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(Vacancy in office.)

according to the spirit of the constitution, the tenure of county officers is strictly limited as to time, viz: three years; and that any extension of the time arises only from the exigency of the case, and must be strictly construed. The relator assumes that the respondent was elected and commissioned only for three years; but this is a mistaken view of the constitution, and is only plausible, by obliterating several important words from that instrument. The constitution reads thus: "they shall hold their offices for three years, if they shall so long behave themselves well, and until their successors shall be duly qualified." The obvious meaning of this clause is, that they cannot hold office for less than three years, if they so long behave themselves well; although, on the happening of certain contingencies, they may hold office for a longer period. It is, therefore, of no consequence that, according to the respondent's construction, he holds office for six, instead of three years. Without intimating an opinion as to the term of his office, or that, if, as the relator contends, it would be a great misfortune, we think there is nothing in the argument which can overrule the plain words of the constitution. That question does not directly, although it may incidentally arise, and may be, and has been, considered by the court, and due weight attached to it, without, however, altering the conclusion to which we have felt ourselves bound to come. Besides, it will be for the legislature to determine, whether this result, so much deprecated by the relator, may not be removed by legislative enactment.

That the respondent is entitled to hold until his successor is duly qualified, are the words of the constitution. Was a successor duly qualified within its spirit? is the point, on which the question mainly, if not entirely depends. Being duly qualified, in the constitutional sense, and in the ordinary acceptation of the words, unques tionably means that he, the successor, shall possess every qualification; that he shall, in all respects, comply with every requisite, before entering on the duties of his office;

(Vacancy in office.)

that, in addition to being elected by the qualified electors, he shall be commissioned by the governor, give bond as required by law, and that he shall be bound by oath or affirmation (see 8th article of the constitution) to support the constitution of the commonwealth, and to perform the duties of the office with fidelity. Until all these prerequisites are complied with by his successor (if you can dispense with one, you can dispense with all), the respondent is de jure, as well as de facto, the clerk of the orphans' court. The words are emphatic and full of meaning; the successor must not only be qualified, but duly qualified; and qualification for office, as defined by the most approved lexicographer, is, endowment or accomplishment that fits for an office; having the legal requisites; endowed with qualities fit or suitable for the purpose. In this sense it is used in the same section of the constitution (Art. VI., sect. 3), as respects electors; "qualified electors" clearly meaning citizens, either native or naturalized, who have paid taxes, and who are, in all respects, entitled to vote. In the same connection it is used in other parts of the constitution, and in various acts of assembly, which it would be a work of supererogation particularly to enumerate. Even in its direct, restricted, popular sense, it means he shall have taken an oath or affirmation.

The constitution provides, not only that the officer shall be elected, but that he shall be commissioned by the gover nor; this is conclusive proof, that the election alone does not constitute him an officer, in a constitutional sense; for there may be cases, where the governor would be bound, by an imperious sense of duty, to withhold the commission from a person duly elected by the qualified electors, as, for example, in case of insanity developed since the election, or the conviction of some high crime or misdemeanor; where this occurs (and it is possible, though not probable), no person will venture to contend, that the office is filled by election, as the relator contends, so as to create a vacancy by death. It is said, and this is the

(Vacancy in office.)

strength of the relator's case, that the holding over of the incumbent is confined to the single instance of failure to qualify, a failure resulting from the act or omission of the successor. But, for this distinction, we see no warrant in the constitution, or in the reason of the thing; for, of what consequence is it, in principle, whether the officer elect is prevented from qualifying himself by an inability or unwillingness to give the necessary security, by neglect or refusal to take the required oath or affirmation, by insanity or crime, or by the contingency of death? It is enough for the incumbent, who holds the office by a constitutional tenure, that, for some cause, with which he has nothing to do, the requirements of the constitution and laws have not been complied with. The only inquiry is, has a successor been duly qualified? if he has not, we are not at liberty to inquire whether it has arisen from his own act or omission, or has been caused by death, or by other causes over which the successor may have had no control. The 10th October 1848, Brooks was elected to be the respondent's successor, and never could be qualified, for he died the 7th November 1848, within thirty days from the day of his election, and before his commission could be legally issued.

