dissenting. — We are asked by the information, in the nature of quo warranto, exhibited by the relator, John Gindrat Winter, to determine the constitutionality vel non. of so much of the act of the General Assembly of Alabama, of February 13, 1879, as provides for the filling of vacancies in the office of the judge of the City Court of Montgomery. — Acts, 1878-79, p. 418. The question has been zealously and ably argued by the counsel of the respective parties, and I approach its consideration, I trust, with a due sense of its importance, and in recognition of the principle that statutes are not to be set aside as offensive to the organic law, except for cogent reason.
The City Court of Montgomery was created by act of the General Assembly, as an inferior court, under the authority of the constitutional provision which will appear further on; and the act of the legislature of February 13, 1879, now in question (which was amendatory of previous acts on the subject), fixed the term of office of the judge at six years, as it had formerly been, and provided for his appointment, by the Senate, from three persons to be nominated to that body by the Governor. The second section of the act (the validity of which is now in controversy) provided, that “in case of any vacancy in said office of judge of said city court, such vacancy shall be filled by the Governor, and the person thus appointed shall hold the - office until the close of the next ensuing session of the General Assembly, and until his successor is appointed and confirmed.”
A vacancy in the office having arisen by the resignation of the incumbent, shortly prior to the meeting of the session of the General Assembly of 1896-97, the relator, Winter, was appointed by the Governor to fill it. At that time, there remained near two years of the *39current term of six years. Winter accepted the appointment, qualified and entered upon tlie discharge of his official duties, and continued therein, unmolested, until the close of the next ensuing session of the General Assembly, in February following. During the sitting of the Senate, the Governor, responding to the requirement of the act of February 13,1879, above copied, nominated to that body three persons, including the respondent, A. D. Sayre, as the persons from whom should be appointed a judge of the said city court. The Senate, likewise treating the said act as a valid enactment, received the nominations from the Governor, and appointed the respondent to be judge of said court. The relator, as we have said, now questions the constitutional validity of the enactment, and the proceedings under it, basing his contention upon alleged violations "of two constitutional provisions; and contending thereon,
I. That section 17, Article VI, conferred the power of appointment, in such cases, upon the Governor exclusively, covering the entire unexpired term of the office; and,
II. That the title of the act does not conform to the requirements of section 2, Article IV, that “each law shall contain but one subject, Avhich shall be clearly expressed in its title.”
In the division of the poAvers of the State government 'into three departments, the Constitution, in section 1, Article VI, ordains, that “The judicial power of the State shall be vested in the Senate, sitting as a court of impeachment, a supreme court, circuit courts, chancery courts, courts of probate, such inferior courts of lato and equity, to consist of not more than five members, as the General Assembly may from time to time establish, and such persons as may be by law invested with poAvers of a judicial nature.” (Emphasis mine.)
The remaining provisions of the article provide for the organization, jurisdiction, powers, rights, etc., of the seA'eral tribunals, and the judges thereof. Beaching sections 12 and 13, Ave find them devoted to providing how the judges of these tribunals are to be selected. Thus, by section 12, the justices of the supreme court, the judges of the circuit and probate courts and chan*40cellors shall he elected by the qualified electors, etc.; and by section 13, the judges of such inferior courts of law and equity as may be by law established shall be elected or appointed in such mode as the General Assembly. may prescribe.
To this point, no reference is made to vacancies in the offices of any of the judges, nor how the same shall be filled, but, after making some other essential provisions in sections 14, 15 and 16, we find section 17 introduced, devoted to that subject. It reads thus: “Vacancies in the offices of any of the judges or chancellors of this State shall be filled by appointment by the Governor; and such appointee shall' hold his office for the unexpired term, and until his successor is elected or appointed and qualified.” (Emphasis mine.)
These are the provisions of the Constitution which bear directly upon the first question presented, and are of controlling importance in its solution.
