State ex rel. Attorney-General v. Gilbreath

delivered the opinion of the court.

The defendant is chai’ged with usurping the office of justice of the County Court of Macon county, and the information shows that, at the general election of 1866, A. 0. Atterbury, J. R. Alderman and William D. Roberts were duly elected and commissioned as justices of such court, and, drawing lots under the statute, the said Atterbury drew the term of two years, the said Roberts drew the term of four years, and the said Alderman drew the term of six years ; that, at the election of 1868, Charles P. Hess was duly elected for the term of six years • to fill the vacancy caused'by the expiration of the term drawn by said Atterbury; that the said County Court, composed of said Roberts, Alderman and Hess, on the 18th of October, 1870, divided the county intp three districts for the purpose of electing justices of the County Court, under the provisions of section 1, chapter 137, Gen. Scat. 1865 (Wagn. Stat. 439), and assigned the said Hess to the First district, the said Alderman to the Second, and the said Roberts to the Third district; and, as the term of said Roberts would expire at the election in November following, ordered an election at that time in the Third district to fill the vacancy. The. information further relates that respondent Gil-breath and John M. Wilson, regarding said order districting the county as vacating the office of all the judges, offered themselves *110as candidates for said offices at said election,, tbe said W-ilson for the First district, and the said Gilbreath for the Second; that each received a majority of votes in his district, were commissioned for the term of six years, intruded themselves into the offices of justices of said County Court, and unlawfully hold and execute the same.

The respondent claims that by districting the county the judges thereby vacated their offices, that a vacancy was created in the Second district, and that he was regularly elected to fill the same, and was duly commissioned, etc.

The question is thus raised whether the action of the County Court in districting the county had any such effect as is claimed by respondent. The section of the statute referred to is as follows :

“Section 1. The County Court shall be composed of three members, to be styled ‘ the justices of the County Court,’ and each county, where the court is composed of three justices, may be districted by the County Court, if they think the good of the county will be promoted thereby, into three districts, as near equal in population as practicable without dividing municipal townships, and each district shall elect and be entitled to one of the justices of the County Court.”

Section 2 provides that the term of such justices shall be six years, and section 3 provides that, at the election for 1866, three justices shall be elected, one of whom shall vacate his office in two years, one in four, and one in six years, to be determined by lot, and thereafter “there shall be one justice of each County Court in this State elected every two years.”

Section 1, as is seen, provides for districting the county, but there is no express provision, in case such districting is had, for assigning the judges already elected to the different districts, or for designating the district into which the first vacancy shall fall. The County Court assumed the power of designating the districts to be represented by each one of their number, and, as a consequence, designated the time when each district should elect, corresponding with the time when their respective terms would end; and the relator claims that the power thus to act is a neces*111sary incident to the power expressly granted, and implied from it; that the express power cannot be exercised without such assignment of the judges to the several districts, and consequent designation of the district in which the first vacancy shall happen. The respondent, however, claims that inasmuch as the statute makes no provision for such assignment of the justices, the districting of the county must operate as a resignation of all the judges, and a provision for a new election in all the districts.

This omission in the statute gives rise to difficulties in its construction, whichever view is taken. If the provision, for district-ing the county had been carried into effect before the election in 1866, there would have been no difficulty, for in that case the justices would have been elected by and for each district, and there could have been no subsequent election except for one district ; or if there is any power, express or implied, to designate the district where the several terms fall, then everything is plain, for it must necessarily follow that 'the election must be had in the district where the term has expired. But if the districting was not had before the election in 1866, and there is no power to designate the district where the different terms fall, then it seems impossible "to execute the law, for how otherwise can we say in which district the election shall be had? Respondent would solve the difficulty by saying that after the court is districted elections should be had in all the districts and for the full term. But this contradicts the statute, which expressly provides for the election of three justices in 1866, and one every two years thereafter, and also provides for a term of six years. • No exception is made as to those counties that may be districted, so that there is no statutory authority for electing more than one justice at any election, and no right to cut short the term of any. If respondent’s construction be the true one, the terms of two of the justices are curtailed, and instead of an election of one justice every two years, as provided by the statute, it can only thereafter be had once in six years, and all the justices must be elected at once. Such contradictions will not be implied unless from some other express .provision, and without which such provision could not be carried into effect. The only provision that is claimed to have this effect *112is the one for districting the county. But no such contradiction of the express requirements of the statute can by-any process of reasoning be inferred from this-provision, so we must seek some other solution of the difficulty. I can see no other solution but in the construction given by the County Court. It contradicts nothing; it simply adds an implied power, without which the provision under consideration would be inoperative. Under this construction the present justices will hold their statutory term, an election of one justice will be had every two years, and each , district will elect one, thus affirming the material provisions of the statute. It is objected that two of the districts are deprived of their right to elect. True, until the terms of the justices already elected shall expire. No statute providing for a future election to any office already filled can take effect until the termination of the pending term, unless the term is expressly cut off. That is not the real difficulty in this case, but it is in the assignment of the justices, thus determining in which district the first district election should be had. But such assignment being necessary to carry into effect the power to district, the power to make it should be implied from the one expressly granted. Judgment of ouster will therefore be rendered.