
    Howard v. The State on the relation of Vawter.
    The act of 1S55 (eh. 11) “to fix the commencement of the terms of certain county officers, and to render the same uniform,” conflicts with § 2 of art. 6 of the constitution, and is therefore void.
    APPEAL from the Benton Circuit Court.
    
      Monday, May 24.
    
   Davison, J.

This was a proceeding by writ of mandate against Howard, the clerk of the Benton Circuit Court. The affidavit upon which the unit is founded alleges, inter alia, that one Theophilus Stembell was, at the annual election in October, 1S54, elected treasurer of Benton county, for the term of two years, commencing on the 15th of August, 1855, and terminating on the 15th of August, 1857; that Stembell was duly commissioned, &c., as treasurer, and on the 15th of August,'1855, commenced the discharge of the duties of that office, and still is acting as such treasurer; that a general election was held in said county, on the second Tuesday of October, 1856, at which Vawter, the relator, was a candidate for treasurer, and, having received a large majority of the votes cast at that election, was duly elected treasurer of said county, and his election to that office was declared by the board of canvassers, and certified to Howard as clerk, &c., on the Thursday succeeding the election. The affidavit further alleges that ITotoard, as clerk, &c., has failed and refused to make out a statement specifying the number of votes given to Vawter for said office, and transmit the same to the secretary of state, &e.

Upon this affidavit, the Court ordered an alternative mandate against Hoioard, commanding him to make out and transmit a statement of the votes cast for Vawter as treasurer, &c., to the secretary of state, or to appear and show cause why a peremptory mandate should not issue against him, &c.

The answer to the alternative mandate admits the date of StembelVs election, his commission, and the commencement of his term of office, as stated in the affidavit; but alleges that Howard did refuse, and still refuses, to make out and transmit to the secretary of state a statement of the number of votes cast for Vawter; because, by an act of the legislature entitled “ An act to fix the commencement of the terms of certain county officers, and to render the same uniform,” approved March 3,1855, Stembell is entitled to hold the office of treasurer until the first Monday in November, 1857. It asserts that the election of Vawter was illegal, and that no legal election could be held for that office until the general October election for 1857.

The act referred to provides, first, that the terms of office of the sheriff, treasurer, &c., “ shall commence on the first Monday of the month of November immediately following the general October elections, and that any of the above-named officers to be elected hereafter shall hold their offices until the first Monday of November aforesaid, according to their respective terms.” Secondly, That whenever any of the aforesaid officers shall have been elected at the October election of 1854, said election shall be, and is hereby, declared valid, and they shall enter upon the discharge of the duties of said offices at the expiration of. the term of the present incumbent, and hold as provided in the first section of this act.” Acts 1855, p. 52.

To the answer there was a demurrer sustained, and a peremptory mandate was ordered, &c.

The answer, no doubt construes the act correctly. Under it, the relator could not be entitled to the office on the first Monday in November immediately following his election; because there was then an incumbent whose term had been by the act itself extended to the first Monday of November, 1857. Hence, there could not, in view of the act, have been a legal election of a successor to Stembell until the second Tuesday in October immediately preceding the expiration of his extended term. But it is insisted that the act in question conflicts with § 2 of art. 6 of the constitution, and is therefore a nullity; and that, under the general election law of 1852, StembelVs term ended on the 15th of August, 1857, at which period Vawter, having been elected in October, 1856, was entitled to the office. 1 R. S. p. 260.

J. L. Miller, for the appellant.

R. C. Gregory, H. W. Chase and J. A. Wilstach, for the state.

The constitutional provision to which we are referred, is as follows:

There shall be elected in each county, by the voters thereof, at the time of holding general elections, a clerk of the Circuit Court, auditor, recorder, treasurer, &c. * * * The treasurer, &c., shall continue in office two years; and no person shall be elligible to the office of treasurer, &c., more than four years in any period of six years.”

Thus, the term of the office of treasurer is fixed. And though it 'be conceded that the legislature may have the power to fix the time at which such term shall commence, still, in order to effect that object, they are not authorized either to shorten or lengthen it. This construction is well supported by another provision. Section 2 of art. 3 5 says:

“ When the duration of any 'office is not provided for by the constitution, it may be declared by law;” and thereby clearly implies, that when such duration is limited by the organic law, it cannot be changed by legislation. But the appellant argues thus: “ If the legislature have the power to designate the time at which the regular term of the office of treasurer shall commence, and the time fixed would cause a vacancy in that office, they have the.power to provide by enactment for the filling of any such vacancy.” The answer to this is, that the term being expressly limited by the constitution, the legislature have no power to enact a law which, in its effect, would create a vacancy. It is true, they may provide by general law for the filling of vacancies that may occur; but that purpose is not indicated either in the title or provisions of the act before us. Applied to this case, it affirmatively extends a term of office beyond the limit fixed by the constitution, anfi must, therefore, be held invalid. We are unanimously of opinion that Vaioter was entitled to the office upon the expiration of two years from the 15th of Avgust, 1855. The judgment must be affirmed.

Per Curiam. — The judgment is affirmed with costs.  