Ham v. State ex rel. Blackmon

MAYFIELD, J. The county court of Coffee was Created and established by act of the Legislature of February 8, 1901 (Acts 1900-01, pp. 861, 867). This act was amended September 29, 1903 (Loc. Acts 1903, p. 398). The office of judge of said .court was created by the original act, which provided for the election of such judge, fixed the term of office, and provided for the filling of vacancies in the office. The provisions of the original act necessary to be considered were substantially as follows: First (section 1), that the judge should be elected by the Senate as soon as possible after the passage of the act, “whose term of office shall continue for six years, until his successor is (was) elected and qualified, which shall be done in the same manner at the end of six years thereafter.” Second (section 28), “that in case of a vacancy, caused by death or otherwise, of the judge or solicitor of said court, their successor shall be appointed by the Governor to fill the unexpired term.” Section 18 of the amendatory act provided, among other things: “That the judge of said court shall be elected by the Senate of Alabama, and his term of office shall be for six years; provided, that the present incumbent’s term of office shall not expire until 1907, and until his successor is elected and qualified,” etc. And further on, in the same section, it is provided as follows: “In case of vacancy caused by resignation, removal, or death, of the judge, or by any other cause, the Governor shall fill said vacancy by appointment, and the person so appointed shall hold his office by virtue of his appointment, until the election herein provided for the election [120] of Ms successor, by tbe qualified voters of tbe county.” On October 3, 1903, J. M. Loflin, tbe first judge of tbe court, resigned, and on tbe same date J. F. Sanders was appointed to succeed bim, wbo beld tbe office until tbe 6th of April, 1905, when be resigned, and H. H. BlacM man was appointed to succeed bim. There was no subsequent election to tbe office by tbe Senate daring tbe regular or tbe extraordinary session of 1907, nor by tbe qualified electors — as seems to bave been contemplated by last amendment. On tbe 4th of January, 1909, tbe Governor appointed tbe appellant, J. N. Ham, to tbe office of judge of said court. Ham qualified and entered upon tbe discharge of the duties of tbe office, aud bis predecessor instituted this proceeding against bim to oust bim from tbe office and to bave himself reinstated as judge of tbe court. On final bearing tbe circuit judge declared Ham’s appointment void and ousted him from office, but declined to decree Blackman entitled to tbe office or to restore bim thereto. Ham alone appeals from that- judgment. The first and important question to be decided is, was there a vacancy in tbe office when the Governor appointed Ham thereto on January 4,1909? If not, the appointment was of course void, and if the appointment was void, then the appointee could bave no legal right to bold the office, and the judgment of ouster was proper. It has been often held that the words “vacancy” and “vacant,” when applied to an office and as used in a statute, bave no technical meaning, but only their common or popular meaning. These words, when so used, are held to mean empty, unoccupied, without an incumbent. The office is vacant whenever it is unoccupied by a legally qualified incumbent who has a lawful right to continue therein until the happening of some future event. — Sanders v. Blakemore, 104 Mo. 340, 15 S. W. 960; State v. [121] Bemenderfer, 96 Ind. 374; People v. Henderson, 4 Wyo. 535, 35 Pac. 517, 22 L. R. A. 751. An office cannot be vacant when there is a de facto incumbent. Blackman was certainly a de facto, if not a cle jure officer, when Ham was appointed; therefore there was no vacancy — without which the Governor could not'legally appoint — and hence the appointment of Ham at that time was void. The Governor could not create and declare a vacancy; he could only appoint when a vacancy existed. — People v. Van Horne, 18 Wend. (N. Y.) 515; Elliott v. Burke, 113 Ky. 479, 68 S. W. 445; Harrison v. Simonds, 44 Conn. 318. If the original statute controls, as to the appointment by the governor, then Ham could only be appointed to fill out the unexpired term of the incumbent, and if his term had expired before the appointment, then there could be no time in which Ham could serve. There is no authority for the Governor to appoint for a new term on the expiration of a previous term; the office could not he thus filled by appointment. — Little v. Foster, 130 Ala. 154, 30 South. 477. If the amended statute controlled (and we think it did), then Blackman’s appointment wjas not only to fill out the unexpired term of his predecessor, but was also to continue until his successor was elected; hence his term had not expired — there was no vacancy — and Ham’s appointment would be void. If Blackman’s term had expired, as is claimed by appellant, and he was unlawfully holding the office, he should have been ousted by an appropriate judicial proceeding, and not by an executive proceeding. While he was thus holding over, if the term had expired, he was at least a de facto officer; there was no opening created by a failure to elect his successor so long as he continued to hold the office, though during that time he may not have been a de jure [122] officer. There could be no vacancy in the office until he was removed voluntarily or involuntarily.. The executive had no authority or power to remove him, so as to create a vacancy, and, of course, could make no appoint ment until there was a vacancy. — Fox v. McDonald, 101 Ala. 41, 13 South. 416, 21 L. R. A. 529, 46 Am. St. Rep. 98; Nolen v. State, 118 Ala. 154, 24 South. 251. My brothers do not concur with me in the foregoing opinion. They are of the opinion that, the term having expired and the Senate having failed to elect a judge as provided by the statute, there ensued such a vacancy as authorized the Governor to appoint, and that the respondent, Ham, is legally entitled to the office. The judgment of the circuit court ousting the respondent is reversed, and a judgment will be here rendered dismissing the proceeding. Reversed and rendered. Dowdedd, C. J., and Simpson, Andeeson, Denson, McClellan, and Saxes, JJ., concur. Mayfield, J., dissents.