Definition
"Fill" carries two distinct legal meanings depending on context:
1. To occupy and perform the duties of a public office or position. An office is not considered filled by election or appointment alone — acceptance by the appointee, whether express or implied, is required before the office is actually filled. This distinction matters in disputes over vacancy, authority to act, and the validity of official acts taken before acceptance.
2. In environmental and property law, "fill" (or "fill material") refers to any material deposited into waters, wetlands, or other regulated areas to raise the elevation of the bed, displace water, or create dry land. This is the operative sense in federal permitting under Section 404 of the Clean Water Act, which requires a permit from the Army Corps of Engineers before discharging dredged or fill material into waters of the United States.
A third, transactional usage appears in early corporate and subscription law: a subscriber who agreed to "take and fill" a certain number of shares was undertaking to accept and pay for those shares, not merely to subscribe. This usage is largely archaic but appears in historical corporate instruments.
Common Language
Modern common usage (Wiktionary): To make full; to add contents to a container or space so that it is full; to occupy fully; to satisfy a requirement; to install someone in a position.
Historical common usage (Webster's 1913): A shaft or thill of a carriage (from an entirely unrelated root). Webster's 1913 does not record "fill" in its legal senses at all.
The gap between ordinary and legal meaning is narrow for the office and transactional senses — common usage captures the core idea of occupying a position or fulfilling an obligation. The environmental sense, however, is a term of art: "fill material" has a regulatory definition developed through Army Corps and EPA rulemaking that does not correspond to the casual meaning of the word, and the question of what qualifies as fill material has been the subject of significant litigation and agency rulemaking.
Common Confusion
The office-filling sense is sometimes conflated with appointment or election itself. The historical sources are clear that these are sequential events: election or appointment creates the right to the office; acceptance — express or implied — actually fills it. Acts taken by an officer between appointment and acceptance may be challenged on the ground that the office was not yet filled.
In environmental law, "fill material" and "dredged material" are related but distinct regulatory categories under the Clean Water Act Section 404 program. Both require permits, but the definitions have been the subject of separate and sometimes inconsistent agency rulemakings. Researchers should not assume the two terms are interchangeable.
Why It Matters in Research
For researchers working with historical public law materials, the office-filling doctrine is a recurring issue in cases involving acting officers, contested appointments, and the legality of official acts. Sources from the nineteenth century — particularly those involving state constitutional provisions requiring that offices "be filled" by particular methods — use the term with technical precision that modern readers may underestimate.
For researchers working with environmental law materials, "fill" is a gateway term to the entire Section 404 wetlands permitting structure. The regulatory definition of "fill material" has changed over time. The 2002 Army Corps/EPA rule (33 C.F.R. § 323.2(e)) revised the definition significantly, and the interaction between the fill definition and the broader "waters of the United States" question means that the scope of the permit requirement has shifted with agency rulemaking and Supreme Court decisions. Corpus materials from before and after these shifts may reflect materially different regulatory frameworks under the same terminology.
In corporate subscription instruments, "take and fill" language is largely confined to nineteenth-century materials. Researchers encountering it should read it as a term of commitment — an undertaking to accept and pay — rather than a merely procedural act.
Historical Dictionary Support
Black's Law Dictionary (both editions) and Bouvier's Law Dictionary are in close agreement on the core legal senses. All three define "fill" primarily as making full, completing, and performing the duties of an office. All three share the same New Hampshire authority for the proposition that election alone does not fill an office — acceptance is required. The corporate subscription usage ("take and fill") appears in both Black's editions and in Bouvier, though none of the sources develops it at length; the entries break off mid-sentence, suggesting the full analysis appeared in surrounding case commentary rather than the dictionary text itself.
None of the historical dictionaries address the environmental law sense — which postdates them entirely. Researchers who consult only historical dictionary sources for this term will miss the most litigation-intensive modern usage entirely.
Jurisdictional Note
The office-filling doctrine is governed by state constitutional and statutory law and varies across jurisdictions, particularly regarding what constitutes implied acceptance and how vacancy is defined. The environmental fill material definition is primarily a matter of federal law under the Clean Water Act, though state programs operating under delegated or independent authority may apply different definitions.
Encyclopedia Cross-Reference
Wetlands Protection — Section 404 Permits and Dredge-and-Fill (The Law Mind Environmental & Energy Law Encyclopedia)