
    The Governor v. Nelson.
    A clerk of the Circuit Court elected to supply a vacancy, under the constitution of 1851, holds his office for the Ml term of four years from the period of his election.
    
      
      Saturday, July 14.
    Section 7, of chapter 115, 1 B. S. 1852, p. 512, so far as it assumes to regulate or abridge the term of office of persons elected to the office of clerk of the Circuit Court, where vacancies have occurred, is in conflict -with the provisions of the constitution on that subject and void.
    APPEAL from the Marion Circuit Court.
   Stuart, J.

Motion for a mandamus. The affidavit on which the motion was based, sets up, that in Jume, 1852, one Joseph Sinclear was duly commissioned clerk of the Allen Circuit Court, to serve as such for the term of seven years; that in September, 1854, Sinclear died, and Nelson was duly appointed by the board of commissioners of Allen county to fill the vacancy which had thus occurred; that Nelson was qualified, entered upon the duties of the office, and served, &c., till the next general election in October, 1854, and until the commission thereinafter more particularly referred to; that at said election Nelson was duly elected clerk of the Allen Circuit Court, a certificate of his election forwarded to the proper office, and on the 14th of March, 1855, a commission issued to him as clerk of the Allen Circuit Court, for the term of seven years from the 15th of June, 1852; that he took the oath required by law, and entered upon the duties of the said office under said commission; that he had, on the 28th of June, 1855, called upon governor Wright to have the commission corrected, or a new commission issued to him as such clerk for the term of four years, &c,, which the governor declined and refused to do, &c. Nelson therefore prays a mandamus against the governor to show cause, &c.

An order of the Circuit Court was accordingly issued in the alternative, to correct, &c., or 'show cause, &c.

To this mandate governor Wright returned, that he admitted the facts stated in Nelson's affidavit, but that he was informed and believed, and accordingly submitted to the Court, whether, under the constitution and the acts of the general assembly, particularly an act approved May 13, 1852, entitled “an act touching vacancies in office, and filling the same by appointment,” the executive is not bound to issue commissions as thereby directed, viz., “ every person elected to fill any office in which a vacancy has occurred, shall hold such office for the unexpired term thereof;” 1 R. S., 512; that the executive department had uniformly been governed by the said law since it took effect; that the commission now shown to him had not been issued in conformity with the order of the executive to the secretary of state; that Sinclear’s term would have expired on the 15th of June, 1856, under the constitution; and that the instructions of the executive to the secretary were to issue a commission to Nelson for that unexpired term.

To this return Nelson demurred, and the Court sustained the demurrer; and the governor failing to make further return, a peremptory mandamus was awarded. The governor appeals.

The only question presented is, whether Nelson should have been commissioned to fill Sinclear’s vacancy, viz., for four years from the first day of November, 1851, when the new constitution took effect, or for four years from the day of the general election in October, 1854, when he was elected clerk by the people of Allen county. The governor insists that Nelson was elected to fill the vacancy. Nelson claims the full term of four years from the date of his election.

It is proper to observe, that it appears from Nelson’s petition there is no wish on the part of governor Wright to harass Nelson in relation to his office; but only to settle a doubtful question of construction. The governor, it seems, deems it his duty to conform to the acts of the legislature until the judicial department determine whether the law is in accordance with the constitution. He has, therefore, commissioned in compliance with sec. 7, c. 115, 1 R. S., 512, to hold for the unexpired term.

The office of clerk of the Circuit Court is one recognized in the constitution. The second section of article 6, under the head of “ administrative,” provides, among other things, for the election of a clerk of the Circuit Court by the people, who shall continue in office four years, and shall not be eligible to such office more than eight years in any period of twelve years. 1 R. S., 58. The 9th section of the same article provides that vacancies in county-offices shall be filled in such manner as may be prescribed by law. The 10th section provides that the general assembly may confer upon the boards doing county business, powers of a local, administrative character. 1,11. S., 59. Section 4, of chapter 115,1 ft. S. 1852, authorizes the commissioners to fill the vacancies in county offices, to hold until the next general election. The 8th, 10th and 12th sections of the schedule of the constitution will be found, on examination, to contain nothing bearing on the questions before us, and therefore need not be quoted.

Under these constitutional provisions, we are of opinion that the term of Nelson's office was for four years from the period of his election in October, 1854, and that his commission should have run accordingly. We are confirmed in this view by another provision of the constitution, to which counsel have not referred. The 11th section of article 2 provides, that “in all cases in which it is provided that an office shall not be filled by the same person more than a certain number of years continuously, an appointment pro tempore shall not be reckoned a part of that term.” 1 R. S., 47. As to clerk of the Circuit Court, it has been seen that he may be elected for a term of four years. The same person may fill that office for more than four years continuously, viz., for eight years. 1 R. S., 58, supra. And it is a pro tern, appointment, and not an election, that is not to be accounted a part of the term during which the same person may hold the office for consecutive years. Thus Nelson's pro tern, appointment by the board of commissioners of Allen county, is not to be taken as any part of the period during which he may hold the office. But his holding by virtue of an election, séems to us must be so taken. For the second section of article 6 does not provide for part of a term. It contemplates a full term as the result of each popular election. “ He shall continue in office four years; he shall not be eligible more than eight years,” &c., clearly indicate two full terms. If Nelson’s term, under the election of October, 1854, were only for the unexpired part of Sinclear’s term, as the commission issued in pursuance of the act of the general assembly above quoted was intended to run, then Nelson's first term could not be four years, nor two terms eight years. For though Sinclear was commissioned for a term of seven years from June, 1852, yet the talcing effect of the new constitution abridged his term of office. 10th specification of the schedule, 1 R. S., 71. Sinclear's term, commencing, under the constitution, November 1, 1851, and ending November 1,1855, would give Nelson, if elected to fill the vacancy, only a little more than one year, instead of four years, to serve. And he would not be eligible to a third term, for that would give him more than nine consecutive years.

The Governor, in person.

J. Morrison, C. A. Ray and J. T. Morrison, for the appellee.

Thus, whichever way tested, the hypothesis of filling a vacancy by an election, to hold only for the unexpired term, wholly fails to conform to the clear intent of the constitution. The requirements of the constitution itself would thus be rendered conflicting and incongruous. But on the hypothesis that every election of clerk, at, &c., is for a full term, the several parts fall in harmoniously. We therefore conclude, that to conform to the constitution, the clerks of the Circuit Court elected by the people, are entitled to a full term of four years, and not to be regarded as filling a vacancy of any shorter period.

The 7th section of chapter 115, 1 R. S., 512, so far as it assumes to regulate or abridge the term of office of persons elected to the office of clerk where vacancies have-occurred, is in conflict with the provisions of the constitution on that subject, and must be declared void.

Nelson is therefore clearly entitled to a commission for the full term.

Per Curiam.

The order of the Circuit Court, awarding a peremptory mandamus, is affirmed with costs.  