Reister v. Hemphill

The opinion of the Court was delivered by Wright, A. J. In case there is a vacancy in the office of Clerk of the Court of General Sessions and Common Pleas, and the Judge of such Courts shall appoint a person to perform the duties of Clerk, is it conpetent for the General Assembly to terminate such appointment by providing by law for an election of a Clerk to fill such vacancy ? '• Section 27 of Article IV of the Constitution of 1868 is as follows : “ There shall be elected in each County, by the electors thereof, 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. He shall, by virtue of his.office, be Clerk of all other Courts of record held therein; but the General Assembly may provide by law for the election of a Clerk, with alike term of office, for each or any other of the Courts of record, and may authorize the Judge of the Probate Court to perform the duties of Clerk for his Court under such regulations as the General Assembly may direct. Clerks of Courts shall be removed for such causes and in such man-net as shall be prescribed by law.” [335] It is clear that, according to the Section of the Constitution just quoted, no person can be a Clerk of the Court of Common Pleas, (or any other Court of record not otherwise provided for in the Constitution,) unless such a person be elected by the electors. The term of office for Clerk of Court, as fixed by the Constitution, is four years. 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 term will continue, though the office may be vacant. — The People vs. Green, 2 Wendell, 270, 272; The People vs. Coutant, 11 Wendell, 132. But in case the organic law does not provide for filling of vacancies, the Legislature has the power to supply such vacancies in such manner as it may by law direct. If a person be chosen to fill a vacancy in the office of Clerk of the Court otherwise than as the Constitution directs, such a person is not a Clerk of Court in the sense of the Constitution, but is simply placed in that position to perform the duties of a Clerk. This, we believe, was the view the General Assembly took when they passed Section 17 of an Act approved the 20th day of August, 1868, which is as follows: “ The Clerk elected in each County, under the provisions of Section 27 of Art. IV of the Constitution, shall be Clerk of the Courts of General Sessions and Common Pleas; and may appoint a Deputy who may perform the duties of Clerk, for whose acts such Clerk shall be responsible, and a record of whose appointment shall be made in the Clerk’s office; and such appointment may be revoked at the pleasure of the Clerk;' and in case no Clerk exists, the Judge shall have authority to appoint a person who shall'perform the duties of Clerk, and said Deputy Clerk, or the one appointed by the Judge, shall be required to give the usual bond before entering upon the duties of the office.” This Act gives the Clerk of the Court of General Sessions and Common Pleas the power to appoint a Deputy Clerk who may perform the duties of Clerk, and such appointment the Clerk may revoke ad libitum; but in case there be no Clerk, then the Judge, under the Act above quoted, has the power to appoint a Deputy or a person to perform the duties of Clerk; and such person, though required to give the usual bond of a Clerk, is not a Clerk, neither is he an officer under the Constitution of 1868, unless he be required to take and subscribe the oath of office as prescribed by Sec. 30, Art. II, of said Constitution, which declares that “all officers, before they enter upon the exercise of the duties of their [336] respective offices, shall take and subscribe” the oath therein designated. Deputy Clerks are not required by law to take and subscribe the oath of office prescribed by the Constitution, and if they were, they would only be deputies, and not Clerks, as designated by the Constitution. According to the Act of the General Assembly already referred, to, Clerks of the Courts of General Sessions and Common Pleas have the power to make temporary appointments 'of deputies, and it is neither the letter nor the spirit of the Act to confer' any greater power upon the Judges of such Courts. It matters not, however, whether the appointment made by the Judge in this case was temporary or otherwise, as the office of the Clerk of the Court of General Sessions and Common Pleas cannot be filled by appointment. In this ease it appears that one William M. Chambers was elected Clerk of the Courts of General Sessions and Common Pleas for Chester County for a full term, and that the said Chambers died in March, 1870; that the Circuit Judge, by an order, appointed the defendant to perform the duties of Clerk for the unexpired term occasioned by the death of the said William M- Chambers; that by an Act of the General Assembly, approved March 1, Í870, all vacancies in “any elective office in any County, of which'at least fifteen days’ previous notice shall be given by the proclamation of the Governor,” were to be filled. The Act of the General Assembly was complied with, and John C. Reister duly elected on the 19th day of October, 3870, to fill the vacancy in the office of Clerk of the Court for said County. The judgment of the Court, as heretofore entered, is as follows : The above named parties having agreed upon a case, and having submitted the same to this Court without action, whereby the following question is submitted to the Court, viz: Had the Circuit Judge authority to appoint said Hemphill for the unexpired term of the said William M. Chambers ? and it being stipulated and agreed that,'if the questions so submitted be answered in the affirmative, judgment is to be. rendered in favor of the defendant, and, if in the negative, in favor of the plaintiff; and after hearing the counsel for the respective parties, plaintiff and defendant, and due deliberation being had thereon, it appears to the Court that the Circuit Judge had not authority to appoint said Hemphill for the unexpired term of the said William M. Chambers. [337] Wherefore it is adjudged that the said plaintiff is entitled to the office of Clerk of the Court of General Sessions and Common Pleas for the County of Chester, and that the said defendant, David Hemphill, do forthwith deliver and surrender to the said plaintiff, John C. Reistor, the said office, and all property, books and papers thereunto appertaining. Moses, C. J., and Willard, A. J., concurred.