I dissent.
There can be no escape from the conclusion that section 8 of article VI of the Constitution in plain and unambiguous language provides that a vacancy in the office of *Page 763 superior judge shall be filled by election at the general election occurring after the first day of April next succeeding the accrual of the vacancy, and that at such election the person elected shall hold for a full term of six years; also that the Governor shall appoint a person to fill such vacant office until the commencement of that full term.
When the Constitution, as to the facts presented, speaks plainly and with no uncertainty, the court should obey. Every canon of jurisprudence is to that effect. In such case there is no opportunity for construction. It is, of course, a cardinal rule that the intention of the lawmakers should be followed, but this rule is subject to the imperative and paramount rule that the court cannot depart from the meaning of language which is free from ambiguity. In such case the office of the judge is to declare what is contained therein, "not to insert what has been omitted or to omit what has been inserted". (Sec. 1858, Code Civ. Proc.; Seaboard Acceptance Corp. v. Shay, 214 Cal. 361, 366 [5 P.2d 882].) The Constitution itself declares that its provisions are mandatory and prohibitory. (Sec. 22, art. I.) If the language used shows plainly and unequivocally a definite purpose, it is the duty of the courts to carry that purpose into effect. When no two meanings can be placed on the language used, it is mandatory, the courts are not at liberty to look elsewhere, and are bound to obey it. (Boca Mill Co. v. Curry, 154 Cal. 326 [97 P. 1117]; 5 Cal. Jur., p. 598, and cases cited.) If the meaning of the provision in question were doubtful, one need go no further than the argument sent to every voter in the state in 1926 to ascertain its meaning as understood by the voters. The argument was as follows: "If a vacancy occurred after April first of an election year, the time is too short to circulate petitions and satisfactorily prepare for an election at the August primary, and in such case the governor will make an appointment to fill the vacancy until the next election year." This argument may be resorted to for aid (which is not necessary here), in ascertaining the meaning of the amendment. (Beneficial LoanSociety v. Haight, 215 Cal. 506 [11 P.2d 857]; CypressLawn C. Assn. v. San Francisco, 211 Cal. 387 [295 P. 813];Yosemite L. Co. v. Industrial Acc. Com., 187 Cal. 774 [204 P. 226, 20 A.L.R. 994]; Story v. Richardson, 186 Cal. 162 [198 P. 1057, *Page 764 18 A.L.R. 750].) There should be no hesitancy on the part of the court to apply the constitutional provision in its plain and unambiguous sense, especially as applied to the facts presented. If under a different state of the facts its literal enforcement would lead to an absurdity or tend to thwart the preferential right to elect, that situation may adequately be dealt with when it arrives. It might well be argued that if a vacancy occurred at a time when the machinery of election, under the Constitution and statutes providing for elections, had already occupied the field and the electorate were then in process of election for the forthcoming full term, or the full term about to commence had already been filled by an election, in such event the election might proceed, or the position be deemed filled by the election; but we have no such case before us. On the contrary, we are confronted with a state of facts which renders the plain meaning of the Constitution directly applicable with no results leading to absurdity or even inconvenience.
It is highly significant that in 1928 sections 3 and 4a of article VI of the Constitution, with reference to vacancies in the Supreme Court and District Courts of Appeal, were amended to provide by explicit language for the contingency which the majority are now reading into and adding to section 8 by a process of construction. Moreover, the Constitution of 1879 (sec. 6, art. VI) provided: "If a vacancy occur in the office of a judge of the superior court, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall take place at the next succeeding general election, and the judge so elected shall hold office for the remainder of the unexpired term." What the majority have done has been to re-establish the rule of 1879, notwithstanding the last expression of the people in the amendment of 1926. In my judgment the plain and unmistakable mandate of the amendment, as to the facts now presented, should be given full effect by the issuance of the writ.
*Page 765Waste, C.J., and Sturtevant, J., pro tem., concurred.