
    The State ex rel. of John Fox v. Reuben Harmon.
    The District Election Act of 1815, is not absolutely repealed by that of 1839, and was the proper law to govern an election held, after the passage of the new Act, to fill a vacancy which had occurred before it.
    Minute irregularities, not affecting the fairness of an election, will not invalidate it.
    A Clerk of Court appointed to fill a vacancy by death, resignation, &c., holds only till the expiration of the term of the original incumbent.
    The day prescribed, by the Act of 1839, for the managers to meet and declare the election, is misprinted in the published Acts, Monday. It should be Wednesday.
    
    Before O’Neall, J., at Chambers, March 5th, 1840.
    The following is the report of the Circuit Judge, in this case:
    This was an application for a quo warranto against the respondent. It appeared that Edwin Scott, the former clerk of Lexington district, resigned in 1838, and the respondent - was appointed pro tem. by the governor. In October, 1839, he advertised an election to take place on the second Monday and Tuesday in January, 1840. In the December succeeding, the Legislature passed an Act, by which it is provided that, “ whenever a vacancy is about to occur in the office of clerk, ordinary, or sheriff, in any district in this State, by expiration of the term of the incumbent, it shall be the duty of the acting clerk of the Court of Common Pleas, at least two months before the term when such vacancy shall happen, to advertisean election at the court-house door, &c. (Acts of 1839, sec. 1, p. 37.) By the second section it is provided, “ when any vacancy shall occur in either of the offices aforesaid, by the death, resignation, removal from the district or State,” &c., it shall be the duty of the clerk to advertise for an election, &c. The fourth section provides for the meeting of the managers at the court-house, in- the printed copy, on the Monday after the votes are received, but it should be on the Wednesday after the votes are received.
    
      “ The managers went on, and held the election on the second Monday and Tuesday in January, and, on the Thursday following, met at the court house, counted the votes, heard a contest, and declared the relator duly elected, who was commissioned by the governor.
    “I thought the relator was entitled to the office. The election was properly held under the Acts of 1815; (A. A. 1815, p. 56;) for the Act of 1839 did not provide for the case of a vacancy existing at the passing of the Act. It applied exclusively to vacancies occurring after its passage. It contained no repealing clause. The Act of 1815 was therefore in full force, and governed cases occurring before the Act of 1839.
    “ The notion that a clerk appointed pro tern, was entitled to hold for four years, seemed to me to be unsustained by anything like reason or law. The clerk has no constitutional tenure of office; it is one altogether regulated by Act of the Legislature. When the Legislature gave the governor power to appoint until the office should be filled by election, an appointment under this authority could confer no greater tenure. It was not like the case of the sheriff, whose tenure .was regulated by the constitution; when once in office, he was in for four years, his constitutional term.
    “ Information, in the nature of a quo warranto, was considered as previously filed by leave of the Court, and the writ of quo warranto was ordered.”
    The respondent appealed, on the grounds:
    1. That no election could have been held under the circumstances ; for the Act of 1815 was repealed, and the supposed vacancy in question was not provided for by that of 1839.
    2. That the respondent was entitled to hold, under the governor’s commission, for four years.
    3. Because the managers had assembled on Thursday, (instead of Monday, as the law directed,) to declare the election.
    
      4. Because two-thirds of the managers were not present to judge of and declare the election.
    
      
       11 Stat. 24. An.
      
    
    
      
       4 Stat. 12. An.
      
    
   Curia, per Richardson, J.

We need add but little to the exposition, by the circuit judge, of the law or of the facts upon which this application was made.

