The Jasper weekly courier. [volume] (Jasper, Ind.) 1858-1922, 1885-10-02

would have been . vacancy after the ex-
lpiration Of the defendants term and the
lien days allowed by law for the success
lsor to give bond, but no one would ques-
ltion for moment the right Of the de-
|fendant 10 continue to hold the Office,
discharge the duties thereof, and enjoy
the emoiuments until the vacancy was
filed by appointment and the appointee
properly qualified. Upon the election
and commission OF Mr.. Greene, the ex-
piration of the Term Of the defendant,
the failure Of the former TO qualify with
in the time prescribed b. law, ard the
appointment Of . competent person,
lingrafied the rights Of the appoiusee to
those Of the clerk elect and upon the
qualification Of the sppointee the sue
cessor is elected and qualified. The let
ter and spirit OF the constitution are
both satisfied, and q wise provision Of
the Legislature, section 5527 supra, Is
upheld. So, in the case st bar, upon
THE election, commission and death Of
Mr.. Greene before his term commenced,
and the appointment of the relator after
the defendants term expired, the rights
of the relator are grated upon those Of
the deceased clerk elect, and the defend
ANTS successor has been both elected and
QUALIFIED within the spirit Of the consti-
tuition.
Under . constitution like ours, the
fact that the defendant had the lawful
right TO hold the Office and discharge
the duties thereof st the time the ap-
lpointment was made. Is no valid reason
why vacancy did not exist Had Mr..
i Greene taken the oath OF Office before
his death, all the cases hold that there
would have been vacancy, State ex
lrel. Elliott, vs.. Bemenderfer 90 Ind.
374; State ex rel. vs. Seay 81 Mo. 80,
f27 Am. Rep. 206:) yet there can be no
doubt, that upon the facts stated in the
fcomplaint. though Mr.. Greene had ta-
ken The cath Of Office before his term
commenced, the defendant would have
had the lawful right to continue in the
flofiice, and the same result would follow
had he lived. but failed to give bond
within the lime prescribed by statute.
\ The case OF Com. vs. Hanley, Pa.
lSt 5l3. is made to hinge largely on this
proposition The inquiry is made, s,how
can il be said ihere is . vacancy in the
!Iofsice when there is already IN czIicez
duly installed in The osice legally quail.
Lifted to discharge The duties?
4 The constitution Of Pennsylvania Il
ilesseniialiy different from that of In.
-ldiana.
n 1t will be seen ffom section I52. suPEA
7that The term of the Office Is fixed al
-iour years. and no Person shall be eli
gib.e 10 tie Office more than eight wears
: in any period OF twelve years, while
! section POS supra makes provisions for
!. IAN occupant of the office in case Of the
|, failure Of the osfcer elect to appear and
| take charge OF the Office. The clause in
: 1.-THE constitution OF Pennsylvania, which
1lfixes the the term names the Dumcer oi
! years. and until his successo. shall be
qualified
| The term isseifis not limited but Is q
I continuing one. while under the cons;i-
ftuli0n Of this Stale, the term is limited,
/ ana though the occupant may lawfully
4 hold over and discharge the duties, vel
1.-The period 90 held over Is not reckoned
: as 4 part of the term ofthe Office, and
elwould not be computed IS part Of the
-ieight years in any period OF twelve
/ years. that person may hold the Office
In the Pen1sylyania case, the court says
slthat one Of the controlling objects oi
q <I4UE CLAUSE Ill AuLlN NOUrAAA4l4Ons " 1r "
esiake from the Governor the appointing
.lpower. who before it, adoption had
: -lpower 10 I'll the Office by appointment
-lduring his pleasure In this Stale, the
e leading object was to prevent the Office
rlof Clerk and the other Offices named
eliiom being held continuously by ons
and the same person for great number
9 OF years Is had been the case before the
4 adoption Of the present constitution.
81 Ifthere was no vacancy 10 be flied
! -lby appointment, at the time and under
1.-the circumstances averred in the com.
|plaint, then IL may well be doubted
olwhether the people can fill the Office by
tIelection until the year 1855, thereby Civ
cling the incumbent twelve years; sel
d section 584l. r. 5. 1851. but If upon tht
vlfacfs stated there was Q vacancy tha
!. lcould be lawfully filed by appointment
! then Il Is clear thst the appointee car
-lonly holG until the election and quail
-lification Of biz successor. and by the ex
nlpress terms Of the statute. section 1918
i lR. S. 1851, the successor must be elected
at the general election in 1886.
~ The law attaches no importance Il
a lacts that can be of no avail, either o.
lslbcnefit or injury. or what importanc,
,flto the public or 20 the rights Of the de
sIiendant can II be whether the clerk elect
= -lafter his election and commission, tool
.rlshe oath OF Office before the term Of ID,
a defendant had expired? At the expira
Z ltion Of the term, On The 18th or August
Il the clerk elect. though he had givel
x xIbond and qualified, was dead and Their
:lwas no person TO discharge the dutie
!. lor sho r1f,ro orronf fho sucuu hcnf anx