
    No. XIX.
    A. B. Shelby v. Thomas Johnson.
    (See .)
    
      Appeal from arbitration of the Hon. A. Hutchinson, Judge of the Fourth Judicial District.
    
    
      
      .—Shelby v. Johnson, p. 597.
      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; Banton v. Wilson, 4 T., 400. Distinguished in Royston v. Griffin, 42 T., 566.
    
   HEMPHILL, Chief Justice.

—A controversy having arisen between the parties in this cause in relation to the right to hold and exercise the office of judge of the First Judicial District, they mutually, and in writing, agreed to submit their conflicting pretensions to the arbitrament and decision of the Hon. A. Hutchinson, judge of the Fourth Judicial District, subject, however, to appeal to the Supreme Court of the Republic for final adjudication.

At the trial in the court below the following facts were admitted, viz: That presently after the organization of the Republic by a joint vote of both houses of Congress, Shelby Cozine was elected judge of the First Judicial District, and was qualified as such for the term of four years, expiring in November or December, 1840. That prior to November 29, 1839, the said Cozine died; and that on that day the claimant, Shelby, was, by a joint resolution preceding and a joint vote following, of both houses of Congress, elected judge of that district to fill the unexpired term of the said Cozine; was commissioned on the same day to fill that unexpired term; that he presently afterwards was qualified and proceeded to discharge and had ever since (except as interrupted by the claim of the other claimant) discharged the duties and functions of the office; and claimed to hold and exercise the said franchise for the full term of four years from and after the said 29th of November, 1839. That in the month of January, 1841, the claimant, by a like resolution and vote of both houses of Congress, was elected to hold the same office for four years; that he was presently afterwards commissioned and qualified, and attempted to exert the functions and.duties of the said office and still claimed so to do, but had been and was still opposed by the claim of the said Shelby. The controversy was decided at the spring term, 1841, of the District Court for Gonzales County in favor of the claim of the said Thomas Johnson, and the appellant was allowed his appeal without bond or citation.

The claimant, Shelby, having been elected and commissioned to hold his office for about one year, it is urged that as well by the conditions attached to the action of the electoral body as by his own conduct, he was precluded from holding the judicial franchise for a more extended period.

As the tenure of this office is prescribed by the Constitution, that instrument must furnish the rules by which the action, both of the appellant and of the legislative authority, must be regulated. On its broad foundation rest alike the rights of individuals and the powers of government itself and of all its departments. Its authority is paramount, and the acts of individuals and of the government are equally subjected to its control. Its maxims or principles can not be violated without endangering the safety of our institutions; nor can any one of the separate bodies, in which power is deposited by this organic law, encroach on the rights, franchises or privileges of another without hazarding the existence of the distinctive features and most valued characteristics of our republican form of government. This tribunal, in its proper sphere, is vested with the extraordinary power of testing, not only the acts of individuals but of the highest authorities by this unchanging criterion; and where the default is obvious, we can make no discrimination in our judgment between the aberrations of private persons and of the most powerful branches of the government.

Let us proceed, then, to examine the action of Congress in the matter now before us, by the provisions of this fundamental rule. In article 4, section 1, it is laid down, that “the judges of the Supreme and interior courts shall hold their office for four years; be eligible to re-election,” etc. This is the only reference which in express terms is made to the tenure of the judicial office, nor are there other expressions or terms used which by implication or construction can modify the plain and certain intendment of the foregoing declaration. The text of the Constitution on this subject is so clear and perspicuous that it can not be elucidated by argument. Would any one contend that Congress could extend the tenure of the office beyond the period of four years. And do not the terms of the above limitation of power, equally by the simplest rules of construction, prohibit its abridgment to a more limited term? The inhibition could not have been, in our opinion, more strong, if the Congress had in express terms been forbidden to appoint the judges for a less time than four years. The tenure of the office being thus precisely limited and defined by the Constitution, the legislative body, deriving its authority from the same source, could not in the appointment of incumbents attach other and variant terms and conditions by which to affect the same.

