The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1888-05-03
GOVERNMENTAL.
Matters Picked Up in a Tour OF
the Departments.
Important ard Interesting In
formation for County Off
Gals and the People.
From Thursdays Daily.
EXECUTIVE OFFICE.

From Thursdays Daily.
EXECUTIVE OFFICE.
Governor Ross yesterday received the
following from the attorney general, which
explains itself:
AUSTIN, April "a, 1888.
Gov. L. S. Ross, Austin, Texas.
Dear Sir--The joint letter address to
your excellency by Judges Norman G.
Kittrell, Sam R. Frost, Eugene Williams
and Arson Rainey, of the Twelfth, Thir.
teenth, Nineteenth and Twentieth Judi.
cial districts respectively, stating that
they were elected to their offices in No
vember, 1886, that question has arisen
as to whether their terms are two or four
years; and asking whether the governor
will order an ELECTION to be held in No
vember next for judges in their several
districts, has reached this department
from the hands Of your private secretary,
with the request that an opinion be
given by the attorney-general upon
the points involved therein. The
tenure of the Office os district Judge
as declared by the state constitution ia
four years. ARTICLE 8, section ~ Begin
u,
under that constitution, the judges chosen
for the twenty-six original districts lin
Guiding those of Judges Frost, Kittrell and
Willisms) were entitled to hold their re-
spective positions for the full cons'itu-
tional term. At each quadrenial election,
therefore, their regular successors have
been elected. Next November election
will complete the full term of office of
district judge for those districts. All
vacancies that have occurred therein have
been supplied by the governor as required
by section %, article 5, of the same con-
stitution. The aforesaid three judges
were at first appointed under this pro-
vision, and were subsequently elected; and
now the question is for how long they
were appointed to fill vacancies, and were
elected for the constitutional period OF four
years, or to fill the unexpired terms
of their predecessors, In express Ian
guage the Constitution, by sec. %, art. 8,
declares shat vacancies in office of judges
in the district court, shall be filed by the
governor until the next succeeding gen.
eral election" and by sec. 81, art. 6, it
says: I'm all elections to fill vacancies of
Office in this state, it shall be to fill the
unexpired term only"
What is meant by the expressions ''va
cancy" and "unexpired term" as applied
to the office of district judge? There can
be no technical nor particular meaning
by the word vacancy" as used in the Con-
stitution; usually 1t means unoccupled,
empty-an office without An incumbent.
A vacancy" occurs when the governor
fails TO appoint judge in district Gre
ated by the legislature, when an appoint
ment has been provided for; or 10y the
death of an incumbent, as happened with
Judge FrosPs predecessor, or when
an officer resigns, as did the
predecessors of Judges Kittrell
and Williams, or when the time for which
thu office can be legally held, as was
the case with each of the three
judges just named, at the first election
after their appointments. They were ap-
pointed to fill vacancies" and could only
hold them until the next general election
Tin 1866, at which time their rights by
virtue of their commissions expired.
Elections followed, and for what purpose ?
To fill the "unexpired terms only" as de-
clared by said section 81. The question
is not altogether free from embarrassment,
for to construe the word vacancy" as ap-
plicable to an Office already filled, even
though by appointment, appears to be a
contradiction of terms. On this point,
however, relief is given by the constitu-
ton itself when it requires vacancies" to
be filled until the next succeeding general
election. 1t seems to regard the vacancy"
continuous, Notwithstanding the "office"
has temporary incumbent. This is also
the case when vacancy" in the supreme
court has been filled by the governor, as
at the next general election thereafter the
the vacancy" for the unexpired term
shall be filled by the qualified voters.
Cart. 5, sec. 2 of the Const.)
By reading section % of article 5 in
connection with section 81 of article 16 of
the constitution referred to so frequently
herein, very much the same language is
observed, and certainly the identical
meaning is derived therefrom, as appears
in and results from the latter part of sec
tion 2, article 8, providing for filling "va-
cancies" in the supreme court. Indeed,
this organic law seems to intend that the
word IVA ancy," as applied to the Offices
of the supreme and district judges, shall
be that period of the regular constitu-
tional term which the predecessor of the
appointed incumbent failed to hold. View
lug the constitution in all the
lights produced by careful investigation
of the question involved, the conclusion
appears irresistible, and it is hereby
held that elections should be ordered for
judges of the district court of said three
districts on the first Tuesday of next
November for the reasons that the
term of Office of district judge is four
years; that the Fortieth judicial dis riot
was created just preceding the last gen
eral election, at which Judge Rainey was
elected to his present position; he has a
right to hold and cannot be deprived of
his Office until the general election two
years from November next.
And, your excellency, out of profound
consideration and with great respect, is
go most respectfully advised.
Your obedient servant,
JAMES s. HoGG,
Attorney General.
AGRICULTURAL DEPARTMENT.
Sufficient data has been received by Mr..
Foster, commissioner of agriculture, etc.,
and warrants him in the belief that his re-