Preliminary to a discussion of the question presented, I remark, generally, that in the imrestigation of the constitutionality of an act of the legislature, it is the duty of the court to determine, first, what the Constitution, in express terms, or by just implication, means or requires, touching the subject of legislation under review, and this must depend upon the reading of the Constitution itself. The provisions of the enactment assailed, cannot be consulted to give interpretation, shade or coloring to the language of the Constitution, except in so far as the same may be regarded as the expression of opinion of a body, entitled to consideration at the hands of a court. The meaning and requirements of the Constitution being ascertained from the language of the instrument itself, taken as a whole, there is a general presumption that legislative enactments are conformable to them; and such enactments will be so held by the courts unless they plainly appear to be otherwise. Any reasonably fair construction of an act, conforming it to the Constitution, will be adopted, rather than an obnoxious one, though the latter might seem more plainly to have expressed the legislative intent.
In expounding the Constitution, it is elementary that the intention of the framers must be sought f-or in. and be deduced from a consideration of, every provision of *41tlie instrument having any legitimate bearing upon the question involved, giving proper effect to every word and clause. If a positive requirement, expressed in ordinary and unambiguous language, be found, effect will be given to it according to the ordinary meaning of the words employed, unless qualified by some positive provision of the context, or some provision clearly evincing, by implication, a purpose so to qualify it. In other words, the constitutional convention will be supposed to have understood ordinary words employed by it, according to their usual and ordinary signification, and a requirement of the instrument, couched in language of this character, conveying within itself a certain and definite meaning, will not be made to yield to implications which may be reconciled to the positive requirement, or which do not evince an adverse spirit, so manifest, as to force the mind to conclude that the positive requirement -was not intended to mean what it declared.
Again, sectional or other subdivisions of a constitution are, generally speaking, for the sake of method and convenience. The instrument itself is an entire thing, composed of its several subdivisions. In determining what its framers intended to ordain on a given subject, as a rule, we blot out subdivisions, and look to the whole, having any relation to the given subject, as one declaration; and if any part of the whole qualifies or explains another part, we recognize that effect and give it operation accordingly.
As said by Brickell, C. J., in Carroll v. State, 58 Ala. 396: “The safe rule of constitutional construction, is to regard, not so much the form or manner of expression, as tlie nature of its provisions, and the end to be accomplished, giving its words their just and legitimate meaning.”
These are elementary truths concerning the exposition of all written laws, constitutional or statutory, and in the light of them, it is proper to consider the special provisions now brought in question.
It is to be noticed tlxat said section 13, above referred to, viz., that which provides that, “The judges of such inferior courts of law and equity as may be by law established shall.be elected or appointed in such mode as the General Assembly xxxay prescribe,” is silent as to *42the duration of the terms of the judges, and as to vacancies occurring in their offices. The only express mandate of the whole provision is, that the judges referred to, shall be elected or appointed in such mode as the General Assembly may prescribe.
As to the term of office, it will not, I think, be doubted that the constitutional convention not only realized the implied, inherent power of the legislature, in the absence of action on its oavu part, to prescribe the terms of judges of such inferior courts, but that it actually contemplated that, whenever such a court should be established, the legislature would affix to the office of the judge a definite term. From the long history and practice of governments, in this country, anti as essem tial to orderly administration of government, in all its departments, fixed duration of official tenure is inseparable from the conception of a public office. The Constitution gave further evidence of this contemplation, when in section 22 of the same article, it provided that the clerks of such inferior courts shall hold office during the terms of the judge, etc. I doubt if a public office was ever created in this State, Avithout a provision fixing the term of the incumbent. It was fixed at six years, in the creation of the City Court of Montgomery, and such is and has ever been, the recognized official term of the judge of that court.
