The opinion of the Court was delivered by
Moses, C. J.The controversy in this case is to abide the decision of the law upon the following agreed facts:
One Moss, in June, 1868, by virtue of an Ordinance of the Convention of 7th March, 1868, (J 4 Stat., 31,) providing “ for the ratification of the Constitution and for the election of certain officers,” was elected Clerk of the Court of Common Pleas for the County of Darlington, but did not qualify.
On the 25th May, 1869, at an election held by virtue of the order of the Governor, authorized by the Act of March 23d, 1869, entitled “ An Act to provide for an election to fill certain vacancies in County offices,” (14 Stat., 242,) William E. Charles was eleeted by the electors of the said County to the same office, was commissioned on the 1st of July, 1869, “ the commission to continue in force for four years,” and on the 6th day of July of same year he qualified and entered into possession of the office and on the performance of its duties. At the general election in October, 1872, Jonathan Wright was elected to the office; on 26th November following was commissioned by the Governor, the commission bearing the words “to continue in force for four years,” and qualified on 28th of the same month. He demanded possession of the office, which was refused, and the single question before us is whether, on the demand, Charles should have yielded such possession.
The 27th Section of the 4th Article of the Constitution provides for the election in each County by the electors thereof of one Clerk for the Court of Common Pleas, “ who shall hold his office for the term of four years, and until his successor shall be elected and qualified.” The term of the office, as well as the manner of the election, are fixed by the Constitution. No provision was made either as to the time when the Clerk was to be elected, nor was authority given for an election to supply a vacancy arising from resignation, death, or any other cause., A temporary Clerk might be appointed by the presiding Judge, but the Clerk, holding as a constitutional officer, by virtue of the said Article, must be elected by the electors of the County. The Legislature, therefore, by Act of March 23, 1869, before referred to, “ authorized the Governor, in thirty days after its passage, to order an election for the purpose of filling each and every vacancy in the various Counties throughout the State, which has occurred by reason of death, resignation or inability to serve, or from any other cause.” It was under an *183election, held by force of this Act, that Charles was elected. The time for the next and every succeeding general election of County officers was fixed by the Act approved February 14, 1870, (14 Stat., 338.)
The term of office being fixed by the Constitution, the party holding it by election is entitled to “ all the rights, powers and incidents” which belong or pertain to it, and by w'hat course of reasoning the duration of the term is not to be included among them it is difficult to perceive. The person elected to fill a vacancy does not succeed to the unexpired portion of the term of his predecessor, but holds by a determinate tenure prescribed by the Consti. tution. The vacancy exists in the office, the term is the duration of it, not dependent on the death or resignation of the person holding it, but on the law. No matter how the office becomes vacant, the party elected to succeed to it is not, in as the mere locum tenens only supplying the term of the person' who last preceded him. If the Legislature had, by express enactment, declared that one elected to fill the unexpired term of the office of Clerk, made vacant by any cause, should only hold for such term, it would have been inoperative and void, for, as was said by Mr. Justice Wright, in the opinion of the Court in Reister vs. Hemphill, 2 S. C., 335, “where the organic law fixes the term of- office, it is not in the power of the Legislature, by an Act, to change that term.’’
The argument for the plaintiff appears to rest upon the proposition “ that the constitutional term of the office of Clerk is a fixed and unshifting period.” It certainly is fixed by the Constitution, but if it is meant by unshifting that it cannot vary as to its beginning and ending, the very fact that the Constitution extends it “ until his successor shall be elected ánd qualified,” proves its fallacy. The question is not as to the mode of filling the vacancy, but the tenure by which the party elected shall hold the office. No distinction is made by the Constitution between the election held by reason of a vacancy occurring by resignation or death, and the absence of such a difference in a matter which must have been in the minds of the framers of the Constitution goes far to sustain the construction contended for by the defendant. In fact, every election is to supply a vacancy, no matter how arising.
If the language of the Constitution must be held to apply to the election of a Clerk to fill a term made vacant by the death or resignation of an incumbent, it applies with increased force to an elec*184tion made necessary by the non-acceptance of the person previously elected. Moss never held the office of Clerk, no portion of his term could remain to be filled, for it had never begun by his entrance upon it. The Clerk who preceded him continued to exercise the office until some one should be elected and qualify according to law.
Our own reports are not without authority, which may be said to be conclusive of the question. In the State vs. Hutson, 1 McC., 240, it was held that Ordinaries, under the Constitution of 1790, were judicial officers, holding during good behavior.
The Governor, under the Act of 1815, appointed to a vacancy in the office of Ordinary. It was held that although the Act only authorizes him to make a temporary appointment until an election should take place, yet his appointee, being in office as Ordinary, was in under the Constitution, and could hold during good behavior-The same principle governed the decisions in the cases of Jeter ads. The State, The State vs. Lyles, The State vs. McClintock, all in the same book, and was recognized in Brunson vs. Hunter, Chev., 290.
The authorities in New York are identical with our own. Where, by the Constitution of that State, Sheriffs, Clerks of Counties, &c-., are to be chosen once in every three years, and as often as vacancies shall happen, it was held in The People vs. Green, 2 Wend., 266, that “ a Sheriff elected in September, 1826, to supply a vacancy occasioned by the death of his predecessor, who took his office on the 1st of January, 1826, holds it for three years ; and an election of another person in November, 1828, under an impression that the term of the former expired in January, 1829, is void.”
To the same effect is The People vs. Constant, 11 Wend., 133.
The question submitted to the Court is answered in the negative, and it is therefore ordered that judgment be rendered in favor of William E. Charles, the defendant.
Wright, A. J., and Willard, A. J., concurred.