dissenting. My views in this case are very similar to those of the Attorney General expressed in oral argument before the court. I do not consider this litigation to be controlled by Amenment No. 29 to the Arkansas Constitution, but rather, to be controlled by Article 19, Section 5, of the Constitution. Had Tommy Smith died after he had taken office on January 1, 1973, instead of dying after being elected in November, 1972 (December 26, 1972), but before January 1, 1973, then I would agree that Amendment No. 29 controls. But our constitutional provisions must be read together and interpreted where all provisions can be given meaning, if at all possible to do so. Article 19, Section 5 of the Arkansas Constitution provides:
“OFFICERS — HOLDING OVER— All officers shall continue in office after the expiration of their official terms until their successors are elected and qualified.”
The Office of Sheriff of Garland County became vacant, not in 1973, but in 1972, when the incumbent sheriff, Bud Canada, resigned from office on December 29. William D. Pate, under the authority of Amendment No. 29, was appointed on that same date by the Governor to fill the unexpired term. The Commission itself recites that Pate is appointed “for a term to expire 12/31/ 72.” When Pate was appointed, he became the incumbent in the office of sheriff and when his term expired at midnight on December 31, he became a hold-over (I believe that all parties agree to this) and further action was therefore controlled by Article 19, Section 5, which, as previously quoted, provides that a hold-over continues in office until his successor is elected and qualified. Our opinions in Justice v. Campbell, 241 Ark. 802, 410 S.W.2d 601 and McCoy v. Story, 243 Ark. 1, 417 S.W. 2d 954 were founded and based upon Section 5 of Article 19. Both cases arose out of the same factual background.
We made it very clear in Justice that Amendment No. 29 did not apply. There, Arch Campbell was the incumbent judge, who did not seek re-election, and whose term in office would normally have expired on January 1, 1967. Tom Gulley was elected to the office at the General Election in November, 1966 for a two year term beginning January 1, 1967. Mr. Gulley died after the General Election but prior to the date he was to take office. Campbell then claimed the office by virtue of Article 19, Section 5. Robert O. Justice was appointed and commissioned by the Governor on January 1, 1967 (when Gulley would have taken office had he lived) and claimed the office on the basis of that appointment. After citing these facts, we then said:
“Another provision of the Constitution - Amendment 29, Section 1 (1938) - is brought into the case by appellant. That section is as follows: ‘Vacancies in the office of United States Senator and in all elective state, district, circuit, county, and township offices, except those of Lieutenant Governor, Member of the General Assembly, and Representative in the Congress of the United States, shall be filled by appointment by the Governor.’
“We find no conflict in these Constitutional provisions. At first blush, the wording in Amendment 29, ‘vacancies . . . shall be filled by . . . the Governor . . .,’ would seem to sustain the position of Robert O. Tustice. Any such impression has clearly been dispelled by the legal authorities immediately cited infra.”
We then cited several cases in support of this last sentence, including State v. Green and Rock, 206 Ark. 361, 175 S.W. 2d 575, where, referring to Amendment No. 29, this court said:
“The words Vacancies in the office of’ as there used refer to offices which on account of death, resignation, removal or abandonment of the previous holder thereof, or for some other cause, have in fact no incumbent.” (My emphasis).
Further,
“An incumbent of an office is one who is in present possession of an office; one who is legally authorized to discharge the duties of that office.”
Still further,
“Judge Campbell’s position is correct, and in conformity with the provisions of the Constitution of Arkansas. It is not difficult to harmonize the two sections cited, and it is our duty to give effect to both provisions. Our holding is further strengthened by the rule in a majority of the jurisdictions. Quoting from 74 A. L. R. 486:
‘II. Majority Rule, (a) Rule stated. In a majority of jurisdictions the rule obtains that the death or disability of an officer elect before qualifying does not create a vacancy in the office which may be filled by the appointing power, since he never occupied the office, and that under the provision that an incumbent shall hold his office until his successor is elected and qualified, the prior incumbent is entitled to continue in the office until the election and qualification of his successor.’