Nor can it be doubted, for an instant, that said section 13, uninfluenced by any provision of the context excluding the power, left open, and in full force, the implied, inherent power of the legislature to provide how vacancies in the office of a judge of an inferior court created by it, should be filled; and if there be, in the Constitution, no such restraining or qualifying provision, that implied power necessarily operates; and, of consequence, any mode of filling such vacancies Avhich the legislature might prescribe, would be unassailable. Placing the section, then, by itself, upon its broadest ground, it provides, expressly, that the legislature, when it establishes an inferior court, shall prescribe hoAV t'he judge thereof shall be elected or appointed, and, impliedly, how vacancies occurring in his office shall be filled.
*43So that, we see, plainly, the whole controversy turns upon the inquiry whether this implied authority is restrained or controlled by any other provision of the Constitution; and this inquiry narrows itself to one other, Adz.: Does the expression, “any of the judges or chancellors of this State ” found in section 17, include “judges of such inferior courts of law and equity, * * * * as the General Assembly may from time to time establish?”
Going back to section 1 of this judicial article, and the scheme of the convention, in creating and defining the judicial department of the State government, is apparent. The purpose, manifestly, was, first, to create, as fixed organisms beyond legislative control, such tribunals for the administration of justice, as would ordinarily and reasonably answer the necessities and demands of the people. These were to be the people’s tribunals, fixed by the organic laAv; irrepealable by any mere legislative power. They were intended to secure to the people the all important function of a stable and reasonably sufficient judicial system, without which Avell administered government could not exist. Hence, after declaring the functions of the Senate as a court of impeachment, section 1 established, as such fixed tribunals, a supreme court, circuit courts, chancery courts and courts of- probate; other sections defining their jurisdictions and poAvers; and, to render the system more efficient, the convention proceeded, in other sections, not only to form plans and machinery of organization, prescribe qualifications of officers, etc., but to adopt safeguards against legislative interference, touching rights of judicial incumbents, providing, for them, fixed and unalterable terms of official tenure, and, except as to judges of probate, securing to them a compensation for their services which shall not be diminished during their official terms; and to make these tribunals essentially the people’s, it was provided, as we have seen, in section 12, that the judges of them shall be elected by the people. Secondly: The conArention Avisely contemplated, indeed, experience had taught its members, that recurring exigencies, fluctuations of trade and business, etc., would give rise, in some localities, to necessities for additional tribunals, of greater *44or smaller jurisdiction, and of longer or shorter duration, hut which it was not in the wisdom of the conven-. tion to well anticipate, and not within the economy of the State to provide as permanent courts. Hence, to meet these wants, as they might arise, the convention left it to the legislature to provide such additional tribunals, with such jurisdiction, either of territory or subject matter, and to be continued in being so long, as, in its wisdom, might be determined. It thus seems plain, why no term of office was fixed, by the Constitution, for the judges of these courts; for the term, if so fixed, might extend beyond the existence of a necessity for the continuance of the court; and why such judges were not required to be elected by the people; for a court might necessarily be created at a time when no general election was near at hand, necessitating a special election, howsoever limited in’jurisdiction and importance the , court might be.
But, notwithstanding these large powers given to the legislature, in respect of these inferior courts, it is of the utmost importance to remember, that said section 1, which ordains óf what the judicial department of the State shall consist, declares, in terms incapable of two meanings or constructions, that these inferior courts when established shall constitute a part of the State judicial department; and the judges thereof, when elected or appointed, are as much' a part of the State judiciary — “judges of this State” — as the judges of this —the Supreme Court — or any other court defined by the Constitution as being a part of the judicial clepartment. This is not only conclusively shown by said section 1, but it is enforced ancl emphasized by provisions which follow, regulating, in certain respects, such inferior courts. Thus, as in section 13, providing how the selection of the .judges of inferior courts shall be made; and, as in section 14, that judges of the city court" shall have been citizens of the United States and this State for five years, next preceding their election or appointment, and shall not be less than twenty-five years of age, and learned in the law; and in section 16, that the judges of the inferior courts, within their respective jurisdictions, shall be conservators of the peace; and, as in section 18, regulating the appointment of special *45city court judges when the incumbent is incompetent to sit in a cause; and, as in section 20, which provides that “No judge of any court of record in this State shall practice law1' in any court of this State, or of the United States;” and lastly, as in section 22, that the clerks of said inferior courts shall be appointed by the judges thereof, and shall hold office during the terms of the judges making such appointments.