If it be within the competency of Congress to modify the terms on which the franchise should be holden, their authority can not result from any constitutional grant, but from some imaginary power of discretion ; which, as it is restrained by no known limits, easily leads to the wildest excesses, and might subject the judicial department to the caprice of perhaps a reckless majority. When the exercise of power is limited only by the discretion of the incumbent, it becomes arbitrary, and the most valued rights are no longer secure. If the will of majorities be unrestricted, they could not be prevented, when maddened by passion or perhaps worse motives (and the records of history furnish many similar examples of misrule), from declaring vacancies at any time in the offices of other departments of the government, and filling them for a year, a few months, or days, with the apt instruments and supporters of usurpation and tyranny. Our safety depends upon an observance of the Constitution and a compliance with the letter and spirit of its requisitions.

Nor is any argument deducible from the fact that Judge Cozine departed this life before the expiration of four years from the date of his election. . When the incumbent is removed by death, the office becomes vacant and returns to the appointing power. It can not either in reason or in the nature of things be connected with or affected by the deceased unless the creative law carries out a definite and precise period for the beginning and termination of the term of the said office, whether the same has been holden by one or more incumbents in the intervening space. There is nothing in the terms used to justify the construction that the tenure of the judicial office was such a carried-out, fixed term; or that on the death or removal of an incumbent the next appointee should occupy his place and complete the portion of time for which he could have enjoyed the office, had his death or removal not occurred.

The language of the instrument forbids such a construction. It is! equally opposed by public policy. The advantages of an independent judiciary are acknowledged and attempted to be secured by all wise communities. These, to some limited extent, are obtained by conferring the office for a period of four years. Where the appointment endures but for a year, a few months, or even days, the firmness of the judicial magistrate receives no support, under such circumstances, from the tenure of his office; but on the contrary, it tends to enfeeble the inherent independence of his character.

The declarations of the Constitution being explicit on the subject, and the same not being repugnant to any other provisions of that instrument, nor changed nor modified by any justifiable rules of implication or construction, the conclusion is inevitable that the incumbent of the office of district judge is entitled to hold and exercise the same for the full period of four years.

Nor is the argument valid that the claimant, Shelby, having accepted the office under the circumstances of his election, was bound to vacate the same at the expiration of the time pointed out in the proceedings of Congress. The length of time for which the office should be holden depended neither upon the Congress nor the claimant. It was prescribed and guaranteed by the Constitution, and was subject to no modification from the mistakes or misapprehensions of the appointing power or of the individual applicant.

When the election is finished, the will and power of the Legislature cease; the incumbent becomes a member of a co-ordinate and independent branch of the government; his office is based upon the Constitution, and is protected by all the immunities thrown around it by that instrument. The organic law furnishes the standard for the term of his office, and by that alone can it be measured or controlled.

Nor can it be urged that the appointment of the claimant having been made for a less term than four years, the election was illegal and invalid, and the appointment itself null and void. The action of Congress in this instance may be regarded in two points of view: 1. As to the manner of filling the office. This was by joint ballot of both houses of Congress, and was therefore constitutional. 2. As to the terms, on which the office should be holden. These they had no warrant to prescribe, except as authorized by the Constitution; and their action in that particular was null, void and inoperative.

The invalidity of one portion of .a statute or act of Congress does not, however, destroy the whole. The illegality of the conditions affixed to this office do not affect the act of appointment; but the same being legal, the constitutional incidents of the franchise at once arise, and the appointee was entitled to their enjoyment.

Having considered the law and facts of this controversy as submitted to us on the record, we are of opinion that the court below erred; that the claimant, Shelby, was entitled to hold his office for the full period of four years from the date of his election; and it is therefore ordered and adjudged that the judgment of the court below be reversed.

Reversed.  