STATE AND COUNTY OFFICERS
Art. VII, § 5
each officer so elected shall be computed from the first day of September next succeeding his election. The term of office of the Governor and of other executive officers shall be computed from the fifteenth of January next after the election of the Governor. No appointment or election to fill a vacancy shall be made for a period extending beyond the unexpired term. Every officer shall hold his office until his successor is elected or appointed, and qualified. No special election shall be held to fill a vacancy in the office of Judge or District Attorney, but at the time herein fixed for the biennial election of civil officers; and such vacancy shall be filled at the next Biennial election recurring more than thirty days after the vacancy occurs.
Cross-References. Filling vacancies in judicial offices, title 17, ch. 1, part 3.
Time of elections, §§ 2-1-104(24) and (25), 2-3-202. Law Reviews. The Tennessee Court System — Circuit Court (Frederic S. LeClercq), 8 Mem. St. U.L. Rev. 241.
Attorney General Opinions. ‘‘City election’’ under city charter construed as November elections, OAG 98-0103 (6/8/98).
Constitutionality of municipal charter amendment that extends term of elected officials, OAG 00-017 (2/8/00).
Cited: Hanover v. Boyd, 173 Tenn. 426, 121 S.W.2d 120 (1938); Swaim v. Smith, 174 Tenn. 688, 130 S.W.2d 116 (1939); In re Appoint- ment of Clerk & Master, 670 S.W.2d 215 (Tenn. 1984); Shelby County Election Comm’n v. Turner, 755 S.W.2d 774 (Tenn. 1988); DeLaney v. Thompson, 982 S.W.2d 857 (Tenn. 1998).
NOTES TO DECISIONS
Time of election.
Election beyond unexpired term.
Statutory failure to specify.
Terms of judges and district attorneys.
Extension of terms of county officers.
Election of county judge.
—Justices of the peace.
Incumbent holding over.
—Failure to qualify.
Common law powers.
Effect of vacancy.
The provision in this section of the constitution as to the times from which the terms of office shall be computed originated with this constitution. The Constitution of 1834 simply prescribed the duration of the terms of office, and left the time and manner of qualification to be regulated by statute. State ex rel. Nolin v. Parchmen, 40 Tenn. 609 (1859).
By the provisions of this section of the constitution, a new era in the political history of the state is established. A certain day is named from which all official life thereafter shall be reckoned. Absolute uniformity in the time for the commencement and termination of every official term of officer of the same grade throughout the state is positively ordained. Though such uniformity had been of but small moment under the Constitution of 1834, it is now made paramount. State ex rel. Rambo v. Maloney, 92 Tenn. 62, 20 S.W. 419 (1892).
The words ‘‘the unexpired term,’’ as used in the constitutional prohibition against the ‘‘appointment or election to fill a vacancy . . . for a period extending beyond the unexpired term,’’ as applied to judicial offices, signify the future portion of any particular recurring period of eight years, computed from the first day of September, 1870, for which an appointment or election is to be made, whether the office to be filled
is a new one to be occupied for the first time, or a preexisting one which has been occupied before, and is made vacant by death, resignation, or removal. State ex rel. Rambo v. Maloney, 92 Tenn. 62, 20 S.W. 419 (1892).
The principle of this rule will apply to all constitutional offices whose terms are fixed, and are to be computed from a fixed date, so as to end at a recurring fixed date. The rule is to be applied according to the length of term of the particular office involved. But see Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229 (1912). (Note in Shannon’s constitution.)
The general assembly may provide for special elections to fill vacan- cies in county offices. These provisions are not self-executing, but require affirmative legislative action. McPherson v. Everett, 594 S.W.2d 677 (Tenn. 1980).
A special election would not be conducted pursuant to Tenn. Const., art. VII, § 2, but by virtue of the implied recognition that such elections are proper under Tenn. Const., art. VII, § 5 and art. IV, relating to elections. McPherson v. Everett, 594 S.W.2d 677 (Tenn. 1980).
2. ‘‘Vacancy’’ Defined.
The word ‘‘vacancy’’ in the constitutional provision that ‘‘No appoint- ment or election to fill a vacancy shall be made for a period extending beyond the unexpired term’’ applies where the appointment or election may be made to fill an office for the first time, and where it may be made to fill a preexisting office whose incumbent has died, resigned, or has been removed. The word ‘‘vacancy’’ covers both cases. A ‘‘vacancy’’ as applied to offices means an unoccupied office, an office not filled. There is a vacancy in every instance in which there is an office without an incumbent. Every office without an officer is vacant. Therefore, every newly created office must, of necessity, be vacant from the time of its creation until it is filled by appointment or election. McLean v. State, 1 Shannon’s Cases 478 (1875); State ex rel. Rambo v. Maloney, 92 Tenn. 62, 20 S.W. 419 (1892); Condon v. Maloney, 108 Tenn. 82, 65 S.W. 871 (1901), overruled on other grounds, 189 U.S. 64, 23 S. Ct. 579, 47 L. Ed. 709 (1903); State v. Akin, 112 Tenn. 603, 79 S.W. 805 (1903); State ex rel. Cummings v. Trewhitt, 113 Tenn. 561, 82 S.W. 480 (1904); Rich- ardson v. Young, 122 Tenn. 471, 125 S.W. 664 (1909); Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229 (1912). But see headnote 12 in last case.
The word ‘‘vacant’’ is to be given its ordinary meaning, ‘‘without an incumbent,’’ regardless of when or how the vacancy arises. State ex rel. Gann v. Malone, 131 Tenn. 149, 174 S.W. 257 (1915); Conger v. Ray, 151 Tenn. 30, 267 S.W. 122 (1924), overruled on other grounds, 532 S.W.2d 929 (Tenn. 1976).
3. Filling Vacancy.
The election of a judge or of a district attorney general to fill a vacancy can be held at no other time than at a special election held at the same time as an August general election. State ex rel. Shriver ex rel. Higgins v. Dunn, 496 S.W.2d 480 (1973).
Section 49-2-202 is constitutional to the extent of the temporary appointment to a vacancy. Marion County Bd. of Comm’rs v. Marion County Election Comm’n, 594 S.W.2d 681 (Tenn. 1980).
4. Time of Election.
Provision of this section for time of election of judicial and civil officers is violated by act fixing different time for election by popular vote of county superintendent of education, he being a ‘‘civil officer.’’ State ex rel. Thomas v. Davis, 159 Tenn. 693, 21 S.W.2d 623 (1929).
Private Acts 1941, ch. 220 established a county road commission but failed to specify the time of election of the commissioners. Construing the act with this section it was held that they were to be elected at the general August election in 1942. Farmer v. Wiseman, 177 Tenn. 578, 151 S.W.2d 1085, 135 A.L.R. 1169 (1941).
The provision of this section for the time of election of judicial and civil officers was violated by a charter provision that elections for municipal officers were to be held on a specified date in October of even years. State ex rel. Bryant v. Maxwell, 189 Tenn. 187, 224 S.W.2d 833 (1949).
It is the constitutionally declared public policy of this state that elections wherein the people speak with finality in the selection of county officials be ‘‘forever’’ held on the first Thursday in August of even-numbered years. McPherson v. Everett, 594 S.W.2d 677 (Tenn. 1980).
The general assembly, acting pursuant to Tenn. Const., art. VII, § 5, and art. IV, is privileged to provide for ‘‘a special election on May 6, 1980, conducted simultaneously, but independently of the primaries.’’ Marion County Bd. of Comm’rs v. Marion County Election Comm’n, 594 S.W.2d 681 (Tenn. 1980).