Mr. Chief Justice Smith
delivered the opinion of the court.
'Elijah P. Russell, the appellee, filed his petition in the circuit court of Hinds county for a writ of mandamus, to compel the auditor of public accounts to issue a warrant in his favor, for' an amount alleged to be due him on account of his salary as superintendent of the penitentiary from the 13th of January to the 15th of October, 1854. The defendant answered under a rule of court; and an order was made for a peremptory mandamus against him; from which an appeal was taken to this court.
The facts of the case are as follows: John Duncan was elected superintendent of the penitentiary on the 4th day of February, 1852, at a regular session of the legislature, for the term prescribed by law. Duncan resigned; and on the 29th of April, 1852, Fleming L. Swann was appointed by the governor to fill the vacancy thus occasioned. Swann was commissioned accordingly; and having been qualified, entered upon the discharge of the duties of the office.
The legislature was convened in extraordinary session in 1852, at which, on the 14th of October, Swann was elected to the said office for the term of two years, commencing from the date of the election.' He was commissioned accordingly, and continued in possession and in discharge of the duties of the office.
On the 13th day of January, 1854, the appellee was elected at a regular session of the legislature, to the same office, for the time prescribed by law. The appellee was commissioned accordingly, and having been duly qualified, demanded the office of Swann, who refused to surrender, claiming the office in virtue of his said election until the 15th of October, 1854.
[93]*93A controversy having thus arisen between these parties, the members of this court at their mutual request, informally and unofficially announced their opinion upon-the question involved. They held that Swann was legally elected to the office in question on the 14th of October, 1852, for two years from said date; and consequently that he was entitled to the office and its emoluments until the 15th of October, 1854. Pnrsuant to the opinion thus expressed, Swann continued in the office, discharged its duties, and received the salary up to the expiration of his term of office; at which time he surrendered to the appellee, who took possession and entered on the discharge of the duties of the officé. The appellee claimed to be entitled to the salary from the date of his election to the period when he took possession of the office.
The question, whether the appellee was entitled as alleged in his petition, depends upon the validity of Swann’s election at the-called session of the legislature. For if Swann was legally elected to the office for the term of two years commencing from the election, there can -be no pretence for insisting that the appellee could claim the office and its emoluments, notwithstanding his election at the session of the legislature in 1854, until after the expiration of Swann’s term. Let us, then, endeavor to ascertain whether the election of Swann was valid or otherwise.
The office of superintendent of the penitentiary was created by the act approved the 15th of February, 1839; but neither the time of the appointment, nor the tenure of the office was prescribed by the legislature. The act approved on the 18th of February, 1840, amendatory of the preceding, provided that the superintendent, with the other officers of the penitentiary, should “be elected by the legislature, by the joint ballot of both houses in convention, who (and) shall hold their offices for two years from the time of their election, and until their successors be duly qualified.” It was further provided in the same act, that “ in the event of the death, resignation, or refusal to act of the said superintendent, the vacancy shall be filled by the governor until the meeting of the legislature.” Hutch. Code, 985.
These are the only provisions of the statute in regard to the [94]*94election, and the tenure of the office of superintendent. The tenure of office of the incumbent, by the express language of the act, commences with the election. He holds for two years from the time of his election, and until his successor shall be duly qualified. But there is no definite, fixed time at which the election must take place. . It is evident, therefore, that no definite time has been appointed at which the official term in this office is to commence. It is equally certain that no point of time has been designated beyond which the term cannot extend, or at which it must end. The incumbent is entitled to the office, if not sooner forfeited or abandoned, for 'two years from his election, and until his successor shall be duly qualified. If, therefore, the legislature should fail to elect a successor, the term of the incumbent might be extended indefinitely, from session to session of the legislature. It is very evident that this office is not divided or partitioned into periods of two years each, which have a stated beginning and ending. Each incumbent has an interest or an estate in the office, which may continue for two years, or for a longer period, depending upon the appointment of a successor, or it may be forfeited or abandoned sooner. And if sooner forfeited or abandoned, and the legislature shall proceed to elect a successor, such successor will be entitled to hold the office, not for the unexpired portion of a term, but for the period prescribed in the statute.
This principle was expressly recognized by this court, in the case of Hughes v. Buckingham, 5 S. & M. 582, in which it was holden that where an incumbent of an office, the term of which is fixed by statute, but the period of the commencement and termination of the term is not fixed, resigns or forfeits the office, and the office is filled by appointment, the appointee will hold not for the unexpired term, but will be entitled to the office for the full term.
The same doctrine had been previously recognized in the case of Smith v. Halfacre, 6 How. In that case, the effort was to show that the constitution had appointed no period at which the official term of the judges of the circuit was to commence, and consequently that an incumbent who was elected at a special election, which had been ordered by the governor, was [95]*95entitled to hold for the full term prescribed in the constitution. This court held the contrary ; but it was fully conceded, that if no time had been fixed at which the term commenced, the result contended for would follow.
