This case was originally assigned to me. The majority agreed with my proposed opinion covering the periods from August 16, 1965 to December 4, 1968 and January 18, 1971 to December 31, 1971, and adopted it as the opinion of the Court. Therefore, I concur with the majority as to these periods. However, I must respectfully disagree with the majority as to the other period, December 4, 1968 to January 18, 1971.
I have read the Constitutional debates on the Judiciary article of the 1901 Constitution in order to try to get a better understanding of the meaning of the Constitutional provisions which faced this Court in this case. As I read the debates and the record of the Constitutional Convention proceedings, there were some suggested changes in the mode and manner of selecting judges. Some of the delegates, though in a definite minority, wanted judges to be appointed during good behavior, as they were in the first Constitution. Constitution, 1819, Article V, § 13. Minority reports were filed to the Judiciary Committee report suggesting that judges be given a four-year term to coincide with the terms of other state executive and legislative officers.
The Convention settled, however, on a six-year term for judges, and provided that the judges should hold their offices for a full term and prohibited the Legislature from affecting this right by any change made by law in any circuit, division, or county, or in the mode or time of election.4 Decisional law has developed several *Page 588 principles which I think are helpful in understanding the Judiciary Article of the Constitution. One principle is that the Legislature has the authority to create a new circuit or change an existing circuit and to create an additional judgeship for a new or existing circuit. Section 142, Constitution, 1901; Ex parte Johnson, 203 Ala. 579, 84 So. 803 (1919).
Section 1595 of the Constitution of 1901 was a new section. Ex parte Johnson, supra. As I read § 159, it deals solely with the mode and manner of selecting judges in newly created circuits. The official proceedings of the Constitutional Convention are not too helpful on the reason for the inclusion of this new section in the 1901 Constitution. In Official Proceedings, Constitutional Convention, 1901, Vol. 2, pp. 2304, 2305, the report of the Committee on Judiciary offers some comment:
"No radical departure has been made from the judicial system of the State as established by the Constitution of 1875, but the Article has been so written as to give more elasticity to the judicial system of the State, so as to enable the Legislature to extend or modify the system, from time to time, as may be necessary to meet the needs of the State as its wealth and population increase, and to make a more economic and systematic arrangement of the system."
* * * * * *
"The Article as rewritten makes no change in the terms of office of Chancellors, Circuit Judges and Judges of Probate, but provides that, in case of a vacancy in the office, the Governor shall fill such vacancy by appointment, and that such appointee shall hold office until the next general election held at least six months after the vacancy occurs, and until a successor is elected and qualified, and, further, that whenever any new circuit or chancery division is created, the Judges or Chancellor thereof shall be elected at the next election for representatives to the General Assembly, for a term to expire at the next general election for Judges and Chancellors, provided that if such new circuit or chancery division is created more than six months before the next election of Representatives to the General Assembly, the Governor shall appoint some one as Judge or Chancellor, as the case may be, to hold office until such election."
Since the Report of the Judiciary indicated that the intent of the framers was to "give more elasticity to the judicial system of the State, so as to enable the Legislature to extend or modify the system," I believe this principle should be applied to all legislative acts which deal with this system.
At the time of the 1901 Constitutional Convention, circuit judges were holding office for a term of six years to expire in 1904. Schedule 3 of the Constitution did provide that all judicial officers would continue in office until their terms expired. Insofar as I can determine, neither the 1901 Constitution nor the general law provided for the time when circuit judges would be elected. My research reveals that not until 1915 did the Legislature make provision for the time when certain circuit judges would be elected. Act No. 712, Acts of Alabama, 1915, p. 809, provides:
"At the general election held in November, 1916, there shall be elected ten *Page 589 judges of the circuit court of the tenth circuit; three judges for the circuit court of the thirteenth circuit; two judges for the circuit court of the eighth circuit; two judges for the circuit court of the fourteenth circuit; two judges for the circuit court of the fifteenth circuit; two judges for the circuit court of the sixteenth circuit; and one judge for every other circuit in the state, all of whom shall hold office for the term of six years."
