
    No. X.
    Richard Roman v. James A. Moody.
    (See .)
    
      Appeal from Victoria.
    
    
      
      .—Roman v. Moody, p. 512.
      Person elected to fill a vacancy in an office is entitled to hold it for the statutory period, and not the unexpired term. Bradley v. McCrabb, Dal., 504; Roman v. Moody, Dal., 512; Shelby v. Johnson, Dal., 597; Banton v. Wilson, 4 T., 400. Distinguished in Royston v. Griffin, 42 T., 566.
    
   HEMPHILL, Chief Justice.

The relator, James A. Moody, in his petition states that he was duly elected clerk of the County Court of Victoria County, in the month of January, 1838, and held the said office until the 1st of February, 1841; when an election being held to fill said office contrary to law, Richard Roman was chosen the incumbent thereof, and the said Roman having applied for the records of the said office, the relator, considering that he was still lawfully in office, refused to deliver them, until being ordered and advised to that effect, that the public business might proceed without hindrance, he surrendered the said papers, books, etc., reserving, however, the right and title of said office, with all its immunities, until the full end of four years from the period of his election. He prayed for a mandamus to compel the said Roman to deliver to him the said office with its records, books, immunities, etc., or show cause to the contrary. The alternative order or mandamus being issued, requiring a compliance with the prayer of the petition or show within one day sufficient cause or warrant for the refusal, the respondent appeared; and it was agreed that the cause should be submitted to the decison of the court in the same manner as was the case of the district clerk (McCrabb v. Bradley), the only point of distinction between the two cases arising from the fact that one office was created by the Constitution and the other was the creature of the law. The testimony of the witnesses was in all respects the same as was given in the case of McCrabb v. Bradley, the relators, McCrabb and Moody, having been elected to the respective offices of district and county clerks on the same day. No statement of facts is sent up with this record, but reference is made to the case of McCrabb for the proof which was adduced. The court awarded a peremptory mandamus against the respondent, and an appeal was taken from the decision. As was stated in the opinion delivered in the case of McCrabb, the testimony, whether the election held in 1838 was to fill the respective offices for their entire terms or unexpired portions thereof, was variant and conflicting; the court below being of opinion that the weight of testimony was in favor of the affirmative, or that the officers were elected for a full term.

We will not enter into an examination of the evidence for the purpose of comparing the same and deciding upon the correctness of the conclusion of the court below in relation to that matter. The judgment of this court would not be modified by the establishment of the one or the other fact, as we are of opinion that the tenure of this office being prescribed by law would not be varied, extended, or diminished by any misconception of the electoral body, as to the period of duration of the office. As the Constitution has not provided for the establishment of the tenure of the office of the clerk of the county court, the law creating the office and fixing its mode of appointment and its tenure must furnish the Tule for decision in this controversy. By section 8 of the “act organizing the inferior courts and defining the powers and jurisdiction of the same,” page 150, Laws of Texas, volume 1, it is enacted, that there shall be elected by-the qualified electors of each county on the first Monday of February next, one clerk of the county court, who shall hold his office for the period of four years, etc. There was no election holden in the county of Victoria to fill the office in dispute on the first Monday in February, 1837, as directed by the above law; and for the relief of this and other counties similarly situated, a statute was approved June 12, 1837, authorizing the chief justices of such counties to give notice and hold elections therein for county officers at such time as they might deem proper and in the manner prescribed by law. No allusion is made to the period or term for which the officers elected under the authority of this law shall hold their offices, and the question then arises, whether a clerk of a county court elected by virtue of this latter statute shall hold his office for the period of four years from the date of his election, or only from the space of time intervening between his election and the expiration of four years from and after the first Monday in February, 1837. The act organizing the county courts, above referred to, authorizes the clerk to hold his office for four years. It is true that an election was directed to be had for the clerk on the first Monday in February, 1837. But we do not consider ourselves justified in concluding from the terms of the law that there is prescribed a fixed period, certain as to its commencement and termination for the office in controversy.

It is simply provided that he shall hold his office for four years, and not that it shall commence and end in prescribed days, and that should a vacancy occur, elections shall be holden only to complete the unexpired portion of this defined and circumscribed end. The terms of the provision that he shall hold his office for four years are so plain that they can not be elucidated by explanation; and since they are not modified by the subsequent statute or by other provisions of the same act, we are justified in concluding that a clerk of the county court, whensoever elected, and especially when elected under the authority of the statute passed for the benefit of the depopulated counties, is entitled to hold his office by the tenure guaranteed to him by the provisions of the general law, viz., for the term of four years. For authorities in relation to the tenure of office, see 2 Wend., 266; 1 Melord, 233; Bradley v. McCrabb, decided at this term of the court. We perceive no necessity of adding further observation in relation to the tenure of the clerk’s office or to the propriety of proceedings by mandamus. They are discussed at some length in the case of Bradley v. McCrabb, and do not require repetition. It is ordered, adjudged and decreed that the judgment of the court below be affirmed.  