dissenting.
This was an application to the Judge of the Superior Court for a mandamus, by Joseph II. Taylor, Esquire, as District Attorney for the Eleventh Senatorial District, against *103the Ordinary of Randolph county, calling on said Ordinary to show cause why he should not ievy and collect a tax for the payment of the salary of said District Attorney, for the year 1871, as required by the Act of 1870, organizing the District Courts in this State. The Ordinary filed his answer, and showed for cause wThy he should not levy and collect the tax on the citizens of Randolph county, that the said Joseph H. Taylor was not legally and constitutionally appointed District Attorney, and was not, therefore, entitled to have said tax levied and collected for the payment of his salary as such District Attorney. On the hearing of the case, the Judge held and decided, that the petitioner was legally and constitutionally in said office of District Attorney, and ordered the mandamus to be made absolute against the Ordinary for the levy and collection of the tax as prayed for. Whereupon the Ordinary excepted.
It appears from the record, that the petitioner was appointed District Attorney on the 18th day of January, 1871, during the recess of the Senate, and that said appointment had not been submitted to and confirmed by the Senate. On the argument before this Court, two questions have been made. First, that if the Act of 1870, organizing the District Courts, is a legal and valid Act, yet, the appointment was not a legal and valid appointment under the Constitution, and the provisions of that Act. Second, that the Act of 1870, was passed more than forty days after the commencement of the third session of the General Assembly, and is, therefore, void, under the provisions of the Constitution of 1868, that body having no lawful power or authority to enact laws after the expiration of forty days, unless prolonged beyond that time, by a vote of two-thirds of each branch thereof, as provided by that Constitution.
I propose first, to consider the legality of the appoinment of the petitioner as District Attorney, under the Constitution and the Act of 1870, on the assumption that that Act is a valid, constitutional law. By the 4th section of the 5th Ar-*104tide of the Constitution of 1868, it is declared, “Until the General Assembly shall otherwise direct, there shall be a District Judge and a District Attorney, for each Senatorial District in this State.” The 9th section of the 5th Article of the Constitution, declares that said District Judges and Attorneys, “ shall be appointed by the Governor with the advioe and consent of the Senate.” These sections of the Constitution, it will be observed, only declare that until the General Assembly shall otherwise direct, there shall be a District Judge and District Attorney, for each Senatorial District in the State, and expressly declare how and in what manner they shall be appointed. But there is no provision made in this section of the Constitution, for the creation and organization of a District Court, in which these officers could officiate and perform their respective official duties. To create and organize the District Court, in conformity with the provisions of the Constitution, was devolved on the General Assembly; and until that body created such a Court, there was no “ District Court” in which the District Judges and District Attorneys could perform their respective duties as such officers. The 1st section of the 5th Article of the Constitution declares, that “ th& judicial powers of this State, shall be vested in a Supreme Court, Superior Courts, Courts of Ordinary, Justices of the Peace, commissioned Notaries Public, and such other Courts as have been or may be established by law.” Thus it will be seen, that there was no judicial power vested by the Constitution in the District Courts, until they were established by law; and the Judges and Attorneys thereof could not have exercised any judicial functions, or performed any other acts appertaining thereto, in that Court, until it was so established. On the 28th of October, 1870, the General Assembly passed what purports, on its face, to be an Act to organize “ the District Court,” and defines its jurisdiction. Up to this time, there was no District Court created and organized in this State, either by the Constitution or the laws thereof, in which any District *105Judge or District Attorney, had ever officiated as the officers of such a Court, or performed any official duty therein, as the officers of such a Court. Assuming that the creation and organization of the District Court by the General Assembly, on the 28th of October, 1870, was a legal and valid organization, how and in what manner did the General Assembly declare that Court should be created and organized ? The 1st section of that Act declares, that there shall be organized in each Senatorial District, (except certain specified Districts,) a Court, to be styled “ the District Court,” the Judge of which shall be known as “District Judge;” for said Court, there shall be in each District a prosecuting officer, to be called “ District Attorney.” The 2d section of the Act providing for the organization of the District Court, expressly declares, that the District Judge and Attorney shall be appointed by the Governor, with the advice and consent of the Senate, and hold their offices for a period of four years. Thus it will be seen, that the original organization of the District Court, under the provisions of the Act, was to be done by the appointment of a District Judge and Attorney by the Governor, with the advice and consent of the Senate, for a period of four years. And the General Assembly having expressly declared the manner in which the officers should be appointed, in order to effect an organization of the Court, it is not reasonable to suppose that it was intended that the Court should be organized by the appointment of the officers thereof, in a different manner than that prescribed in the Act. To have appointed and commissioned District Judges and District Attorneys, without the creation and organization of a District Court, by law, in which those officers could have performed their appropriate functions and duties as such officers, and without any compensation having been provided for their services, would have been a useless and unprofitable ceremony, not contemplated by the Constitution.
