delivered the opinion of' the court.
This is a mandamus proceeding, and involves a construction of section 31, chapter 18, Gen. Stat. 1865, which provides for cases of vacancy in the office of county attorney. The petition avers that “ the county attorney for Callaway county was” absent from said county “for an indefinite time” on the occasion when the petitioner rendered the service set out in the petition; and that the petitioner rendered the services charged under the appointment of two justices of the peace, before whom a criminal proceeding was pending. It is contended that the “indefinite” absence of the county attorney from the county' *227created a “vacancy” in the office, within the meaning of the statute (ch. 18, § 31).
Section 22, chapter 18, Gen. Stat. 1865, authorizes county courts to appoint county attorneys. Sections 24 and 25 define their duties, one of which is to “ prosecute, on behalf of the State, all cases before justices of the peace, where the State is made a party thereto; ” and section 26 prohibits justices from proceeding with such cases in the absence of the attorney, unless ‘ ‘ some one properly qualified to prosecute for him ” is present.'
Section 31 is as follows: “If, at any time, there should be a vacancy in the office of county attorney for any county, it shall be the duty of the judge or justice of the peace before whom any cause, as hereinbefore provided for, shall be pending, to appoint some competent person to represent the State in such cause, and fix his compensation therefor, which shall he taxed as costs in such cause.” The petition shows that the county attorney was absent from the county on the particular occasion in question; but did that absence from the county create a “ vacancy” in the office, within the meaning of section 31 ? We think not.
The term “ vacancy,” as applied to an office, means a place or post unfilled; an office that is not occupied. There is nothing in the petition to show that the office of county attorney for Callaway county was unoccupied — that there was no person occupying or filling it at the time these services are claimed to have been rendered. On the other hand, the implication on the face of the petition is that the office was filled, and that the officer was absent — whether for an “ indefinitely” short or long time does not appear.
Section 26, chapter 18, is constructed on the theory that cases would arise where the county attorney might be unable to attend, and accordingly provides, substantially, that in such cases some other person may be brought in to “ prosecute for Mm,” not the State.
The attorney is at liberty, and it is apparently his. duty, to appoint some person to appear as his substitute in his absence, and render the service which the law requires at his hands, and which it is his official duty to cause to be performed. It is not to *228be considered, in such cases, that the office of county attorney is therefore vacant, and that the State or county is to be charged with the services which the law makes it the duty of the official attorney to perform.
The application for a peremptory mandamus is refused.
The other judges concur.