Act No. 712 is carried in the Code of 1923 as § 415. Similar provisions were adopted in the 1940 Code as Tit. 17, § 67:
"At the general election held in November, 1940, and each six years thereafter, there shall be elected eleven judges for the circuit court of the tenth circuit; three judges for the circuit court of the thirteenth circuit; two judges for the circuit court of the fifth circuit; two judges for the circuit court of the seventh circuit; two judges for the circuit court of the eighth circuit; two judges for the circuit court of the fourteenth circuit; two judges for the circuit court of the fifteenth circuit; two judges for the circuit court of the sixteenth circuit; and one judge for every other circuit in the state; all of whom shall hold office for a term of six years."
Section 158, set out in the majority opinion, as I read it, deals solely with the filling of vacancies in judicial offices which occur by reason of death, resignation, removal, or disqualification of the incumbent. Section 158 of the 1901 Constitution is substantially the same provision which was adopted and ratified in previous constitutions of Alabama.
Having given a brief history of the judicial article of our Constitution, I would now like to trace the history of the Thirty-first Judicial Circuit. At the time of the adoption of the 1940 Code and the provision which spelled out the mode and manner of the election of circuit judges, Colbert County (now the Thirty-first Judicial Circuit) was part of the old Eleventh Judicial Circuit. Title 13, § 112, Code of Alabama, 1940. The Thirty-first Judicial Circuit was created by Act No. 587, Acts of Alabama, 1953, p. 832, approved September 11, 1953. The judge who was then serving as one of the judges of the Eleventh Judicial Circuit, and who resided in Colbert County, was designated as Judge of the newly created Thirty-first Judicial Circuit,6 to serve "until the expiration of the term for which he was elected a judge of the Eleventh Judicial Circuit." Thereafter, the judge was to be elected "at the same time and for the same term of office as other circuit judges are elected in the state."7 *Page 590
When the Thirty-fourth Judicial Circuit was created, the Thirty-first Judicial Circuit then consisted of Colbert County solely. Act No. 406, Acts of Alabama, Reg. Sess., 1965, p. 586, carried as Tit. 13, § 112, Code, 1940, Recomp., 1958. Judge Delony became the judge of the Thirty-first Judicial Circuit, and since the Legislature could not diminish his term, he was entitled to complete his term which expired in January, 1971. Ex parte Johnson, supra. When the additional judgeship was created,8 the Legislature specified the mode and manner in which the new judge would be elected. First, he would be appointed by the Governor and would hold office "until his successor is elected and qualified as provided in Article VI, §§ 158 and 159, of the Constitution of Alabama." Thereafter the additional judge was to be elected "as are other circuit judges in this state."
The majority holds that from the moment the Governor signed Act No. 156, which created the new judgeship, there was a "vacancy," and an "unexpired term" to be filled. While I will admit that as a general rule, a vacancy occurs by reason of the creation of a new judicial office which has never been filled, unless the language of the law creating the office imports futurity of selection (48 C.J.S. Judges § 31, p. 983), I do not believe § 158 should be so interpreted. I must disagree that "vacancy" and "unexpired term" are synonymous. I think the words "unexpired term" which appear in § 158 of the Constitution mean during the time which the person holding the office would have continued in office if a vacancy had not occurred. See People v. Osborne, 7 Colo. 605, 4 P. 1074 (1884). I think that the word "vacancy" which appears in § 158 of the Constitution was intended by the framers of the Constitution to mean a "vacancy" arising from a contingency in an existing office, occasioned by death, resignation or removal. Cf. O'Leary v. Adler, 51 Miss. 28 (1875). If this was not the intention of the framers, I see no reason for the inclusion of § 159 (dealing with new circuits) in the Constitution of 1901. If the majority is correct, the moment a new circuit is created, a new judgeship would automatically come into existence under the provisions of § 142 of the Constitution, and a "vacancy" would exist and be filled under § 158. Consequently, there would be no area of operation for § 159. Thus, I think that in every instance where an additional judgeship is created, that the term of the judge thus created should be for an initial term of six years as provided in § 155 of the Constitution. I recognize that the Legislature, except in two instances that I can find,9 has provided that the additional judge shall have an initial short term. In most cases, the initial appointment is by the Governor, and the appointee has the right to hold office until his successor is elected and qualified at the next general election for state officers. In many cases, the appointed judge becomes his own successor by reason of his election, and holds such office until the *Page 591 general election for "other circuit judges," a period of two or four years, depending on each individual case. He then runs for a six-year term.
