Evening journal., 1921-08-05
NO HOLD-OVER
FOR JUDGES;
I2-YEAR Term
continued From First Page.

/
Article Is. of the State Constitution.
The former section provides that
"The judges shall be
appointed by the Governor for
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 va
cancy, convene the Senate for the
purpose OF confirming his appoint
ment TO fiji such vacancy.
Such vacancy shall be filed as afore-
said for the full term ."
The latter section provides that
"All public officers shall hold
their respective Offices until their
successors shah be duly qualified.
except in cases herein otherwise
provided"
In substance, Article 4, Section 3.
provides that II a vacancy shall oc-
cur in the Judiciary, by expiration
OF term or otherwise, such vacancy
shall be filled for the term OF twelve
years. The words of Article Is, Sec
ton s, to wit: Except in cases
herein otherwise provided" have a
particular significance when applied
to Section OF Article 4 because 1T
is otherwise provided" in said Sec
ton 3,
"a BY fixing the Constitutional
term OF office for a judge at twelve
years;
(2) BY providing that the ex-
piration OF a twelve year term shall
constitute vacancy;
CD BY providing that the Gov
ernor can appoint only when a va
cancy occurs.
The Ohio Supreme Court case OF
State VS.. Brewster. "A Ohio State.
$50, supports the first conclusion.
. In the above case the facts were
briefly as follows; The Constitu-
tional term OF auditor was three
, years. The date OF assuming office
/ was changed as a result OF which
AS thre year term expired ten
months before BIS three year term
? began. One statute gave the COM
, missioners power to fill all vacancies
I and another provided that any per-
, son holding office should continue
therein until his successor was quail
7 fed "unless II is otherwise provided
y by the Constitution or laws" A
claimed the right to hold over dur
. ing the said ten months as against
the commissioners appointee. In de-
, Gliding against A the court said;
= 1T should be borne in mind that
the provisions OF Section 6 that an
= officer shall continue in his Office un-
= I'll his successor is elected or ap'
pointed and qualified Is subject tS
Itl. - 81 AZ
wise provided In the Constitution o
laws We hnd 1t otherwise pro
vided' In the Constitutional limita
tion OF the term OF this Office L
three years"
n As before stated the Constitution
provides that the expiration OF q
twelve year term shall constitute q
vacancy and that the Governor car
appoint only when a vacancy oc.
ours The word vacancy" has q
I definite meaning.
"A vacancy in a place which IS
empty. The term is principally ap-
piled to an interruption in the in
cumbency 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 its fees or emoluments."
where an officer continues in Of.
,r fee after the term has expired there
4 is no vacancy"
These definitions are universally
a. supported by adjudicated cases. and
I. therefore citation OF authorities Il
- unnecessary.
In oda{tfor to ,,,,, axro,,,fr.tf,,, q,
the Constitution and decisions. I hav,
! had Deputy Attorney General Willie,
make an examination OF the type
y. written reports OF the debates OF tn
''' trainers Of the Constitution, on M
at Dover with respect to the fore
going constitutional provisions, an
Mr.. Wiley has written me. in part
ne as follows;
M Il enclose herewith some question
tie from the Debates in the Constitu
EN- tional Convention Of 1897 on Sectio
ey' 3. Of Article 4, and on Section s. q
ice Article Is. I made a rather careft
Tor search Of the fifteen volumes of IN
ID debates, having previously gon
zen through the printed journal of tn
s. Il have copied these remark
thf WnlCn seem 10 snow IN
m ideas OF the members OF the conver
'od tion on the two sections in question
er Almost all the questions are froi
in the remarks OF Mr.. Spruance. II
ia. understand correctly the remarks
rth Mr.. Spruance, he thought that whe
the twelve-year term Of judge e,
Del pired, that judge was out Of on,
St and that the Office was vacant
he until confirmation of a new al
700 pointee by the Senate. He sugges
RS that in case Of necessity the Cove
m nor has power TO appoint judges a
"a litem. In trying to learn the att
81 tude Of the members of the convei
IN, tion. IL seems significant to me tn
whatever the position OF Mr.. Sprl
- ance was, that the other membe
did not question il ..
Il have the impression now, aft,
"a going through the debates, that u
members OF the convention did NJ
intend that Section S. Of the Artic
! is. should apply 10 the judges at a
but that they regarded Section 3,
m Article 4, as the all-sufficient sectio
w capable. and intended so to be.
taking care Of vacancy among u
higher judges"
nee From the numerous quotation
nl'' sent TO me by Mr.. Wiley, / entire
son agree with his conclusions. witho
ad- being in the least Influenced by Il
10 adjudicated cases which I have g
the amined and 1 shall therefore ref