(dissenting). The value of decisions of other States, in the construction of the Constitution and laws of this State, depends upon the similarity of the constitutions, or statutes, of the two States. For instance, in the Oregon case cited by the majority, the controlling question there decided was contained in the summary of the learned judge who wrote the opinion for the court. He said: “We are of the opinion that under section 11 of article 7 (of the Constitution), just cited, the term attaches to the person. It is in the nature of a personal 'franchise, which may be terminated by the act of the party himself. He may exercise it for four years. He may resign it. Then he yields it up to the power which conferred it upon him, and the people, if they elect a successor, confer a like franchise upon that successor, and there is no constitutional or statutory prohibition to that successor holding the office for four years, and though such election should occur before the expiration of four years from the last preceding election, they confer the office for the full constitutional term.” This is'all so diametrically different from our Constitution, .and to all the interpretations given our Constitution, that the decision referred to can be of no value here.
The majority do not undertake to say to what character of cases section 23 of article 6 of the Constitution would apply. Nor shall we. It is sufficient to say that it has no application here, for by its express language it applies only “when # * * no mode is provided by the Constitution and laws for filling such vacancy.” Here we have a mode for filling the vacancy in question, and there is no difference of opinion that section 50 of article 7 is the section applicable to the facts of this case.
This section provides that, “All vacancies occurring in any office provided for in this section shall be filled by special election.” If the section contained nothing else, there would appear to be but little opportunity to differ about its meaning. But there is an exception to this plain and unambiguous requirement that vacancies in office shall be filled by special election. That exception is that the vacancy shall be filled by appointment by the Governor, if it occurs within a given'time before the next general election. So that the vacancies there referred to may be filled in only one of two ways, (a) by special election, (b) by appointment—the applicable method being determined by the time when the vacancy occurs. There is an excellent reason for this, which we shall point out. But if there were no reason except the arbitrary ipse dixit of the writers of the Constitution, it would still be the supreme law of the State.
At the first session of the General Assembly after the adoption of the Constitution, legislation was provided which made this section 50 of the Constitution effective. A general election law was enacted, and by section 69- of that act it was made the duty of the Governor “to issue a writ of election to fill such vacancy,” to be “holden on a day named in said writ of election,” and. the person so elected to fill a vacancy shall hold his office for the unexpired term of his predecessor and until his successor is elected and qualified.” Acts 1875, p. 105. That section of the statute, as well as section 50 of article 7 of the Constitution, were both omitted from Kirby’s Digest, upon the assumption that the third amendment to the Constitution had been adopted. Rice v. Palmer, 78 Ark. 432.
The next ensuing session of the General Assembly gave the section of the Constitution under consideration an interpretation which I think is significant. That Legislature must have had it in mind, and have been of opinion, that vacancies could be filled in only two ways, that is, by special election, and by appointment, and it became obvious that in those,cases where a special election was the appropriate method, a period of time would intervene during which there would be no one authorized to discharge the duties of the office. This defect was remedied by the act of February 27, 1877 (Acts 1877, p. 16), which became, and is, section 7991 of Kirby’s Digest, and reads as follows: . “In any case wherein a vacancy in any office shall occur, to be filled, under the provision of the Constitution, by a special election, the Governor shall have the power temporarily to fill the same by granting a commission, which shall expire when the person elected to fill said office, at such special election, shall be duly qualified. ’ ’
This act was upheld in the case of Cobb v. Hammock, 82 Ark. 584, upon the ground that the Constitution had not prohibited the Legislature from making provision for temporary appointments to fill vacancies until a special election could, be held.
In upholding the constitutionality of that statute in the case of Cobb v. Hammock, supra, the court said: “That article mentions judges of the Supreme Court, circuit and chancery courts, prosecuting attorneys, and all county and township officers. It is clear, therefore, that the Constitution contemplates the calling of special elections to fill vacancies in such offices for unexpired terms, and provides that such vacancies must be filled by special election.” That language was not obiter in the case in which it was employed, whatever its application, or lack of application, may be to the facts of the instant case. This is also true of the language of Hill, C. J., speaking for the court in the case of Boyett v. Cowling, 78 Ark. 500, where he said: * * and vacancies in offices created by article 7 are to be filled by special election called by the Governor, except when the vacancy occurs in county and township offices within six months and in other offices within nine months of the general election, in which event the Governor appoints for the remainder of the term. Const., art. 7, § 50; Sand. & Hill’s Digest, § 2691 (a section not carried into Kirby’s Digest).”
It therefore appears to me to be plain that any ambiguity which might appear to exist in section 50 of .article 7 is explained away by the legislation enacted immediately after the adoption of the Constitution to make that section effective.
The death of an incumbent is not the only occurrence which may cause a vacancy in office. An officer might resign; be impeached; or be removed from office; accept an incompatible office; change his residence; become insane ; be convicted of a felony or other crime involving a violation of official duties. Section 93 of the article on Public Officers, 22 R C. L., pages 438, 439. Any one or all of these events, as well .as others, might be made grounds for declaring an office vacant.- ' State v. Lansing, 34 L. R. A. 124.
