The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1870-04-28
ATroRNEY GENERALS OFFICEl
Jackson. Miss April 18th. "a. (

Jackson, Miss April 10Th. '70i
SIR Your letter of the 18th instant, re-
questing my opinion as to whether the
Judgessand Clerks ofthe Probate Cou rts, are
authorized to perform any official act after
the ratification of the new Constitution" is
before me.
The doubt about this question seems to
have arisen from the difficulty experienced
by some members OF the bar and others, in
arriving at satisfactory construction of
the constitutional provisions quoted below.
The first section of article six, of the Con-
stitution is as follows:
The judicial power of the State shall be
vested in Supreme Court, and such other
courts of law and equity as are hereafter
provided for, in this CONSTRUCTION
The sixteenth section of the same article
is in these words:
Chancery Courts shall be- established in
each county in the State. with full jurisdic-
ton in all matters of equity, and of divorce
and alimony; in matters testamentary, and
of administration; in minors business. and
allotment of dover; and in cases of idiocy,
lunacy, and persons non cODsp0s nlentiS.
The sixth article of section twelve, pro-
vides that, "the term of office of all county
officers shall expire within thirty days after
this Constitution shall have been ratified
but that the present encumbcnts of all coun-
ty officers shall hold their respective offices
until their successors are legally appointed
or elected, and duly qualified.
From careful examination of the phras-
eology of these several PROVISIONS it seems
clear to me that the Constitution does not
of itself. abolish the Probate Courts but only
makes it obligatory upon the Legislature as
the law making power, and the Governor as
the appointing power. to do so; and to allow
a reasonable time for its accomplishment.
The judicial power 'shall be vested" in a
Supreme Court and such other courts as are
hereafter provided for" in this Constitu-
ton, and Chancery courts "shall be estab
lished" are words of command addressed to
Il. 4 Al
not words of creation addressed to the peo-
pie. If it had been the intention of the
trainers of the Constitution themselves to
abolish the Probate Court, and TO create the
new courts. by mere operation of the consti
tuition itself, and without any further legis
lation on the subject would they not have
said: The Judiciary power is hereby vest
ed in Supreme Court and such other courts
as are hereby created, and Chancery Courts
are hereby established. or words of like inn
port? 1t seems TO me that they would. The
same words of command which provide for
Chancery Courts being established, are used
in the thirteenth section of the same article.
to provide for the division of the State into
convenient Judicial districts. Chancery
Courts shall be established. and 1.-THE State
shall be divided, &c. 1t would be just as
fair to suppose that the convention which
framed the constitution intended itself to
divide the State, as to suppose that it intend
ed itself to establish the Chancery Courts.
ton expressly provides that all county ofii-
GERS shall continue to hold their respective
offices until their successors are qualified
Probate Judges and Clerks ''are county
officers" and | cannot see how
they or any other officers are to
s. continue to hold their offices Z" I'M
less those offices are to continue in exist
eI1ce. The Chancellors and Chancery Clerks.
though called by different name are just
as much successors" of the Probate Judges
and Clerks as if they were designated by the
same name. The successors are not yet APP
pointed or qualified, and consequently the
present offices are not abolished, nor the
present incumbents relieved from holding
their respective offices. And the correct
ness of this view of the subject appears i'll
still stronger light when we reflect that any
other view of il would Involve the State and
people in the evils of an iIlterTegnuHt in the
administration of all that important part of
the laws of the land heretofore coBfided to
the Judges and Clerks of the Probate
Courts, and it cannot be supposed that the
trainers of any constitution ever intended
such an outrage.
If | am right in these views it follows
that both Judges and Clerks of Probate,
should continue in office and perform their
accustomed functions, until the new order
of things ''shall be established" as ''provid-
ed for in the section have quoted from the
constitution.
beg leave to add that from the first these
have been my views of the question pro-
pounded by you; and the only hesitation
have e1 perienced in considering the matter
has arisen from the fact that among eminent
gentlemen of the legal profession there
seems to have been some division of opin-
ion,
| have the honor to be,
Very Respectfully,
Your OBJ. Servant,
J. S. MORRIS,
Attorney General.
To Hon. II. Musgrove, Auditor of Public
Accounts.