Year: 1870

a general election, and deprive the whole
people of county from electing their
own local officer, when they could fill it
as conveniently as they appointed the
original incumbent.


If it were not for section 16 of article
5 of the Constitution, I think there would
be no pretense but what in case of
vaeancy in the Office of County Judge, it
could be filed at the next general election,
because it is political axiom that when
an Office becomes vacant the power that
made the Office and filled it, can fill it
again unless they have delegated that
authority to some other power. If they
have surrendered that power it should
be by express and unequivocal words.
The words are !: "The Governor may
fill the vacancy until successor is elect
ed" Vacancy In an Office means the
want of an incumbent at tho time. It
has no reference to duration of time, and
the appointment of a person to Gil
vacancy pro tempore does not invest him
with full term unless the law SO ex-
pressly provides. Vacancy in an Office is
one thing, and term is another. An Office
may be vacant and filled many times DUR
ing term of four years. l am therefore
of the opinion that the appointment of
MIR. Geary continued only until the next
general election after his appointment,
and until his successor was elected and
qualified.


The second position taken by the plain
tiff is that the term Of County Judge is
four years and that when in any county
judge is elected and dies, or vacancy
occurs in any way, that it is a vacancy
extending to the end of the term that
the word vacancy means an lnterregnum,
a hiatus of de6uite duration, that is to be
filled by the appointing power, and that
whoever is appointed or elected to fill
that vacancy can only hold to the end of
the term of four years from the time of
the election of the original incumbent
| whose default has made the vacancy. |
will now proceed to discuss this position
| The Constitution of the State declares
/ that there shall be elected in each county
| for the term of four years county judge.
| 1t does not say in this section when the
! judge shall be elected, and in the absence
. of any provision to the contrary he must
/ be elected at the general election when
all vacant elective Offices are to be filled
have already expressed the opinion, in
considering former part OF this case,
that the proper construction of the Con-
stltution is that at a general election
county judge may be elected in apy
county where that Office is vacant, or the
+ term of an incumbent is to expire at such
election. In new county he would be
/ elected at the first general election after
the county is organized. IF he dia or
resi- gn or the Office in any way becomes
vacant, then the term is ended. The
word term, as applied to county judges,
confers the right to h Id four years on
the person elected, aud was not intended
to establish distinct quadrennial periods,
extending through future time, which
must each be ended by actual lapse Of
time before a new term could commence.
| think the term attaches to the person.
That when county judge is elected he
has franchise for four years provided
he continues to exercise it. If he resigns
he yields up the franchise to the power
who conferred it on him, and the people
may elect successor, which confers the
franchise on him. and there is no inhibi-
ton to his holding it for four years; and
county judges may be, and are, elected
in some of the counties of the State,
every general election.


/ The object of the term of four years,
was to secure experience and independ-
ence in the judge, by avoiding too frc-
quent changes. And this will be best
secured by adopting this view of the sub
jec.. And think it is apparent that
such was the manifest intention Of the
trainers of the Constitution, and is the
natural construction of the language of
the instrument.


In the State of New York, in case
similar to this, where the Constitution of
that State provides that the Register of
the city OF New York shall be chosen by
the electors once in every three years an d
as often as vacancies shall happen, it has
been held that where person was elected
Register, and died or resigned, or the
Office became vacant for any cause, the
person who was elected to fill such vacancy
could hold the Office for full term OF
three years and beyond a general election
See Coutant vs. The People, IL Wend
R. 512; also, People vs.. Green, z Wend.
267. These cases are identical In prin-
ciplc with the case at bar, and think
such is the proper construction OF our
Constitution.


\ Taking this view of the case, therefore,
| I shall hold that Johns was elected IN
June, 1868, for the term Of four years


R. p BOISE, j.


The railroad surveyors are coming