STEPHENS, Associate Justice.
The title to the office of sheriff of Palo Pinto County is involved in this controversy. At the general election held in 1896, O. L. York was elected ho that office, and, after taking the oath and giving the bond prescribed by law, entered upon the discharge of its duties November 13, 1896. At the next general election, held November 8, 1898, York was again a candidate for the office, but George M. Lasater was chosen to succeed him by a majority of 44 votes. On the 13th day of November, 1898, and before the votes
had been counted, Lasater received by accident a fatal injury, of which, without ever regaining consciousness, he died on November 15, 1898. On that day, but before his death, the Commissioners Court of Palo Pinto County concluded the canvass of the returns of the election, and declared the result as above indicated; the county judge issuing to Lasater a certificate of election, which was deposited in the postoffice of Palo Pinto town about 6 o’clock p. m., addressed to him at Whitt, Parker County, Texas, which was his former postoffice address, his address at that time being Oran, Palo Pinto County. But, as he died about 9 o’clock that night, he would not have received it, had it been, properly addressed, to say nothing of his unconsciousness, which was complete and continuous from the time of the injury. On the 8th day of December, 1898, the Commissioners Court, having declared the office vacant the da;r before, appointed B. N. Maddox to fill the vacancy slo created, if vacancy there was. On the 14th day of December, 1898, Maddox, after giving the bond and taking the oath prescribed by law, took possession of the office under this appointment, and held it until ousted by the judgment from which this appeal is taken.
Dnless York, notwithstanding his unsuccessful candidacy, was entitled to hold the term of office to which Lasater was duly elected (that is, unless he was entitled to two terms by virtue of an election to one only), that judgment was erroneous, and must be reversed. A result so< at variance with the whole tenor of our organic law and political history is itself suggestive of d'oubt as to the correctness of the construction producing it. As was said by Judge Moore in Wright v. Adams, 45 Texas, 134, “It is believed, moreover, to be a sound rule of construction, which holds, when the duration or term of an office which is filled by popular election is a question of doubt or uncertainty, that the interpretation is to be followed which limits it to the shortest time, and returns to the people at the earliest period the power and authority to refill it.” Turning to the Constitution, besides the general provision that “the duration of all offices not fixed by this Constitution shall never exceed two years,” and that “all officers within this State shall continue to perform the duties of their offices until their successors shall he duly qualified” (article 16, sections 17, 30), we find the following: “There shall be elected by the qualified voters of each county a sheriff, who shall hold his office for the term of two years, * * * and vacancies in whose office shall be filled by the dommissioners court until the next general election for county or State officers.” Art. 5, sec.
23.
This article declares, in effect, that the person elected sheriff by the qualified voters of the county is entitled to “his office” for the term of two years (that is, that such term or tenure is his), and also that vacancies therein shall be filled by the commissioners court. It therefore leaves little room for doubt, we think, that the Commissioners Court of Palo Pinto County exercised a constitutional power in appointing Maddox to fill the term of office to which Lasater had been elected, and .which was left vacant by his death. This conclusion accords with the views expressed by our
Supreme Court in construing these and 'similar constitutional and statutory provisions. State v. Cocke, 54 Texas, 482; State v. Catlin, 84 Texas, 48.
Much stress is laid by counsel for appellant upon their construction of article 4894 of the Revised Statutes, which declares that the sheriff’s office shall he deemed vacant if the sheriff-elect fails to qualify within twenty days after notice of his election. But this article does not undertake to provide for all cases of vacaucjq and does not purport to apply to a case like the one at bar, though the language may be broad enough to cover it. It certainly should not be so construed as to narrow the scope of the constitutional provisions above quoted. Besides, article 4891, in'the same chapter, which, however, is but a re-enactment of the Constitution, is more comprehensive.