But it is contended that there was no vacancy in the office when Swann was elected, and that hence the election was void. It is conceded, if Swann was entitled to the office, in virtue of the executive appointment, until the end of two years from Duncan’s - election, that the election of Swann was a nullity.
When a vacancy occurs in the office of the superintendent, by the death, resignation, or refusal to act of the incumbent, it is provided that “ the vacancy shall be filled by the governor until the meeting of the legislature.”
The question arises here, whether reference was had exclusively to the biennial meeting of the legislature at the times stated by law, or to any session, regular or extraordinary, which might take place after a vacancy had occurred and was filled by the governor.
A literal construction of the language employed, clearly includes any meeting of the legislature, whether at an adjourned, called, or regular session.
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Mr. Chief Justice Smith
delivered the opinion of the court.
'Elijah P. Russell, the appellee, filed his petition in the circuit court of Hinds county for a writ of mandamus, to compel the auditor of public accounts to issue a warrant in his favor, for' an amount alleged to be due him on account of his salary as superintendent of the penitentiary from the 13th of January to the 15th of October, 1854. The defendant answered under a rule of court; and an order was made for a peremptory mandamus against him; from which an appeal was taken to this court.
The facts of the case are as follows: John Duncan was elected superintendent of the penitentiary on the 4th day of February, 1852, at a regular session of the legislature, for the term prescribed by law. Duncan resigned; and on the 29th of April, 1852, Fleming L. Swann was appointed by the governor to fill the vacancy thus occasioned. Swann was commissioned accordingly; and having been qualified, entered upon the discharge of the duties of the office.
The legislature was convened in extraordinary session in 1852, at which, on the 14th of October, Swann was elected to the said office for the term of two years, commencing from the date of the election.' He was commissioned accordingly, and continued in possession and in discharge of the duties of the office.
On the 13th day of January, 1854, the appellee was elected at a regular session of the legislature, to the same office, for the time prescribed by law. The appellee was commissioned accordingly, and having been duly qualified, demanded the office of Swann, who refused to surrender, claiming the office in virtue of his said election until the 15th of October, 1854.
[93]*93A controversy having thus arisen between these parties, the members of this court at their mutual request, informally and unofficially announced their opinion upon-the question involved. They held that Swann was legally elected to the office in question on the 14th of October, 1852, for two years from said date; and consequently that he was entitled to the office and its emoluments until the 15th of October, 1854. Pnrsuant to the opinion thus expressed, Swann continued in the office, discharged its duties, and received the salary up to the expiration of his term of office; at which time he surrendered to the appellee, who took possession and entered on the discharge of the duties of the officé. The appellee claimed to be entitled to the salary from the date of his election to the period when he took possession of the office.
The question, whether the appellee was entitled as alleged in his petition, depends upon the validity of Swann’s election at the-called session of the legislature. For if Swann was legally elected to the office for the term of two years commencing from the election, there can -be no pretence for insisting that the appellee could claim the office and its emoluments, notwithstanding his election at the session of the legislature in 1854, until after the expiration of Swann’s term. Let us, then, endeavor to ascertain whether the election of Swann was valid or otherwise.
The office of superintendent of the penitentiary was created by the act approved the 15th of February, 1839; but neither the time of the appointment, nor the tenure of the office was prescribed by the legislature. The act approved on the 18th of February, 1840, amendatory of the preceding, provided that the superintendent, with the other officers of the penitentiary, should “be elected by the legislature, by the joint ballot of both houses in convention, who (and) shall hold their offices for two years from the time of their election, and until their successors be duly qualified.” It was further provided in the same act, that “ in the event of the death, resignation, or refusal to act of the said superintendent, the vacancy shall be filled by the governor until the meeting of the legislature.” Hutch. Code, 985.
These are the only provisions of the statute in regard to the [94]*94election, and the tenure of the office of superintendent. The tenure of office of the incumbent, by the express language of the act, commences with the election. He holds for two years from the time of his election, and until his successor shall be duly qualified. But there is no definite, fixed time at which the election must take place. . It is evident, therefore, that no definite time has been appointed at which the official term in this office is to commence. It is equally certain that no point of time has been designated beyond which the term cannot extend, or at which it must end. The incumbent is entitled to the office, if not sooner forfeited or abandoned, for 'two years from his election, and until his successor shall be duly qualified. If, therefore, the legislature should fail to elect a successor, the term of the incumbent might be extended indefinitely, from session to session of the legislature. It is very evident that this office is not divided or partitioned into periods of two years each, which have a stated beginning and ending. Each incumbent has an interest or an estate in the office, which may continue for two years, or for a longer period, depending upon the appointment of a successor, or it may be forfeited or abandoned sooner. And if sooner forfeited or abandoned, and the legislature shall proceed to elect a successor, such successor will be entitled to hold the office, not for the unexpired portion of a term, but for the period prescribed in the statute.