But even if it is assumed that a "vacancy" existed in Judgeship No. 2 the moment the Governor signed Act No. 156, and even assuming that § 158 of the Constitution is applicable, I would still reach the same result. I think Judge Burt had an "appointed term" and an "elective term," both admittedly of only two-year duration, but nevertheless, fixed by law. "Term," with respect to the tenure of the office of a judge means thefixed and definite period of time which the law prescribes thathe may hold office. 48 C.J.S. Judges § 20, p. 968. Act No. 156 specifically fixed the term of the appointee of the Governor to expire when his successor was elected and qualified in 1968. In this case, Judge Burt became his own successor, but his right to hold the office under his appointment ended after he was elected and qualified.
I must respectfully disagree with the conclusion reached by the majority that the period from August 19, 1966 to January 18, 1971 was "an unexpired term." To so hold means that there was some portion of a "term" which existed prior to the effective date of Act No. 156. I think the use of the words "unexpired term" in § 158 shows the intent of that section to apply only in those cases where there is a "vacancy" because of the incumbent's death, resignation, or removal. I think the use of the words "unexpired term" in § 158 indicates the framers intended that the word "vacancy" should apply only in cases where an incumbent was filling a term.
Act No. 156 provided that Judge Burt would hold office until his successor was elected and qualified as provided in Article VI, §§ 158 and 159, of the Constitution of Alabama. The majority has discussed only the implication of § 158. I will discuss the implication of § 159.10 Section 159 provides, in part:
"Whenever any new circuit or chancery division is created the judge or chancellor therefor shall be elected at the next general election for any state officer for a term to expire at the next general election for circuit judge or chancellors . . ."
(Emphasis added).
Consequently, if we apply § 159, as we must, since Act No. 156 specifically states that the new judge must be elected and *Page 592 qualified as provided in §§ 158 and 159, I arrive at the following result.
If § 159 is applicable, the result is most confusing. Act No. 156 provides that the Governor shall initially appoint the judge who would hold office until his successor was elected and qualified as provided in § 159. Under § 159, if a new circuit was created by Act No. 156, then the judge thereof would have run in the general election held in November, 1966 "for a term to expire at the next general election for circuit judge." (November, 1968, if we use the term of Judge No. 2 of the Twenty-third Judicial Circuit; 1970 when most other circuit judges were elected.) I do not think that is what the Legislature intended. Since the Governor waited until after the November general election to make the appointment, it seems that the executive branch construed the intent of the Legislature to be that the Governor could appoint and the judge appointed would serve a term beginning with his date of appointment and ending when his successor was elected and qualified in the 1968 general election.
The majority quotes from McDonnell v. The State ex rel. Jones, 199 Ala. 240, 74 So. 349 (1917). There, Chief Justice Anderson, in addition to the portion quoted by the majority, wrote for the court:
". . . We think that this section (Section 158 of the Constitution) of our organic law is plain and unambiguous, and that it deals only with vacancies and the filling of same, and cannot be so reasonably construed as to change, alter, or extend the term as fixed by section 155 . . ." (Emphasis added).
In McDonnell, the question was the right of a judge elected to fill an obvious unexpired term to hold the office for a full term.11 I must disagree that McDonnell is apposite to the case here which involves the creation of an additional judgeship.
Judge Leonard Burt was appointed to the judgeship created here by Act No. 156 on November 28, 1966. Even if we accept the fact that a "vacancy" existed when the Governor signed the bill, the initial "term" was fixed. It would begin on the effective date of the Act and would terminate when his successor was elected and qualified in the general election of 1968. He was elected as his own successor at the general election in 1968. I think he then began his elective "term."
