dissenting. I can not concur in the statement of facts as appears in the headnote of the majority *259opinion. The statement of facts very plainly weaves into it matters of judicial decision which are to control the judgment to be rendered by the court. The case before us is an information in the nature of quo warranto, brought by William A. Ingram against Claude C. Pittman. Necessarily, as neither of these individuals recognizes the claims of the other, they appear in this litigation as mere individuals. It appears from the record that James A. McFarland was elected on November 3, 1936, as judge of the Cherokee Circuit, in an election in which Pittman was not even a candidate. On January 4, 1937, Governor Talmadge appointed Mr. Ingram to fill the vacancy caused by the death of McFarland on November 25, 1936. When Mr. Ingram demanded possession of the court-room, Mr. Pittman, having determined to hold the office to which Mr. McFarland had been elected, refused to be ejected as had been demanded by Ingram. The statement of facts in the headnote of the majority, to the effect that Mr. Ingram “presented his credentials to Judge Pittman, who declined to recognize the credentials or surrender the office,” contains a powerful negative pregnant adverse to Ingram, in that it assumes that '“Judge Pittman” is judge, and therefore that there is no vacancy to be filled, and that Ingram is at best nothing more than an interloper, subject to fine as for contempt of court. I concur, of course, in the opinion of the majority that provisions of the constitution are fundamental and controlling. “They rank above all legislative or executive powers in relation to the subject to which they refer.” In my opinion, it can not be denied that the death of Mr. McFarland created a vacancy in the office to which he had been elected, for the term beginning January 1, 1937. As to this, art. 6, sec. 3, par. 3, of the constitution of this State declares that “Every vacancy occasioned by death, resignation, or other causes shall be filled by appointments of the Governor until the first day of January after the general election held next after the expiration of thirty days from the time such vacancy occurs, at which election a successor for the unexpired term shall be elected.” Can it be said that the respondent is a successor of McFarland? Can it be said that as a holdover he is only the successor of himself?
In McElreath on the Constitution, § 1080, it is said: “By an amendment proposed in an act approved on the 6th day of Decern*260ber, 1895, and ratified at an election held on the 7th day of October, 1896, art. 6, sec. 2, was amended by adding a new paragraph thereto, to be known as paragraph 8, said paragraph to read as follows: ‘The Supreme Court shall hereafter consist of the Chief Justice and five associate Justices. The Chief Justice and the associate Justices of the Supreme Court shall hereafter be elected by the people at the same time and in the same manner as the Governor and the State-house officers are elected, except that the first election under this amendment shall be held on the third Wednesday in December, 1896, at which time one associate Justice shall be elected for a full term of six years, to fill the vacancy occurring on January 1st, 1897, by the expiration of the term of one of the present incumbents, and three additional associate Justices shall be elected for terms expiring respectively January 1st, 1899, January 1st, 1901, and January 1st, 1903. The persons elected as additional associate Justices shall, among themselves, determine by lot which of the three last-mentioned terms each shall have, and they shall be commissioned accordingly. After said first election, all terms (except unexpired terms) shall be for six years each. In case of any vacancy which causes an unexpired term, the same shall be filled by executive appointment, and the person appointed by the Governor shall hold his office until the next regular election, and until his successor for the balance of the unexpired term shall have been elected and qualified.’” This quotation, in the concluding sentence relating to vacancies, conforms to my opinion upon the subject, and determines that the person who is to fill the vacancy, if one should ever be held to exist, “shall hold his office until the next regular election, and until his successor for the balance of the unexpired term shall have been elected and qualified.” For this reason I can not concur in the concurring opinions of two of my much beloved associates, one of whom believes it a doubtful question whether the respondent in this case is to hold over “for the balance of the unexpired term,” and the other of whom deems it improper to express any opinion as to when or how a vacancy may ever occur.