But it is said, that when the District Court was created and organized, by the Act of 1870, the office of the District *106Judge of the District Court and the office of District Attorney for that Court were vacant, and that the Governor liad the power, under the second section of the fourth Article of the Constitution, and the sixty-sixth section of the Code, to fill such vacancy, without the advice and consent of the Senate. That section of the Constitution declares that “ when any office shall become vacant by death, resignation or otherwise, the Governor shall have power to fill such vacancy, unless otherwise provided bylaw; and persons so appointed shall continue in office until a successor is appointed, agreeably to the mode pointed out by this Constitution, or by law, in pursuance thereof.” The answer to this suggestion and the argument in support gf it is, that the Constitution does not confer the power on the Governor to assume that an office in a Court, created and organized by law for the first time, and which never had any prior existence or prior incumbent to fill it, is a vacant office, according to the true intent and meaning thereof. But, on the contrary, the Constitution contemplates that the District Court shall be created by lato, and, when so created by law, then it is made the duty of the Governor to complete its organization by the appointment of District Judges and Attorneys therefor, with the advice and consent of the Senate, in accordance with the provisions of that law, if consistent with the Constitution, and not otherwise. The Constitution does not declare that an office in a newly created Court by law which had no power, existence or prior incumbent in it, is a vacant office; and therefore the Governor could not appoint an officer for that newly created Court in any other manner than that prescribed by the Constitution and the law organizing it, (to-wit:) with the advice and consent of the Senate. The Constitution confers the power on the Governor to make appointments to fill vacancies in offices which have had a prior existence, and been filled by a prior incumbent, when such offices become vacant by the death of the incumbent, or by his resignation, or otherwise, without the advice and consent of the Senate, such *107appointment to continue only until the assembling of the Senate. The words of the Constitution are, “ when any office shall become vacant,” etc.; not where any office is vacant because it never had any legal existence or incumbent in it, as is claimed in this case. Before an office in the District Court could become vacant, in the sense those words are used in the Constitution, that Court must necessarily have had a prior legal existence: for if there was no such Court there could not be any vacant office in it. The Constitution most clearly contemplates that the officer whose vacancy the Governor is empowered to fill by appointment, as claimed, must have been one who was originally appointed to the office, in accordance with the requirements of the Constitution and laws of the State, and subsequent to such lawful appointment the office becomes vacant by the death or resignation of the incumbent, or other cause not specially enumerated, which makes the office become vacant on account of the indisposition or inability of the prior incumbent, to perform the duties of it. Neither the words nor spirit of the Constitution authorize the exercise of the power claimed for the Governor in behalf of the defendant in error in this case.