I will remark just here, in passing, in reference to said section 20, that, in laying its injunction upon the members of the judiciary engaging in the practice of law, it uses, practically the same general character of expression, to denote the judges intended to be restrained from practicing law, as is used in section 17, in reference to the filling of vacancies. Section 20, has, of course, no reference to judges (if there were such) who are not State judges — judges recognized by the Constitution as being members of the State judiciary' — -and yet, no one would, for a moment, insist that the inferior court judges are not such as are restrained by this provision from practicing law. If there is a practical difference between the manner in which the judges who are intended to be restrained from practicing law are designated by section 20, and the manner in which section 17 defines the judges who are subject to its provisions, as to vacancies, I am unable to perceive it; and as the majority hold that, "any of the judges of this State/-' as expressed in section 17, does not include inferior court judges, it seems to me to follow, upon the same principle, that, “ho judge of any court of record iu this State/’ as expressed in section 20, does not include them, and that, consequently, those judges may practice law. I cannot agree to either conclusion. Beyond all question, it seems to me, these courts, and the judges thereof, by virtue of these provisions, are of the same constitutional recognition, as parts of the State judicial department, and State judiciary, as any of the other courts or judges provided for. It would have been impossible for the convention to have demonstrated the fact, more effectually, unless it had said, in set phrase that “the judges of said inferior courts shall be deemed judges of the State.” Hence, it would, I think, be doing violence to a demonstration to say, when the framers of *46the Constitution wrote and adopted section 17, and declared therein that vacancies in the offices of “any of the judges or chancellors of this State” shall be filled by appointment by the Governor, etc., that they did not intend to include judges of the inferior courts. Can it be conceived that a deliberative body, so solemn as a constitutional convention, met to ordain a system of government for a great State, used words so plain and unambiguous, as to be capable of but one grammatical, logical, or practical meaning — words not in the least conflict with any other provision of the instrument, but in strict accord with every other provision thereof — without intending the natural import of the words so used? I have yet to find a canon of construction by which such a proposition may be supported.
Following the general rules of construction expressed in a former part of this opinion (the correctness of which, I apprehend, none will deny), let us, as a further test, do away with form and method, strike out sectional numbers, bring the sections, material to be considered, together as one provision, and formulate it thus:
“The judicial department of the State shall consist of the Senate, sitting as a court of impeachment, a supreme court, circuit courts, chancery courts, courts of probate, such inferior courts of law and equity, to consist of not more than five members, as the General Assembly may from time to time establish, and such persons as may be by law invested with powers of a judicial nature. The judges of said supreme, circuit and probate courts, and chancellors, shall be elected by the people, and shall hold their offices for six years, which shall not be affected by any change afterwards made by law in any circuit, division or county as to the mode or time of election; and, except the judges of probate, shall receive for their services a compensation which shall not be diminished during their official terms. The judges of said inferior courts of law.and equity shall be elected or appointed in such mode as the General Assembly may prescribe; and vacancies in the offices of any of the judges or chancellors of this State, shall be filled by appointment by the Governor,” etc. -Does not this fdrmulation truly (almost literally) state the sub*47stance and portray the meaning of the several sections which bear upon the question under discussion? There cannot, it 'does seem to me, be a well founded doubt of. it; and, if not, the correctness of the conclusion I am endeavoring to maintain cannot be denied.
