
    Robert Hughes vs. Sterling H. Buckingham.
    Where by statute, the term of office of the clerk of the superior court of chancery, -who by law, was appointed by the chancellor, was limited to four years, and the statute did not prescribe the period of the commencement or termination of the term, upon the office being filled, the incumbent will have a right to the office for the full term of four years from the date of his appointment.
    Where an incumbent of an office, the term of which is fixed by statute, but the period of the commencement and termination of the term is not fixed, resigns or forfeits the office before the term is expired, and the office is filled by a new appointment, the new appointee will hold the office for the full term, and not for the unexpired term of the former incumbent.
    In March, 1833, by act of the legislature, the chancellor of the state was authorized to appoint his own clerk, but no tenure of office was fixed by the act; in December, 1833, by a general law, the tenure of all offices, not otherwise fixed, was limited to four years ; on the 9th of December, 1844-, Hughes was commissioned by Chancellor Buckner, clerk of the chancery court, for four years; on the 8th of January, 1846, Buckingham was commissioned clerk of the same court for four years, by Chancellor Cocke, on the ground that the term of office of clerk of the chancery court, commencing in December, 1833, continued for successive periods of four years each, and expired in December, 1845, leaving the office vacant. Held, by this court, that the law did not fix the commencement or end of the term of office of the clerk of the chancery court; that Hughes, the incumbent, was entitled to his office for four years from the date of his appointment, and could not be ousted therefrom; and that the appointment of Buckingham was inoperative.
    Motion for a writ of error and supersedeas to the decree of the superior court of chancery, Hon. Stephen Cocke, chancellor.
    On the 10th day of January, 1846, Robert Hughes, filed in the high court of errors and appeals, a petition, stating that Sterling H. Buckingham filed his petition in the superior court of chancery, in which he prayed that an order be made upon said Hughes, who was acting as the clerk of the said chancery court, to deliver to said Buckingham the papers, books, &c., belonging to that office; upon the assumed ground that the term of office of Hughes had expired in December, 1845; and Buckingham had been since appointed, and was then the rightful clerk of that court. The petition of Hughes states that the order was £S£ made by the chancellor, as prayed for by Buckingham, and was, as the petitioner believed, erroneous, and he therefore prayed a writ of error and supersedeas. Hughes filed with his petition, a certified transcript of the record of the proceedings in the superior court of chancery; which record disclosed the following state of facts, to wit: That on the 9th day of January, 1846, Sterling H. Buckingham filed his petition in the superior court of chancery, stating that on the 8th day of January, 1846, he was appointed by the Hon. Stephen Cocke, chancellor, clerk of that court, for the term of four years from the 25th day of December, 1845 ; that he gave bond, and was qualified according to law, to discharge the duties of that office, and had demanded of Robert Hughes, the former clerk of the court, the possession of books, papers, book-cases, desks, &c., which of right, belonged to the office of clerk, and which were in his, Hughes’s possession; and that Hughes refused to deliver possession of said books, papers, &c., upon some alleged pretence that the appointment of the petitioner was illegal, because the term of office for which he, Hughes, was appointed had not expired, and he was therefore the lawful clerk of said court, and as such, had the right to retain possession of the books, papers, &c. The petitioner prayed that Hughes be ordered and decreed to deliver possession of said books, papers, &c., to him, in order to the proper discharge of his duties, &c. Buckingham filed with his petition an order of court, showing that he had been appointed clerk, given bond, and qualified, as stated in his petition. Robert Hughes answered the petition, and admitted that Buckingham had been appointed clerk, qualified, and given bond, as alleged in his petition; and that he had demanded of him possession of the books, papers, book-cases, desks, &c., which belonged to the office of clerk of the superior court of chancery ; that the books, papers, &c., were in his possession when Buckingham demanded possession of them; but stated that he refused to deliver them up, as he was advised he had a right to do, because he was duly and legally appointed clerk of that court, by Chancellor Buckner, on the 9th day of December, 1844, for the term OT'fonr years from that date ; that he gave bond, and took the oath of office, as prescribed by law, and entered upon the discharge of the duties of his office, and has continued to discharge them up to that time ; that the appointment of Buckingham was illegal, there being no vacancy in the office, and he was not entitled to the custody and possession of the books, papers, &c. belonging thereto.
