The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1873-10-02
THE OPINION OF THE ATTORNEY GENERAL
THAT
no ELECTIONS CAN BE HELD THE PRESENT YEAR
ATTORNEY GENERALS OFFICE.
I.cvao-- MTsS Sent M ST3 &

<
I upon what you are pleased to term "a seem
ing conflict betw cen the Constitution anu IN
laws regulat ng elections.
And, leaving the Constitution out OF mine
for the present, call your attention first t
some of the many irrecOncilable conflict
between the existing statutory provision
o. the Legislature themselves.
Section 35G OF the Code of 1871, provide
that a general election shall be heldln The
several counties on the first Tuesday attel
| the first Monday in N0vem Der, 1871" Thi
| election was accordingly held, and all tht
/ officers then elected were quallned ana IN
| stalled in form at least for full constitutional
| terms of two or four years, respectively
| But the Legislature that was elected at the
same time, by an act approved Apnl Il
/ lS73 (see Pamphlet Laws, p. 40 declared
/ tn Il same election, so far as nc related 10
Chancery Clerks, Circuit Clerks anu DIS
trict Attorneys, "a special ana NOT gen
4 eral election And though the COnsLltu-
! ton expressly requires that all those officers
shall hold their Offices for term OF tour
! years and though they were elected only
| TWO years ago, this act proposes now 10 us
IN is them from office, and TO require them
To surrender their places to such persons a.
may be elected in 1873.
Now, it is true that the election was a
special election. But iC could not have been
"A general election for part OF the officers, and
"A special election for the rest. 1t was as
much special, in respect to all the other oti-
GERS elected at that time, as it was so tar as
applies TO District Attorneys, Circuit Clerks
and Chancery Clerks" because the same
Constitutional provisions that made that
election "a special and not general cleo
Lion,. so far as these officers are concerned,
made it for the same reasons, as L shall pre-
sently show, special as to all lchO toere elect
ed at the same time.
Again, the act OF May Is, 1871, (COde 1928
ct seq) required that the Legislature to be
elected in November of that year, should
meet and be sworn in on the first Monday
in the next succeeding January. The terms
of office of each mem Der of the Legislature
commenced on that day. The Constitution
in its regular operations limits the terms
of office OF Representatives to two years,
and of Senators TO four years. And yet that
same Legislature, while in one act, as we
have seen, it assumes to cut on two years
from the Constitutional terms OF fifteen Dis
trict Attorneys, aud one hundred and forty
clerks OF the courts, by another act under
takes to ectend their own terms from the
first to the third Monday in January. See
acts of 1872, p. 81.
But this is not all. This extension of the
terms of Senators and Representatives Ope-
rates, er neceSsitdte, 20 extend for the same
perhaps for greater length of time the
official terms of the Governor and all the
other State officers elected at the same time
Because the Constitution (article D, section
y requires that the return OF every election
for Governor shall be sealed and transmitted
to the Secretary of State, who shall deliver
them to the Speaker of the House OF Repre-
sentatives at the next ensuing session of the
Legislature, during the first week of which
session the said Speaker shall open and pub
lish them in the presence of both Houses,
and the person having the highest number
of votes shall be Governor, etc. Thus, the
extension of the time for the meeting of the
new Legislature, not only extends the term
of the Old, but inaSmuch as the votes for
Governor cannot be opened, and the result
ANNOUNCED till the first week of the new
Legislature, and inasmuch as the votes for
Governor are sealed with the returns for
the other State officers, this extension OF the
terms of the Senators and Representatives
necessarily extends the terms of all the
State officers for the same length of time
Because by another section (207) call officers
in this State are required to hold until their
successors therein shall be duly qualified
If there be any who are disposed TO accord
liberal degree of weight aud authority, to
what is sometimes called Legislature cORStruc-
ton of constitutional questions, | should be
glad to see them reconcile these several en-
actments with each other and all OF them
with the Constitution.
The fact is, that the legislative cOnstruc-
ton, Legislative attachments, and the prac-
tice which they have authorized aud upon
which we have started are all in open con
flict, every part with every other part, and
in still more open conflict with the rights OF
the people anu all the present officers OF
beats, counties and State, and in vet still
more open and palpable conflict with the
Constitution.
But l proceed now without further COM
ment upon the contradictions in the statutes
to test the act of 1871, Code, chap. g. and
the election held under it, by the simple re-
quirements of the Constitution. SO testing
it we shall find that it was Il special election
and as such entirely valid; but that as a
general election, iL cannot stand one mo-
ment's analysis. And we shall find also that
the only authority or pretence of authority
for an election this fall is the self-coudemn-
ed, unconstitutional act of 1871.
The Constitution of Mississippi provides
that ''all general elections shall be held by
ballot and shall commence and be holden
every TWO years, on the first Tuesday after
the first Monday in November, until alter
ed by law" Sec. art. ".
That which may be catered by law is
the GATE and not the biennial principle. In
support of this refer to the further pro-
vision that ''the general election shall be
holden on the first Tuesday succeeding the
first Monday in November, biennially." Sec.
l, art. XII.
In the further confirmation that the in
tention was to have "al. general elections
once in F'everY two years." the Constitution
preserves the biennial principle in the terms
of service OF ''all the civil officers" who are
to be elected at these general elections
Every elective officer mentioned or referred
TO in the instrument is required to hold his
office for term of either two or four years,
the latter being multiple of the former
and biennial elections being exactly adapted
TO the commencement and expiration of all
their terms.
This is precise conformity to the further
requirement that elections for Representa-
tives in Congress shall be held biennially-"
See. 25, art. XII.
Here, then, the principle is distinctly and
MECHANICALLY established that general cleo
tions and official terms shall correspond at
the start and go hand in hand, one with the
other, and the terms of all elective offices
measured, so long as this Constitution shall
last, by biennial elections.
So far have only quoted from or referred
to the Constitution itself as framed by the
Convention of 1868, ratified by the people
and approved by Congress. | shall pre-
sently have occasion to quote at length also
from the ordinances adopted cotemporane-
ously with il by the same Convention.
Now it will not be denied, either as his
tory or as law, that ..all the State officers,
including members of the Legislature and
Representatives in Congress" were ordered
and required by the trainers of the C0nSti-
tuition by the President of the United
States and by military commanders, to be,
and that they were in fact, all elected to-
gether at the same time, and that they thus
practically and in obedience TO the Consti-
tuition and the law took 4 simultaneous
and even start on their respective official
terms; and il so ii was the plain intention
and requirement. of the trainers of the Con-
stitHtion and inevitable from the nature OF
things, that they should all keep even pace
in the commencement progress and expi-
ration of their political years, first for the
fragmentary term which Immediately en-
sued, anu which necessarily resulted from
the abnormal and untimely date at which the
Convention expected the ratification of the
Constitution to occur, and the equally alb
normal and untimely date of the re-sub-
mission and actual notifications; and Sc
condly, for the next full term succeeding
that fragmentary term The Constitution
as it was ratified contains this provision:
Representatives in Congress to fill the ex-
isting vacancies shall be elected at the
same time this Constitution is submitted TO