(concurring). It must be admitted by all that it is the duty of courts to ascertain the will of the framers of the Constitution from the language used, and, having ascertained it, to give it effect. I also think that an election can only be held by virtue of some constitutional provision or legal enactment, either expressly or by direct implication authorizing that election.
The correctness of the majority opinion depends wholly upon the construction to be given to section 50 of article 7 of our Constitution relating to judicial department. The section reads as follows;
“All vacancies occurring in any office provided for in this article shall he filled by special election, save that in case of vacancies occurring in county and township offices six months, and in other offices nine months, before the next general election; such vacancies shall be filled by appointment by the Governor.”
Here lies the source of power. The concluding part of the section provides that in case of vacancies in other than county and township offices occurring in nine months before the next general election such vacancies shall be filled by appointment by the Governor.
The courts of other States are in conflict as to the meaning of the phrase “next general election,” or similar expressions used in the Constitution and statutes providing for the filling of vacancies in public offices. See case note to Wendorff v. Dill (Kan.), 50 L. R. A. (N. S.) 359. We1 need not give this any concern, for both our Constitution and statute have defined the words. Article 3, section 8 of the Constitution provides that the general elections shall be held biennially on a fixed date until changed by statute.- The Legislature, which convened in January, 1875, immediately after the adoption of the Constitution, provided for holding elections biennially on the date fixed in the Constitution and called them general elections. Besides this the expression had long been used in this State to denote the elections which were held every two years for the election of State and county officers. Thus we see that the term “general election” has both a constitutional and statutory definition, and that this meaning was generally understood at the time the Constitution was adopted.
There is nothing to indicate that the framers of the Constitution used the words in other than their natural and accustomed meaning. Hence I think that the words, ‘ ‘ next general election, ’ ’ as used in the section, mean the general election next in point of time after the vacancy occurs. To illustrate, the term of a circuit judge is four years, and if a vacancy should occur during the first two years of his term and within nine months of the next or succeeding general election, it would be the duty of the Governor to appoint. The appointment, however, would not run to the end of the term, which would be over two years, but by the plain intendment of the section of the Constitution it would only run to the next general election, or the general election next in point of time after the vacancy occurs, at which time, by the plain intendment of the Constitution, the people would have the right and it would be their duty to elect a judge for the remainder of the term. Thus would be carried out the policy of unity in terms of circuit judges so that they all expire at the same time. To continue the illustration, if a circuit judge should die during the first two years of his office more than nine months before the general election next in point of time, the Governor, under the decision in Cobb v. Hammock, 82 Ark. 584, could malte a temporary or provisional appointment to last until he could call a special election to fill the' vacancy; but in no event could that appointment last longer than the next general election or the general election next in point of time, at which time the people by plain intendment or necessary implication reserved to themselves the right to fill the vacancy by election.
It is admitted that where the vacancy does not occur within the nine months first referred to the temporary or provisional appointment should only last until •a special election could be called by the Governor and held to fill the vacancy. Such construction results, not from any express words of the section of the Constitution, but from necessary implication from what is expressed. With equal force it may be said that the plain intendment is that the Governor could not extend the time of his temporary appointment by failure to call a special election longer than the next general election. In short, if the Governor’s appointment under the concluding part of the section only lasts until the next general election, at which time the people have reserved to themselves the right to fill the vacancy, why should- the temporary provisional appointment made by the Governor, as above pointed out, last beyond the ;iext general election because the Governor failed to discharge his duty by calling a special election to fill the vacancy? The failure of the Governor to call the special election would render it none the less necessary to fill the office by election at the next succeeding general election. The failure of the Governor to call such special election would not deprive the people at the next general election of the right and of the duty of filling the office. I do not regard as of any importance the excerpts made in the briefs from certain of our own opinions. The reason is that the language of an opinion should always be construed with reference to the issues involved. It is evident that in none of the cases cited was the question now up for decision considered by the court, nor did the judge who wrote the opinion have in mind that his language would be urged as a controlling factor in the decision of the question now presented.
Therefore I am of the opinion that the Governor could not by failing to call a special election continue in office the person temporarily or provisionally appointed by him beyond the general election next in point of time, and that the person so appointed should only hold office until the next general election, when, according to the plain intendment of article 7, section 50, of the Constitution, his successor must be elected.
The writer hereof objected to the issuance of an immediate mandate in this case. Our statute on the subject provides, in effect, that the Supreme Court may make rules for the dispatch of business, the manner and time of presenting petitions for rehearing, and time of issuing mandates; provided no mandate shall issue or decision become final until after fifteen judicial days from the time the decision was rendered unless the court, for good cause, shall otherwise direct. Acts 1913, p. 190. No immediate mandate was asked in this ease. If it should be said that the petition to advance the cause and the reason given therefor 'amounted to a request for an immediate mandate and the showing of cause therefor, I am of the opinion, that no good canse was shown. The provisional appointment was made by the Governor more than nine months ago, and his appointee is still discharging the duties of the office. It was evident months ago that the Governor was not going to call a special election, and that it would .devolve upon the people to fill the vacancy at the next general election.
Means delayed until the last moment to ask to have his name placed upon the ticket. The Attorney General facilitated the hearing of the case in the court below and in this court in every way possible, and, while the refusal to issue an immediate mandate would have resulted in keeping Means’s name off the ticket, that result came about by his own delay in acting in the matter. It is true that he was within his legal rights in waiting until the evening of the last day, but he must be deemed to have also considered the concomitant perils. If he had filed his petition with the Secretary of State when he was first entitled to do so under the statute, sufficient time would have elapsed to have tested out his rights in the courts, and still there would have been a reasonable time left for the State to have filed a motion for rehearing.
Good cause means sufficient cause, and implies that the moving party has exercised due diligence in asserting the right claimed by him in the action, and does not mean merely that the object sought to be accomplished by the issuance of the mandate is a legal one. Therefore, I think the mandate was prematurely issued, and that its issuance constituted error.
Mr. Justice Wood concurs in that part of the opinion relating to the mandate being prematurely issued.