    On the trial of the petition of Buckingham, before the chancellor, the certificates of the appointment of, and the bonds executed by the several clerks of the superior court of chancery, since the adoption of the present constitution of the state, were read as evidence, and show that Henry K. Moss was appointed clerk by Chancellor Quitman on the 15th day of June, 1833; Thomas B. J. Hadly was appointed by the same chancellor, Moss having resigned, on the 24th day of July, 1834; Richard L. Dixon was appointed by Chancellor Turner, Hadly having resigned, on the 5th day of December, 1836, and was re-appointed by Chancellor Buckner on the 4th day of December, 1840 ; Robert Hughes was appointed by the same chancellor, on the 9th day of December, 1844; and that each of the said appointments was for the term of four years from the date of the appointment. Which being ail the evidence adduced on either side, the chancellor sustained the petition of Buckingham, and ordered and decreed Hughes to deliver to him the possession of all the books, papers, book-cases, desks, &c. belonging to the office of clerk of the superior court of chancery. Upon this petition and record, Hughes entered a motion in the court, for a writ of error and supersedeas.
    
    
      George S. Yerger, for Hughes.
    Robert Hughes was appointed on the 9th December, 1844, by Chancellor Buckner, clerk of the chancery court, for the term of four years. Chancellor Cocke conceived that Hughes’s office expired on the 25th December 1S45, notwithstanding he was commissioned for four years : the act of 1833, says the tenure of all offices not otherwise provided for by law shall be limited to four years. Chancellor conceives that, as the office is limited to four years, it commences running from that time, that each appointment lasts four years, notwithstanding the death, removal or resignation of the officer, and that the residue of the unexpired term, can he filled only by an appointment for such unexpired term.
    On the part of Judge Hughes, it is concluded, that as the officer is not elected by the people, and is not mentioned in the constitution, he at common law would be appointed during the pleasure of the court, or for such period as is prescribed by law; that the act of 1833 limits the term to four years ; that there is no time prescribed for the commencement of the office or appointment, as there necessarily must be, in election by the people. That the appointment to be made by the chancellor is for a term of four years; that the term is ended by its own limitation, or by death, removal or resignation, and the one subsequently appointed must be for four years; that this is the rule of the common law is undoubted, and must always apply to cases where the appointing power is an individual. In regard to elections by the people or by bodies of men, or the legislature, it is necessarily different; in regard to them, a different rule is prescribed by the constitution of this state.
    We will first examine how this stands at common law, premising, in the first place, that an appointment to fill an office which is already filled, is a nullity. Hill v. Stale, 1 Ala. R. (N. S.) 561; Johnston v. Wilson, 2 N. H. R. 202 ; Marhury v. Madison, 1 Cranch, 162.
    We believe that the construction put on the act of 1833, by all the chancellors of the state, since the new constitution, by the judges of the high court in relation to their clerk, and by the officers of the United States, in regard to appointments, where an individual alone is the appointing power, is correct. We think it should not now be disturbed upon light grounds; but we will first examine what would be the effect of an appointment, if the act of 1833, limiting the term to four years, had not been passed.
    1st. By the common law, where a statute created an officer, and there was no limitations, the party appointed was in office only at the will and pleasure of the person having the power to appoint. Ex jmrte Hennen, 13 Peters, 259,260, 261.
    In these cases, the person appointing could remove at pleasure ; but in regard to offices in which there was a certain tenure, as for life, or good behavior, or for years, no such power of removal existed, and an appointment in such case, whilst the office was filled, and before the expiration of the term, would be a nullity. Same case, 4 Dev. R. 1 ; 1 Ala. R. 561 ; Mar-bury v. Madison, 1 Cranch, 156, 161, 162; 2 N. H. R. 202, 203 ; People v. Comptroller, 20 Wend. 596.