After as critical consideration of the record and the assignments of error in the bill of exceptions as I am capable of making, I have reached the conclusion that the judgment of the learned judge in favor of the relator in the quo warranto proceeding, and *261ousting respondent, should be affirmed. The issue is entirely one of law. Pertinent facts by which the issues are to be determined are substantially not in dispute. It is admitted that respondent at the time of the election of his successor was the incumbent of the office of judge of the Cherokee Circuit. It is not denied that before the expiration of the term for which he was elected there was an election in which J. A. McFarland was, at the legal election of November 3, 1936, elected judge of said circuit. It does not appear that in the general election referred to he even had any opposition for the position. He was entitled, in virtue of that election, to have applied for a commission for a term commencing January 1, 1937, and running for only four years. Mr. McFarland did not apply for a commission or qualify, but died on November 25, 1936. The plaintiff in error contends that in the circumstances he is entitled to hold over and continue to be judge of the Cherokee Circuit. When the relator, Ingram, presented a commission from the Governor, the respondent refused to surrender his position. It appears from the record that at the time that Ingram was appointed and qualified and the commission was given him, his Excellency, Eugene Talmadge, was Governor of the State, and authorized to fill the office if a vacancy in fact existed. For this reason our decision must hinge upon the single question, did a vacancy exist, or was there no vacancy resultant upon the expiration of the term of Judge Pittman? The constitution, art. 6, see. 3, par. 3, declares: “The terms of the judges to be elected under the constitution, except to fill vacancies, shall begin on the first day of January after their elections. Every vacancy occasioned by death, resignation, or other causes shall be filled by appointments of the Governor until the first day of January after' the general election held next after the expiration of thirty days from the time such vacancy occurs, at which election a successor for the unexpired term shall be elected.” Code, § 2-3103. This provision clearly points out that where a vacancy occurs, it lasts no longer, even if there be an appointment by the Governor, than until the first day of January after the-next general election. Inasmuch aS our general elections are held every two years, there can be no such thing as the incumbent of an office holding on for any longer than the term fixed by the constitution, which would only be two years. Therefore there can not be such a thing as a *262holdover for the full term, of such nature as is mentioned in numerous cases cited by counsel for plaintiff in error. The case of Shackelford v. West, 138 Ga. 159, relied on by the respondent, differs on its facts from the case at bar. In that case the office of judge of the city court of Athens was not elected by the people, and had never been. West was appointed by the Governor, and Shackelford, who was commissioned by Governor Smith, was appointed by Governor Smith. The case now before this court relates to the filling of vacancies in offices which under the constitution are elected by the people in the first instance. A vacancy occurs when there is the absence of any person qualified to hold office, and the respondent says that he was qualified to fill this office, which statement alone would create a vacancy and defeat his claim as a holdover. If the respondent in this case is entitled to the office, whom does he succeed ? If he has a right to succeed himself, it must be by the claim as a holdover, which as we have pointed out is a claim without merit. If he is entitled to the office as a successor to come within the wording of the constitution, the question naturally arises, of whom is he the successor? Is he a successor of McFarland, the person who was elected without opposition in November, 1936 ? He can not be, for McFarland never qualified. He never was de jure judge of the Cherokee Circuit. He can not be successor of himself, as a holdover, nor can he be his successor in face of the fact that he claims to be a holdover. This court had under consideration the definition of the word “vacancy,” and the court unanimously defined “A vacancy, as that term is used in connection with official positions, implies the absence of any holder of the office. An office may be said to be vacant when it is -not held by- one legally entitled to discharge the functions and duties of the particular officer invested therewith. There may be three classes of vacancies: (1) A vacancy caused by a failure to elect or to hold an election. [And it can be well said, as long as McFarland though elected died before qualifying, the circumstances are tantamount to a-failure to have had an election.] (2) A vacancy caused by the failure of one appointed or elected to an office to qualify as provided by law [which does not alter but rather conforms to the first reason], (3) A vacancy caused by either death, resignation, or removal after the certain officer has been elected or appointed and may also have qualified.” *263Cason v. Harn, 161 Ga. 366 (supra). I am of the opinion that so much record, argument, and citations as are referred to in the brief for the plaintiff in error, as to statutory provisions relative to vacancies in office, are not applicable in the present case, for the reason that the constitutional provision upon the subject properly controls the conclusion reached by the trial judge; for art. 5, sec. 1, par. 14, of the constitution provides that “When any office shall become vacant, by death, resignation, or otherwise, the Governor shall have power to fill such vacancy, unless otherwise provided by law; and persons so appointed shall continue in office until a successor is commissioned, agreeably to the mode pointed out by this constitution, or by law in pursuance thereof.” Code, § 2-2614. The latter clause of this provision of the constitution can have no application to this case, because it is a provision as to who shall continue in office, and it provides that persons so appointed shall continue in office until a successor is' commissioned, etc., and, as appears from the record, the respondent did not derive his office originally from an executive appointment, but was elected by the people in 1932 for a term of four years and until a successor was appointed and qualified. There was no unexpired term of McFarland, who had been elected in the general election on November 3, 1936, and Pittman’s term expired by constitutional limitation on January 1, 1937. The framers of the constitution construed all of the provisions of that instrument together, as so clearly stated in the unanimous opinion of this court in Wellborn v. Estes, 70 Ga. 390. The members of the constitutional convention of 1877 never for a moment contemplated that the amendment which the people demanded in 1896, giving the election of their judges to the people, would be subverted, overthrown, and undermined by proceedings to install a holdover such as is suggested by the judgment of the majority. The only change effected by the amendment submitted by the legislature to the people in 1897, and adopted in 1898, was to extend the popular electorate to judges of the superior court, and to make more clear the verbiage of article 6, section 3, paragraph 3, of the constitution, which declares that every vacancy occasioned by death, resignation, or other cause shall be filled by appointment of the Governor until the first day of January after the general election held next after the expiration of thirty days from the time such *264vacancy occurs (in this case the general election of November, 1938), at which election a successor for the unexpired term shall be elected. Mr. Justice Hutcheson concurs in this dissent. .