That the death of one entitled to hold an office for a given term creates a vacancy therein, seems to be a common-sense view of the matter, and would be readily accepted by us, but for a line 'of decisions which appear to be more technical than sound. Conspicuous among these is the Indiana case of Kimberlin v. State,
29
Northeastern Reporter, 773, so much relied on by appellee’s counsel, and Which doubtless had controlling influence with the learned judge who tried this case. See, also, cases collated in notes to this case in 14 L. R. A., 858, and particularly State v. Hunt, 54 N. H., 431,-and State v. Hopkins, 10 Ohio St., 509, afterwards construed in State v. Dahl (Ohio Sup.), 45 N. E. Rep., 56. While the Indiana case seems at variance with the views we entertain the constitutional provisions there construed were different from those above quoted from our Constitution, in that they contained a clause of construction which expressly provided that a provision in the Constitution or laws of that State that an officer should hold his office for a given term should be “construed to mean that such officer shall hold his office for such term and until his succcessor shall have been elected and qualified.” Distinctive force was ascribed in the opinion to the word “elected” in the sentence just quoted from the Indiana Constitution, which word, as before seen, does not appear in that connection in our Constitution; and stress was also laid upon the fact that the holding-over feature was by the language so quoted expressly made a part of the official term, while in our Constitution it seems to have been segregated from the regular term of office, and treated as a mere holding pro tempore, to sub-serve public convenience. State v. Cocke and State v. Catlin, supra. The question to be determined in all the cases is, what is meant by the term “vacancy in office,” as used in the Constitution or statute being construed? and it should be bomei in mind that such vacancy may be constructive as well as actual. Mechem Pub. Off., sec. 127.
It is plausibly argued that, as Lasater was never in the office of sheriff, his death created no vacancy. Literally speaking, that is true; but literalism is frequently condemned by sound rules of construction. If he had lived and failed to qualify within the prescribed time, there would, admittedly, have been a vacancy; and yet in
that
case
he
would never
have been in the office, which shows the fallacy of the argument founded on the idea of a literal vacancy.
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STEPHENS, Associate Justice.
The title to the office of sheriff of Palo Pinto County is involved in this controversy. At the general election held in 1896, O. L. York was elected ho that office, and, after taking the oath and giving the bond prescribed by law, entered upon the discharge of its duties November 13, 1896. At the next general election, held November 8, 1898, York was again a candidate for the office, but George M. Lasater was chosen to succeed him by a majority of 44 votes. On the 13th day of November, 1898, and before the votes
had been counted, Lasater received by accident a fatal injury, of which, without ever regaining consciousness, he died on November 15, 1898. On that day, but before his death, the Commissioners Court of Palo Pinto County concluded the canvass of the returns of the election, and declared the result as above indicated; the county judge issuing to Lasater a certificate of election, which was deposited in the postoffice of Palo Pinto town about 6 o’clock p. m., addressed to him at Whitt, Parker County, Texas, which was his former postoffice address, his address at that time being Oran, Palo Pinto County. But, as he died about 9 o’clock that night, he would not have received it, had it been, properly addressed, to say nothing of his unconsciousness, which was complete and continuous from the time of the injury. On the 8th day of December, 1898, the Commissioners Court, having declared the office vacant the da;r before, appointed B. N. Maddox to fill the vacancy slo created, if vacancy there was. On the 14th day of December, 1898, Maddox, after giving the bond and taking the oath prescribed by law, took possession of the office under this appointment, and held it until ousted by the judgment from which this appeal is taken.
Dnless York, notwithstanding his unsuccessful candidacy, was entitled to hold the term of office to which Lasater was duly elected (that is, unless he was entitled to two terms by virtue of an election to one only), that judgment was erroneous, and must be reversed. A result so< at variance with the whole tenor of our organic law and political history is itself suggestive of d'oubt as to the correctness of the construction producing it. As was said by Judge Moore in Wright v. Adams, 45 Texas, 134, “It is believed, moreover, to be a sound rule of construction, which holds, when the duration or term of an office which is filled by popular election is a question of doubt or uncertainty, that the interpretation is to be followed which limits it to the shortest time, and returns to the people at the earliest period the power and authority to refill it.” Turning to the Constitution, besides the general provision that “the duration of all offices not fixed by this Constitution shall never exceed two years,” and that “all officers within this State shall continue to perform the duties of their offices until their successors shall he duly qualified” (article 16, sections 17, 30), we find the following: “There shall be elected by the qualified voters of each county a sheriff, who shall hold his office for the term of two years, * * * and vacancies in whose office shall be filled by the dommissioners court until the next general election for county or State officers.” Art. 5, sec.
23.
