In support of its argument that, under Article XVI, Section 17, appellant's resignation was not effective to vacate his office and therefore did not render the quo warranto proceeding moot, the State initially cites Lowe v. State, 83 Tex.Crim. 134, 201 S.W. 986 (1918), which considered the effect of a district judge's acceptance of appointment as a military officer in 1917. There the court found another provision of the constitution controlled its decision but referred also to Article XVI, Section 17, citing McGhee v. Dickey, 4 Tex.Civ.App. 104, 23 S.W. 404 (1893, no writ), for the proposition that under the holdover provision, a public officer "could not arbitrarily divest himself of the obligation and authority to perform the duties of his office until his successor qualified, and that although he resigned, and his resignation be accepted, [Article XVI, Section 17] would operate to continue him in office until his successor qualified." Lowe, 83 Tex.Crim. 134, 201 S.W. 986.
Such holding is inconsistent with the idea that the judge's own recollection is indispensable and all-controlling. See, also, McGhee v. Dickey, 4 Tex. Civ. App. 104, 23 S.W. 404. In the light of the cited authorities and of other cases which are not noted in the opinion, we hold that the district court committed no error in ordering the entry of the judgment nunc pro tunc upon evidence that satisfied it that the judgment had been actually rendered.
These provisions are held to be mandatory and have the effect of continuing the officer as such in office with all the powers incident thereto until his successor has duly qualified, to the end that there should be no vacancy in any office and the functions of government should not cease. El Paso Southwestern Railway Co. v. Ankenbauer (Tex.Civ.App.) 175 S.W. 1090; Keen v. Featherston, 29 Tex. Civ. App. 563, 69 S.W. 983; McGhee v. Dickey, 4 Tex. Civ. App. 104, 23 S.W. 404; Jones v. City of Jefferson, 66 Tex. 576, 1 S.W. 903. In Cowan v. Capps, 278 S.W. 283, this court held that under such circumstances the officer holding over was a de jure rather than a de facto officer. 46 C.J. p. 969, § 111, page 971, § 115.
It is true, as urged, that our Constitution (section 17, art. 16) provides that all officers in the state shall continue to perform the duties of their office until a successor has been qualified, and that respondent at no time tendered his resignation as a representative in the Legislature, nor was his successor elected or qualified. There is also a line of cases holding that, under laws such as section 17, art. 16, of our Constitution, the resignation of an officer will not be fully effective until the appointment and qualification of a successor; the policy of the law being to prevent vacancies and preserve continuity of term. Of this class of cases appellant has cited the following: Jones v. City of Jefferson, 66 Tex. 576, 1 S.W. 903; McGhee v. Dickey, 4 Tex. Civ. App. 104, 23 S.W. 405; Keen v. Featherston, 29 Tex. Civ. App. 563, 69 S.W. 983; El Paso S.W. B. Co. v. Ankenbauer, 175 S.W. 1090. By reference thereto it may be seen that none of them are cases where the officer whose resignation was under consideration had been tendered and accepted another office with duties incompatible with those of the first.
The purpose is that there should be no vacancy in the office, and that the functions of government must not cease. Keene v. Featherstone, 29 Tex. Civ. App. 563, 69 S.W. 983. Justice Stephens, in McGhee v. Dickey, 4 Tex. Civ. App. 104, 23 S.W. 404, said: "The public necessity for continuity of official tenure is not left to the caprice of the office holder.