    The constitution of the state, article 1, sec. 30, provides that no officer shall be for life or good behavior, but for a limited period of years. It provides that a separate superior court of chancery shall be established, with full jurisdiction, &c.
    It provides, art. 4, sec. 19, that the clerks of the circuit, probate, and other inferior courts, shall be elected by the people; the clerk of the high eourt to be appointed for four years by the judges. No mention is made how or what time the clerk of the superior court of chancery should be appointed.
    The new constitution went into effect in May, 1833. The legislature in pursuance of the constitution established the court.
    The court was bound to have a clerk, and no provision being made for his appointment in the constitution, the chancellor had the right and power to appoint one. Under the act of 1833, passed in March, Chancellor Quitman did appoint Moss, on the 15th June, 1833. This was before the act of 1833 was passed ; for what time was Moss appointed? Not for life, because that was prohibited by art. 1, sec. 30, of the constitution; but for a period of years. He was the appointing power, and the time not being prescribed for any given period, he had to fix it himself. Moss’s term must have commenced with the appointment, there is no other point of time at which it could begin. Whilst Moss was in office, the act of 1833 was passed, which declared that all offices, not otherwise directed by law, should be held for four years. In what respect did this alter the tenure of the chancery clerk office? It does not alter the tenure; it limited the period. Instead of being held at the will of the chancellor, it declared, he should hold it for four years. Four years from what time ? Of course from the time which the law had fixed for the commencement of his term, not from the date of the act.
    By the common law, where the appointing power resides in an individual, if the commencement of the term of office for years, or will, or life, is not declared by the law, it commences with the time of appointment. Marbury v. Madison, 1 Cranch, 162, 163. And the term or period being limited, cannot extend beyond it, but may terminate sooner, as by death, or resignation, or removal, in which case the office is vacant. The term itself has expired, not by its limitation, but by resignation or other cause. The office has then to be filled, and the new appointee is in for the term limited by law.
    At common law the vacancy occasioned by death, resignation, &c. is a vacancy in the office, not a vacancy in a term of the office. A vacancy in an unexpired term of an office, is the creature of written constitution or statute, and results from necessity, where the appointing power is in the people, or the legislature.
    The territorial judges of the United States, the marshals, and justices of the peace, and postmasters for the District of Columbia, are appointed for years, but when they remove or resign, the appointment of the successor is for the whole term, beginning with the time of appointment. Such has been the construction from the first organization of the government. Such has been the construction of the act of 1833, by all the chancellors, except the present incumbent. Such has been the construction of the constitution, giving this court the power to appoint its clerk for four years, by the judges of the court, and this contemporaneous construction should be considered as settling the question. Stuart v. Laird, 2 Cranch R. 299.
    This being the clear and undoubted rule of construction, deducible from common law principles, where, or by what law, or from necessity shall it be altered ? The chancellor says the term commences from the date of the act of 1833, and every four years from that act the chancellor must make a new appointment, and ip case of death or resignation before the limited period, the vacancy must be filled for only the balance of the time.
    Where is the authority for this 1 The act does not say so; the constitution does not say so; there is no reason or necessity why it should be so. The case of Smith v. Halfacre, relied upon, is directly opposed to such view. The court there decided, that in regard to elections or appointments by the people, the constitution has fixed the period when the term shall commence, to wit, each general election, .and this rule of the constitution was'applied to the election of a judge in a new district. The people are the appointing power, they cannot, like an individual, appoint at any moment. It was necessary to fix the time, and the duration of the time for which officers appointed by election should hold, and also to provide for filling the vacancy in the office when it occurred, before the time when the election came on. This was all done by express provision in the constitution in regard to officers elected by the people. But in regard to the clerk of the high court and the chancery court, no such rule was laid down; they were left to the rule of law applicable to appointments by individuals, except as to the duration of the time for which they were appointed. See opinion of court in that case, 601, 603, 604, 605, <fcc.
