The Montgomery advertiser., 1908-12-11
JUDGESHIP IS HELD VACANT Opinion On Coffee Coun-
 ty Court ATTORNEY GENERALS RULING Judge H. H. Blaekman In Not Enti-
 tied To lis Office That Is constructien of Colonel Garber After Examining Act Providing
 for Filling Conee County
 Judgeship. a

County, is no longer entitled to his of- flee The Attorney General declares that a vacancy exists in The oilics and that 1t is subject to be filled by ap- pointment of the Governor.
 The opinion was rendered on request of the Governor. The doubt of the le- gality of Judge Blackman's tenure of office had been brought to the attention of his excellency. It was based on two interpretations of the -amendatory set of September 2s, 1903, of the Leglsla- ture, describing. the manner of electing the Judge of, the Coffee County Court
 One section of the act provided that the office should have been filled by election of the State Senate In 1907. However. this function was neglected by the last Legislature and the vacancy according to the views of some, began at that time. There Is another sec tion of the act referred to which pro- vided that in the event of a vacancy it should be filled by appointment of the Governor. .
 And the person so appointed" the act went on to say, shall hold his ofnce by virtue of said appointment until the election of his successor by the quail fed voters of the county"
 The Attorney General holds that the first section referring to election by the Senate is clear and explicit and capable of enforcement, while the other, providing another mode of election, is
 
 lacking in proper machinery for It's ex- ecution." The sections, according to his construction, are in conflict, and after reviewing a chain of authorities in several States on similar cases, he concludes that the authority of the Governor to appoint distinctly remains in the act and that as the Senate did not elect in 1907 the vacancy then and there began.
 Details of Opinion.
 a..nA a.. A..l4 FlIl
 December 10, 1908. Hon. B. B. Conner, Governor of Ala
 abms. Montgomery, Alabama Dear Sir:--
 "on October 14 you submitted to me an inquiry in regard to the tenure of of the County Court of Coffee County. and requested me to. advise you whether or not there exists vacancy In said oflce.
 history of the local Legislation which established the County Court of Coffee County, 1t is sufficient for the purposes of this opinion to refer only to Section IS. of the amendatory act of September 29. 1908, (Local Acts 1903, page S9sl. This act is carelessly constructed and It is difficult to see how the Legislature passed 1t in its present shape. Section IS of the act with which this opinion deals. is a glaring example of nasty legislation. This section provides first. that The judge of said court shall be elected by the Senate of Alabama anu 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 Quaiifed.'
 Then 1t proceeds in the same para. graph In a subsequent sentence to pro- vide as follows: Tn case of vacancy caused by resignation, removal or death of the judge. or by any other cause, the Governor shall fli: said va 'cancy by appointment, and the person so appointed shall hold his office by vir- tue of said appointment until the elect ion herein provided for the election of his successor by the qualified voters of the county
 "The act no where contains any other provisions concerning the elect ion herein provided for the election of his successor by the qualified voters of the county There is an entire omis- sion in the act to provide for such same section, two modes for the elect- ion of the judge of this court. One provision makes the judge of said court elective by the Senate of Alabama in ent incumbent until 1907 and until his successor is elected and qualified and the other clause provides that in case of vacancy caused by resignation, re% moval or death of the judge or by any other cause,' the Governor shall i'll said vacancy and the appointee of the Governor shall hold of1ce until the election herein provided for the elect ion of his successor by the qualified voters of the county but the manner and means of the election herein pro- vided' Is not, in fact, incorporated in any part of the act.
 "There is manlfestly a conflict be- tween these two provisions of the same statute. The first is complete, clear and susceptible of execution, while the and lacking in proper machinery for its execution. Under the ordinary rules of construction. the first clause. which is sensible and susceptible of execution, the legislative intent rather than the subequent incomplete and imperfect clause. Moreover, 1t Is difficult to imagine that the Legislature intended to provide one method of electing a judge of this court where the ineum- ed term was the same officer who had been previously elected by the Senate, and a wholly different method where the incumbent at the expiration of the appointee of the Governor to fill an un- expired part of such term.
 Elected by Senate.
 "I have reached the conclusion on this point that under Section IS of the Act, the judge of said court is elected by the Senate of Alabama and holds office for the term of six years and until his successor is elected and qualified. There seems to be no escape from the decision although the term of office which began January 1907. will end January 19i3, two years after the Legislature con venes in 1911, and two years before that body convenes in January Ia1K.
 "The Senate of Alabama failed to elect a judge of this court in 1907, as provided by Section IS of the act. and the question is now presented as to whether there exists a vacancy. in said office which can be filled by appoint ment of the Governor.
 "This is a question difficult of solu- tion and the courts of the different States are divided on it. The weight Of authority seems to be in line with the general rule laid down in Throop on Public Officers. Section 330, which is as follows; Where a statute, creating an office, and fixing the duration of the term thereof. provides that the officer shall be elected by the Legislature, and shall hold his office until his successor the Legislature to elect a successor, ut the expiration of the incumbent's term does not create vacancy which may be filled by the Governor, under a provis- ion authorizing him temporarily to flD vacancies;. but the incumbent holds over until his successor is elected by the Legislature
 'sMechem on Public Ohicers Sections i26 and 129 adopts the same construct ion as the settled principle of the law which is followed by the Supreme