This article declares, in effect, that the person elected sheriff by the qualified voters of the county is entitled to “his office” for the term of two years (that is, that such term or tenure is his), and also that vacancies therein shall be filled by the commissioners court. It therefore leaves little room for doubt, we think, that the Commissioners Court of Palo Pinto County exercised a constitutional power in appointing Maddox to fill the term of office to which Lasater had been elected, and .which was left vacant by his death. This conclusion accords with the views expressed by our
Supreme Court in construing these and 'similar constitutional and statutory provisions. State v. Cocke, 54 Texas, 482; State v. Catlin, 84 Texas, 48.
Much stress is laid by counsel for appellant upon their construction of article 4894 of the Revised Statutes, which declares that the sheriff’s office shall he deemed vacant if the sheriff-elect fails to qualify within twenty days after notice of his election. But this article does not undertake to provide for all cases of vacaucjq and does not purport to apply to a case like the one at bar, though the language may be broad enough to cover it. It certainly should not be so construed as to narrow the scope of the constitutional provisions above quoted. Besides, article 4891, in'the same chapter, which, however, is but a re-enactment of the Constitution, is more comprehensive.
That the death of one entitled to hold an office for a given term creates a vacancy therein, seems to be a common-sense view of the matter, and would be readily accepted by us, but for a line 'of decisions which appear to be more technical than sound. Conspicuous among these is the Indiana case of Kimberlin v. State,
29
Northeastern Reporter, 773, so much relied on by appellee’s counsel, and Which doubtless had controlling influence with the learned judge who tried this case. See, also, cases collated in notes to this case in 14 L. R. A., 858, and particularly State v. Hunt, 54 N. H., 431,-and State v. Hopkins, 10 Ohio St., 509, afterwards construed in State v. Dahl (Ohio Sup.), 45 N. E. Rep., 56. While the Indiana case seems at variance with the views we entertain the constitutional provisions there construed were different from those above quoted from our Constitution, in that they contained a clause of construction which expressly provided that a provision in the Constitution or laws of that State that an officer should hold his office for a given term should be “construed to mean that such officer shall hold his office for such term and until his succcessor shall have been elected and qualified.” Distinctive force was ascribed in the opinion to the word “elected” in the sentence just quoted from the Indiana Constitution, which word, as before seen, does not appear in that connection in our Constitution; and stress was also laid upon the fact that the holding-over feature was by the language so quoted expressly made a part of the official term, while in our Constitution it seems to have been segregated from the regular term of office, and treated as a mere holding pro tempore, to sub-serve public convenience. State v. Cocke and State v. Catlin, supra. The question to be determined in all the cases is, what is meant by the term “vacancy in office,” as used in the Constitution or statute being construed? and it should be bomei in mind that such vacancy may be constructive as well as actual. Mechem Pub. Off., sec. 127.
It is plausibly argued that, as Lasater was never in the office of sheriff, his death created no vacancy. Literally speaking, that is true; but literalism is frequently condemned by sound rules of construction. If he had lived and failed to qualify within the prescribed time, there would, admittedly, have been a vacancy; and yet in
that
case
he
would never
have been in the office, which shows the fallacy of the argument founded on the idea of a literal vacancy. But as the sheriff-elect was entitled, upon qualifying, to hold the office for a term of two years, whatever prevented him from doing so created a constructive; or virtual vacancy in office for his entire term, which was as effectual, under the Constitution, as a literal vacancy would have been, had he died after qualifying and taking possession of thie office. Such, at any rate, is the construction that we think our Constitution should receive. It was evidently the intention of the framers of that instrument that no county officer should hold more than one term of two years without re-election or appointment. Only the failure to elect or appoint a successor would entitle the incumbent to so remain in office, in order to perform its duties as enjoined in the Constitution.
We are also inclined to the opinion that the judgment should he reversed upon the ground that the agreed statement of facts shows that in aiding appellant to secure the appointment from the Commissioners Court, and in turning the office over to him voluntarily, or at least without protest, the appellee should be treated as having surrendered and abandoned the office. This view seems to be sustained by the- authorities. State v. Moores (Neb.), 72 N. W. Rep., 1056; State v. Boyd (Neb.), 51 N. W. Rep., 964; State v. Peelle, 124 Ind., 515. But whether judgment could be here rendered upon this ground we need not determine, in view of the conclusion already reached upon the main question. The judgment will therefore be reversed, and here rendered for appellant.
Reversed and rendered.