    An attempted distinction is taken between “tenure” and “ term or period;” there is none such.
    The meaning of tenure, is the manner or conditions on which an estate is field. Tenure means the particular kind of estate in the office, whether for life or years, ,&c. 3 Tomlins, 599; 2 Bouvier’s Law Die. title Tenure; 2 Blk. Com. 79. Webster’s Dictionary, Title, defines the manner of holding in general, so does Bouvier.
    Here the tenure of the office is a holding for a limited period, for a term of years, and tenure necessarily is used as descriptive of the interest; that is, tenure for life is a holding for life; tenure for years is a holding for years; tenure at will, is a holding at will; each estate or tenure includes, necessarily, the term- or period for which it is holden.
    
      Tenure, therefore, is the term, or manner in which the incumbent holds; strictly speaking, it only applies to real estate, hut the term has been applied to estates in offices held for life or years. The tenure, then, in which all offices are held in this state is for years. The interest which the incumbent has in the office is his estate, and his estate, when a period of years is limited, is a term for the allotted period. In this sense, tenure is uniformly holden in regard to office. See Ex parte Hennen, and cases cited, and opinion of court, in 13 Peters R. 260.
    Every estate which must expire at a certain period is an estate for years, it matters not what the language used. 1 Black. Com. 143. It is therefore called a term, because its duration is limited. 2 Black. Com. 143. ■ In the creation, if no time for the commencement is fixed by law or by the parties, it commences with the making the lease. 2 Black. 143. Here neither the law nor the constitution has fixed the beginning, as in other offices, by the constitution, to wit, the general election. The “ term,” therefore, does not signify the time specified, but the estate or interest, and the term may expire before the limited period, unless otherwise provided for. 2 Black. Com. 144.
    The act says, (H. & H. 326) the tenure shall be limited to four years, so that the estate, or manner, or condition, in which it is held, shall be four years. Is not this a term for four years ? Did the legislature intend a cycle — the term to begin at the precise point when the act was passed 1 Certainly not; when it was so intended, it was expressed in the constitution. So in the constitution, art. 1, sec. 30, it says the tenure shall not be for life, but for some limited period of time. And in the same instrument, the passers put their own meaning on this, for they afterwards say, the clerk of the high court shall be appointed for a term of four years. The tenure of his office is for a limited period, that is, a term for years.
    It is, in fact, a new question as to the construction of the act of 1833. Exparte Hennen, 13 Peters R. 260.
    As to the question of jurisdiction, see How. & Hutch. 532, 538. The chancery court has, of course, power to judge and decree whether the office of its clerk was vacant, and to order the incumbent defacto, or person claiming, to forthwith deliver up the papers, &c. This is an order or decree, from which a writ of error lies.
    Even in cases of mere legal rights, where the party does not demur because the jurisdiction is legal, the jurisdiction is clear.
    There is a manifest difference between cases where an individual is the appointing power, and an annual body, or the people. In the latter case, the appointment cannot be made until the- body meets. When made, it takes effect from the time; the office in the mean time is vacant, until they do meet, and unless provision is made for filling, until they do meet it must remain vacant. Hence, when appointments are by the president and senate, as the senate only meets annually, congress has empowered the president to fill the vacancy, until a regular appointment by the appointing power. But in regard to appointments by the president, or postmaster-general alone, when they are the appointing power, as soon as the office is vacant, they fill it for the whole term, commencing from appointment, as marshals, postmasters, justices of the peace, &c.
    
      W. Yerger, on the same side.
    This case is one of great importance to the parties litigant, as well as to the people at large.
