Asheville daily citizen. [volume] (Asheville, N.C.) 1890-1900, 1894-01-12
THE TERM OF THE JUDGES
THE ATTORNEY GENERALS
VIEW sUPPORTED

Vacancies. Offices and Places
Much Depends Oh the SIgniH-
canoe and Meaning Given These
Three Words.
EDITOR THE CrrlzEN:-The opinion Of
the Attorney General given to the Execu-
tive on this subject has met with some
opposition. His construction of section
25, Art. ". of the constitution does not
seem TO receive general support on ac.
count of. the different interpretations
given the words vacancies and" Offices
And, indeed. it is to be admitted that the
question is not free from difficulty, in an
effort at solution.
"All vacancies occurring in the offices
provided for by this article OF the constitu-
ton shall be filed hy the appointments of
the Governor, unless other wise provided
tor, and the appointees shall hold their
places until the next regular election for
members OF the General Assembly, when
elections shall be held to fill such offices"
This is the first clause of section 25. The
second clause simply provides that on
failure of the person elected to qualify,
such office shall be filled as vacancies.
In support of the very able argument
of the Attorney General, l desire first, to
call attention to the use OF three words
in the section referred to, namely, IVA
cancies," "offices," "places," and will
remark, that if that section has mainly
to do with vacarcies, why is it that differ
eut words, in clauses of such close con.
nection, are used to convey single idea :
1t seems to do violence to language to
assert that the words all mean the same
thing. But, in fact, the very use Of the
different terms here clearly indicates that
each clause may have meaning Of its
own. For instance, the first clause only
provides for vacancies which only are to
"be filled by the appointment of the
Governor. And, as il to make it clear
that that the appontee hol not the
"office," the clause further says the ap-
poiptees shall hold their "pl aces" until the
election. And then what Why. the
elections shall be held to fill such Offices
not vacancies. Here the graduation is
orderly. \ vacancy which occurs when
one has begun to fill a term of office and
vacated it, is to be filled ex rel necessi
tatae. by the Governors appointment
In the meantime the appointtes are hold
ing their places till the elections, Their
the act OF election relieves the vacancy
and fills the office, there being no Longer
any vacancy to fiji. The constitution
designation of the status by the use o
the wo, ds "such Office s." clearly shows
that the emergency precipitated by the
vacancy has been fully answered by the
arrival of the election. which proft sse:
nothing to do with vacancies but, ex v
tcrmini. proceeds to fill such Offices.
1t will be noted, that have considered
the first clause as dealing with, and pro
viding for. vacancies only which, as be
tore stated. implies that the term of th
office has been already occupied and va
Gated by predecessor; and that in suc
: cases the vacancy only covers the tim
between the vacating by first possssso
and first election. But in the secon
= clause there is no vacancy in contempla
tion, and it is required therein tha
said otfices'-not vacancies b
appointed to, and hlIed "as provided il
case of vacancies occurring therein.
Reference is made, however, to the see
ond clause to show that, considering
the whole section together, the use OF tn
different words-"vacancies, places. Off
ccs''-gives corroboration to the opinio
of the Acknowledgement that the framer
Of the constitution meant by the use c
the word "offices," te m Of eight years
II is true. that in Cloud VS., Wilson, I
N. G. 1856, the court calls the place neve
qualified to- by Starbuck. vacanc,
But it does that under SEC. 81 of tn
constitution of 1868, whereas, by tn
constitution of 1875, it is thereafter to b
known as an office, a distinction mad
not BY inadvertencc.
For the purposes of this argument, al
tention is dra wn to the fact that secto
81 Of 1868 is identical with section 25 {
1875, clause first, with the superadde
words to the latter, for members of tt
General Assembly. when elections sha
be held to fill such offices" The remain
ing portion OF section 25 NAV be elm
mated as not applicable to the questio
at issue. This is said for the purpose
showing that the decision in Cloud v
Wilson is in the main decisive Of Il
question in hand, and the opinion of Il
court NAV be quoted as authority al
not obiter dictum.
On page 161 the Chief Justice uses Il
following language: ut was urged
the arguments, by this construction Il
appointee of the governor may ho
office, as in this instance, for many yeal
whereas the general policy Of the cons
tuition is to have frequent elections.
is not ours to conjecture the consider
- tions. which caused a provision by whi
the appoutee to fill the office of judge
case of vacancy holds until the ne
- regular election for the office, or for t
want of a provision by which vacan
in the Office OF Judge OF the Superi
\ court can be filled by an election of t
4 people; suffice it, there is no such prov
ion. The term of office for judi
elected by the people, is fixed at eig
years, and there is no provision for fill
a vacancy by an election
The graramen of the decision up
this subject is clearly that an election
less time than eight years is in conf
with the constitution. And after pur
ing the subject on page 162 and, in
alia, referring to the omission to prov
q for an election when the death, or otl
- cause, happens within 80 days of re,
lar election for judges, the opinion sta
= further, "The fact that this continger
was not provided for, shows that it "
not the intention to have an election
the people to ill the vacancy in the of
4 of Judge
Now it is contcndcd that the langus
of the Court given above is clea
decisive of the fact that a vacancy CT
not now be filled bv election, notwi
standing the fact that, to section 81
1868, has been added, in section 20
1875, the clause providing for electi'
to fill "such Offices" The situation
unchanged as to vacancies, and on
principle of stare decisis, we are bo,
In stnnd by the decision on that DC