The opinion
Read, J.,
Dissenting. “All vacancies occurring in the offices provided for by this Article of the Constitution, shall be filled by the appointment of the Governor, unless otherwise provided for, and the appointees shall hold their places until the next regular election.” Art. 4, sec. 31. The meaning of “ next regular election,” is the question to be settled.
The adjective “next” is evidently used to qualify “ election,” so as to make it mean the first as distinguished from a remote election. It means the first election in point of time. The adjective “ regular ” is used to qualify “ election,” so as to distinguish it from some other kind of election. It is therefore necessary to ascertain what are the several kinds of elections designated in the Constitution. There are two and only two kinds of elections designated or contemplated in the Constitution : regular elections and special elections. Regular elections are those by which the offices are originally and continuously filled, according to “stated and established rules,” at “ periodical times.” Web. Diet. Special elections are those by which the offices are filled in cases of accident. The usual election for members of the General Assembly, on the first Thursday in August every two years, is an instance of regular elections. An election to fill a vacancy occasioned by the death of a member, at such time as may be appointed, is an instance of special elections. It is a useful inquiry, why is it that the Governor is allowed to appoint a Judge in any case? The *164 people elect members of the General Assembly, whose term is two years, and if a member dies, making a vacancy, the Governor does not fill the vacancy by his appointment, but the people meet again and elect a new member. And so the people elect a Judge,'whose term is eight years, and yet if a Judge dies, making a vacancy, the people do not meet again and elect a new Judge, but the Governor appoints. Why is this? Why is the Governor let in to appoint in one case and not in the other ?
The people are the elective power in both cases, one is just as important as the other, and they will not allow the Governor to appoint in one case for a single day, and yet they do allow him to appoint in the other for years. The difference is founded on convenience, and on that alone. Members of the General Assembly represent a county or a small district; and it is but a little trouble or expense for the people to make a new election, upon short notice. And therefore there is no necessity that the Governor should appoint their representatives or any county officer; and he is not allowed to do so. But the Constitution provides that all the twelve Superior Court Judges shall be elected, not by a county, not by a district, but by the whole State (unless thereafter altered). And a special election to fill a vacancy would involve delay to notify the people, to nominate candidates, to canvass their merits, and much expense to hold and certify the election. And so for convenience, the appointment to fill the vacancy was given to the Governor, instead of being reserved by the people.
It is also a useful inquiry: Eor how long a time would the people be likely to part with this important elective power ? As they parted with it temporarily to suit their convenience, they would resume it as soon as convenient. The next inquiry is, is such convenient time indicated in the Constitution. It is the “stated, established, usual period ” when the people meet together for the first time, after the vacancy occurs, to vote for Judges of the Superior Courts. Then it is as convenient for them to fill a vacancy resulting from accident, as from .the *165 expiration of a term. And it is just as convenient for them to vote for seven, as for six.
If then we use “ regular ” in the sense of usual or established election, we have still to determine, what is the usual or established times for elections of Judges by the people. The Constitution provides that twelve Superior Court Judges shall be elected by general ticket, and shall hold their offices for eight years from 1870. That would make the “usual, established,” or what is the same, the “regular” elections come off in 1878, 1886, and so on every eight years. But there was a farther provision that one-half the Judges elected at the first election should hold their first terms for only four years; the effect of which was to have an election every four years for six Judges, instead of an election every eight years for twelve Judges, evidently for the purpose of securing a continuous and uniform practice and administration of the law, and at the same time popularizing the system and keeping the Judges and the people close together, with a frequent reminder to the Judges of their responsibility to the people, and a frequent opportunity to the people to make them feel their responsibility. Whether such a policy is wise or unwise, I express no opinion, not because I have none, but because this is not the place to express it. With this policy in view, and in view of the fact that the people are the electors of Judges, are we not to suppose that the Constitution would have so provided that as much as possible of the terms of Judges should result from the popular vote ? When it is clearly intended that the Judgeship of a district shall be held eight years under the election of the people, can it be that in case of accident it should be held one year under the'election of the people, and seven years under the appointment by the Governor? Why should the accidental vacancy and the appointment by the Governor have any other effect than to fill the office until the legitimate electors can fill it when they come together at the usual or regular time and places of electing Judges, and without the inconvenience of being called together *166 in a special election? Beyond all question, the people are to elect the Judge, at some future, usual or regular election for Judges. There was such regular election in 1871, four years (six) after the vacancy occurred, and was filled by the appointment of the plaintiff, and there will be another regular election for the same purpose in 1878. At which of these regular elections for Judges are the people to be permitted to vote for a Judge of that district? The language is “at the next regular election.” Hoes that mean the next regular election in 1874, or does it mean the next, after the next, in 1878? It certainly was just as convenient for them to vote to fill that vacancy at the time when they voted to fill six other vacancies in 1874, as it can be for them to vote to fill if¡ when they vote to fill six other vacancies in 1878. Nor can the alteration by statute, since the Constitution, to vote bj7 districts, make any difference. It is insisted that we ought to read the Constitution as if it were “next regular election for that offieeP If-that addition would not alter the meaning, why make it? If it would alter the meaning, where is the precedent for changing language to injuriously effect a popular right? In whose favor must doubtful language be construed? Notin favor of the appointing power of the Governor ; he has no interest in it; not in favor of the appointee, for although he has an interest, yet it is subservient to the public, and doubtful language must be solved in favor of popular rights. Nothing is better settled, or more important to be maintained, than that no one ought to exercise the duties of an office to which his title is doubtful, and no one rightfully in office ought to exercise a doubtful power. The Legislature itself ought not to exercise a doubtful power. The Legislature itself ought not to exercise a doubtful power, and it is upon the supposition that they duly considered the question of power, and determined it in favor of its exercise, that the Courts feel themselves bound by their construction unless in cases plain to the contrary. Every doubt in everything, is solved in favor of popular rights: to *167 this there is no exception. Cooley’s Cons. Lim. 36, 37, 73,74, 182, 186.
