(concurring.) The facts in this case are as follows : H. D. Palmer was at the general election in September, 1902, elected to the office of circuit clerk of Lincoln County. On the 21st day of October, 1902, he duly qualified and entered upon the duties of the office, and has continued to discharge the duties thereof up to this time. At the general election in September, 1904, B. A. Meroney was elected to the same office, but he died on the 6th day of October, 1904, before he received his commission and before he had qualified or entered upon the duties of the office. Afterwards on the 31st day of October, 1904, the Governor of the State appointed R. R. Rice to the office,' and issued a comriiission to him as circuit clerk of Lincoln County. Palmer, who had possession of the office, claimed that he had the right to continue in office until his successor was elected and qualified, and refused to surrender it to the appointee of the Governor, and Rice brought this action in the circuit court to recover possession. The circuit court decided against Rice, and he appealed.
There are two questions presented by this appeal. (1) Whether Amendment No. 3 to the State Constitution, which authorizes the Governor to fill vacancies by appointment, was legally adopted. (2) If this amendment has been adopted, and is a part of the Constitution, whether there was any vacancy in the office of circuit clerk of Lincoln County that the Governor could fill by appointment.
1. As to the first question: The amendment was duly submitted at a general election. The returns on the election were sent to the Secretary of State in sealed envelopes, who presented them to the Speaker of the House of Representatives, by whom they were opened and counted in the presence of the General Assembly in joint convention assembled, and the result declared that the amendment had been duly adopted by the people of the State. This was a decision of the question by the duly constituted and proper tribunal, and I do not think we can go behind or question the correctness of that decision in this proceeding. But, as that matter has been fully discussed by Mr. Justice McCulloch, I shall not do more than say that I concur in his opinion, and in the conclusion that he has reached on that point. See Ex parte Drnley, 24 Ark. x.
If, however, as the majority of the judges have concluded, we are free to review this decision of the Speaker and the General Assembly, it seems to me that it was correct. There were polled 43,446 votes for the amendment to 40,207 against it. It thus received a clear majority of over three thousand votes cast on that question.
The section of the Constitution which directs how amendments shall be adopted provides that the proposed amendment shall be published “for six months immediately preceding the next general election for senators and representatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendment, the same shall become a part of this Constitution.” Const. 1874, art. 19, § 22.
Now, the words “if a majority of the electors voting at such election” may mean either a majority of the electors voting for senators and representatives, or they may mean a majority of all electors voting at that general election, whether for the amendment or for any of the candidates voted for at that election, or they may mean a majority only of the electors voting on the question of the adoption of the amendment. As we have stated, the amendment received a majority of over three thousand of the votes cast on that question. It is not shown how many votes, were cast for senators and representatives. The only thing shown against the amendment is that the amendment did not receive a majority of the votes cast for Governor at that election. So, to hold this amendment invalid under the facts of this case, we must conclude that to adopt an amendment the Constitution requires that it shall receive the votes of a majority of all the electors voting at that election, whether for the amendment, or for senators and representatives, or for any of the numerous officers voted for at the general election. And this is-what a majority of the court holds; and as the number of those voting for the amendment is not equal to a majority of those voting for Governor, the court holds that the amendment was not legally adopted. I dissent from this conclusion.
If the framers of the Constitution intended that, in order to adopt an amendment, there should be a majority, not only of those voting for the amendment, but of all who voted at the election, whether for senators, representatives or ' other officers, it seems to me they would have used language which would have put the matter beyond question. The usual rule, when an officer is to be elected or a question is to be settled by a majority vote, is to consider only those votes cast for that office or on the particular question to be decided. All voters who absent themselves, or who, being present, do not vote on the question, are presumed to assent that the matter may be decided by the majority of those voting unless the law under which the election is held clearly shows to the contrary. Vance v. Austelle, 45 Ark. 400; Carroll County v. Smith, 111 U. S. 556; Cass County v. Johnson, 95 U. S. 360; 15 Cyc. 388; 10 Am. & Eng. Enc. Law (2 Ed.), 754.
