I concur in the ruling on the motion to dismiss the writ of error. As to the principal question, however, my views are not in accord with those of my esteemed colleagues.
The case turns on a proper construction of the constitutional amendments of 1898 in reference to the election of superior court judges and solicitors-general. I readily concede that, even in my view, the question of law is a close one, that there is room for reasonable minds to differ, and I believe my associates will in like manner concede at least that there is room for such difference.
I fully agree also that the case is not controlled by any of the following cases dealing with the former June election, which was the same in character as the present August general election:Wood v. Arnall, 189 Ga. 362 (supra); Stephens v. Reid,189 Ga. 372 (supra); Brackett v. Etheridge, 190 Ga. 216 (supra); the last mentioned case involving the office of judge of the superior court. Other cases were cited in the briefs, but these three seem to be the ones most strongly relied on by the defendant in error.
All these cases related to offices other than that of solicitor-general, and depended on constitutional provisions other than those here under consideration. I do think, however, that a part of the reasoning in both Stephens v. Reid andBrackett v. Etheridge is relevant here; and that when certain well-settled rules of construction are added, the August general election should be held inapplicable to the office of solicitor-general.
In construing any law, organic or otherwise, we should keep in view at all times the old law, the evil, and the remedy; and therefore it is pertinent to inquire briefly as to what was the former law applicable to the office of solicitor-general.
Under the original constitution of 1877, to which the amendments of 1898 were annexed, the offices of judge of the superior court and solicitor-general were treated alike as to the times and manner of election, both for full terms and for vacancies. An examination further discloses that the same was true under each of the three next preceding constitutions, namely, the constitutions of 1861, 1865, and 1868; notwithstanding the manner of election applicable to both varied under the different constitutions.
Under the constitution of 1877, before the amendments of 1898, both offices were filled by election by the General Assembly, for *Page 791 full terms and for vacancies, except that vacancies in both would be filled by the Governor until the General Assembly should next convene. Matters stood thus until October, 1898, when the people adopted amendments proposed in 1897, providing for the election of judges and solicitors-general by the people, and prescribing the method of filling vacancies. While there were three proposals, resulting in three amendments, they were all contained in a single resolution, and under a single caption reading as follows:
"An act to amend paragraphs 2 and 3 of section 3 of article 6, and paragraph 1 of section 11 of article 6, of the constitution of this State, so as to provide for the election of judges of the superior courts and solicitors-general by the electors of the whole State." Ga. L. 1897, p. 16.
These three amendments now appear in the Code, as follows: § 2-3102, providing for election of judges by the people for full terms; § 2-3103, providing for filling vacancies in that office; and § 2-3901, providing for filling the office of solicitor-general, both for full terms and for vacancies.
There is no difference in language as between the two offices so far as the filling of vacancies is concerned, and the only appreciable difference as to elections for full terms is that the provision as to judges contains the words, "at the general election held for such members," that is, members of the General Assembly, while as to solicitors-general the three words, "for such members," are omitted.
We held in Brackett v. Etheridge, supra, that the first two amendments (as to judges) should be construed together, and ruled in effect that the words, "for such members," as found in the first amendment, relating to elections of judges for full terms should be implied in the second, relating to vacancies in the same office; in other words, that the provision as to vacancies meant the same type of general election that had just been provided for filling a full term, although the words, "for such members," did not appear in the latter provision. The question here is, whether the words, "for such members," shall be implied in both provisions as to solicitors-general, just as they had been implied in the second provision as to judges. I think that all of these provisions should be construed together, especially as they were all proposed in the same resolution; and that the intended election for solicitors-general, whether for full terms or vacancies, would likewise be a general election held for members of the General Assembly. *Page 792
While the two offices are different and the language of the constitution relating to them also differs to the extent noted, yet in view of the former law, under which both offices were considered in the same category for a long period, it seems to me that the only purpose of the amendments of 1898 was to transfer the power of election from the General Assembly to the people, as to both offices, and that they did not have in view any separation of these offices as to the method of election. That such was their only purpose is strongly indicated by the caption above quoted, which may be considered, since the matter of construction is not otherwise entirely clear. In Stephens v.Reid, supra, it was said that the primary object of the amendment of 1896, relating to Justices of the Supreme Court, was to withdraw the elective power from the General Assembly and lodge it in the people. The caption here expressly states but one purpose, "to provide for the election of judges and solicitors-general by the electors of the whole State," and does not within itself suggest any other purpose.
Although it might have been thought better to have these officers elected by the people, I cannot readily imagine any "evil" that might have been deemed to exist in filling the offices of judge and solicitor-general at the same relative times and in the same manner, either for full terms or for vacancies; and it would seem that the slight variation in language should not lead to the conclusion that different types of election were intended or would be permissible. Compare Hirsch v. ShepherdLumber Corp., 194 Ga. 113 (20 S.E.2d 575). If, instead of a mere omission, the provision had contained language showing affirmatively a different intention, such intention would of course control.
In the view I take of the case, it is unnecessary to notice the statute that has appeared in all the Codes, from 1863 to 1933, declaring that vacancies in the office of solicitor-general shall be filled in the same manner in every respect as prescribed in cases of judges of the superior court. Code of 1863, § 348; Code of 1933, § 24-2903. I may say, however, that I think the constitutional amendments in question should be construed, in the light of such statute, as expressing a general policy of long standing, to treat the two offices the same in every respect even as to filling vacancies. This statute was consistent with all of the constitutions above mentioned, and I regard it also as being consistent with the *Page 793 amendments of 1898. If so, it remained a valid statute, and was not repealed by implication by the August general-election act of 1943. Davis v. Dougherty Co., 116 Ga. 491 (42 S.E. 764);Cornwell v. Atlanta Trust Co., 177 Ga. 303 (170 S.E. 194). But this merely goes back to the main question, and need not be further pursued.
The views herein expressed are in perfect harmony with the opinion in which the present writer participated with Justices Jenkins and Grice in Mitchell v. Pittman, 184 Ga. 878, 891 (supra), where the incumbent was holding over after another had been elected for a full term, but where the latter died, after his election, before qualifying. In such circumstances, the provision for the election of judges for full terms at the general election next preceding the expiration of their terms would never have become applicable, because the only general election for members of the General Assembly which could ever be held next preceding the expiration of the incumbent's four-year term had already passed and another had been elected at that election. Nor would the provision as to filling a vacancy ever have become applicable, because that election would apply only where a vacancy had been filled by appointment by the Governor. In the circumstances there was a hiatus, in that the constitution had provided for no situation such as had developed under the facts of that case, and therefore it was the view of the three Justices mentioned, including the present writer, that the statute creating the then June general election applied. This statement will show also that the view so taken by them was in complete harmony with the decision in the later case ofBrackett v. Etheridge, supra, in which they concurred.
For the reasons stated, it is my opinion that the August general election of 1943 did not apply to the office of solicitor-general, and that the tenure of the incumbent was not affected by the declared result of such election.