But there is another insurmountable difficulty in the way of the defendant in error. The Act of 1870, is an Act to organize “ the District Court,” and that Act expressly provides, that that OouH shall be organized by the appointment of the District Judge and attorney, by the Governor, with the advice and consent of the Senate, and hold their offices for a period of four years. This Act contemplates an original appointment of the District Judges and attorneys of the District Court, for the term of four years. The appointment of the District Judges, and District Attorneys, by the Governor, with the advice and consent of the Senate for four years, is an indispensable requirement of the Act to perfect a legal organization of the “ District Court,” and, therefore, that Court has never been organized in accordance with the terms and requirements of that Act, inasmuch as the appointment of *108the officers of that Court have not been made in the manner prescribed by the Act, so as to make it a legal organized Court in conformity with the express requirements thereof; for it will not do to say that the Governor could assume that the ££ District Court ” had been legally organized in any manner different from that prescribed by the Act of 1870, and then proceed to fill the offices of that Court, as vacant offices, under the 4th paragraph of the 2d section of the 4th Article of the Constitution, when, in fact, the District Court had not been organized, as required by the Act of 1870, and thus making it impossible that any office in that unorganized Court could become vacant, as contemplated by the Constitution. Before any office in the £< District Court” could become vacant, so as to authorize the Governor to fill it under the Constitution, as claimed, that Court must have been legally organized by the appointment of the Judges and attorneys thereof, by the Governor, with the advice and consent of the Senate, for a period of four years, as expressly required by the Act of 1870. Then, if either of said offices in said Court had thereafter become vacant, by the death, resignation, or otherwise, of either of the officers of said Court so appointed, as required by the Act organizing the Court, the Governor would have had the power of appointment, under the Constitution, to fill such vacancy until the meeting of the next General Assembly, but not otherwise. The 66 th section of the Code only authorizes the Governor to fill all vacancies as contemplated by the Constitution and laws of the State. The radical error of the argument in support of the legality of the appointment, made by the Governor, of the defendant in error, as District Attorney of the District Court, is the unauthorized assumption that the District Court was created and organized by the Constitution; whereas, there was no judicial power vested in that Court by the Constitution, until it was ££ established by law,” as provided in the Act of 1870, as is most clearly demonstrated by reference to the 1st section of the 5th Article of the Constitution, before cited. *109Until the passage of the Act of 1870, such a Court as the “ District Court ” was not known to, or recognized by either the Constitution or laws of this State as a Court, in which any judicial powers whatever could have been vested or exercised by any officer pretending to officiate therein. The Constitution simply provided for the appointment of District Judges and attorneys, whenever a District Court should be created and organized by an Act of the General Assembly, and defined their jurisdiction, when so appointed, under the provisions of such Act. *
The result of the investigation of the question, involved in this branch of the case, therefore, is that until the District Courts were created, and organized by law, or in the language of the Constitution, “established bylaw,” there was no judicial power vested in that Court by the Constitution, to be administered, performed, or executed by the appointment of either District Judges or District Attorneys, for that Court. But when the District Court was established by law on the passage of the Act .of 1870, then it became the duty of the Governor to appoint the officers of that Court, in the manner required by that Act, the same being consistent with the Constitution, not to fill a vacancy, because none existed in that newly established Court, but to have made an original appointment of Judges and attorneys for that newly established Court, for the term of four years, xoith the advice and consent of the Senate, as required by that Act, so as to have perfected the complete organization of the District Court, as contemplated by the Constitution, and as required by the Act of 1870, and not otherwise. Until the District Court had been organized by the appointment of the officers thereof, as required by the Act of 1870, there was no office in that Court which had become vacant in the sense and meaning of the Constitution, whieh would authorize the Governor to fill it as a vacant office. • The appointment of the defendant in error as District Attorney of the District Court of the Eleventh Senatorial District, by the Governor, under the *110statement of facts disclosed by the record, was not only without authority of law, but in express violation thereof, as prescribed by the Act of 1870.
The next question to be considered is whether the Act of 28th October, 1870, organizing the District Court, is a legal and valid law, according to the provisions of the Constitution of 1868. This is the first time this question has been presented to this Court for adjudication, and it has received that consideration which its importance demands. By the third Article of that Constitution the legislative power of the State is vested in a General Assembly, consisting of a Senate and House of Representatives. By the third paragraph of the first section of the third Article of that Constitution, it is declared that “ Ho session of the General Assembly, after the second, under this Constitution, shall continue longer than forty days, unless prolonged by a vote of two-thirds of each branch thereof.” By the thirty-second section of the first Article of that Constitution, it is declared that “ Legislative Acts in violation of this Constitution are void, and the Judiciary shall so declare them.” The first inquiry to be made is, whether the Act purporting to be an Act of the General Assembly, passed on the 28th of October, 1870, organizing the District Court, was passed at a session of the General Assembly after the second session