Each of these contingencies is an event which might, or might not, exist, and it is inconceivable that there should be no method by which all electors might know whether a vacancy did exist. Voters would have no right to fill a vacancy until in some definite, certain way it had been ascertained and declared that a vacancy existed. Interminable confusion might ensue if there was a question about the existence of the vacancy, or when it occurred. It requires no stretch of the imagination to see that this is easily possible. Indeed, the actualities of the instant case demonstrate the necessity for an official announcement of a vacancy and of the authorization to the people to fill it. This section 69 of the election law of 1875, which is omitted from Kirby’s Digest, but appears as section 2691 of Sandels & Hill’s Digest, provides the manner in which this information and authorization may be given, and if this authorization is to be held unnecessary, it may result in permitting an inconsiderable portion of the electorate, in a given case, to fill the vacancy. The instant case affords a concrete illustration. There is no question here but that Judge Ross died more than nine months before the election; but there could be such a question, and the duty of the Governor to call a special election would depend on the answer to the question, When did the vacancy occur? So also as to any other condition which might cause a vacancy.
The agreed statement of facts recites that appellant Means filed a petition to have his name printed on the ticket, as a candidate, on the last day allowed by law for that purpose, and his name will, therefore, be the only one to appear on the ticket. It is further recited, in the agreed statement of facts, that the election proclamation required by section 2809, Kirby’s Digest, in at least one of the counties of the Seventh Judicial Circuit, omitted all reference to the election of a circuit judge. Yet; under the majority opinion, the election could he held, at this time, even though the name of no candidate had been printed on the ticket; in which event it-would have been possible for a single elector, by voting for some one, or for himself, to have elected that person or himself, if no one else had voted.
Be it remembered that we are discussing vacancies in office. The reference in the opinion of the majority to the section of Mechem on Officers there cited tends to the confusion of the issue. The learned author, in the section mentioned, was referring to the usual regular elections, held at fixed times, pursuant to general law. Of course, the validity of such elections can not be made dependent upon the performance, or nonperformance, of duty by some ministerial officer in regard to publishing’ notice of the election. This is true because that election is held pursuant to the authority of law, and not of the officer who performs some ministerial act. The law itself gives the notice, and proclamation made by the officer is a mere reminder.
But while this is true of general elections, held at fixed times, for the election of the successors in office of persons whose terms of office are expiring by operation of law, it is not true of special elections. Special elections may, or may not, be held. Vacancies may, or may not, exist. The officer may die, or he may not. He may have resigned, or he may not. He may have been impeached, or he may not. It is not the policy of the law that there should be any question of fact to confuse the elector in the exercise of his suffrage on this subject. All question is supposed to be put at rest by the “writ of election to fill such vacancy” which the law requires the Governor to issue; and until it is issued there is no authority to hold a special election.
This court is committed to the doctrine that the terms of office of all circuit judges begin and end simultaneously, in cycles of four years, and this is true even of judges elected at the intervening regular biennial election in judicial circuits newly created. State ex rel. Wood v. Cotham, 116 Ark. 36; State v. Askew, 48 Ark. 82. And the election about to ensue is not the regular period for electing circuit judges.
So, therefore, an election this year to elect a circuit judge is, as to that office, a special election, and one which can not be held except as authorized by law. The case of Sawyer v. Haydon, 1 Nev. 75, explains why this is true. It was there said: “But when the people are authorized to elect to an office, something more must be done. They not having the means of fixing the time, place and manner of exercising the elective franchise, the law must fix it for them, either expressly or by implication. A law which authorizes the people to vote at a general election in the year 1863, for an officer to hold office for two years, can not be said even by implication to authorize the people at the general election in 1864 to vote for a person to fill the same office for the unexpired term of the first incumbent who has died, resigned or been removed, unless it contain some expression indicating that such was the intention of the Legislature. There can be no doubt that the Legislature might confer upon electors the power to vote for an officer to fill a whole or fractional term without using language the most direct and positive in its terms. But it must be language which, when properly interpreted, shows it to have been the intention of the Legislature to confer such powers.”
It only tends to confuse the point at issue to say that the successor to any officer whose term is two years may be elected at any regular biennial election. This is true because that election is the time fixed by law for electing those officers; but that is not true of officers whose terms do not then expire. To fill such offices at such election requires the issuance of a writ of election, which is the official notice required by law to the body of the electors to exercise their suffrage in filling the vacancy. And the reason for it all is that the electors may have certain, definite knowledge, so that the confusion may not exist in any case which in fact exists in the instant case.
