delivered the opinion of the Court:
The pleadings in this case show that Matheny was clerk of the Circuit Court of Sangamon county, on the 3d day of May, 1835; and that in pursuance of an act of the legislature entitled “ An act to establish a uniform mode of holding Circuit Courts," (1) passed on the 7th of January, 1835, S. T. Logan was elected judge of the Circuit Court of Sangamon county, and in virtue of said office, appointed M. Mobley, the appellee, clerk of the Circuit Court of said county.
It becomes necessary in this case, to enquire what powers in relation to the appointment of clerks, are delegated to Circuit Courts, or the judges thereof, by the Constitution and laws of this State; and, also, by what tenure the clerks of the Circuit Court appointed by virtue of such authority, hold their office.
By the 4th Article and 6th section of the Constitution of this State, if is provided that “ The Supreme Court, or a majority of the justices thereof, the Circuit Courts, or the justices thereof, shall, respectively, appoint their own clerks.” Is the power of appointment conferred by this provision of the Constitution, a personal trust or authority, which may be exercised by every new incumbent upon entering into the office of judge ? or, Is it not a power of appointment confided to the Court, or the judge as the organ or minister of the Court, and if so, has it in the present instance been exercised in such a case, and in such a manner, as is warranted by the Constitution and laws of this State? From a fair interpretation of this provision of the Constitution, it is clear that the Court, in contradistinction to a personal authority, is the repository of the trust conferred by the Constitution; and that whenever a clerk has been appointed, that the trust or authority is thereby executed, and cannot be resumed, or again exercised, until a vacancy shall occur in one of the several ways provided by law. The terms of the Constitution “ the justices thereof” are used in connexion with the Circuit Court, only to confer an authority to make an appointment in vacation as well as in term time, in order that the administration of justice might not be delayed for the want of so important an officer of the Court as a clerk. In either case the judge acts as the minister of the law. If a different construction should prevail, and the power of appointment should be regarded as personal to the judge, it would necessarily attach to every judge immediately upon his appointment, and upon the happening of a vacancy in the office of judge, the clerkships in all the counties of his Circuit, would also become vacant; and upon the same principle, when Circuit judges should exchange Circuits, as by law they are authorized to do, the office of clerk would become vacant by such exchange, in all the counties in their respective Circuits, because the judge presiding in the Circuit Court of a county, is for the time being the judge of that Court; and if the clerk is the officer of the judge, and not of the Court or law, he would have to be appointed upon every such exchange, and until the appointment was made, the administration of justice would be suspended. Such a construction of the Constitution, it is believed, is not warranted either by its language or spirit, and would in its consequences be fraught with great inconvenience to the public.
The act of 1835 is relied upon as vesting in the judges elected under it, an authority to appoint the clerks in their respective counties. This is undoubtedly true wherever the offices were vacant; but to sustain the position with respect to the case before the Court, it must be shown that by this act, the present Circuit Courts were created, and that the law which created those in existence at the time of its passage, was repealed, and the Courts thereby abolished. From an examination of that statute, it will be apparent that great caution has been used to avoid such a result. The first section of the act provides for the election of five Circuit judges in addition to the one then in existence, whose duty it should be to preside in the several Circuit Courts now or hereafter authorized and required to be held in the several counties in this State. The third section repeals so much of the law then in force, as required the judges of the Supreme Court to hold Circuit Courts. It will be perceived that the existence of Circuit Courts is expressly recognised by the language of this act, and the requisition to hold as well the Circuit Courts which might hereafter be created, as those then in existence, was intended to apply to, and provide for, the administration of justice in such new counties as might thereafter be created and organized. No part of the act repeals the law of 1829,(1) by which the Circuit Courts then in existence were created. It goes no farther than to assign to the judges elected under it, the duties before that time performed by the judges of the Supreme Court. The Circuit Court- remained the same in name, jurisdiction, and character. It is contended by counsel that Matheny’s appointment to the office of clerk is invalid, as