The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1873-10-30
lnelIgihIlity Of Defaulters and Emhez-
zlers to Office.
ATTORNEY GENERALS OFFICE !
JACKSON. Miss. Oct. Is. 1873.
"a. Il. c. Garter, 6ecretgTE q

several weeks ago, proceed now to con-
slider the question of the rights of embez-
zlers and defaulters of public money to
occupy seats in the Legislature, or to
hold any other offices of honor and trust
In this State.
The question, as stated by you, Is,
whether men who have embezzled and
defaulted in respect to the public moneys
entrusted to them as officers of the Uni
ted States, can now, before conviction,
hold a seat in the Legislature of this
State?"
/ reply that they certainly cannot. The
constitutional prohibition is in these
words:
"No person liable for public moneys
unaccounted for, shall be eligible to
seat in either house of the Legislature,
or to any Office of profit or trust, until he
shall have accounted for and paid over
all sums for which he may have been
liable. Section is, article ", OF the
Constitution of Mississippi.
BY the language OF this section, 1t Is
plain that conviction Of enibeZzlement or
defalcation is not necessary TO exclude
the delinquent from office. All that IS
required is that he shall be liable. In
this respect, the disability applies to the
individual in the same manner as politi-
ical disabilities apply under the 14th
amendment of the Constitution Of the
United States, and in the same manner
as religious disabilities apply under section
3 of article XII, of the Constitution Of
this State who denies the existence Of
God"
These prohibitions relate more to the
purity of the public service than they do
to the administration of justice to indi-
viduals. By them the Constitution seeks,
first of all, to fix all places of public
trust above the reach of men of doubt
full integrity, and to protect the body
polite, and preserve the public morals,
by excluding from Office all traitors or
disloyal persons atheists, embezZIers and
defaulters whether they have been or
shall ever be prosecuted to conviction, or
not.
am very certain that conviction, is
not necessary, because the constitutional
prohibition in this case, does not say so.
In other disqualifying prohibitions con-
tanned in the same instrument, conviction
is necessary as for example in the next
two succeeding sections OF and 49, of
the same article. In these sections it is
provided that, "no person shall be eligi-
BILE to office or shall exercise the right Of
suffrage in this State, who shall have
been convicted Of bribery, perjury, or
other infamous crime :" and that ''any
person who shall have been convicted of
offering, directly or indirectly, any bride,
etc., ''shall on conviction thereof, be
disqualified from being an elector or
holding any office" etc. In both these
cases the disability does not arise till after
conviction. But under section is, first
quoted, as we'll as under the 18th amend
ment of the Constitution of the United
States, and as well as under the clauses
in our State Constitution, excluding athe-
lists, the disability arises, if the fact on
which it depends exists, and is suscept-
ible of proof; aud the disability thus
arising would remain, even if all laws
furnishing embezzlement and defalcation
rs crime, were repealed. The disability
and the exclusion will be enforced wher-
ever the default exists, by the mere pro-
duction of the defaulter's accounts, with
the head of the department to which he be-
longs, and proof of their correctness. 1t
may be done before the Committee on
Credentials, or, in proper case, by pro-
ceedings in the nature of quo 1UGrTGntO,
or even by a civil suit and judgment
against the delinquent, for balance due.
In any case, all that is necessary is to show
that the person elected, is "liable."
And it need scarcely be added that the
words ''public moneys, unaccounted for,
apply with as much force to United States
money as to any other.
If, in any election, the person laboring
under this sort of constitutional disabili-
ties, should receive the highest number
of votes cast, he would be refused his
seat, and the person receiving the next
highest number of votes, would, if quail
fed, be admitted. l do not mean to say
that there is any express requirement to
this effect, in our State Constitution. 1t
is, nevertheless, the law, as it has been
held and decided in a vast maj ority of
the adjudicated cases; and this doctrine
proceeds upon the principle that all votes
knowingly cast for disqualified person,
are wilfuIly thrown away, just as much
as if cast for a dead man, or one who
never existed.-See Cushing's Elements
of the Law, and Practice of Legislative
Assemblies, ID Ed, sec. 1884, PIP. 81,
30; Is Indiana Reports, p. 327; IA
Indiana, p. 50; Brightley's Leading cases
on Elections, ISL, note, and numerous
cases, English and American, their cited
Nor can any Executive pardon be
pleaded in bar of this disability because
the words of the Constitution perpetuate
the exclusion from Office against the en-
bezzler and defaulter until he "shall have
accounted for and paid over all sums for
which he may have been liable. These
words make it apparent that the trainers
of the Constitution were determined to
to have not only honest, but also, as far
as possible, prompt and responsible men
in all offices of public trust. Besides, it |
is now the almost universal doctrine of |
constructions, that Executive pardons do |
not remove political disabilities when !
imposed by the Constitution.
And / will add, that this constitutional
prohibition which, if known, will prevent
the induction of defaulter or embezzler |
into office, will be good cause to expel |
him from office, if discovered, after his
installation. In word, the prohibition |
does not allow that defaulter or embez-
zler shall either enter or hold any public |
Office in this State.
| have the honor to be, very respect
fully,
Your obedient servant,
j. S. MORRIS,
Attorney General of Mississippi.