The Plymouth Democrat. (Plymouth, Ind.) 1869-1941, 1870-11-24
OPINION OF THE ATTORNEY GEN.
ERtI

The sudden decease of judge Egbert,
Of this common pleas district. left va
cancy different from any which had ev-
or occurred in the state. There was no
possibility of making an appointment in
time for the regular session of the court
in this county and the question whcth-
er the d>cease Of the Judge would pre-
vent the filling of the vacancy the sumo
as is done in case of ordinary absence,
no official knowledge of his death hay
ing been received, was the point on
which the attorneys of the court DIFF
fered. y Judge pro tenn. was appoint
cd, who opened and adjourned court
from day to day, and finally adjourned
until the regular term in April, 1871.
The decision at this time cannot affect
anything either way. as there were no
cases heard, and consequently nothing
more depends upon the legality of the
acts ofthe judge pro tenn. than if the
term had been a passed term.
Il is a matter of regret that the attor-
es general did not base his opinion on
a more tenable position than that of
public necessity There was no neccs-
sity that the question should be Judged
by any other rule than the law and the
facts.
The following is the op iRion of At
torney- General Hanna:
OFFICE OF ATTORNEY G1xKRAL, ,
INDIANAPOLIS, Nov. 10, 40.
DEAR SIR Your communication of
the 18th inst, enclosing letter Of Chas
II. Reeve, Esq, Of Plymouth. Indiana,
has but just reached ME, owing 70 my ab-
seace in western Illinois.
The question presented By Mr. Reeve
originates in the construction Of the act
approved;March Z, 1857, which authori-
yes the appointment of some person to
hold the common pleas court, iii case
of the absence or sickness of the Judge
The act of May II. 1852. section >, pro.
vides, that lin case Of vacancy. by death,
or otherwise, the governor shall ill such
vacancy, by appointment, until the next
general election" and it is further pro-
vided BIZ the act Of May %. 1852. see
ton q, that ''all vacancies occasioned, ex-
cept BY resignation, in which it is the
duty Of the governor to Issue writ Of cleo
ton, or to make an appointment to Eli
such vacancy, shall be certified to birn
by the clerk of the circuit court Of the
county in which such officer was elected;
ST elected by more than one county,
then By the clerk of the county, where
such officer resided"
Thus it is clear how a vacancy occ:.-
stoned By death may be filed. AMI how
such vacancy shall Officially come to
the knowledge OF the governor.
In such an event, it becomes his daty to
appoint a successor, to serve until the
next general election, who shall az once
proceed to hold the court, even though
grtss, or 10 nominate some one to, 90 50
IN his stead"
The question presented then stand.
as follows: Section = Of the act of March
Z, 1851, above referred To, provides.
that fiat any regular term" 1.-THE iudg.
shall fail to appear" "or appoint some
person, the clerk, sheriff or auditor
OF any two Of them, shall have the row
er to make such appointment as provi-
ded IN section l. The clerk, sheriff and
auditor of Marshall, proceeding under
this statute. appointed judge to hold
the court, on the failure Of judge Egbert
to appear on the first day Of the regular
term. The appo.ntec was duly qualified,
the proper entry made On the records,
and he began to exercise the functions
OF Judge. 1t afterwards appeared that
Judge Egbert was dead at the time the
appointment was made. Did the pre-
ogatiyes Of the appointee than terminate?
did they at any time have any vitality,
and was there no judge duriug TIE
period of time subsequent to the an
nouneement Of Judge Ecbert's death.
and the appointment Of his successor BY
the governor, after his death had been
officially communicated by the clerk of
the Circuit court at the proper county?
This case has no precedent in Indiana
with in my knowled re, but dose not seem
TO present any serious difficulty. The
appointee was made judge, for that term
Of the Court, by c.earauthority ofst"tate.
lie was as much Judge. as Egbert
could have been, during all that portion
OF the term for WHICH be was appointed.
until Judge Egbert's death could be
properly certified, and his successor
appointed and commissioned by the gov
ernor-
Tie argument thar the failure Of a
judge to appear" pre-srpposes the exist
ence OF a judge, seems to be straiacd
construction of the spirit and meaning
of the law. The weight Of public
necessity ought t. overcome any such
vague and unsatisfactory Interpretation
of general statute, when 50 much in
the scale OF the public welfare IS in
yolved.
The judgment is. that tho official
conduct of the appointee in this case
within the limits mentioned, IS valid
and binding upon all concerned. Yery
respectfully, your cbedieut ssrvant,
b. w. Hanna.
His Excellency Hon Conrad Baker,
Governor Of Indiana.
The fire in Laporte.
The recent FIRE in Laporte DESTROYED