Every evening, Wilmington daily commercial., 1921-08-05
NO HOLD OVER PAY
FOR JUDICIARY, SAYS
ATTORNEY EY-GENERAL.
Opinion on Question Given To,
day to Auditor Daniel
Thompson.
TERMS DEFINITELY ENDED

Thompson. the state judges whose
terms recently expired did not hold
over and they were not entitled tc
pay for the time which intervened
prior To the Senate's action on the
governors judicial appointments. Th,
question had been raised and an
opinion was sought by the auditor. tc
know just when the pay of the re-
tiring judges stopped. The opinion OF
the attorney general follows:
Dear Sir:
You have asked for my opinion as
TO whether or not the state judges
whose terms OF IL years expired or
June IA. 1921. are entitled as holt
over members of the state judiciary &c
their usual salaries until their re.
spective successors are appointed and
qualified. The constitutional provi-
sions necessary To be considered in
answering your question are set forth
In Section 3. article A. and Section )
Article Is. of the State Constitution
The former section provides that
The judges shall be ap-
pointed by the governor for a
term of twelve years; II
vacancy shall occur, by expiration
OF term or otherwise the
governor shall. within thirty DAYS
after the happening of any such
vacancy. convene the Senate for
the purpose OF confirming his APP
pointment 70 FIJI such vacancy.
- Such vacancy shall be filled
as aforesaid for the FUR term .
The later section provides that
"All public officers shall hold
their respective Offices until their
successors shall be duly qualified,
except in cases herein otherwise
provided
In substance. Article 4. Section 3
provides that IL vacancy shall oc-
cur in the Judiciary. by expiration oi
term or otherwise. such vacancy shall
be filled for the term Of IL years. The
words of Article is, Section 5, 10 wit;
except in cases herein otherwise pro.
yided." have particular Significance
when applied to Section of Article
4 because "it is otherwise provided
in said Section 3,
Cd BY fixing the constitutional
term Of office for a Judge az twelve
years.
l2) by providing that the ex-
piration of a twelve year term
shall constitute a vacancy:
(3) BY providing that the gov
ernor can appoint only when a VA
cancy occurs.
The Ohio Supreme Court case oi
State VS.. Brewster. ~ Ohio State
$50, supports the first conclusion.
In deciding the court said:"It should
be borne in mind that the provisions
OF Section 5, that an officer shall con-
tinue in his office until his successor
IS elected or appointed and qualified is
subject to the qualification unless il
Is otherwise provided in the consti-
tuition or laws We find II otherwise
provided in the constitutional limita-
tion of the term Of this Office 70 three
years"
As before stated the Constitution
provides that the expiration OF a
twelve-year term shall constitute a
vacancy and that the governor can
appoint only when a vacancy occurs
The word vacancy" has a definite
meaning.
"A vacancy is a place which is
empty. The term is principally
applied to an interruption in the
incumbency OF an office
"A vacancy in an office means
that the office is empty. that it
is without an incumbent who has
a right TO exercise its functions
and take it's fees or emoluments
Where an officer continues in
office after the term has expired
there is no vacancy"
In addition to my examination OF
the constitution and decisions. / have
had Deputy Attorney General Will
ley make an examination of the type
written reports of the debates of the
trainers Of the constitution, on file at
Dover. with respect to hte foregoing
constitutional provisions and MIR. Will
ley has written me. in part. as fol-
lows:
Il enclose herewith some quo
tations from the debates in the
constitutional convention of 1897
on Section 3. Of Article 4. and on
Section 5 Of Article IS. / made a
rather careful search of the fifteen
volumes of the debates. having
previously gone through the printed
journal Of the convention.
have copied these remarks which
seem to show the ideas of the
members Of the convention on the
two sections in question. Almost
all the quotations are from the
remarks Of Mr.. Spruance! IL
understand correctly the remarks
of Mr.. Spruance he thought that
when the twelye-year term of a
judge expired. that judge was ous
of office and that the Office was va
cant -" until confirmation of
new appointee by the Senate. He
suggests that in ease of necessity
the governor has power TO appoint
judges ad Item. III trying to
learn the attitude of the members
of the convention II seems signi-
ficant to me that whatever the po-
sition of Mr.. Spruance was. the
other members did not question
il
Il have the impression now,
after going through the debates,
that the members of the conven-
ton did not intend that Section
Of Article is should apply to the
judges at all, but that they re-
garded Section 3 Of Article as
the allusufficient section, capable
and intended so to be, of taking
care of a vacancy among the high
er judges"
Adiudicated Cases.
From the numerous quotations sen.
to me by Mr.. Wiley I entirely agree
with his conclusions, without being