In the application of section 17 to them, there can be, in my opinion, no distinction whatever, between sections 12 and 13 of this judicial article. Section 12, which provides for election of certain of the judges by the people, standing alone, leaves open, and in force, the Implied, inherent power of the legislature to provide the .mode of filling vacancies occurring in the offices of those judges, precisely as I said was true of section 13, which provides that the judges of the inferior courts shall be elected or appointed in such mode as the General Assembly may prescribe. The implications of both sections are the exact equivalents of each other. If, because section 13 provides that inferior court judges shall be elected or appointed, in such mode as the General Assembly may prescribe, it necessarily follows that the filling of vacancies in their offices shall be subject to the same rule, why, upon the same principle, should w» not declare, that because section 12 provides that the other judges shall be elected by the people, it follows that vacancies in their offices shall be filled in the same way? I think neither conclusion is sound. Eliminate section 17, and it would be within legislative power to prescribe how vacancies in the offices of any of the judges shall be filled; those elective by the people under section 12, as well as those elective or appointive, at the will of the legislature, under section 13. Then, (if I may be permitted to be emphatic) what conceivable, possible reason is there for saying that section 17 is applicable to the elective judges under section 12, but not to those elective or appointive, at the will of the legislature, under section 13? Why not as well say that it is applicable to the latter and not to the former? If section 13 is to be isolated from the other provisions of the Constitution, and the implied legislative powers .which arise from it, so isolated, are to be regarded as in force, why should section 12 be not, in like manner, isolated, and its implied legislative powers regarded as *48in force also, leaving section 17 no field of operation at all?
When we consider reasons and motives for the adoption of section 17, it was most natural and proper, I think, for the convention to apply it to the entire State judiciary. The section is both a self-executing legislative provision, and a limitation upon the power of the legislature. It places it beyond legislative power to provide for filling vacancies in the offices to which it refers. — Fox v. McDonald, 101 Ala. 51. The manifest purpose was to fix a convenient, expeditious and inexpensive method of filling these vacancies, by conferring the appointing power upon the chief executive, placing it beyond the power of the legislature to require expensive and disturbing special elections, or other less convenient or expeditious means of filling them. It was of the highest importance, and so contemplated by the convention, that the administration of justice should not be seriously delayed by sudden or unforeseen casualties or events occurring to render vacant judicial offices; and this incentive applies, with equal force, in respect of all courts organized and engaged in the administration of justice — a city or other inferior court of law or equity, as well as a circuit or chancery court. But, whatever may have actuated the convention, it is certain that its members, impelled by some motive, saw it wise and proper to withdraw from the control of the legislature the subject of filling vancancies occurring in the offices of “any of the judges or chancellors of this State,” and to regulate that subject themselves. The vei’y fact of the constitutional requirement that vacancies in the State judicial offices shall be filled by the Governor, is conclusive of some necessity for withdrawing legislative control of the subject; and whatever that necessity may have been, none can be thought of which is not as applicable to judges of city and other inferior courts, as any other tribunals. Can we conceive of a necessity for a vacancy in the office of the circuit judge who presides in Montgomery county, for instance, or in the office of the judge of probate, being filled by appointment by the Governor, which does not apply, with the same force, to the City Court of Montgomery, for instance? If it was unwise, I repeat, that some of our tri*49burials, engaged in administering justice, whenever a sudden, unexpected vacancy might occur by death, resignation or removal, should be subjected to the changing notions of recurring legislatures, in respect of filling vacancies, entailing, it might be, delays of justice, public inconvenience and expense, it was, in the same degree, unwise to have our city and other important tribunals so subjected. So, the Constitution, not only,, in plain, unambiguous and unequivocal language, made the provision apply to all alike, but it was most natural and wise that it should have done so. We know, from many years’ experience, that our city courts, which have existed in the larger cities, are among our most important tribunals. Their jurisdictions usually' combine both law and equity, concurrently with the circuit and chancery courts, and, territorially, extend to the limits of the counties in which they exist. They administer the same public justice of the State that the circuit and chancery courts do. .