The Constitution having provided for an election of Superior Court Judges in 1874, and that being thenext regular election for Judges after the vacancy ; and the people having parted with the right to fill the office only temporarily, and for convenience, and it being reasonable and fundamental that the power should be resumed as soon as convenient, it would seem to follow, that the election of the defendant in 1874, was proper. An argument of some force, against this view is, that judgeships should be for the longest time, and that a reasonable considera-tiod of the interest of the appointee would not call him from his practice for a few months or a few years: and that no good lawyer would accept such appointment. But an analogy unfavorable to this argument, was the appointment of Judges under the old regime by the Governor, until the next General Assembly, which was sometimes only for a few months, and could not exceed two years. And then the General Assembly resumed the elective power, and sometimes used it with crushing, not to say cruel effect, upon the .the appointed, under the idea that the public good, or some other consideration, was paramount. There is a general idea that, to fill a vacancy, is fill it full, as you would a barrel, so that there is nothing more to do. That is true, where the electing power to fill the office originally, is the same power that fills the vacancy, as where the people elect a member of the General Assembly, and he dies, and they fill the vacancy. They fill it full, and there is an end. But when the appointing power is not the elective power, then it reverts to the elective power as soon as it can be conveniently exercised, unless the contrary clearly appears. And doubts ought to be solved in favor of the reversion.
It is objected that this construction would disarrange the provision, that the Judges of the Superior Courts are to be divided and kept in two classes, six and six, to be elected every four years: for if eight are elected in 1874, when only four will *168 be to be elected in 1878. Non sequitur. That would be so if the two Judges elected to fill vacancies in terms which end n 78, were elected not only to fill the vacancies, but for four years of the next term. That would be an enormity for which I remember no precedent, either to appoint or elect an officer not only for the unexpired term, but for one half of the succeeding term. A Senator in Congress is elected for six years; but if elected to fill a three years’ vacancy, he does not fill that three years, and three years of the succeeding term. So here, when two Judges are elected in 1874, to fill vacancies in terms which expire in 1878, their terms expire in 1878. They fill vacancies, and not terms.
And it is said that if the construction for which I contend, is adopted, i. e. that the Governor is to appoint until the next regular election for Judges of the Superior Court, and then the people are to elect, to fill the remainder of the vacancy— then if the vacancy should happen just before the election, say twenty days, so that no election conld be held, the vacancy would remain for four years. Non seqtoitur. The Governor can appoint to fill any vacancy. He could fill the vacancy for twenty days, and then if the people failed to elect, either his appointee would hold over as in Battle v. McIver, or he could again appoint to fill the vacancy occasioned by the failure of the people to elect.
This construction of “ next regular election ” -would seem to be the true one, if considered without the light of the legislative, executive and popular action, but with the aid of these, there would seem to be no doubt. The Legislature has so construed it to mean the election of 1874. The popular voice so construed it, and the Executive so construed it and commissioned him. If I had doubts I should yield them, It is not pretended that this construction effects the office of any member of this court. It was admitted on the argument that it does not. The regular election for Supreme Court Judges, are every eight and not every four, years. There has not been, and there cannot be, any election for any judge of the Su *169 preme Court, until 1878. I mentioned it only to exclude the conclusion, that the decision is insensibly biased thereby. I dissent from the decision.
Per Curiam. Judgment reversed.