dissenting. I concur in all respects in the dissenting opinion of the Chief Justice. While I feel that his opinion fully covers the question involved, I am constrained to comment upon the use of Section. 4 of Amendment 29 of the Arkansas Constitution by the majority as a stepping-stone toward its declaration that the act under which the Governor called the election was unconstitutional. I do not find any basis for holding Act 196 of 1971 [Ark. Stat. Ann. § 3-106 (Suppl. 1971)] unconstitutional and certainly none in Section 4, Amendment 29.
In considering the question of constitutionality, it must always be remembered that the General Assembly, as the supreme lawmaking body of our state, possesses all legislative powers not expressly, or by necessary implication, prohibited by our constitution. State v. Ashley, 1 Ark. 513; Straub v. Gordon, 27 Ark. 625; Vance v. Austell, 45 Ark. 400; Carson v. St. Francis Levee District, 59 Ark. 513, 27 S.W. 590; St. Louis, I. M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S.W. 938; Butler v. Board of Directors of Fourche Drainage District, 99 Ark. 100, 137 S.W. 251; McClure v. Topf and Wright, 112 Ark. 342, 166 S.W. 174; Bush v. Martineau, 174 Ark. 214, 295 S.W. 9; Cook v. Walters Dry Goods Co., 212 Ark. 485, 206 S.W. 2d 742; Gipson v. Ingram, 215 Ark. 812, 223 S.W. 2d 595. Its power to legislate in fields not prohibited to it is absolute and any doubt about the constitutionality of an act passed by it must be resolved in favor of its validity. Hooker v. Parkin, 235 Ark. 218, 357 S.W. 2d 534. An act must be plainly at variance with the constitution before it is held unconstitutional by the courts. McClure v. Topf and Wright, supra; Sallee v. Dalton, 138 Ark. 549, 213 S.W. 762; Dabbs v. State, 39 Ark. 353, 43 Am. Rep. 275; Eason v. State, 11 Ark. 481; State v. Ashley, supra.
I submit that this act is not at variance with the Arkansas Constitution, but is wholly compatible with it, insofar as this case is concerned. Article 7, Section 46, provides that the qualified electors of a county shall elect a sheriff for a term of two years. General Elections are to be held biennially on a date fixed by the General Assembly. Article 3, Section 7. The constitution is presently totally silent on the subject of special elections. Yet we find many legislative provisions, in addition to Act 196 of 1971, touching upon special elections. The only suggested limitation on the legislative power in the matter of special elections is Amendment No. 29. The Governor is empowered by that amendment only to fill “vacancies in office.” A “vacancy in office” under that amendment exists only when there is no incumbent, due to death, resignation, removal or abandonment of the previous holder, or some other cause. State v. Green and Rock, 206 Ark. 361, 175 S.W. 2d 575. A vacancy existed when Sheriff Canada resigned. The Governor was authorized to fill the vacancy, as he did, but only for the unexpired term ending December 31, 1972. Sections 1 and 4, Amendment 29. That limitation on the appointing power is express. It was regarded by the Governor in the commission issued.
A reading of Amendment 29 will show that it was the clear intention of the people to restrict the period of service of a gubernatorial appointee under this amendment so that he would not serve the full term of the office by appointment, whether it be 2, 4, 6 or 8 years.The provision “if such office would in regular course be filled at the next General Election if no vacancy had occurred” clearly relates to the filling of the office not the filling of the vacancy. The vacancy had nothing whatever to do with the time when the office would be filled. The office of sheriff of Garland County would have been filled at the next General Election even if the sheriff-elect had lived and taken office, or if .Sheriff Canada had not resigned. This amendment left the particular situation presented here open for legislative action, as there is no constitutional barrier whatever to the calling of a special election to prevent the full term of office being filled by a holdover or a gubernatorial appointee.1 Even if Article 7, Section 50, is superseded, or if it had been expressly repealed, I would still maintain that this act of the legislature is not unconstitutional as applied to the facts in this case. The legislature, I repeat, did not have to search the constitution for authority to act in the premises. Those who challenge its action must search it to find a prohibition. I submit that the search was unsuccessful and its fruits inconsequential.