    Robert Hughes, the incumbent oftheoffice of clerk of the chancery court, was appointed on the 9th day of December, 1844, and continued to discharge the duties thereof until the 8th day of January, 1846, on which day, the present chancellor, assuming that the office was vacant, appointed Sterling H. Buckingham clerk of said court, for four years from the 25th day of December, 1845. Buckingham demanded the papers of Hughes, who refused to surrender them, upon the ground that his term of office had not expired, and that the office was rightfully held by him. This case is brought before this court, upon an application for a writ of error and supersedeas to the order of the chancellor, directing Hughes to surrender the office to Buckingham. The question then arises, was the appointment of Buckingham valid?
    It is assumed as a settled proposition of law, that the appointment of Buckingham was void, provided the term for which Hughes was appointed had not expired, because there was no vacancy in the office of chancery clerk.
    By the constitution, no provision was made for the appointment or election of a clerk of the chancery court. The right to appoint a clerk, belongs, as an incident, to the judge of the court, unless otherwise provided for by law. The legislature, however, in March, 1833, directed the clerk of the chancery court to be appointed by the chancellor; thus removing any doubt on this question, if any should arise.
    The 30th section of the declaration of rights, declares that “ no person shall ever be appointed or elected to any office in this state, for life, or during good behavior; but the tenure of all offices shall be for some limited period of time, if the person appointed or elected thereto shall so long behave well.”
    In obedience to this provision, the legislature, by the act of December, 1833, declared that the “ tenure of all offices in this state, not otherwise provided for by law, shall be limited to four years.” H. & H. Dig. 326.
    The right to appoint the clerk of the court of chancery had been previously conferred upon the chancellor, by act of March, 1833. Ibid. 504.
    These are all the constitutional and legislative provisions which bear directly upon this question.
    Throughout the constitution and laws of this state, the most prominent idea which presents itself is this, no individual shall ever hold an office in this state for life ; but for a fixed and usually short period of time. The offices created by the constitution were intended to be perpetual and permanent. The incumbents were to be frequently changed, and to hold by short tenures.
    What is the meaning of the word “tenure,” used in both the constitution and the laws ? By recurring to the definition given in our law books as well as standard English Lexicons, the word “ tenure ” is declared to mean “ a holding, or the terms or conditions upon which a tenant holds or occupies,” &c. Hence our statute might be read, and it would then mean the same thing it now means, “the holding of all offices in this state by the tenants or incumbents thereof, not otherwise provided for by law, shall be limited to four years.” That is to say, that the incumbents of all such offices, shall hold the same, for four years. See 2 Bouvier’s Law Die. Tit. Tenure; 3 Tomlins, lb.; Richardson’s Die. Ib.
    When then does this holding begin? Of course, from the date of the appointment; and of course, the tenure does not expire till four years from that date. This view of the case is strengthened by recurring to the 30th article of the bill of rights, before referred to, in which the framers of the constitution, after declaring that the “ tenure of all offices shall be for a limited time,” qualify it by saying, “if the person appointed or elected shall behave well, so long” ; thereby showing that it was intended that each incumbent should hold his office for four years from the date of his appointment, provided he behaved well so long; and that the tenure, had reference to the person holding.
    The opinion of the chancellor was based upon the idea, and such, too, is the argument of Buckingham’s counsel, that the office of cleric of the chancery court should be filled at fixed and stated periods, and not from time to time, as a vacancy may occur.
    From what source do gentlemen derive such a construction ? Certainly not from the practice and usage of the chancellors who have heretofore acted on this subject. On the contrary, every chancellor, till the present, has uniformly acted otherwise, and have commissioned each officer, appointed by them, for four years from the date of his appointment. If this question, then, were at all doubtful, upon the words of the act of assembly, this uniform usage and construction by the chancellors, would settle the question in favor of Hughes. Dwarris on Stat. 693.
    In giving a construction to the constitution of the United States, the supreme court of the United States have held that long usage and practice will settle the question of construction in favor of such usage. 1 Cranch, 299, 309; 1 Wheat. R. 304 ; 6 Wheat. R. 264, 418 to 421.
