(dissenting). We endeavored to make it plain in the case of Cobb v. Hammock, 82 Ark. 584, that it is only the absolute silence of the Constitution on the subject which left it open to the Legislature to empower the Governor of the State to temporarily fill vacancies in offices until special elections can be held. We reached this conclusion on consideration of the familiar principle that the Constitution of the State is a limitation upon the powers of the Legislature, rather than a grant of powers to it, and that as during the interim between the happening of a vacancy and the filling of it by special election, as required by the Constitution, great inconvenience might result if there should be no one to discharge the duties of the office, the Legislature possessed the power to provide a method of filling a vacancy during this interim because the Constitution did not forbid. But the Constitution is not silent as to the discharge of the duties of circuit judge during such interim. It provides that “whenever the office of judge of the circuit court of any county is vacant at the commencement of a term of such court, * * *; and if the judge of said court shall become sick or die or unable to continue to hold such court after its term shall have commenced,” etc., then the regular practicing attorneys in attendance may elect a judge to preside at such court. Article 7, section 21. This is a complete scheme for keeping the circuit courts in session and for providing judges to hold them, notwithstanding the fact that the office of circuit judge of the district may be temporarily vacant. I think this constitutional scheme is exclusive, and that the Legislature is powerless to provide a conflicting method. The 'Constitution says that if a circuit judge shall die or resign the attorneys in attendance at each term of the court shall elect a judge to preside during the term or the remainder of the term. The Legislature can not displace this provision by one to the effect that the Governor may appoint a judge, for to allow that would be to place the mandate of the Legislature above the Constitution. It may be conceded that the election of a special judge by the attorneys to preside during a term of court does not fill the office of circuit judge of the district, and that there are other duties of the office to be performed besides presiding over the court while in session, but it is manifest that this is all of the duties of the office which the framers of the Constitution intended should be performed by a temporary occupant during the short space of time necessary for the holding of a special election to fill the vacancy. They provided for the pressing and obviously essential things required of a circuit judge — that is, the keeping of the court open according to law— and left the other less pressing duties which might devolve upon a circuit judge jn vacation to await the incumbent selected by the people at the special election.
The framers of the Constitution of 1874 were jealous' of the power theretofore exercised by the Governor in appointing officers, and they manifestly intended to minimize that power by lodging it elsewhere, as far as it could be done conveniently to public service. I can not believe for a moment, in the face of the provision hereinbefore referred to, that they intended to leave it within the power of the Legislature to authorize the Governor to appoint a circuit judge. They never intended to deal with the subject by piecemeal by providing for the election by the attorneys of a judge to hold the court arid at the same time leaving it open to the Legislature to provide another method of filling the vacancy.
Mr. Justice Hart concurs herein.