
    Stevens vs. Wyatt, &c.
    APPEAL FROM MONTGOMERY CIRCUIT.
    Where the board, whose duty it is, decides that one chosen clerk of a county court by a majority of votes, is ineligible and cannot take the office, and that it is vacant, it is the duty of the county judge to appoint a clerk to serve until the succeeding August election. The former clerk has no right to hold the office.
    The facts of the case are stated in the opinion of the court. Rep.
    
    
      R. <$• S. Farrow for appellant—
    1. The first question arising is, was Garrett eligible at the time he was voted for. The agreed facts show that he was not. (Sec. 1-2, Art. 6, Constitution.)
    
    
      2. That as Stevens was the only candidate voted for who was eligible, he was elected to the office for the ensuing term.
    3. That although Stevens may not have the right to claim the office by the vote last given, yet he has a right to hold the office in virtue of his first election, until another is duly chosen and qualified. — ■ (Rev. Slat., art. 2, sec. 2, p. 300.)
    
    We insist that Stevens has been illegally ejected from the office, and suffered injury. What is the mode of redress? We insist that the mandamus is the appropriate remedy. (See Code of Practice, sec. 523 to 526.) The Code provides that the party shall file his petition and give notice. It is not said expressly in what court it is to be filed; but we understand it to be an ordinary petition to be tried as expressly provided by the court. It is a proceeding in ordinary, not in equity. This is the distinction required to be made, and a guide to the clerk. (See Code of Prac.,p. 32, sec. 118.) The proceeding is in conformity with the Code, and tried as the Code directs. We think the proceeding has been conducted properly and before the proper tribunal. (See Code, sec. 526.) And we rely upon the case of Deio vs. The Judges of the Sweet Spi-ings District Court, 3 Henning Munford, p. 1, as having a decisive bearing upon this case. It is there decided that the writ of mandamus is the proper proceeding to restore a clerk to an office from which he has been improperly ousted.
    It is denied that the board appointed to try the contested election had any right to declare the office of clerk vacant; they transcended their power. (See Rev. Stat., 295, sec. 8.) Neither could the- county court declare the office vacant. Both these tribunals are created by statute, and can only perform such duties as are conferred by statute. This court has defined the power of this board to try contested elections in the case of Kirtley vs. Newcum, 13 B. Mon.
    
    If there was no election in August, 1854, it was the duty of the board to order a new election, and it was the right and duty of Stevens to hold the office until another was elected and qualified.
    By article 6, section 1, it is declared that the term of office of the clerk shall be the same as that of the county judge. By section 30, article 4, concerning county judges, it is declared that “they shall continue in office until their successors be duly qualified.” — * Now, so far as the statute (See Rev. Stat., 291,) interferes with this constitutional provision, it-is a nullity.
    
      
      Tho. Turner for appellees—
    It is contended by Stevens’ counsel that Stevens was elected county clerk at the August election, 1854. They think that as Garrett was ineligible, all the votes cast for him were a nullity, and Stevens was elected. Were we left without a-statutory provision on this subject, their reasoning could not be sustained.
    It is the intention of our constitution that the people shall have the selection of their officers, and had not Garrett been a candidate, the people might, and probably would, have elected some person other than Stevens.
    But the Revised Statutes say that where an ineligible candidate receives the highest number of votes, his opponent shall not be considred eleected, but declare the office vacant, and that there shall be a new election. (See sub-division 8 of the 1st sec. Revised Stat.,p. 295.)
    It is clear, then, that Stevens was not elected clerk at the August election 1854, and the board of contested elections properly decided that there was no election, and the office was vacant. •
    In saying that under the circumstances named, the board should order an election. The statutes substantially say there was no election, and that the office is vacant.
    But by Revised Statutes, page 295, the decision of the board is final, and cannot be revised. And in Newcum vs. Kirtley, the court says the board had a right to decide that there was no election, and hence ■a vacancy which was properly filled by appointment.
    It is true that in Newcum vs Kirtley, 13 B. Mon., this court say they will revise the decision of the board when it shows on its face that the facts upon which they based their conclusions did not legally authorize it. But such is not the case here. The board was substantially required by statute to do what they did, and did not supercede their duties. It is true that the board did not order a new election, but they decided there was no election, and a vacancy : and by Revised Statutes, p. 291, there is a vacancy when there is no election; and by Revised Statutes,p. 293, the county judge is directed to fill that vacancy until the next August election, and issue a writ of election to be held the next August, to fill it, as was in fact done in this case; and the constitution (p. 67 Rev. Stat.) says that vacancies in the offices of county court clerk shall be filled in such manner as the general assembly shall by law provide.
    Hence we conclude that the office was vacant, and that the appointment of Wyatt was regular and right.
    But it is contended as Stevens was elected clerk in 1851 until 1854,that under section 30, article 4 ofthe constitution, (see Rev. Stat., p. 64,) and under section 1st, article 6th of the constitution, (see Rev. Stat.,p. 66,) he was entitled to hold the office until another election could be held, as he was entitled to hold it until his successor was qualified.
    We admit that he was entitled to the office until his successor was qualified, but think that Wyatt was his legal successor.
    We suppose an office is vacant when the time expires for which the incumbent was elected or appointed; but it is, under this clause of the constitution, contended that there was no vacancy; under such a construction of the constitution there never could be a vacancy except in case of death, resignation or removal, and under this construction no officer ever can be elected or appointed to fill a vacancy while there is a living incumbent who wishes to hold on.
    It was the design of the framers of the constitution to provide an incumbent under all circumstances to do the public business; and there may be a vacancy in an office which has an incumbent; and such is always the case where the newly elected officer is not sworn in at the time required by law.
    