    
      In his commentaries on the constitution, Judge Story says, the practical exposition of the government, in its various departments, is the most unexceptionable source of collateral interpretation. 1 Story’s Com. on Con. 392, sec. 408.
    Tried by these tests, and Hughes’s title is clear, for he has co-temporaneous usage and practice, as well as the practical exposition of several chancellors, all of whom have held that each tenant of the office of chancery clerk shall hold the same for four years from the date of his appointment, if he behave well so long.
    The decision of the high court in the case of Smith v. Half-acre, reported in 6 How. R. 582, is referred to by the counsel for Buckingham as authority against this position. When examined and properly understood, we think it directly the reverse. That decision was made, however, in view of very different provisions in the constitution, than arise in this case. That question arose upon a conflict between Howrie and Hiding for the office of circuit judge of the circuit. This office, by the constitution, was to be filled by elections by the people; and another provision directed that all these offices should be filled at certain general elections. These general elections were to take place at fixed and regularly recurring periods; and the court, in view of that provision, and of the great inconveniences which would otherwise arise, declare that all offices to be filled by election by the people, were to be filled at fixed and regular periods; but, say the court in this case, if the 11 th section of the 4th article had stood alone, “it might justify the construction, that each judge, whenever elected, would hold for four years from the date of his election ” ; but, say the court, the whole instrument is to be taken together, and other clauses of the constitution control this meaning. 6 How. R. 605.
    In the case at bar, the construction we contend for does not conflict with any other clause of the constitution. By carrying it out as we contend it should, no inconvenience will arise to any one; and leaving the fair construction of the law standing by itself, it will be given to it in this instance because it is not controlled by any other provision or policy; and because the usage and practice of the court have been in accordance with it.
    
      
      Evans, for Buckingham.
    By section 30, art. 1, of the constitution of Mississippi, it is provided, that “no person shall ever be appointed or elected to any office in this state for life or during good behavior, but the tenure of all offices shall be for some limited period of time.”
    By statute passed in March, 1833, (H. & H. 505, § 6,) the chancellor is authorized to appoint a clerk, and by statute passed in December, 1833, (H. & H. 326, § 17,) “ the tenure of all offices in the state not otherwise provided for by law shall be limited to four years.”
    The office of clerk is created by law, and so is the tenure of four years. Hence the office and the term being alike created by law, have their existence independent of, and above the chancellor.
    In the case of The People v. Garey, 6 Cowen, 651, it is held, that the office of justice of the peace, which was created by the constitution, had its existence independent of and above the legislature. A statute whilst in force is equally the law with the constitution, and hence the case cited is to the point, that the office of chancery clerk and the tenure of four years created by statute, have their existence independent of and above the chancellor.
    The chancellor can no more create the term than he can the office. Both are equally beyond the power of the chancellor and the incumbent, either to create or to destroy. The term continues although the incumbent in office may resign, for the reason that it is established by law, and not dependent on the will or caprice of the chancellor or incumbent.
    The constitution of Mississippi and the acts of the legislature relative to the subject, are conclusive to this point.
    The judges of the high court of errors and appeals hold their offices for the term of six years. (Art. 4, §2.) By the 5 th section of the same article it is provided, that all vacancies that may occur in said court from death, resignation or otherwise, shall be filled by election; provided, that if the unexpired term do not exceed one year, the vacancy shall be filled by executive appointment.
    
      Hence the term continues to exist after the office has become vacant.
    The 21st section of art. 4, provides that vacancies which may occur in the boards of police, must be filled for the unexpired term.
    All vacancies not provided for in the constitution, are to be filled in such manner as the legislature may prescribe. (Art. 6, § 13.) In accordance with this clause of the constitution, a statute was passed in February, 1833, by which it is provided, “that when any vacancy shall occur in any state office by death, resignation or removal, when the unexpired term of the office so vacated shall not exceed one year, the same shall be filled by executive appointment, and when the unexpired term thereof shall have more than one year to run, an election shall be held to fill it.” By the same statute, a similar provision is made for vacancies in county offices.
