" (citations omitted). Garrotto v. McManus, 185 Neb. 644, 177 N.W.2d 570, 574 (Neb. 1970); Spears v. Davis, 398 S.W.2d 921, 926 (Tex. 1966); State ex rel. Sanchez v. Dixon, 4 So.2d 591, 595 (La.Ct.App. 1941). Garrotto v. McManus, 185 Neb. 644, 177 N.W.2d 570, 574 (Neb. 1970); Spears v. Davis, 398 S.W.2d 921, 926 (Tex. 1966); State ex rel. Sanchez v. Dixon, 4 So.2d 591, 595 (La.Ct.App. 1941).
OTT, Judge. In addition to the grounds urged in the case of State ex rel. Sanchez, Dist. Atty., et al. v. Millard W. Dixon, 4 So.2d 591, and the reasons given in the opinion in that case, this day handed down, an additional ground, stated in the opinion in the other case, is urged in the alternative in this case. The conclusion reached by the majority in the other cases renders it unnecessary to pass on the alternative and additional ground urged in this case.
OTT, Judge. For the reasons assigned in the case of State ex rel. Dewey J. Sanchez, Dist. Atty., et al. v. Millard W. Dixon, 4 So.2d 591, this day decided, it is ordered that the judgment herein appealed from be and the same is hereby affirmed at the cost of appellant in both courts. DORE, J., concurs.
OTT, Judge. For the reasons assigned in the case of State ex rel. Dewey J. Sanchez, Dist. Atty., et al. v. Millard W. Dixon, 4 So.2d 591, this day decided, it is ordered that the judgment herein appealed from be and the same is hereby affirmed at the cost of appellant in both courts. DORE, J., concurs.
The Wallace opinion lists cases from eight jurisdictions so holding (197 Cal. at p. 550), and numerous earlier and more recent decisions are in accord. (See, e.g., State v. Crawford (1956) 207 Or. 76 [ 295 P.2d 174, 178]; Reed v. McKeldin (1955) 207 Md. 553 [ 115 A.2d 281, 286-287]; State v. Dixon (La. App. 1941) 4 So.2d 591, 595; Williams v. Mabry (1940) 176 Tenn. 343 [ 141 S.W.2d 481, 484]; State v. Wright (1937) 211 Ind. 41 [ 5 N.E.2d 504, 505]; State v. Board of ElectionCom'rs (1925) 196 Ind. 472 [ 149 N.E. 69, 72]; Schaffner v. Shaw (1920) 191 Iowa 1047 [180 N.W. 853, 854]; Yates v. McDonald (1906) supra, 96 S.W. 865, 866-867; State v. Burkhead (1905) 187 Mo. 14 [85 S.W. 901, 905-906]; see generally 48 C.J.S., Judges, § 31, p. 983.) Finally, and in the alternative, petitioners contend that even if vacancies in the two superior court judgeships they seek did arise on the date the statute creating them took effect, that date was not January 1, 1976, but August 31, 1975, the day on which the Governor signed the bill enacting the statute (Stats.
The cases seem uniform in holding that an officer appointed to fill a vacancy created by an act creating a new office takes and enters upon a term of his own since there is no previously existing term which such party is to fill out. See State ex rel. Sanchez v. Dixon La. App.), 4 So.2d 591. The Legislature recognized that by L.B. 916 it had created vacancies in judicial offices and the act specifically directed the Governor to fill those vacancies.
See also, State ex rel. Moran v. Washburn, 19 Conn. Sup. 316, 112 A.2d 897 (1955). Cf. Davis ex rel. Taylor v. crawford, 95 Fla. 438, 116 So. 41 (1928); State ex rel. Sanchez v. Dixon, 4 So.2d 591 (Louisiana App. 1941); State ex rel. Ross v. Carroll, 133 Wn. 549, 234 P. 22 (1925). However, the respondent urges that as the framers of the Constitution specifically provided that the terms of House members 'shall be two years from the day of their election' and omitted any such provision relating to senatorial terms, they must have intended that the terms of Senators should begin at some time other than the day of election.
So. 737; Hawkins v. Hoyle, 108 Miss. 282, 66 So. 741; Hughes v. Buckingham, 5 Sm. M. 632; Illinois Cent. R. Co. v. Mississippi R. Co., 143 Miss. 805, 109 So. 868; Kidder v. McClanahan, 126 Miss. 179, 33 So. 503; Lee County v. James, 178 Miss. 554, 174 So. 76; McLeod v. State, 154 Miss. 468, 122 So. 737; Magee Truck Lines, Inc. v. Bond, 190 Miss. 428, 200 So. 586; Mississippi Public Serv. Comm. v. Chambers, 235 Miss. 133, 108 So.2d 550; Mississippi State Board of Vets. Examiners v. Watkins, 206 Miss. 330, 40 So.2d 153; Moorehead Drainage Dist. v. Pedigo, 210 Miss. 284, 49 So.2d 378; New Orleans, M. C.R. Co. v. State, 110 Miss. 290, 70 So. 355; Okolona v. Chickasaw County, 171 Miss. 424, 157 So. 690; People v. Nichol (Cal.), 100 P. 1075; Perkins v. Hughes (Ariz.), 91 P.2d 261; Smith v. Halfacre, 6 How. 582; Springer v. State (Ala.), 157 So. 219; State v. County School Board, 181 Miss. 818, 181 So. 313; State ex rel Baria v. Alexander, 158 Miss. 557, 130 So. 754; State ex rel Sanchez, Dist. Atty. v. Dixon (La.), 4 So.2d 591, State v. Yazoo M.V.R. Co., 87 Miss. 679, 40 So. 263; Unemployment Comp. Comm. v. Barlow, 191 Miss. 156, 2 So.2d 544; Wilson v. City of Lexington, 153 Miss. 212, 121 So. 859; Yerger v. State, 91 Miss. 802, 45 So. 849; Secs. 7547, 7548, 7549, 7564.01-7564.31, 7564.06, Code 1942; 42 Am. Jur. 389; 43 Am. Jur., Secs. 151, 155 pp. 11, 15; 67 C.J.S., Secs. 44c, 46 pp. 198, 200.
It appears that another court has reached a similar conclusion upon a comparable fact situation. In State ex rel. Sanchez v. Dixon, La. App., 4 So.2d 591, 595, the issue presented was whether the governor could appoint as interim appointments, four additional police jurors, under an act authorizing the creation of these offices upon varying population increases. The court said:
(2) Mr. Wall could not assume and exercise the duties of circuit clerk because he was in the army and out of the State. An office is vacant when there is no person authorized to assume and exercise, at present, the duties thereof. State ex rel. Sauchez v. Dixon, 4 So.2d 591; State ex rel. Hoyt v. Metcalf, 80 Ohio St. 244, 88 N.E. 738. (a) Vacancy of office exists when there is no incumbent thereof. Williams v. Mabry, 176 Tenn. 343, 141 S.W.2d 481. (b) When respondent was appointed, Mr. Wall could not legally perform the duties of circuit clerk; and he was somewhere out of the State in the army, so he was not in present possession.