The Act of 1839 does not repeal the election law of 1815, (6 Stat. So. Ca. 11,) but so alters its provisions as to leave it applicable to only a few cases. I would not say that any further vacancy in office can be filled under its provisions ; but it still stands to meet a possible case, and forms a part of our system of popular appointment to office. The Act of 1839, by its first section, provides for vacancies about to occur by the expiration of an office at its legal or constitutional termination; and requires the Clerks of Courts, “ at least two months” before such regular termination, to advertise an election, in order to anticipate the expected vacancy. The clerk is, also, to name some Monday witMn the sixty days, (to prevent an interregnum, evidently,) but exceeding thirty days, after the date of his advertisement, as the day of election. Section 2 provides, “when any vacancy shall occur” by death, omission, or refusal to serve, or the like, the clerk shall give the same timely notice, and so forth. Both sections are prospective, and provide for vacancies that were to occur after the passing of the Act, December 21, 1839.

The question, therefore, is, did the vacancy in the clerk’s office at Lexington, exist on December 21, 1839.

The Act of 1815 provides that elections, to fill such vacancies, shall be holden on the second Monday, and the day after, in January; and the officer elected shall go into office on the second Monday in February thereafter. And the third section of that Act provides that the governor shall fill up all vacancies, etc., “ to hold under such appointment until such time as an election shall take place,” etc. When the governor, then, appointed Reuben Harmon to the office vacated by Edwin Scott, the appointee was to hold the office either till the election in January, or, perhaps, to the second Monday in February — when, by the Act, the person elected would go into office. Now,'then, if we are to consider the clerk’s office as vacant from the moment Edwin Scott resigned it, the vacancy had occurred before the Act of 1839; and therefore the election could not be brought under its provisions, and the argument of the circuit judge would be conclusive.

But, if we are to consider the appointment of Beuben Harmon as a legal filling of the vacancy, so as to constitute a perfect term of office, to expire regularly, either upon the election in January, or on the second Monday in February— then no casual vacancy had occurred so as to bring the election within the second section of the Act of 1839; but it would be, in the language of the second section, “ a vacancy about to occur” upon the regular termination of the office, (in January, or February;) and, then, the clerk could not have advertised “ at least two months” before the term of the office would have expired, for two months could not elapse between December 21 and the second Monday in February.

It is plain, then, that under any construction, the vacancy in question could not have been filled by an election held under either section of the Act of 1839; and the managers, therefore, very properly held the election under the Act of 1815.

It is still very possible that other elections may yet be holden under that Act. The Act of 1839 requires that the clerk shall advertise the elections, and a subsequent section renders him indictable for a high misdemeanor, if he fail to give the notice required by the Act; and, upon such failure of the clerk, the commissioners are directed, nevertheless, to advertise and hold the election. But suppose the very possible case of there being no clerk to give the notice, and of course, no clerk to fail of giving the notice. Is it not at least questionable whether the managers would not, in that case, be obliged to hold the election under the Act of 1815, in order to prevent its failing altogether 1

See I-Iarp. 139, 319 ; 1 McM. 497 ; 2 Rich. 6 ; 5 Ricli 303. An.

The chief grounds of exception to the election of the relator are, then, clearly unfounded in law. To meet the objection of irregularity, which the grounds suppose, it may be observed, that the end of popular elections is to discover which of the candidates has the greatest number of votes from among the qualified voters. The polls are, of necessity, holden by many persons, at different places, and such elections are, of course, subject to irregularities. Where, then, after legal notice to the voters, the polls have been fairly holden by the proper managers, at the places, and for the time designated, and one of the candidates has received a greater number of votes than the rest, he is the proper appointee, and the end of the election is answered. It follows, irresistibly, that we are to construe the rules for the regulation of popular elections with a constant direction to that end, and not to be deterred by minute objections and mere irregularities of manner or form. It is upon such considerations, that both the Act of 1815 and that of 1839 make the validity of the election depend, in the first instance, on the decision of the managers themselves. By the former Act, a majority may decide; by the latter, the presence of two-thirds is required: which answers the fourth ground of appeal, in reference to the number required to decide the election. That ground applies to the Act of 1839, only. In fact, all the objections to the election of the relator depend upon the assumption, that the election ought to have been held under that Act; which being shown to be groundless, the rest have no material application to the case.

Upon the whole case, therefore, the Court are unanimous in confirming the judgment of the circuit judge, and the appeal is dismissed.  