    Hence the term remains, although the office become vacant by death, resignation, removal or otherwise.
    Thus we learn from the constitution and the statute quoted, that a term for years in an office when it once begins to run, must continue to the full completion of the time; that the term continues to exist, although the office may become vacant by death, resignation, or otherwise, and that when the vacancy is filled, it must be filled for the unexpired term.
    The term of four years, created by statute, in reference to the office of chancery clerk, must fall under the same construction. There is nothing to exempt it. The words creating the term are identical with those used in the constitution, and consequently the term created by the statute must follow the nature of those mentioned in the constitution.
    As to vacancies which may occur in the office of clerk of the chancery court, ample provision is made by the act authorizing him to appoint a clerk. The authority to appoint is given without reference to any time, and hence the chancellor may appoint as often as a vacancy occurs.
    It being established, that when the term of four years, created by statute, once begins to run, continues to run till the completion of the term, and that if a vacancy occur by death, resignation, or otherwise, it must be filled for the unexpired term; the office must be adjudged to Buckingham.
    On the 25th day of December last, the office became vacant, whether the date of the statute or the date of the first appointment be the time from which the term is to be counted. The passage of the statute is, however, the proper date by which the commencement of the term is fixed.
    
      W. R. Miles, on the same side.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

A motion is made in this court for a supersedeas to the order or decree of the superior court of chancery, by which Hughes was directed to deliver to Buckingham all the books, papers, book-cases, desks, &c. belonging to the office of clerk of that court. It appears, by the record, that Buckingham was appointed to the clerkship of that court on the 8th of the present month, and in virtue of such appointment claims the books and papers. Hughes resists the claim on the ground that he was appointed to that office by chancellor Buckner, on the 9th of December, 1844, for the term of four years, and that he was the ■proper incumbent when Buckingham was appointed, and has a right to the custody of the books and papers, and also a right to the office of clerk. In the application is therefore involved the right to exercise and enjoy the office of clerk of the superior court of chancery.

In providing for the establishment of this court, the constitution is silent on the subject of its clerk, whilst the provisions of that instrument are ample in reference to every other officer. By act of the legislature, passed in March, 1833, the chancellor was clothed with power to appoint his clerk, but the tenure of office was not fixed by the act. By a general law, passed in December, 1833, the tenure of all offices, not otherwise provided for, was limited to four years. The superior court of chancery was organized under the present constitution, prior to the passage of the law of December, 1833, and when there was no provision limiting the tenure of office of the clerk, other than that general provision in the constitution, which declares that no person shall ever be appointed or elected to any office in this state for life, or during good behavior; but the tenure of all offices shall be for some limited period of time. Chancellor Quitman, in organizing the court, appointed H. K. Moss clerk, on the 15th of June, 1833, and in view of the constitutional provision, there being then no law on the subject, conferred the office on Moss for four years from the time he should qualify. Moss held the office about a year, and his successor was also appointed for the term of four years, by the same chancellor, the law of December, 1833, having in the mean time limited the term to four years. This last appointment was made in July, 1834, and the commission confers the office for four years from its date. Chancellor Quitman then undoubtedly regarded the time of appointment as the beginning of the period for which the incumbent was to hold, and the subsequent appointments furnish incontestable evidence that his successors took the same view as to the tenure of the office of clerk, up to the appointment of Buckingham by the present chancellor. Notwithstanding these repeated decisions on the question, it is now contended that the law of December, 1833, so fixed the tenure of the office as to bring about its beginning and ending in cycles of four years each, commencing with the passage of the law. We cannot agree to the premises assumed, or in.tl&e conclusion. The appointment of Moss, in 1833, was undoubtedly a valid appointment, and vested in him an interest or property in the office for four years. The only limitation on the authority of the chancellor, was the constitutional provision that the tenure of office should be for some definite period. That was observed by Chancellor Quitman, and if he had conferred the office for even a longer period, still it would have been valid. The law which passed whilst Moss was legally in office, could in no way affect him. The act then had no valid operation until Moss resigned in 1834. The first period of time at which it could begin to operate was on the 24th of July, 1834, when Hadly was appointed. In the absence of an express declaration as to the time when the tenure should, begin, it could only begin of course when the law began to operate, to wit, on the 24th' of July, 1834. The law did not say that the period of four years should begin to run from its passage, or from any given time. It could not, therefore, begin to run until the law could operate. On the principle contended for, the chancellor himself would hold his office for six years, beginning, not at the time of his election, but at the time the constitution went into operation ; for the declaration in the constitution is, that a chancellor shall be elected by the qualified electors of the whole state, “ for the term of six years.” We know, however, that his term begins from the time of his appointment, and as the time of appointing is fixed by the constitution, the duration of his term of office is thus necessarily measured with reference to that time. If we could even so construe the act as to make it indicate the beginning of the term, we could not possibly fix that time before the 24th of July, 1834, for up to that time the office was constitutionally filled. Counting by periods of four years from that time to the time this appointment was made, it will be seen that the office was filled.