It is insisted that the clause of the act of 1879, which would provide for the filling of vacancies in the office of the judge of the City Court of Montgomery, is no more than the exercise of the power which it is said that the legislature had, (a power which no less a judge than the eminent Ruffin, of North Carolina, most ably combated. — Hoke v. Henderson, 4 Dev. Law, 104; 25 Am. Dec. 677), of changing the term of the office of the judge of the said court — a power thought to be akin to that of abolishing the court entirely. This is evidently a mistaken conception. The act did not touch the subject of changing the term of office; indeed, it expressly re-affirmed pre-existing acts fixing the term at six years. There was no indication, either in the title or tlie act itself, of a purpose to change the term. The term had the same beginning and the same ending after as before the act. The act, conceding it valid, in its entirety, did not pretend to have such an effect, as that the term which Winter was filling out as the appointed successor of the successor of the incumbent in chief, would expire at the close of the ensuing session of the General Assembly; but its effect was such that Winter’s incumbency of the unexpired term should then cease — the remainder of the unexpired term of six years to be filled out *50by the appointee to be made by the Governor, by and with the advice and consent of the Senate. The changing of the duration of the term of an office, and the filling of vacancies during the term, are quite different subjects. The title of the act is “An act to authorize the Governor, by and with the advice and consent of the Senate, to appoint the judge of the City Court of Montgomery.” The court was then an existing tribunal, created long before, with the term of the-judge fixed by law at six years. This title, it is plain, has no reference to a change in the term of office. It relates alone to the appointment of the judge. This is not only true of the title, but there is not a word or expression in the act itself indicating any intention whatever to change the existing legal term of six years. The beginning and the ending of the term, I repeat, were the same as before the passage of the act. The first section provides that after the expiration of the term of the then incumbent (thus preserving his full term) the judge of said court shall be appointed, etc.; providing for his appointment by the Governor, by and with the advice and consent of the Senate, as before stated. The second section provides, that the judge, so appointed and confirmed, shall hold his office dor six years, and until the close of the session of the General Assembly at which his successor is appointed and confirmed. Here, it plainly appears, that the legislature intended that a successor of the said judge first chosen, shall be chosen by the Governor and Senate at the session next before the expiration of the term of six years of such first incumbent; and so on, thereafter, every six years; thus recognizing the six years term of the office. I suppose such has been the universally received interpretation of the act, and such the practice under it, ever since it was passed. By virtue of it, Judge Arrington was elected at the session of 1892-93, and his term will have expired at the close of the session of 1898-99. Those appointed on his resignation or death, were appointed, as in all other such cases, to fill vacancies — to fill out Judge Arrington’s unexpired term; and, in no sense, to take and hold new six-years terms of their own. The said section then proceeds with the clause, in controversy, to the effect that if a vacancy in the office occurs it shall *51be filled by tlie Governor, and tbe person appointed shall hold the office until the close of the next ensuing session of the General Assembly, and until his successor is appointed and confirmed. This is the clause which it is contended for respondent, that the legislature did not enact in the exercise of a power to provide for filling vacancies occurring in the term, but in the exercise of the power, not taken away by any provision of the Constitution, to change the dioration of the term, or to abolish the court entirely. It is manifest, to my mind, that this clause evinces no such legislative thought or intention. The subject of changing the official term as it was then fixed and established by law never entered into the mind of the legislature, enacting this clause. If the contrary contention should be accepted, let us see the results to which it would lead. For illustration: Judge Arrington was elected at the session of 1892-93; his term, as then fixed by law, was six years, expiring at the end of the session of 1898-99. If he had died, say, one year after entering upon his term, his successor to be appointed, under the act in question, to fill the vacancy, would hold until the close of the next ensuing session, and then, by virtue of tlie accident of Judge Arrington’s death, the existing law would be changed, the existing legal term of. six years would be cut down to two years, and a new term of six .years would then begin. If Judge Arrington had lived, say, three years of his term and then died, his successor, to fill the vacancy, would hold until the close of tlie next ensuing session, and