This principle was expressly recognized by this court, in the case of Hughes v. Buckingham, 5 S. & M. 582, in which it was holden that where an incumbent of an office, the term of which is fixed by statute, but the period of the commencement and termination of the term is not fixed, resigns or forfeits the office, and the office is filled by appointment, the appointee will hold not for the unexpired term, but will be entitled to the office for the full term.
The same doctrine had been previously recognized in the case of Smith v. Halfacre, 6 How. In that case, the effort was to show that the constitution had appointed no period at which the official term of the judges of the circuit was to commence, and consequently that an incumbent who was elected at a special election, which had been ordered by the governor, was [95]*95entitled to hold for the full term prescribed in the constitution. This court held the contrary ; but it was fully conceded, that if no time had been fixed at which the term commenced, the result contended for would follow.
But it is contended that there was no vacancy in the office when Swann was elected, and that hence the election was void. It is conceded, if Swann was entitled to the office, in virtue of the executive appointment, until the end of two years from Duncan’s - election, that the election of Swann was a nullity.
When a vacancy occurs in the office of the superintendent, by the death, resignation, or refusal to act of the incumbent, it is provided that “ the vacancy shall be filled by the governor until the meeting of the legislature.”
The question arises here, whether reference was had exclusively to the biennial meeting of the legislature at the times stated by law, or to any session, regular or extraordinary, which might take place after a vacancy had occurred and was filled by the governor.
A literal construction of the language employed, clearly includes any meeting of the legislature, whether at an adjourned, called, or regular session. This construction should be adopted, unless from a view of the subject-matter of -the provisions, a different intention is manifest.
The legislature which created the office, retained in its own hands the appointing power. But not being always in session, prudence and necessity required that a provision should be made for filling the office in case a vacancy should occur in it, during the recess. This power was conferred upon the governor. It is to be exercised only in the recess, and when the legislature is incapable of exerting it; and hence it seems to be reasonable in itself, and entirely consistent with the spirit of the act, that the office should never remain filled by executive appointment, when the legislature, having assembled, is in a condition to exercise the appointing power.
We have above shown, that no period was fixed at which the official term of the superintendent commences; and that no point of time has been designated at which it must termi[96]*96nate. The legal consequence of which is, as decided by this court, that when the office has been legally filled by election, the incumbent will hold for two years from the time of the election. From these premises it necessarily results that the official term expires, whenever the interest or estate in the office of the incumbent is put an end to by death, resignation, or otherwise ; that is, whenever the office becomes vacant the term ends.
These considerations render it abundantly evident, in the absence of any specific provision to the contrary, that the legislature did not intend that the appointee by the governor should hold the office for two years from the election of his predecessor; but that the object was to provide for filling the office, in ■the event of a vacancy, during the recess, or until a meeting of the legislature, when the appointing power could be exercised. It follows, therefore, that Swann’s term in the office, held in virtue of the executive appointment, terminated at the session of the legislature convened in 1852, and that his election, then, entitled him to the office for two years.
Objections are urged against this construction of the statute, based upon the supposed injurious consequences which may follow. It is said that this view of the statute would, in effect, deprive the legislature of the right to elect the superintendent, and in violation of the spirit of the act, confer the appointing power upon the executive.
• In our opinion no such consequences can possibly follow. According to the view we have taken of the statute, a party who shall be elected to this office at an adjourned, or called session, will be entitled to hold for the term of two years from the date of his election, and until his successor shall be duly qualified. Hence if the legislature at the ensuing regular session should not make an election, to take effect from the expiration of his official term, he would be entitled to hold the office until the legislature should again assemble. The precise result which would follow in case the legislature, at a regular session, should fail to elect a successor to an incumbent who held under an election had at the preceding regular session. In neither case would the governor have .a right to appoint, for the plain [97]*97reason that in neither would there be a vacancy in the office occasioned by the death, resignation, or refusal to act of the incumbent.
In addition there is another very obvious reason why a mandamus should not have been awarded in this cause.
The appellee showed, by his petition, that he did not take possession of the office, or enter upon the discharge of the duties, until it was surrendered to him by Swann in October, 1854. If it were fully conceded, therefore, that he was entitled to the office and its emoluments from the date of his election, he would, nevertheless, not have the shadow of a claim against the State for salary for the intervening period from his election to his accession to the office. He had rendered no services, and therefore could found no claim .for remuneration. If he was wrongfully kept out of office, it was certainly no fault of the State. He was, therefore, not entitled to remuneration upon the principle of indemnity. The legislature had conferred upon him the office in question ; his title was contested, and he was kept out by the incumbent. The courts were open to him for the redress of his injuries; and having failed to pursue the remedies provided by law, he must be left to the consequences of his own neglect.
Let the judgment be reversed and the case dismissed.