ON MOTION FOR REHEARING.
C. T. Gandy,defendant in error, hied a motion for rehearing on the ground that the court has overlooked Civil Code (1910) § 4650, which provides: “The governor shall not issue a commission to any notary public ex-officio justice of the peace, unless it shall appear from the order of appointment that such appointment was made at the term of the court next preceding the vacancy, or at some succeeding term after such vacancy has occurred.” Movant points out paragraphs one, two, and live of the petition of Overton, where it is alleged that “In October, 1925, C. T. Gandy, a citizen of said county, was appointed notary public and ex-officio justice of the peace . . upon recommendation of the grand jury serving at the October, 1925, term. The four-year term of office provided by the commission so issued to the said C. T. Gandy expired on the 26th day of October 1929,” and that in pursuance of the “recommendation of the grand jury . . the presiding judge, on the 28th day of October, 1929, passed an order appointing the said A. E. Overton to the said office.” The motion for rehearing makes no complaint of any ruling made by this court, except in the respect just stated.
There are several reasons why no rehearing should be granted. First: The application of Code § 4650 was not mentioned anywhere in the record, or in the brief of either of the parties to the case. If that section has any bearing, it must be solely for the *569reason that inferentially the trial judge, in refusing to permit the information in the nature of a quo warranto to be filed, based his action, at least to some extent, on that section. This, however, is negatived by the very terms of the order passed by the judge, appointing Overton, and again in the opinion and judgment rendered by the judge, in refusing to grant the permit sought. Moreover, the brief for Gandy, defendant in error, expressly states that he does not contend that he has been appointed to hold beyond his term, and “he is ready to surrender the office upon the commission and qualification of his successor.” He admits the accuracy of the statements made in the bill of exceptions and the statement of the case in the brief of plaintiff in error, and that the same “presents all of the facts necessary for a full decision of all the* matters in controversy between the parties, and he would welcome a decision which would cover all the issues and make it unnecessary to bring the case again to this court.” He further states that “the Governor has not refused to issue the commission, but has delayed its issuance until a court of competent jurisdiction shall have had an opportunity to pass upon the legal qualifications of the plaintiff in error.”
Second: The Code section in question obviously was passed by the General Assembly to prevent premature recommendations and appointments for the office by trickery or fraud at such time as the public and the incumbent were unaware that applicants were seeking recommendation and appointment. The language of the section is not clear, but to give it a literal meaning would be to subvert the very purpose for which it was enacted. Moreover, the statute must be construed in the light of the constitution; and the constitution provides that when appointments to such office are made by the judges of the superior court upon recommendation of the grand jury, the appointees “shall be commissioned by the Governor.” The duty of making such appointment is on the judge, not on the superior court, and his action is not reviewable by the Supreme Court. Steinheimer v. Jones, 114 Ga. 349 (supra).
Third: If it be conceded that movant properly construes the Code section, then the order appointing C. T. Gandy in October, 1925, according to the facts alleged in the petition, was void, and Gandy had been holding the office for more than four years on a void appointment, with no title whatever to the office. It would *570necessarily follow from this that there has been a vacancy in the office from October, 1925, until the recommendation and appointment of Overton in 1929.
These seem to be sufficient reasons for overruling the motion, and it is so ordered.