not having been made by the Circuit Court of Sangamon county, because the judge who at the time of his appointment presided in that Court, was a judge of the Supreme Court. This argument is refuted by a reference to that provision in the Constitution which enjoins upon him the performance of Circuit duties when required by the legislature, and the law of 1829 making the requisition, which gives him the name, and clothes him with the authority, of a Circuit judge. It has also been attempted to assimilate the powers of the judges appointed under the act of 1835, to those of the judges of the Supreme Court under the law of 1827,(1) by which they were required to perform Circuit duties, and under which they reappointed their clerks. The cases, however, are essentially different. The act of 1827 abolished the Circuit Courts then in existence, by repealing the law which created and brought them into being, and with the- expiration of that oEce, the oEcial character and existence of the judge, together with that of the clerk of the Court, also expired at the same time;—and when, by the authority of the legislature, Circuit Courts were again called into, being, those Courts were authorized by the provision of the Constitution referred to, to appoint their clerks to the newly created oEces. The act of 1835, I have attempted to show, did not abolish or change the character of the Circuit Courts; it only substituted for the discharge of the duties of the oEce, one set of judges in place of another. No inference, then, in favor of the legality of the appointment of Mobley under the law of 1835, can be drawn from the practice of the Courts under the law of 1827. But, on the contrary, if any conclusion is to be drawn from the practice of the Courts, and if such practice is to be regarded as having given a construction to the Constitution, and the powers and duties of the judges in relation to the appointment of clerks, it will settle the question in favor of the relator. By the Constitution, the commissions of the judges appointed prior to the year 1824, expired at that period, and when the judges elected to succeed them, came into oEce, they were of opinion that inasmuch as the Court remained the same, the oEce of clerk was not vacated by a change of judges, and consequently no new appointment was necessary to continue in oEce the present incumbent, nor has anjr such been made.
This view of the subject is strengthened by an enquiry into the tenure by which a clerk of the Circuit Court holds his oEce. The Constitution gives to the Court the authority to appoint its clerk, but when thus appointed, it fixes no limit to the duration of the oEce. The clerk, then, is to be considered as holding his oEce under the Constitution ad libitum, until the legislature shall think proper to prescribe the tenure. This it is certainly competent for it to do, and under a like provision of the Constitution with respect to the Auditor and Attorney General, it has exercised this authority by fixing the term of service of those oEcers. It has also legislated upon the subject of clerk, and though it has not defined the tenure of the office specifically, it has done so to some extent, by prescribing the tenure upon which its duration is to depend. Those tenures are the renewal of the bond at stated periods, his residence at the county seat, and various others. But a vacancy in the office of Judge of the Court, is not one of the causes enumerated, which will vacate the office of clerk, or for which he may, by application to the Court, be removed from office. It is not competent, then, when the Constitution has left the tenure of an office without limit, for the Court to prescribe limits nor is it their province when the legislature has specified the causes of forfeiture of, or removal from, office, to say that other causes than those enumerated, shall have that effect. The consequence of such a latitude of construction, would be to change the tenure of an office, and make its duration depend not only upon the limits fixed by law, but upon such others as the Court might think it good policy to superadd. From a review of all the points involved in this case, I am of opinion that the order of the Circuit Court of Sangamon county, appointing M. Mobley clerk of that Court, was without authority and erroneous; because the power of appointment is delegated to the Court, and the exercise of that power limited to the filling of offices which may be created, or which may become vacant by any of the various ways known to the law; and because the relator had been legally appointed to the office which he claims, and the appointment had not expired by operation of any law of this State, nor has he been removed for any omission or act in violation of the law prescribing his duties, and defining the tenure of his office.
It is therefore ordered by the Court, that the judgment of the Court below be reversed, and that the relator, Charles R. Matheny, be restored to his office of clerk of the Circuit Court of Sangamon county.
Acts of 1835, 150; Gale’s Stat. 182.
R. L. 147; Gale’s Stat. 158.
R. L. of 1827, 119-124.