      But some emphasis is laid by the plaintiffs’ counsel on the fact that the county judge alone appointed Garrett.
    By article 21st, p. 234, Revised Statutes, the office of associate justices are abolished, and justices of the peace do not constitute a part of the court except in the transaction of financial business.
    But even if these matters were in favor of the plaintiff, he could not maintain his application for a mandamus since the adoption of the Code of Practice. The 526i/i section of Code of Practice, p. 148. provides that a writ of mandamus is only to be used by a superior court to compel an executive or ministerial officer to do some act in accordance with law, or to refrain from some act in violation of law. In Bruce vs. Fox, fyc., 1 Dana, 447, and in Newcumvs. Kirtley, 13 S. Mon., 515, this court virtually decided that the act of the circuit judge in refusing to let the proper person to qualify as clerk, or attorney for the commonwealth, was a judicial act, and subject to be revised on writ of error or appeal, and certainly such refusal on the part of a county judge was also a judicial act, and the proper remedy was by writ of error or appeal. And again, the county judge is not an executive or ministerial officer, but a judicial officer, and the mandamus could not be awarded against him. The Virginia case cited by the defendant does not apply since the adoption of the Code of Practice, which repeals all modes of proceeding in circuit courts, except those therein pointed out. (See Code of Practice, sec. 748, p. 201, and sec. 875, p. 227.)
    An affirmance of the case is, therefore, asked and expected.
    January 17.
   Judge Stites

delivered the opinion of the Court.

Stevens, the clerk of the county court of Montgomery, was a candidate for re-election to that office at the August election, 1854. He was defeated by Garrett, an opposing candidate, by a majority of 48 votes, and the latter received a certificate of election.

1. Where the board, whose duty it is, decides that one chosen clerk of a county court, by a majority of votes, is inelligible, and cannot take, the office, and that it is vacant, it is the duty of the county judge to appoint a clerk to serve until the succeeding Augustelection. The former clerk has no right to hold the office.

Having ascertained that Garrett was constitutionally ineligible to the office for the want of a certificate of qualification, and proper residence in the county ; and being informed that he would be admitted to discharge the duties of the office by the county judge, notwithstanding his disqualification, Stevens procured an injunction against his admission to the office, until he could, under the provisions of the statute, contest the election.

Notice was served upon Garrett, and the facts being argued before the county board, it was adjudged by the board that Garrett was ineligible: 1st. Because he had no certificate of qualification ; and, 2d, Because he had not been a resident of Montgomery county for one year next preceding the election; and, also, that there had been no election, and that the office was vacant.

This decision was returned to the county court, and thereupon an order was made by the county judge appointing Andrew J. Wyatt clerk of said court “to fill the vacancy occasioned by the failure to elect.”

Stevens then amended his petition by setting forth the foregoing facts, and obtained a rule against the county board, county judge and Wyatt, to show cause against a mandamus compelling the board to award that he was the clerk, the judge to restore him to his office, and Wyatt from further intermedling with the office.

The defendants responded, and relied upon the legality and validity of their acts in the premises in discharge of the rule. Upon final hearing the mandamus was refused, and rule discharged, and from that judgment Stevens has appealed.

As the facts respecting Garrett’s ineligibility were agreed, no doubt is entertained of the propriety of the action of the board in refusing him a certificate of election. Nor have we any, that Stevens was not entitled, in virtue of the election in 1854, to hold the office. The 1st section of the 6th article of the constitution, determines the right of Garrett, and the Revised Statutes, art. 7, sec. 8, p. 295, is conclusive of Stevens’ right to the office under the last election.