In McCoy v. Storey, 243 Ark. 1, 417 S.W. 2d 954, we said that we could not, by interpretation, write the words “at a special election” into Article 19, Section 5, to provide for a successor to a holdover, but, as so ably pointed out by the Chief Justice, we strongly implied that the General Assembly was not limited in its power to so provide. Perhaps the construction given our decision in McCoy by the majority is based upon its erroneous premise that in McCoy we were dealing with a vacancy in office. We specifically said that we were not. See also, Justice v. Campbell, 241 Ark. 802, 410 S.W. 2d 601. Still the majority says that “in McCoy we were considering whether Article 19, Section 5, was self-executing for the purpose of filling a vacancy in office by election and in McCoy v. Story, we were still dealing with the vacancy in the office * * Insofar as the period to be served by the Governor’s appointee in this case is concerned, we are not, I reiterate, dealing with a vacancy in office, but with a holdover incumbent. In McCoy and Justice, we were not dealing with a vacancy in office, but with a holdover incumbent.
It also seems to me that in the attempt to utilize Section 4 of Amendment 29, the majority has been guilty of a glaring inconsistency. It contrues Section 1 as empowering the Governor to fill the vacancy in this case by appointment and then states: “The vacancy created by Senator Canada’s resignation occurred more than four months before the next general election so section 4 of Amendment 29 requires that the vacancy be filled at the next general election.” This inconsistency emphasizes the fallacy of the majority’s premise that we are dealing with a vacancy, even after it seemed to be conceded by everyone that the vacancy had been filled and that the Governor’s appointee was a holdover.
I further submit that the majority is not warranted in extracting two sentences of dictum from Glover v. Henry, 231 Ark. 111, 328 S.W. 2d 382, and reading them out of context in an effort to bolster its tenuous position. Even if these words were not dictum, and even if the context in which they were used did not serve to limit their effect, they do not say that the successors to the Governor’s appointees may only be elected in a General Election, and certainly do not imply that this is the case where the term of the Governor’s appointee has expired.
We said in Justice v. Campbell, 241 Ark. 802, 410 S.W. 2d 601, that we were of the opinion that Article 19, Section 5, contemplates the filling of the new term, where the incumbent is a holdover, by election, and that the words “until their successors are elected and qualified” are susceptible of no other reasonable implication but that the office be filled by a vote of the people. Nothing has persuaded me that these words were then inappropriate or that they are now inapplicable. We should adhere to them.
I am authorized to state that the Chief Justice and Mr. Justice Brown join in this dissent.
To this extent, I do not agree that it is abundantly clear that Amendment 29 completely eliminated and superseded Article 7, Section 50. (See Compiler’s note Supp. 1971; Laster v. Pruniski, 228 Ark. 132, 306 S.W. 2d 123.) It is our duty to so harmonize the various provisions of, and amendments to, our constitution to give effect to all, if it is possible to do so. Polk County v. Mena Star Co., 175 Ark. 76, 298 S.W. 1002; State v. Donaghey, 106 Ark. 56, 152 S.W. 746; Ferrell v. Keel, 105 Ark. 380, 151 S.W. 269. Repeal of constitutional provisions by implication is not favored, and the legal presumption is against such a repeal. Faubus v. Miles, 237 Ark. 957, 377 S.W. 2d 601; Ferrell v. Keel, supra. Before one constitutional provision can be said to be abrogated by another, there must be an irreconcilable conflict between the two. Ferrell v. Keel, supra. I do not find this conflict to exist, except as to some provisions of Article 7, Section 50, not material here. The two provisions can be read together so that Article 7, Section 50, is only partially superseded.