Did the case rest here, the title of the respondent would be clear and unquestionable; but the relator contends, that the facts presented a case of vacancy, which the governor had the right to fill, and this brings us to the consideration of that question. Vacancies of the offices enumerated in the preceding part of this section (so reads the constitution) shall be filled by appointments to be made by the governor, to continue until the next general election and until successors shall be elected and qualified as aforesaid. To sustain the proposition, that in this case, the governor has the right of appointment, as a case of vacancy, it is necessary for the commonwealth to establish, that the office, so far as to create a vacancy by death, is filled by election. On this point, several remarks have already

(Vacancy in office.)

been made pertinent to the question, which it would be useless to repeat. That the framers of the constitution did not look to an election merely, as conferring office, is very evident, because, otherwise, we must strike out the important words, that before a person who has been regularly elected, commissioned, given bond and sworn, can be suspended, his successor must be qualified in like manner. That there is a difference between the election and qualification of an officer, is too apparent to need the aid of argument. The successor must not only be elected, but he must be qualified, are the words of the constitution, showing, beyond all question, that the election and qualification do not mean one and the same thing.

It will be observed, that the terms, on which alone the governor can appoint, are a vacancy in the office; and that there can be a vacancy in an office when there is a person in possession, whom all acknowledge to be rightfully in possession, having a perfect right to exercise all the powers and duties of the office, and to receive and enjoy all its emoluments, is a position difficult to comprehend. It is an abuse of terms, to say, that at the time the governor issued his commission to the relator, the office was vacant, for no person can plausibly deny that the respondent was the rightful possessor of the office, at that time. The primary object of the framers of the amended constitution (whether wisely or not, it would be unbecoming in me to say), was, to diminish, as far as practicable, executive patronage; and in accordance with this policy, it was thought proper, to confine the power of appointment to the single case of a vacancy in office. What, then, is meant by a vacancy in the office? Surely, an office cannot be vacant, when it is filled by a person in the legitimate exercise of all its functions, in the lawful enjoyment of all its emoluments.

It would be a waste of time, to enter into an elaborate argument to prove a proposition so plain. But disguise it as you may, this is the case here; at the time the go

(Vacancy in office.)

vernor issued his commission to the relator, the present incumbent, beyond all controversy, was the legal officer of the court, his time had not expired, nor could he be replaced except by a person fulfilling all the constitutional and legal requirements. The relator's proposition involves the legal absurdity, that two persons can be the lawful officer of the same office, at one and the same time. In this case, we have to choose between the elect of the people and the appointee of the governor, and we think we cannot assail the intention of the constitution, by inclining to the former rather than to the latter; the respondent was elected by the people, and we see nothing by which his title to the office has been affected or impaired. Judgment for defendant.

In Pennsylvania, if a vacancy occur in the office of judge, within three months of the general election, it is not competent for the electors to fill the same at that election; the appointee of the governor, however, only holds until the first Monday of December in the same year, when another vacancy in the office occurs, which may be again filled by executive appointment. Commonwealth v. Maxwell, 27 Penn. St. R. 444. And the law is the same in Kansas. State v. Cobb, 2 Kansas 32. If an office be, in fact, full, though by an irregular election, which has not been contested, the electors cannot treat it as vacant, and proceed to fill it by a new election. Commonwealth v. Baxter, 35 Penn. St. R. 263.

In Missouri, the courts have decided, in accordance with Commonwealth v. Hanley, that an officer who holds for a limited term and until his successor is duly elected and qualified, can only be displaced by one elected by the people, at an election held at the proper time. State v. Jenkins, 43 Mo. 261; and see State v. Robinson, 1 Kansas 17; State v. Benedict, 15 Miun. 199. In California, in case of a vacancy in the office of judge by the resignation of the incumbent, the governor's appointee only holds until the qualification of the person duly elected by the people. People v. Rosborough, 14 Cal. 180. See State v. Taylor, 15 Ohio St. R. 137.

There can be no appointment to fill a vacancy, until the office has once been full. Ex parte Dodd, 6 Eng. 152. In that case, Johnson, C. J.,

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