress had intended that those so appointed should be members of the Officers’ Reserve Corps, it would have been foolish for it to make the provision that it did concerning their pay. It would have been equivalent to saying that “members of the Officers’ Reserve Corps shall receive the same pay as members of the Officers’ Reserve Corps.” The fact that Congress saw fit to provide that those so appointed under that Act should receive the same pay as members of the Officers’ Reserve Corps indicates clearly that Congress recognized that such appointees belonged to a different class, and that the pay and other privileges of members of the Officers’ Reserve Corps should be used as a standard for fixing the compensation of those belonging to the new classification.
At the time our Constitution was amended in 1932 Section 513, Title 10, U. S. C. A., provided as follows:
“In time of war any officer of the regular Army may be appointed to higher temporary rank without vacating his permanent commission, such appointments in grades below that of Brigadier General being made by the President alone, but all other appointments of officers in time of war shall be in the Officers Reserve Corps.”
The majority opinion stresses the fact that the above statute, at the time in question, provided that “all other appointments of officers in time of war shall be in the Officers Reserve Corps.” It is true that the law so provided, and if at that time any appointment had been made other than in the Regular Army, the President would have been required to make the appointment in the Officers’ Reserve Corps; and if any one had been so appointed in the Officers’ Reserve Corps, he would have been entitled to the benefit of the exemption here under consideration. But the fallacy in that line of reasoning lies in the fact that the appointment of Judge Dixon was not made under that statute. There was nothing to prevent Congress from amending that statute and providing for appointment of officers in the Army, other than in the Officers’ Reserve Corps. Congress actually did that very thing. It amended that section of the statute in 1940, and eliminated the provision which required all such temporary appointments to be made in the Officers’ Reserve Corps. In addition, Congress adopted Chapter 414, *293First Session 77th Congress, Public Law 252, above copied, and provided for the temporary appointment of officers in the Army of the United States during the present emergency. The majority opinion concedes that Judge Dixon’s appointment was made under this new Act, and not under the old statute. The new Act contains no provision requiring such appointment to be made in the Officers’ Reserve Corps, and there is nothing in the Act which says that those so appointed shall be members of the Officers’ Reserve Corps.
The majority opinion proceeds on the theory that our Constitution exempts all those in the armed forces of the United States except members of the Regular Army, and since the appointment of Judge Dixon was temporary, and did not specify that he had been appointed in the Regular Army, it necessarily follows that he has been appointed in the Officers’ Reserve Corps. The Constitution, however, does not exempt all except those in the Regular Army. It exempts only certain classes, and Judge Dixon does not bring himself within one of those classes.
Since Judge Dixon is not a member of the Officers’ Reserve Corps, and therefore not entitled to be exempted as such, it becomes unnecessary to here discuss the Comptroller’s contention, that even if he were a member of the Officers’ Reserve Corps, the exemption would not apply to him while he is on active duty in time of war.
The seriousness of the situation that will result if the exemption contained in the Constitution is liberally construed, in keeping with the majority opinion, so as to exempt all those in the armed forces, other than those in the Regular Army, is readily apparent. For example, Revised Statutes Article 7045 requires the presence of the county judge and all commissioners in order to fix the tax rate for a county. If a county judge or a commissioner of any county should leave his office and join the armed forces without resigning his position, no taxes could be levied in that county until the war is over. The county’s business would become paralyzed. The Constitution, Article 3, Section 10, requires the presence of two-thirds of each house of the Legislature for the transaction of business by such house. If more than one-third of our senators should join the Army, the Legislature could not function, and the State would be without funds on which to operate. If two *294members of this Court or any Court of Civil Appeals should join the armed forces without resigning their offices, the Governor would be without authority to appoint their successors, and the court would be unable to function. The State would be without a judicial system. The same would be true if two members of the Court of Criminal Appeals should join the Army. Criminals could violate the law with impunity, for there would be no court to affirm a judgment of conviction and terminate the litigation in the event of an appeal.
A fundamental canon of constitutional construction is that the conditions existing at the time of the adoption of a constitutional amendment may and should be looked to- for the purpose of determining the intent of the amendment. Equally fundamental is the rule that a construction of a constitutional provision which leads to great public inconvenience or to the sacrifice of great public interests, or to unjust discrimination, or to absurd consequences, will not beadopted if the provision is reasonably susceptible of an interpretation which will avoid such consequences — this upon the ground that the court will not impute to the people an intent to sacrifice or prejudice great public interests, where that intent is not clearly expressed by the people themselves. 16 C. J. S., p. 56; Koy v. Schneider, 110 Texas 369, 218 S. W. 479, 221 S. W. 880.
In my opinion Judge Dixon by accepting the office in the United States Army thereby abandoned his office as district judge. If he has so abandoned his office, then it is conceded by petitioner that he had no right to serve as special judge in his place during his absence. If he was not entitled to serve in such position, it necessarily follows that he was not entitled to compensation for his services, and the petition for mandamus should be denied.
Opinion delivered December 26, 1942.