I think Judge Delony was entitled to the salary supplement from the county during the period from December 5, 1968 to January 18, 1971 because of the provisions of Act No. 195, Reg.Sess., 1967, p. 560, the relevant portions of which Act are quoted in the majority opinion. Since Judge Burt began a new "term" on December 5, 1968, he was entitled to a supplement equal to one-fourth of the salary then paid to him by the State of Alabama. Since Judge Burt became entitled to the supplemental salary because of the expiration of his appointive term and the beginning of his elective term, I think Judge Delony became entitled to the county supplement under the provisions of the last sentence of the Boutwell Amendment, which provides:
"As to officers who are members of any court, board, commission, or similar body whose terms do not run concurrently, any increase or decrease in the salary, *Page 593 fees, or other compensation of the members of any such court, board, commission or similar body shall become effective as to all such members thereof immediately after the expiration of the term or terms of office of the member or members whose term or terms first expire."
Judge Delony and Judge Burt were "members of the same court." I think their terms did not run concurrently. The majority says that Judge Burt's salary was tied to that of Judge Delony by § 4 of Act No. 156. I must disagree. Act No. 195, Acts, 1967, p. 560, which provides for the county supplement to be paid to (Judge Burt) conflicts with the provisions of Act No. 156, which ties Judge Burt's salary to that of Judge Delony. Act No. 195 repealed all laws which conflicted with it and I feel that § 4 of Act No. 156 was repealed on the effective date of Act No. 195.
The parties argue in brief whether Judge Delony was entitled to have received an increase in his salary from $12,000 annually to $15,000, under the provisions of Act No. 350, approved September 5, 1967, Acts of Alabama, 1967, p. 909, which is carried in the 1958 Recompiled Code as Tit. 13, § 177(1e). Act No. 350 was effective on the first Monday after the second Tuesday in January, 1969.
Although it is not directly presented, appellant categorically states that Act No. 347, Acts of Alabama, 1955, p. 796, is inconsistent with the provisions of § 158 of the Constitution of Alabama. I personally think the appellant is wrong about this for the reasons I have set forth in my dissent, but I see no necessity to discuss whether the $15,000 salary was validly paid. As I view the matter, the question is not squarely presented. Act No. 195 very clearly requires the county to pay a supplement "equal to one-fourth of the salary now or hereafter paid such judge by the State of Alabama." (Emphasis added.) Judge Delony was paid $15,000 annually by the state.
For the foregoing reasons, I think Judge Delony was entitled to receive one-fourth of the amount paid to him by the state during the period December 4, 1968 to January 18, 1971 ($7,875) instead of the $1,200 annually ($2,500 plus) found to be due by the majority.
"Except as otherwise provided in this article, the chief justice and associate justices of the supreme court, circuit judges, chancellors, and judges of probate, shall hold office for the term of six years, and until their successors are elected or appointed, and qualified; and the right of such judges and chancellors to hold their offices for the full term hereby prescribed shall not be affected by any change hereafter made by law in any circuit, division, or county, or in the mode or time of election."
"Whenever any new circuit or chancery division is created the judge or chancellor therefor shall be elected at the next general election for any state officer for a term to expire at the next general election for circuit judge and chancellors; provided, that if said new circuit or chancery division is created more than six months before such general election for any state officer, the governor shall appoint some one as judge or chancellor, as the case may be, to hold the office until such election."
The additional judge provided for in Act No. 135, Acts of Alabama, Extra Sess., 1961, p. 2061 provided that the judge would be elected at the general election in 1962 and every six years thereafter.
"There is hereby created an additional judgeship for the Thirty-first Judicial Circuit. An additional judge shall be appointed for the circuit by the Governor, who shall hold office until his successor is elected and qualified as provided in Article VI, Sections 158 and 159, of the Constitution of Alabama. The judge for the additional judgeship shall be elected thereafter as are other circuit judges in this state."
"Section 156 (probably 155) of the Constitution empowers the Legislature to change the date of the election of judicial officers. At the same time it safeguards the term of office of the incumbent at the time of such change. It results, as of course, that the Legislature is thus empowered to increase or decrease the interim between their election and entry into office. The Constitution is jealous of the term of office, assures a full term, but does not specify when the term begins." (Emphasis added).
While the Legislature has quite regularly provided for additional circuit judges in the state, it has in most instances given them a short appointive term and a short elective term. I feel that what Chief Justice Anderson said in State ex rel. Foster v. Rice, supra, is appropriate: ". . . (C)ustom, or even statutes, cannot override the plain and unambigous mandate of our organic law."