The appellant, however, contends that the action of the county board, in declaring the office vacant, because ho election was held; and that of the county judge in appointing Wyatt and removing him, was void and wrongful; because, as he insists, by the constitution, there was no vacancy in the office, and he had the right to hold and enjoy the same, in virtue of his election in May, 1851, until the next regular election succeeding the d'eterrhination of the county board, when a sUccéssor could be elected, and until such successor “was duly qualified.” In support of this position, we are referred to the 1st section, 6th article, and 30th section, 4th article, of the constitution.

By the former it is provided that “the term of office" Of the county clerk “shall be the same as that of the presiding judge of the county court.” By the latter it is declared that “judges of the county court shall be elected by the qualified voters in each county, for the term of four years, and shall continue in office until their successors be duly qualified.”

It is contended that the continuation herein provided, is a part of the term of office of the county judge, ’and as, by the other section referred to, the term Of the county clerk Is the same as that of the county judge, that he has the right, as a part of his official term/to hold the Office until his successor is qualified. And moreover, that an election is an indispensable pre-requisite to the qualification of such successor; and being so, that Stevens, being the incumbent, consequently has the right to hold bn until after the election and qualification of his successor at the next regular election.

If this be so, the 11 th section of article 7th, chapter 32, Revised Statutes, 295, which provides “where a hew election is ordered, or the incumbent adjudged not to be entitled, his powers shall immediately cease ; and if tbe office is not adjudged to another, it shall he deemed vacantunder which the county board declared the office in question vacant, must be regarded as in. contravention of the constitution, and of no effect; and the action of the board, and county judge, complained of, wrongful and in violation of the constitutional rights of the appellant.

We do not assent to the correctness of the proposition.

The term of office for the county judge, as well as of all others created by the constitution, is definite. The continuation in office after the expiration of the term, though a right-pertaining to the incumbent, and of which he cannot, except in the mode prescribed by law, be deprived, is not, properly speaking, apart of the term. Such continuation was manifestly designed to obviate any inconveniences that might attend vacancies occurring between the expiration of the term of the incumbent and the qualification of his successor.

The term of the presiding judge of the county court is four years, and, by the constitution, he is to continue in office until his successor shall be qualified. The term of office of the county court clerk is the same, but there is no constitutional provision continuing him in office until his successor is quali ■ fied. So that appellant’s right to hold the office, if he has any, is not conferred by the constitution.

That it was not intended by the framers of the constitution to provide, in that, and the other offices named in the 1st section of the 6th article, for a continuation in office of the incumbent, after the expiration of the term and until the qualification of the successor, as was done in the office of county judge, is, we think, not only manifest from the absence of such continuation in express terms, but likewise from the provision contained in the 7th section of the same article, which expressly confers upon the general assembly the power to provide for vacancies occurring in offices created by the 6th article. (7 th sec. 6th article, Constitution.)

This section seems expressly intended for the purpose of enabling the legislature to make such enactments as would meet and provide for any contingency or difficulty that might arise or exist in regard to vacancies, or other emergencies incident to the offices referred to.

To have made such provisions in detail in the constitution, with respect to the many subordinate offices in the state, would have been altogether impracticable, and hence the necessity of conferring the power upon the general assembly. No better illustration of the necessity of such power, and the propriety of the legislative enactments thereunder, could be furnished, than is afforded by the present care.

Having disposed of the assei’tion of appellant’s right under the constitution to hold over, it only remains to enquire whether the statutes, under which the proceedings under revision were had, have been complied with.

The 8fh sec., art. 7, c-lmp. 2r Revised Statutes, provides, among other things, “that where the person returned is found not to have been legally qualified to receive the office at the time of his election, a new election shall be ordei'ed.” The 11th section, same chapter and article, provides : “when a new election is ordered, or the incumbent adjudged not to be entitled, his powers shall immediately cease ; and if the office is not adjudged to another, it shall be deemed vacant.”

Here, under the submission of facts before the county board, appointed in the chapter last referred to to determine contested elections, it was properly determined that Garrett was ineligible to the office, for reasons already stated, the incumbent not adjudged to be entitled, and the office declared vacant. This determination of the county board was properly communicated to the county court, and entered of record; and it became the duty of the presiding judge of that court to supply the vacancy by appointment.

This is imposed on him by the 5th sec., art. 6th, of chapter 32, Revised Statutes, which provides “that a vacancy in the office of county court clerk shall be filled by the county court until the succeeding August election, and a writ of election issued by the judge thereof to fill the vacancy.” The appointment of a clerk being, in our opinion, within the power of the county judge, and not one of those acts which require the concuirence of a majority of the justices of the county. This duty he seems to have discharged by the appointment of Wyatt; and to enable the appointee to exercise and discharge the duties of the office, it was indispensable that Stevens should deliver up to him the books and papers of the office.

As the foregoing view determines the points raised upon the merits of the controversy, it is not deemed necessary to discuss the manner of proceeding.

Judgment affirmed.  