thereof, under the Constitution of 1868. The first sessiou of the General Assembly under that Constitution, as appears from the published Journals thereof, commenced in July, 1868, and adjourned sine die on the 6th day of October, 1868. The second session of the General Assembly under that Constitution commenced on the 13th day of January, 1868, and adjourned sine die on the 18th day of March, 1869. The third session of the General Assembly under that Constitution, commenced on the 10th day of January, 1870, and was adjourned by the proclamation *of the Governor on the 25th day of October, 1870. In Foster vs. Daniels, (39 Georgia Reports, 40,) this Court unanimously held and decided that the *111Constitution of 1868 took effect and went into practical operation in this State on the 21st day of July, 1868. The sessions of the General Assembly of the State of Georgia held in 1868, 1869 and in 1870, were necessarily held under the Constitution of 1868, which the members thereof took an oath to support, and could not have been held under any other Constitution, as the General Assembly of the people of Georgia. The Judges of this Court, whose offices were created by that Constitution, were appointed and confirmed by the Senate of the General Assembly at its session in 1868, under this Constitution ; for that purpose, at least, it has been recognized as a session of the General Assembly under this Constitution, and for that purpose it is presumed that the session of 1868 will continue to be recognised as a session of the General Assembly under this Constitution. If the session of the General Assembly in 1868 was a session under this Constitution for that purpose, why was it not a session under this Constitution for all other legitimate purposes, and to be counted as such ? The truth is, and such is the historical fact apparent on the face of the public records of the State, that the session of the General Assembly held in 1868 was the first session thereof held under the Constitution of 1868 ; that session of the General Assembly enacted laws under this Constitution for the government of the people of Georgia, imposed taxes on them under this Constitution, and ¿>assed an Act to lay off a homestead under this Constitution; shall they now be told that the session of 1868 was not a session of the General Assembly under this Constitution ? The stubborn facts contradict the unauthorized assumption. The session of the General Assembly, then, which met on the 10th day of January, 1870, was the third session thereof under the Constitution of 1868, and consequently was a session after the second, under that Constitution. The second inquiry to be made is, whether the Act in question was passed after the expiration of forty days from the commencement of the third session of the General Assembly, and, if *112so, whether that session was prolonged by a vote of 'two-thirds of each branch thereof, as required by that Constitution. By reference to the Journals of the General Assembly, as published, which this Court is bound to recognize under the provisions of the 3762d section of the Code, the third session of the General Assembly under the Constitution of 1868 was commenced on the 10th day of January, 1870. The Act in question is dated on the 28 th day of October, 1870, more than forty days after the commencement of the third session of the General Assembly under the Constitution of 1868. After a careful examination of the Journals of the General Assembly, it nowhere appears therefrom that the time was prolonged by a two-thirds vote. Indeed, it was not contended on the argument that the session was prolonged by a two-thirds vote, as required by the third paragraph of the second section of the third Article of that Constitution. The Constitution of the State is the organic law thereof, which creates the several departments of the State government, and limits and defines the powers and duties of each department thereof, the Executive Department, the Legislative Department and the Judicial Department. The Legislative Department of the State government has no power or authority to enact laws or to perform other legislative acts for the government of the people in any other manner than that prescribed by the Constitution, and if it shall do so, such pretended laws or other acts are not binding on the people, but are void, and it is expressly made the duty of the Judicial Department of the government to so declare them in all cases, except as to the election returns and qualifications of the members of the General Assembly; each House thereof is made the exclusive judge of those questions, by the fourth section of the third Article of the Constitution. The limitation of the time of each session of the General Assembly, as prescribed in the Constitution, was a wise one, intended for the protection of the people against unnecessarily prolonged, expensive sessions of the General Assembly. “ No session of *113tlie General Assembly, after the second, under this Constitution, shall continue longer than forty days, unless prolonged by a vote of two-thirds of each branch thereof,” is the mandatory language of the Constitution. It necessarily follows, therefore, that all pretended laws purporting to have been passed by the General Assembly at its third session in 1870, after the expiration of forty days from the time of the commencement of that session are void, unless it is clearly shown that the session was prolonged for a longer period than forty days, by a vote of two-thirds of each branch thereof, which it was not pretended was done, and the Journals of the two Houses furnish no evidence of that fact. And the legal presumption is that no such vote was taken, inasmuch as each House is required, by the Constitution, to keep a Journal of its proceedings, and to have the yeas and nays recorded thereon, as to all questions requiring a two-thirds vote, and publish it immediately after adjournment. The mandatory language of the Constitution is clear and explicit, that “No session of the General Assembly, after the second, under this Constitution, shall continue longer than forty days, unless prolonged by a vote of two-thirds of each branch thereof;” and it is equally binding on Governors and governed, legislators and people, and the Judges of the Courts. This clause of the Constitution is and was intended to be as binding and obligatory on the Legislature, Executive and Judicial Departments of the State government as any other clause thereof, and canuot be ignored without a palpable violation of it.