‘Summarizing, when Amendment 29, Section 1, directs that certain enumerated vacancies shall be filled by appointment by the Governor, it means that when an office holder in present possession of an office and legally authorized to discharge the duties of that office, dies, resigns, is removed, or abandons the office, a vacancy is created.”
Let us apply the language of the above opinion to the case at bar. Pate, though only serving a very short time as sheriff, was an incumbent hold-over sheriff on January 1, 1973 just as Arch Campbell was a holdover judge on January 1, 1967. Garland County thus had an incumbent sheriff, William D. Pate, on January 1, 1973. Very clearly, Justice v. Campbell, supra, says that this situation is controlled by Article 19, Section 5, and, as shown, we specifically stated that it was not controlled by Amendment No 29.
McCoy v. Story, supra, arose because of the Governor calling a special election to elect a county judge for Pulaski County. It was argued that the wording of Section 5, without further implementation, permitted such an election to be called. That was the sole issue in the litigation, but we said that the language of Section 5 only indicated a principle; that implementary legislation was necessary before an election could be held. We commented:
“Amendment 29 to our Constitution provides for the filling of vacancies, but here, of course, all parties agree that no vacancy exists,[1] and appellant likewise agrees that there is no statutory provision for a special election under the circumstances here at issue.”
I reiterate, that in the instant litigation, there is no vacancy, and there has been no vacancy since December 29, 1972, such vacancy occuring in a previous term, being filled during a preceding term, and that appointee holding over into the present term.
Justice v. Campbell, supra and McCoy v. Story, supra, were both unaminous opinions by this court, and in each case we certainly suggested, and almost invited, the General Assembly to pass legislation implementary of Article 19, providing for a special election where incumbent office holders held over into another term of office. In Justice, the opinion concluded with these three sentences:
“We are further of the opinion that this Constitutional provision [Section 5 of Article 19] contemplates the filling of the new term by election. The phrase, ‘until their successors are elected and qualified,’ is susceptible to no other reasonable implication but that the office be filled by a vote of the people. There are numerous instances in which legislation is appropriately enacted to implement the requirements of the Constitution.”
McCoy closes with the following paragraph:
“Justice v. Campbell, supra, is here controlling. In that opinion, we stated that implementary legislation by the General Assembly was necessary; had we felt otherwise, we would simply have held that the Constitution directed that an election be held forthwith.”
Undoubtedly, in compliance with our suggestions in those two cases, the General Assembly of 1969 passed Act No. 465, amending same in 1971 by Act No. 196. These acts are codified as Ark. Stat. § 3-106 (Supp. 1971) and provide:
“Whenever a person shall have been elected at a General Election to fill any elective county office and the person so elected shall, subsequent to the date of the General Election and prior to January 1 of the year in which such person is to take office, die or withdraw in writing, a Special Election to choose a person to assume said office may be held if petitions therefor, filed by not less than fifteen per cent (15%) of the qualified electors of the county, as determined by the total number of votes cast for all candidates for the Office of Governor in the next preceding General Election, shall be filed with the Governor within fifteen (15) days from the date of such death or written withdrawal from said office. Upon receipt of such petitions, the Governor shall call a special election to elect a person to fill such vacant county office.”
The statute then provides that the incumbent holding such office (in this instance, Pate) shall serve until such time as the results of the special election are certified and the newly elected official takes the oath of office and qualifies.
In my view, this legislation was entirely valid, and it follows that I view the Governor’s call for a special election in Garland County to be legal and proper.
The holding of the majority permits an appointee to hold the office to which he is appointed for more than one term, which, in my opinion, is entirely contrary to the desire and intent of both the people of this state and the General Assembly.
I would reverse the judgment of the Garland County Circuit Court.
Brown and Fogleman, JJ., join in this dissent.Because Judge Campbell, as an incumbent, was holding over.