This principle, it seems to me, applies not only when the question is submitted at a special election, but also where the law requires it to be decided by a majority vote at a general election. The object in requiring the submission to be made at a general election is that at such an election more of the electors will attend and vote, and thus a fuller expression of the opinion of the electors will be secured. But if, after attending, any of them choose to vote for certain candidates, and not to vote for or against the amendment, it should be presumed that they assented to the decision of the majority who did vote thereon. Their failure to vote should not be allowed to defeat the will of those who do vote, unless the meaning of the Constitution to that effect is clear. Vance v. Austelle, 45 Ark. 400; Rex v. Foxcraft, 2 Burrow, (Eng.), 1017; Walker v. Oswald, 68 Md. 146; Montgomery County Fiscal Court v. Trimble, 104 Ky. 629; Gillespie v. Palmer 20 Wis. 572.*
In discussing a question of this kind in a recent case the Court of Appeals of Kentucky said: “It is a fundamental principle in our system of government that its affairs are controlled by the consent of the governed; and to that end it is regarded as just and wise that a majority of those who are interested sufficiently to assemble at places provided by law for the purpose shall, by the expression of their opinion, direct the manner in which its affairs shall be conducted. When majorities are spoken of, it is meant a majority of those who feel an interest in the government, and who have opinions and wishes as to how it shall be conducted, and have the courage to express them. It has not been the policy of our government, in order to ascertain the wishes of the people, to count those who do not take sufficient interest in its affairs to vote upon questions submitted to them. * * * Before reaching a conclusion that those who framed our fundamental law intended to change a well-settled policy by allowing the voter who is silent and expresses no opinion on a public question to be counted the same as the one who takes an interest in and votes upon it, we should be satisfied that the language used clearly indicates such a purpose. Montgomery County Fiscal Court v. Trimble, 104 Ky. 629, s. c. 47 S. W. 773. The court in that case held that a majority of those voting on .the question was sufficient, without regard to how many votes were cast for the various candidates voted for at that election. In doing so it overruled one or two earlier cases that had held to the contrary.
The simplest and most common way to submit a question for determination by popular vote is. to count only those who vote on that particular question. To require that a question submitted to a popular vote at a general election should be determined by the majority of the votes cast, not only for it, but for all of the varrious candidates voted for at that election, is such an inconvenient, awkward and unusual way of deciding questions by popular vote that we should not expect such a conception from the framers of our Constitution; much less should we expect that, having that idea, they would give not even a hint as to how the majority of all the electors voting at a general election for so many different offices, township, county, district and State, should be determined.
Certainly, no such construction should be adopted unless the language clearly shows that such was the intention. But it does not do so. If, leaving out all other considerations, we stick alone to a close technical meaning of the words used, they may be said to require a majority of all electors voting for senators and representatives. There would be something definite and tangible about such a rule, much more in consonance with the character of the framers of the Constitution, whom the majority of the court speak of as men of “positive and strong convictions,” “fond of detail” and “explicit limitations” and users of “plain and simple English,” than what the court holds that they intended. For the court, after having complimented those men in that way, proceeds to hold that they did a thing the very opposite of what one should expect from men of that kind. We should expect of such men that they would require that the adoption of the amendment should be determined by the votes on that measure alone, either by a simple majority or by a two-thirds majority, if thought necessary, for that would be definite and certain, and would exclude any possibility of mistake. It is possible that men of that kind might make a majority of those voting for senators and representatives or for some other office the test, but it seems to me inconceivable that they should make the test a majority of all the votes cast for the numerous offices voted for at a general election, without giving any rule by which such majority could be determined. For-that would be so general, inexplicit and impracticable that the Legislature would be compelled to provide some method by which such majority could be approximately determined. Surely men of “strong convictions,” “fond of detail” and “explicit limitations” would not have left their work, on such a vital point, in a condition that it must at once be retouched by the legislative hand. Either the majority of the court are mistaken in the character of those framers of the Constitution, or they are mistaken in the meaning of their language. I think they are mistaken in the meaning intended to be conveyed.
As before stated, the simplest, most direct and the most common way to determine a question by popular vote is to consider only those who vote on that question. If there are others who do not vote, they, to quote the language of an old case by a great judge, should be held “to acquiesce in the election by those who do.” Lord Mansfield in Rex v. Foxcraft, 2 Burrow, 1017.
