
    Ham v. The State. ex rel. Blackmon.
    
      Quo Warrcmto'.
    
    (Decided May 24, 1909.
    49 South. 1032.)
    
      Judges; Appointments; Vaemoies. — The first judge of the Coffee County Court was elected by the Senate and resigned October 3, 1903, and the next judge elected resigned April 6, 1905, when relator was elected to succeed him. There was no other election, by the Senate or by the electors as provided, and on January 4, 1909, the governor appointed the defendant to office. Held, that under the Acts of 1900-01, p. 861, as amended by Local Acts 1903, p. 398, relator’s term had expired, and the Senate having failed to elect a judge as provided, there was a vacancy which the governor was authorized to fill by appointment.
    (Mayfield, J, dissenting.)
    Appeal from Coffee Circuit Court.
    Heard before Hon. H. A. Pearce.
    
      Proceedings in the nature of quo warranto by tbe state on the relation of H. H. Blackmon against J. M. Ham, to oust Ham from office. From a judgment of ouster defendant appeals.
    Reversed and rendered.
    J. F. Sanders, for appellant.
    Tbe county court of •Coffee county was created by tbe Acts of 1900-01, at page 861, and this act was afterwards amended by tbe Acts of 1903,398, and this latter act was declared constitutional in tbe case of Blue v. Everett, 40 South. 203. Under both acts the Governor was authorized to fill tbe vacancies when caused from any reason. Tbe failure of tbe senate to elect a successor in 1907, did not produce a vacancy under tbe holdover clause, but be bolds until bis successor is elected and qualified.- — City Council v. Hughes, 65 Ala. 201; Lane v. Cobb, 92 Ala. 636 Sandlin v. Dowdell, 39 South. 280; Dowling v. White, 116 Ala. 306.
    R. H. Arrington, for appellee.
    Tbe Acts providing for tbe court fix tbe manner in which each incumbent shall be succeeded and is mandatory and exclusive of any other manner of selecting tbe judge after tbe expiration of tbe term. — State ex rel. v. Foster, 130 Ala. 154. Under tbe terms of tbe act tbe officer elected held over for an indefinite period until bis successor was elected according to tbe terms of tbe statute, and there was no vacancy. — State v. Harrison, 113 Inch 234; 29 Cyc. 1399; Meacbum on Public Officers, sec. 128-9. No successor having been elected by the S'enate to succeed Judge Blackmon, tbe cases relied on by appellant have no field of operation. There was no vacancy in this instance.- — State v Harrison, supra-,Stocking v. The State, 7 Ind. 326; People v. Tilton, 37 Gal. 614. Even if there was a vacancy caused by the failure of tbe senate to elect the Governor had no authority to fill it.- — State, ex rel. v. Foster, supra; Fox v. McDonald, 101 Ala. 71.
   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 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. 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 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.  