The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1873-10-30

who accepts an office in either the judi
.ial or executive departments, and quail
ties and enters upon Its duties, thereoy
abandons and vacates his seat i'm the Legis-
tIature Within the last few years l have
searched all the reports of adjudged cases
and elementary treatlses upon constltu-
tional law to which l have had access, TO
see If there Is any authority by which
! ReDresentative or Senator, under Constttu-
ton like ours. may accept judicial or *,
| ecutiye office, and enter on its duties, and
vet continue his authority and functions as
| 3 legislator. l have found none. sho 90
NOT believe that any such authority exists.
| The provisions of our State Constitution
| is in the words and form following, to-wit /:
"ARTICLE III.
DISTRIBUTION OF POWERS.
ssSECTIoN l. The powers of the govern
ment of the State of Mississippi shall be
| divided into three distinct departments, and
/ each of them contided to separate msgis-
/ tracy. to-wit: Those which are legislative
/ 70 one those which ave judicial To another,
and those which are executive 10 aaol heI'
/ SEC. q M person or collection OF per
| sous being of one Of these departments
shall exercise any power properly Oelohg-
! ing To either OF the othels Arept IN the
instances hereinafter expressly urec''" OF
! permitted.
/ The Constitution then proceeds 10 create
define and limit the separate departments
thus required. and TO state the only IN
| stances" which are allowed To form the "eN-
ceptions' above referred to. Inc leg lsla Fla, We
department is created by Article ~, ana oy
| that article the Governor is EEK pressiy
directed and permitted" TO participate ~
the making of laws.-SectiOn u. ms is
one of the excepted instances expressly
permitted. The Senate rs expressly direct
! ed and permitted" to sit as a court OF I'M
| peachment. BY Article V. the executive
! Department is created, including Governor
Lieutenant Governor, Secretary OF otatF'
| Auditor. Treasurer, Sheslns' Corohers'
| County Treasurers, Assessors ana survey
ors. Other officers are added TO this de-
partment by subsequent articles huch rs
those pertaining to the public schools, pub
| lie works, etc. all of which are purely e%-
| ecutiVe But with the exception already
named, of the Governor participating 10y
reason of his power of approval or Yetong
| of bills there is no executive officer who,
under any circumstances, so long as ne re-
| mains connected with the executive ue-
partment, can perform any ACT properly
belonging to either of the other" depart
ments. The next in order Is Article v,
headed s.Judiciary." This article provides
that tie Judicial department shall be com
posed of the several courts-Supreme, CIR,
| cult Chancery, Boards of Supervisors, ana
Justices of the Peace, and In the same de-
partment and by the same article provides
| for District Attorneys. an Attorney Cen
| eraI, and the clerks of the supreme, circuit
| and Chancery Courts, thus grouping all
y
the head of the "Judiciary" expressly re-
! curing the Legislature to provide by law
| ''what duties shall be performed by the
! Clerks of the Circuit and Chancery Courts
during vacation, subject to the approval of
| the Court" They are thus required to be
invested with judicial power, which has
been completely done by the Circuit Clerk
being among other things empowered to
| enter judgment by confession, to take depo-
| stions, etc; and by the Chancery Clerk
being empowered to make orders aud de
crees at rules, and to perform in vacation
really all the Important duties relating To
| the estates OF deceased persons, widows
| orphans, &c. See Revised Code 1871. 90 6A.
62S, 995, 996. The clerks being thus at
tached to and inseparable from the judlci-
airy. and being thus clothed with portion
of the judicial power, they are, of course,
judicial officers, and belong to that depart
ment.
The case of members OF the Board of SUI
pervisors l.. if possible, still stronger. The
! Chancery Clerk is their clerk also. They
can issue process, hear evidence, decide
| cases, render judgments, grant appeals,
punish tor contempt, &c.
| The Clerks Of the Circuit and Chancery
! Courts, and the members of the Supervi-
sors' Courts are therefore just AS certainly
and clearly officers of tina judicial de-
partment rs Senators and Representatives
are OF the Legislative department, and by a
| purity of reasoning ii is equally certain that
| a Sheriff and TaX-Collector is, with equal
| certainty, an officer of the executive de-
| partment, his duties not being in any case
legislative or judicial, but always executive.
| Senators and Representatives being Oili-
GERS of The legislative department. clerks Of
| the courts being officers of the judicial de-
| partment and sherifrS and tax collectors
being officers of the executive department,
and mo person or collection of persons be-
| longing to either of these departments be-
ing allowed to exercise any power properly
belonging to either OF the others, except in
/ IL
| ted; and none OF these being among the
excepted instances, it follows that no per-
son can be at the same time Senator or
Representative and clerk, member of the
Board of Supervisors, or sheriff.
In other words, the legislative Office and
the Judicial or the executive Office are what
the books characterize as constitutOnally
incompatible.
If, then, Chancery clerkships and Super
visorships are thus incompatible, what is
the constitutional effect and result of Sen
ator accepting and assuming the powers
and emoluments OF one OF these incompat-
ible offices?
The answer is, he thereby vacates and re-
signs his seat in the Senate!
In other words, he takes his choice be-
tween the honor and power which he al
ready has In the legislative department,
and those which are offered in the judi
ciary.
In taking the oath for his new office he
looks to God and the Constitution, and the
same oaths which bind him to the worthy
and faithful occupancy of the new office,
bind him also to the solemn abandonment
of the old one.
l will now quote the language Of only
few of the many authorities which might
be adduced upon this subject, commencing
with two of the highest English authori
ties:
When the offices are incompatible. the /
appointment to the latter office is eQuiya-
lent to a vacation of the former Office, and
If the person so appointed continue to eX-
ercise the former office, the court will grant
an information in the nature of quo war
ranto against him."-king vs.. Pullman,
Danford Il East, TT.
Again: ut is now settled that II the two
offices are incompatible, the acceptance OF
the latter one vaeates the former.'-king
Thatcher, 2 Term Rep, 81.
And the American courts are even more
emphatic. The Supreme Court OF the state
OF New York, citing numerous authorities,
held tnat 1.-THE acceptance OF an once IN
compatible with one previously held oper-
ates as resignation of the first ONCE. The
appointment is NOT void, but II accepted be-
comes valid and the Office formerly held be-
comes tpso facto vacant.'-People va. Car
rigne, Hill, N. Y, Rep, 90.
a resignation by implication may not
only take place by an abandoDment OF the
official duties, as before mentioned, but also
by being appointed 10 and accepting new
Office incom patible with the former one. 1t
was supposed at one time that such re-
signation could only be where the second
Is superior to the former. IL has, however,
been determined to be unimportant, and
that IL one holding a superior office accept a
subordinate one that is Incompatible, the
appointment TO the second operates to va
cate the formef."-Angel VS.. Ames on cor
poratione, 8 434.