then, by the same accident, the existing law would likewise be changed, and Judge Arrington’s term of six years would be cut down .to four years, and a new term would likewise begin. Again in the first contingency above mentioned, the new term which began tico years after the beginning of Judge Arrington’s term, would be filled by an incumbent in chief appointed by the Governor, by and with the advice and consent of the Senate, to hold the new term of six years; and, in the event of his death, say, a 3rear after his election, the same proceedings would go on as in the case of Judge Arrington’s death, and the person elected to succeed him, at the next session after his death, would, himself, be an incumbent in chief, *52also entitled to a full six years term. Thus it might he, that the six. years term, fixed by law, which Judge Arrington started out to fill, would be divided up into as many new terms, entered, upon by new incumbents in chief each beginning with the right of six years, but liable to end at any time, as there might be vacancies to occur by reason of the death, resignation or removal of a judge; and the length of these terms, which may be actually held, will vary according to the length of time the several incumbents may continue in office. The beginnings and ending of. the official terms of the judges of the City Court of Montgomery will dep.end on the contingencies of deaths, resignations and removals from office of men. Can any one suppose that the legislature ever conceived of anything so unusual and impracticable? No, if there had been any intention to make any change in the laAV, in this respect, there Avould have been at least some allusion to it, in the act. It is important that the terms of office haA7e a legally ascertained beginning and ending. The courts are required to take judicial notice of the officers of the State. They are bound to knoAV Avhen the term of every officer begins and when it ends. With the laAV in the remarkable shape above depicted, it might strain the judicial power of the courts to find out and Iciioav Avhen the term of office of a particular judge of the City Court of Montgomery began, and, surely so, when it Avould end. I quote here some pertinent observations of the Supreme Court of Missouri on this subject: “I. As to the first question : The phrase ‘term of office/ in ordinary parlance, means the fixed period of time for which the office may be held. And Ave have a statutory rule for the construction of statutes, requiring that, in construing statutes, ‘words and phrases shall be taken in their plain, ordinary or usual sense/ except that ‘technical words and phrases, having a peculiar and appropriate meaning in laAA7, shall be understood according to their technical import/ R. S. 1879, Sec. 3126.
“Going to the standards of our language, we find that a term means ‘the time for Avhich- anything-lasts; any limited time; the term of life.’ Webster’s Diet. And turning to authorities, they announce that ‘the expression, term of-office, uniformly designates a fixed and *53definite period, of time.’ — Anderson’s Law Dict., 1023; People v. Brundage, 78 N. Y. 403, 407; Baker, Governor v. Kirk, 33 Ind. 517. So that whether wé take the phrase ‘term of office,’ in its ordinary or popular sense, or in its technical import, it means one' and t'he same thing: ‘A fixed and definite period of time.’
“Of course, every such period of time, in order to be ‘fixed and definite,’ must have a point of beginning and a point of termination equally fixed and'definite. Now, if it can be ascertained when'the ‘term of office’ of the first appointee of the Governor under the revision of 1871) began, it would seem' not difficult to reach a cor-red; conclusion as to when the terms of office of the successive and subsequent appointees of the executive began and ended. '
“The statute is silent on the point as to the beginning of the first appointee’s term, and the reason' for this is most obvious, since, the power of appointment being lodged in the executive, it belonged to him in fact, if not in law, to determine the time of the inception of the actual official term of such appointee; the duration of that term was already fixed by law. But if the legislature, being possessed of the power, had fixed the date of the commencement of the first appointee’s official term, it would not be questioned that such initial point, being once made sure and steadfast, would recur at eA'ery corresponding period of two years. This must be true, or else the premises from which this conclusion is drawn,' sustained as it is by' authority, that a ‘term of office uniformly designates a fixed and definite period of time,’ must be false. As the legislature did not fix t'he date Avhen the official term of the first appointee under the new law was to begin, this date was necessarily left to be fixed by t'he appointing power; but, when fixed, the determination thus reached must have been as effectual in all its incidents and consequences as if previously made by the legislature. This also must be true, or else it must be true that the executive was incapable of fixing such initial point, 'and that, therefore, it never teas fixed, svlúch is an impossible, as well as an absurd, supposition.” — The State ex rel. Withers v. Stonestreet, 99 Mo. 361, 372.