The natural presumption, where there is 'any doubt, should be that the makers of the Constitution intended to follow the usual rule, and to require for the adoption of an amendment a majority of those voting on that question. In my opinion, the words, “if a majority of the electors voting at such election adopt the amendment,” refer to a majority voting on the question of the adoption of the Constitution. This language has been so construed by the Speaker and the General Assembly, not only when the returns on this amendment were before them, but as to the several other amendments that have been declared adopted. These amendments have for years been treated as valid parts of the State Constitution. Appointments made by the Governor by virtue of this amendment have been received by the people of the State as valid, and have been recognized as such by this court. Childers v. Duval, 69 Ark. 336. Whether the decisions of the Speaker and the General Assembly on the adoption of these amendments is conclusive or not, they are certainly persuasive, and every reasonable doubt should now be resolved in their favor. When this rule is applied, it seems clear to. me that this amendment should be sustained. I cite cases the reasoning of which tends more or less to support this view, though, this being a question concerning the meaning of our own Constitution, I attach no great weight to decisions from other States, for the language construed is seldom the same in all respects as that before us. Vance v. Austelle, 45 Ark. 400; Childers v. Duval, 69 Ark. 336; County of Cass v. Johnson, 95 U. S. 360; Carroll County v. Smith, 111 U. S. 556; Walker v. Oswald, 68 Md. 146; Montgomery County Fiscal Court v. Trimble, 104 Ky. 629; Gillespie v. Palmer, 20 Wis. 572; State v. Longlie, 5 North Dakota, 594; State v. Grace, 20 Ore. 154; Smith v. Proctor, 130 N. Y. 319; Metcalfe v. Seattle, 1 Wash. 303.
There are other cases to the same effect as these, and as many, probably more, cases to the contrary, one of the best considered and ablest being the decision in Knight v. Shelton, 134 Fed. 423, delivered by the United States Circuit Court for the Eastern District of this State. But for the reasons stated, I am unable to concur in the conclusion reached in that case and by the court in this case, for in my opinion only a majority of those voting on that question is necessary to adopt an amendment to our Constitution.
As I think that'this amendment is now a valid part of our State Constitution, it follows that in my opinion the Governor has power to fill a vacancy in a county office by appointment, and I shall proceed to consider the question as to whether there was a vacancy in the office of circuit clerk of Lincoln County to be filled.
A vacancy in an office may be caused by the death, resignation or removal of the official holding the office, or by the creation of a new office. Smith v. Askew, 48 Ark. 89. “As a ’general rule, there is á vacancy in office whenever there is no incumbent to discharge the duties of the. office, that is whenever the office is empty or unfilled; but as long as there is any one- authorized to discharge the duties of the office, the office is not to be deemed vacant so as to authorize the exercise of the power to fill vacancies in office.” 23 Am. & Eng. Enc. Law (2 Ed.), 348, 349; State v. Harrison, 113 Ind. 434, 3 Am. St. Rep. 663; People v. Edwards, 93 Cal. 157; Baxter v. Latimer, 116 Mich. 356.
Now, our Constitution provides that “all officers shall continue in office after the expiration of their official terms until their successors are elected and qualified.” Art. 5, § 19, Const. 1874. Meroney, who wa’s elected to fill the office of circuit clerk as successor to Palmer, having died before the expiration of Palmer’s term of office, and before he had taken the oath of office and qualified as such official, his death created no vacancy, for Palmer has, under the Constitution, the right to continue in office until his successor is both elected and qualified. If Meroney had been commissioned, and had qualified and entered upon the duties of the office, and then died, his death would have caused a vacancy in office. But he died before this. He had not been commissioned, and had not qualified, and held no office when he died, and, holding no office, his death created no vacancy. Palmer’s right to the office, until his successor is elected and qualified, is as clear as that of any clerk in the State. As there was no vacancy in the office, the Governor had no right to appoint, and his appointment conferred nothing upon his appointee,_ Rice. The judgment of the circuit court in favor of Palmer was correct, and for the reasons stated I concur in the judgment of affirmance. Mr. Justice Wood authorizes me to say that he also is of the opinion that there was no vacancy to be filled, and concurs in this opinion to that extent.
It is said in State v. Powell, 77 Miss. 583, that Gillespie v. Palmer had been overruled; but that seems to be an error. It was criticised in Bond v. Railroad Co., 43 Wis. 579, but the judge who did so was writing a dissenting opinion, and did not speak for the court.