
    Brewer vs. Davis.
    1. The constitution, art. 6, sec. 13, prescribes that clerks of inferior courtsshall be elected for the period of four years, and the legislature have no power, in any case whatever, to shorten that term. If á clerk of an inferior court is lawfully elected, he holds his office for the full constitutional period.
    2. The right to hold an election cannot exist, or be exercised, without an express grant of power by the legislature.
    Under certain acts of the General Assembly (which are set forth in the opinion oí the court,) by which the county of Hancock was organized, Brewer was elected Clerk of the Circuit Court on the 3d day of December, 184(5. On the 4th day of March, 1848, an election was held for clerk in supposed accordance with the requirements of the act of 1835, ch. 2, when Davis was elected clerk by the qualified voters. Davis made application to the court (Lucky, J.) to be inducted into office. Brewer opposed the application on the ground that he was lawfully elected for the period of four years, a portion of which had not expired.
    
      The judge was of the opinion that Davis was entitled ■to the office, and so ordered.
    Brewer appealed.
    
      W. it. Evans, for the plaintiff in error.
    The plaintiff in error was elected by the people, and took the oaths, and gave the bonds required by law; and he claims the office for four years from his election under the constitution, which provides for the election of clerks by the people. There is no clause in the constitution by which a clerk elected by the people can be restricted to a less term; and any provision by the legislature, providing for the election of a clerk by the people for a less term than four years, either in organizing a new county, or otherwise, cannot take away the right of the party so elected to his office for the constitutional period of time. Nor can the provisions of the act of 1835, requiring generally that elections for county officers shall be held on the first Saturday in March, every two years, affect the question or the rights of the person so elected. The constitution does not require such elections to be held on the same day in every county; and the laws providing for the organization of the county of Hancock fix other days and times for holding elections for county officers, and when so elected said officers are entitled, under the constitution, to their full term, notwithstanding the particular act would restrict the party to a less term.
    
      Kogan, for defendant in error.
    It is contended by the counsel for Brewer that, being elected, he is entitled to hold his office, according to the provisions of our constitution, for four years. I am aware that the constitution so provides ; but does not that instrument contemplate regular elections ? Here is a new county created, and the election held, in December. The two legislatures which passed the act and amended act for establishing Hancock, also passed bills forming some eight or nine other new counties. Now, suppose each of these counties have their elections in different months; and suppose, as county officers die, others are elected by the people whenever such deaths may occur, what will be the result ? Why, we may soon have an election for circuit court clerk nearly every third day in the year; for I believe we have nearly one hundred counties in our State, and when you come to add to this county court clerks, registers, trustees, sheriffs, &c., it is not at all impossible, but that we may have a county election six days in every week of the year, some place in our State. To this, it seems to- me, the argument adduced on the other side does lead ; for, if Hancock may elect the first Monday in December, surely Grundy may elect the second Tuesday in January. Can it be that the framers of our constitution could have ever tolerated the idea of such confusion ? Certainly they intended that the elections should come off every place in the State on the same day, and that the officers then elected should hold their offices for the specified time. This would produce no confusion.
    In this case, we have the Legislature expressly providing that the officers elected in Hancock should hold their offices “ until the next general election (March, 1848,) and no longer.” Martiel Brewer, the appellant in this case, had this act before him when he became a candidate for the office of clerk of the circuit court, for he was one of the commissioners appointed to organize the county, and his intention must have been only to present himself before the people as a candidate, for that period only that intervened between December, 1846, and March, 1848, and the people could only have voted for him for that term ; and his becoming a candidate for re-election in March, 1848, further justifies us in this belief. Surely Mr. Brewer did not suppose he would hold'his office until December, 1850, and that ever after December would be the month for holding the elections in the county of Hancock.
    But, suppose Mr. Brewer is the lawful clerk, in what condition will it place Hancock county? The old. sheriff was defeated — the new sheriff is no legal officer, and every one of his official acts are null and void. The new magistrates are illegally commissioned, and persons have been committed to jail without law, fines have been imposed and collected by those who have no power to administer justice, or collect fines, and every thing is there in perfect anarchy and confusion. If Mr. Brewer is yet circuit court clerk, are not the old sheriff and the old county court clerk still in existence, and the lawful officers, and may they not re-levy and re-collect the taxes already paid to their successors? If Mr. Brewer is still the clerk, every thing done by the officers since March must be illegal.
    
      S. R. Rodgers, for plaintiff in error.
   McKinney, J.

delivered the opinion of the court.