The majority say the words “next general election,” could not reasonbly be construed to mean the general election at the expiration of the term, for, if so construed, there would be no power for the Governor to make an appointment unless the vacancy occurred within nine months before the expiration of the term. But, as we have shown, and as is stated in the majority opinion, this court held, in the case of Cobb v. Hammock, supra, that, on account of the silence of the Constitution, the Legislature was empowered to confer authority upon the Governor to make a temporary appointment to fill the vacancy until a special election could be held. Such legislation has been .enacted (section 7991, Kirby’s Digest), and under it appointments to office can be made. However, the making of this appointment is not the sole duty of the Governor in the circumstances. His duty is to call a special election, and this is a continuing duty which rests upon him. For instance, a newly elected judge of the Supreme Court, whose term is eight years, might die. A vacancy would then exist, which could legally be filled only by a special election. The Governor might make a temporary appointment, but that appointment is temporary, it being the theory of the law that such appointee would serve only until a special election could be called and held. In the case stated the Governor might fail to call a special election. But such failure would not relieve him of his duty. It would still be his duty to call the special election provided for by the Constitution, and the Governor would continue to rest under this duty until he had discharged it.
We think the words “next general election” may not only be construed to mean the general election at the expiration of the term, but that such is- in fact its true meaning as used in our Contitution, and there is much authority to the effect that the words, “next general election,” as used in Constitutions and statutory provisions, mean the next general election held at the time fixed by law for the filling of the particular class of offices to which the appointment was made. McIntyre v. Iliff (Kan.), 68 Pac. 633; In re Supreme Court Vacancy (S. D.), 57 N. W. 495; State ex rel. McGee v. Gardner (S. D.), 54 N. W. 606; People v. Wilson, 72 N. C. 155; People v. Col, 132 Cal. 334. See, also, cases both, pro and con in the note to Wendorff v. Dill, 50 L. R. A. (N. S.) 359; and State ex rel. Fish v. Howell, 50 L. R. A. (N. S.) 336.
It occurs to me, and I say it with the greatest deference to the majority, that they are led into confusion and error by attempting to render impossible an eventuality which the lawmakers never contemplated, that is, that the (Governor would fail to call a special election. But we should not, on that account, be led away from the viewpoint of the men who wrote the Constitution and who, in writing it, assumed that its provisions would be discharged by the officers upon whom that duty would be imposed.
Just here the discussion and decision of the Supreme Court of California in the case of People ex rel. McKune v. Weller, Governor (11 Cal. 49), is instructive. After deciding, as shown by the syllabi in that case, that an election to fill a vacancy in the office of district judge is invalid, unless made under and in pursuance of the proclamation of the Governor, and that the statute requiring the Governor to issue his proclamation of election to fill vacancies in certain offices, is mandatory and an essential prerequisite to all such elections; and that the object of the proclamation is to give notice to the electors that-such election will be held, the court proceeded to answer the argument that the Governor might, by inaction or dereliction, nullify the law. It was there said: “It is true, the Governor may prolong or increase his power by failing to make the proclamation. But this can not be expected in these cases of vacancy, nor, indeed, in' any cases. It is not to be supposed that the executive will prove derelict to his duty, especially for so small an object. The same argument would deny but a scanty portion of his power. Under the pardoning power, he might, by a system of universal pardons, practically abrogate the whole criminal law; indeed, he might introduce general anarchy by refusing to execute the laws. The Legislature may dissolve the government by refusing to levy taxes or to make appropriations, but these possible abuses of power are not reasons for refusing to give or acknowledge it. The evils on the other side are more probable of occurrence, and scarcely less injurious in character. If we hold to the principle that, whenever a vacancy happens, an election may be valid without notice to the people, frauds may and will be committed. This case may not afford an illustration, but others would. Where would be the limits of the principle¶ for we must have some general rule. It would apply to districts of more than one county as well as smaller districts—to cases of vacancy in other offices as well as those of judges—and to judges of the Supreme Court as well as of districts and counties. If death or resignation happens the day before the election, and when the fact was unknown—possibly kept concealed by design—all that it would be necesary for a man to do would be to get a few votes—it matters not how few—and he could get the office, not only without but against the will of the great body of the people. The establishment of the principle would beget a laxity in the giving of this public notice of elections which might keep the people, in many instances, in ignorance of the offices to be filled at the various elections; and all this is to be done because of a legal presumption of ‘knowledge by the people of law and facts,’ which every man knows is not always possessed even by the best informed, of which this case is itself a sufficient illustration. We can not hold as nugatory a plain statutory enactment upon reasons so unsatisfactory. We think we have shown that the definition given by the authorities of directory acts, namely, those which are not of the substance of the' thing provided for, has no application to this statute; that, on the contrary, the means, and only sure and efficient means, of bringing to the people authentic knowledge of their electoral rights and duties is of the very substance of the election at which they are to exercise them; 'and that, if we hold in cases of vacancies that the act requiring this proclamation which gives this intelligence is merely directory, and therefore, to be followed or not at pleasure, we may, with the same propriety, set aside every provision of law regulating the time, place and manner of elections. We should thus hold that an election may be independent of legislative control, protection or regulation.”
We are of the opinion that the court below properly denied the application for mandamus, and that the action of the lower court should be affirmed.
Mr. Justice Wood concurs herein.