*54At the time of the passage of said act the existing law required the judge of said court to be elected by the people, as circuit judges were. — Acts of 1863, p. 121; Acts of 1869-70, p. 47. The purpose of the act in question was simply to change that requirement by providing for the appointment of the judge in the manner therein specified. It had no other object.
It has been argued also, that to accord to said section 17 the meaning I give it, would be to declare that so long as the incumbent in chief was in office the legislature would retain its power to abolish the court, or to shorten the term of the judge, whereas, when the appointee of the Governor, to fill a vacancy, is in office, that power would not exist; producing the unnatural result of giving to the appointee a more stable tenure than had the incumbent in chief. This is an error growing out of a misinterpretation of the provision of section 17, to the effect that the appointee shall hold for the unexpirecl term. This provision does not undertake to point out what constitutes an “unexpired term.” It does not say that the appointee shall hold for the unexpired portion of the term for which the incumbent in chief was appointed or elected, as the same was fixed by law at the time of such election or appointment, nor anything of that import. It merely gives to the appointee of the Governor so much of the term, as fixed by law, as may lawfully remain after his appointment. If the court should be abolished the next day, his tenure would cease with it. If the legislature, (conceding it the power to do so) should shorten the term, his tenure would expire at the end of the term as so shortened.
I was, at one time, disposed to think that, under the act itself, the person appointed by the Governor, viz., the relator, by virtue of the provision that such an appointee shall hold until his successor is appointed and confirmed, was entitled to hold until the appointment of a judge, to be regularly made by the Governor and Senate, at the regular session for that purpose,.viz., the session'of 1898-99. A strict construction of the act might lead to this conclusion, but upon due consideration, I am of opinion that, taken in connection with the other limitation of such appointee’s tenure, viz., that *55he shall hold until the close of the next ensuing session of the General Assembly, a legislative intention is shown to'make the appointment provisional only, to be effectual until the Governor and Senate, could, by the meeting of the General Assembly, exercise their implied power of filling the vacancy. The principle is clear that the power to appoint to an office, in the absence of a provision to the .contrary, includes, by implication, the power to fill a vacancy in it, (19 Am. & Eng. Ency. Law, 430); and applying this rule to the present case, the Governor, by and with the advice and consent of the Senate, being invested with the appointing power, was impliedly invested with power to fill vacancies in the same manner. So that, if the act is not subject to the objection, that the Constitution confers npon the Governor the exclusive power to fill vacancies, and secures to the appointee the entire unexpired portion of the term, as I have endeavored to show is true, the course pursued by the Governor and Senate, leading to the appointment of the respondent, was the proper one, and the respondent is entitled to hold for the unexpired term.
This consideration also leads to the conclusion, that it is immaterial whether the other constitutional objection raised by the relator, viz., that the vacancy clause of the act was not included in the title, is well taken or not; for, if we eliminate that clause, as being unconstitutional, in the respect mentioned, the first section of the act, as I have said, impliedly authorizes the Governor, by and with the advice and consent of the Senate, to fill vacancies. There was in the statutes existing at the time of the passage of the act, so far as I am advised, no special mode provided for filling vacancies in the office of judge of this court, which, it can be said, was continued in force after the act. Prior to the act, the office was elective. By it, the office was made appointive, and the change carried to the appointing power, by implication, authority to fill vacancies.
Profoundly impressed, as I am, with the great importance of the principles involved in this controversy, and being unable to entertain a doubt, in my own mind, that my brethren of the majority are in error in the conclusion they announce,. upon the principal question *56herein discussed, I am, with diffidence, constrained to express this my piost earnest dissent.
Coleman, J., concurring.