It is said, if there is any reasonable doubt as the validity of a law under the provisions of the Constitution, it is the duty of the Courts to decide in favor of its validity. But what is a conscientious Judge to do when he has no grounds on which to base such a doubt? If I should declare that I doubted the fact of my own existence, or that two and two made four, the sincerity of that doubt might well be questioned. So, if I should declare that I doubted as to what are the clear words and meaning of the Constitution before *114recited, or that it was the third session of the General Assembly under the Constitution of 1868, which pretended to enact the law in question, or that it was passed after the expiration of forty days without a two-thirds vote of both branches of the General Assembly to prolong the session, or that the State was legally reconstructed under that Constitution on the 21st day of July, 1868, as was unanimously decided by this Court, in Foster vs. Daniels, then the sincerity of all such doubts might also well be questioned, for the simple reason that there are no grounds on which to base such doubts. If I should express doubts as to the plain unambiguous words of the Constitution, or as to what was the true intent and meaning thereof, or as to the fact that the session of the General Assembly of 1868 was held under the Constitution of 1868, or whether the mandatory requirements of the Constitution had been complied with, so as to make the pretended Act of the General Assembly, now in question before the Court, a valid law in pursuance of that Constitution, such expressed doubts, on my part, in view of the plain facts of the case, however plausible the pretexts therefor might be, would be open to a searching criticism by the people of the State, whose fundamental law, intended for their protection, has been so flagrantly and recklessly disregarded in the pretended enactment of the Act of 1870, organizing the District Court. The question is not who called the General Assembly of the State of Georgia to hold its session in 1868, or who administered the oath to its members, but the question is, under what organic law of the State did the General Assembly thereof hold its sessions in 1868, 1869 and 1870. Did the General Assembly of 1868 hold its session under the Constitution of 1868, and if not, under what Constitution was that session held? If the General Assembly of 1868 did hold its session under the State Constitution of 1868, then that was its first session under that Constitution. It is an indisputable fact, that the officers of the State, created by that Constitution, including the Judges of this Court, as *115well as the Judges of the Superior Courts, were appointed and confirmed by the Senate of the General Assembly at its session in 1868, under this Constitution. It is also an indisputable fact that the people of Georgia have been taxed to pay the expenses of that session of the General Assembly under this Constitution. The question recurs, was the session of the General Assembly in 1868 held under the Constitution of 1868 ? In view of the plain incontrovertible historical facts, well known to our entire people, to state the proposition, is to decide it.
But it has been said that this is a political question of which the executive and legislative departments of the government are the judges, and not the judicial department. That argument amounts simply to this: that, although the executive and legislative departments of the State government may usurp power and exercise authority not conferred on either of them by the Constitution, still, as such usurpers, they are the exclusive judges to determine the validity of their own usurpations, whenever the individual rights of the citizens of the State are injuriously effected thereby. Such is not the fundamental law of the people of Georgia. Their Constitution expressly declares that legislative acts in violation of their Constitution, or the Constitution of the United States, are void, and the Judiciary shall so declare them. The Constitution of the people of Georgia does not contemplate that the executive and legislative departments of the government shall be the judges of their own usurpations in the pretended enactment of laws for their government, in violation of that Constitution. This duty is expressly devolved on the judicial department of the State government; and whenever the officers of that department shall fail or neglect to perform their appropriate functions and sworn duties, in regard to such usurpations, the people of the State will have no legal protection for their persons or their property, as they may soon discover, to their irreparable injury and damage. If the Constitution of the State is not to be observed and regarded in the *116enactment of laws for the government of the people thereof, then there is no practical use or benefit resulting to them in having a Constitution, limiting and defining the powers and duties of their agents created by it. "Vattel, that eminent civilian, has truthfully said, that “to attack the Constitution of the State, and to violate its laws, is a capital crime against society, and if those guilty of it are invested with authority, they add to this crime a perfidious abuse of the power with which they are entrusted.” This Court, in Solomon vs. Commissioners of Cartersville (41 Georgia Reports, 157,) unanimously decided that an act of the General Assembly, which was not signed by the Governor within the time prescribed by the Constitution, was not a binding law. In that case this Court said: “The Constitution of the State is the fundamental law of the State, and if bills introduced into the General Assembly are not passed and approved in accordance with the requirements and provisions of that Constitution, they have no binding force or authority upon- the people thereof as laws.” In view of the obligation imposed on me as a judicial officer, to support and maintain the Constitution of the State, and for the reasons heretofore expressed, I am of the opinion that the judgment of the Court below, in this case, should be reversed on both the grounds specified in the bill of exceptions.