The question in this case is, whether the plaintiff in error, or the defendant, is entitled to the office of clerk of the circuit court of Hancock county. ■ The act to establish said county was passed on the 7th day of January, 1844. By the 7th sec. of the act, it is provided, that the election of county officers for said county shall be on the same day and under the same rules and regulations as provided by the law for the election of officers in the other counties in this State. And, by the 20th sec., it is further provided, that if said county “shall fail to organize against the first Saturday in March next, and consequently fail to elect-necessary county officers, as prescribed in the 7th section of this act, they shall proceed to elect their county officers on the first Saturday in July next-thereafter, under the same rules and regulations as now prescribed by law, and'such officer's, so elected, shall hold their offices until the regular time of electing county officers in this State, and no longer.” There was no organization of said county under the foregoing act, and, at the ensuing session of the General Assembly, viz, on the 29th day of January, 1846, an amended act was passed, authorizing the commissioners to procure a re-survey of said county, so as to avoid constitutional objections. The 2d section of said amended act provides, “that after the commissioners shall have made the re-survey of said county of Hancock, as provided “for in the first section of this act, they shall then proceed to organize said county of Hancock, as required by the act which this is intended to amend.” It appears from the statement of facts agreed upon by the parties, and set forth in the record, that said county was organized “ by the election of county officers on the Sd day of December, 1846, at which election Marshal Brewer was elected clerk of the Circuit Court of Hancock county; and at the October' term, 1847, of said Circuit Court, said Brewer was admitted to the office of Clerk of said Court;” and it is further agreed that at the election for county offioers in said county, at the regular time of election, viz, on the 4th day of March, 1848, the defendant in error, William B. Davis, was lawfully elected by the people clerk of said court.

At the May term, 1848, of said court, the defendant in error produced to the court the certificate of his election, and moved to be admitted to qualify, and to be inducted into said office. This motion was opposed by the plaintiff in error, who claimed the right to hold said office for the term of four years from his election, and leave was granted him by the court to appear and defend his right thereto. On argument, the circuit judge held that the defendant in error was legally entitled to said office, and ordered that he should be qualified and admitted accordingly — to reverse which order, an appeal in error is prosecuted in this court. We are of opinion, upon the foregoing' state of facts, that the defendant in error was properly held entitled to be admitted to said office ; but for a reason very different from that urged in argument in his behalf. It is unquestionably true, that the election of Brewer to the said office on the 3d of December, 1846, had such election been authorized by law, would have entitled him to hold the office for the full term of four years from the time of his qualification, notwithstanding any restriction which the legislature may have attempted to impose, limiting his continuance in office to a shorter period. The amended constitution, art. 6, sec. 13, in plain terms, provides, that “clerks of such inferior courts as may be hereafter established, which shall be required to be holden in the respective counties of this State, shall be elected by the qualified voters thereof for the term of four years.” There is no authority to be found in the constitution for an election for a shorter period. And, although the election may be fixed, as in this case, at a time different from that appointed by law for the election of county officers, in the other counties of the State, or to fill a vacancy occasioned by the death, resignation, or removal of the prior incumbent, still, in either case, the person elected will be entitled to hold his office for the full constitutional term. It is not competent for the legislature to shorten the term, and any enactment to that effect is void. Such is the rule applicable to all elections under the constitution, whether by the legislature or people. The argument that this rule will lead to confusion, and want of uniformity in the time of holding the elections, is of little force ; for, as is said in the case of Powers vs Hurst, 2 Hum. 24, such uniformity is of no practical utility, and, were it otherwise, is not attainable. If, therefore, the case rested solely upon this ground, we should not hesitate to reverse the judgment of the Circuit Court. But, we regard the election of Brewer as illegal and void ab initio. The act of 29th January, 1S46, makes no provision whatever for holding an election for county officers in said county, except it be impliedly, by reference to the provisions of the previous act of 1844. But, were it allowable by construction, to hold that the provision of the- 20th section of the act of 1844, was applicable to the subsequent act; and that the intention of the legislature was, that if said county were not organized in time to hold an election for couniy officers on the first Saturday of March, 1848, that such election might be held on the first Saturday of July next thereafter, though this would be pressing the doctrine of construction to the verge of the law, if not beyond; still, it would avail the plaintiff in error nothing, inasmuch as it would not authorize an election on any other or different day than that specified. The right to hold an election cannot exist,, orbe exercised, without an express grant of the power to do so by the legislature. Hence, the election of the plaintiff in error on the 3d day of December, 1848, was without authority of law, and consequently vested him with no legal right to said office. And the defendant in error, having been legally elected, is entitled to be admitted and qualified as clerk of said court. Upon this ground, we affirm the order and judgment of the Circuit Court.  