But that is not the true construction. The chancellor has power to appoint a clerk. The law declares how long that clerk shall hold when appointed, but it does not declare when the appointment shall be made. On general principles, then, each appointew&t must hold for the length of time prescribed by the statute. The term of four years relates to the incumbent, not to the office. The office, or the interest in it, is not divided out into periods of four years each. Each incumbent has an interest which may continue four years, or it may be forfeited, or abandoned sooner. A term by the common law does not signify merely a given time, but the estate or interest which the holder has in the thing held. The term, therefore, may expire during the continuance of the time. Let us suppose the legislature clothed with power to dispose of this office, and that it is first granted to A for the term of four years, and to B four years after A’s term shall have expired. A holds one year and resigns; does not B’s term immediately begin? Surely it does. The act of the legislature, in conjunction with the action of the chancellor, produces precisely this result. The legislature>has bestowed the interest, but the chancellor appoints the recipient or incumbent. If the incumbent so appointed, should choose 'to abandon or forfeit his interest, the term of his successor commences so soon as he may be designated by the chancellor, and the law, or the grant, gives him the full term; not a remnant which had been abandoned by his predecessor. The case of Smith v. Halfacre, 6 How. 582, decides the principle now involved. The great struggle in that case was to show, -that no period was fixed by the constitution for the commencement of the judge’s term of office, and that he was therefore entitled to hold for the full period of four years from the time of his election. And it was fully conceded by the court, that this would have been the result of an omission to designate the commencement of the term. But we held that on a fair construction, the constitution did provide for the beginning and the end of the term. The analogies, drawn from the practical exposition given to this question by the federal government, are entitled to great weight. The marshals hold for four years, and so do the territorial judges. These terms have always been considered as beginning at the time of appointment, and as vesting in the person appointed the right to enjoy the office for the full time prescribed. This question moreover is not now a new one in this state. It arose at least as early as the year 183^a¿id frequently since. The distinguished chancellors who have had it before them, seem to have bestowed on it due consideration, and have decided with entire uniformity. These determinations, running through a period of thirteen years, might well induce us to pause long before we could feel satisfied that these conclusions were erroneous, as doubtless did the chancellor before he made the decree. The great difference between this and the offices created by the constitution, is that the law does not designate any particular time at which the chancellor shall make his appointment. The sense of the provision is, that the clerk when appointed, shall hold four years. The officers who are elected by the people, necessarily hold from the time of the general elections, and for the sake of uniformity in the operation of the government, their terms of office expire at a general election. By providing that officers shall be elected at the general election, and hold for a given term, and by providing that the general elections shall take place-biennially on the first Monday in November, it follows that the tenures of all offices created by the constitution, were regulated with a view to the general elections. The consequence is, that the office was legally filled when Buckingham was appointed; his appointment was therefore inoperative.

Let the supersedeas be granted.  