The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1875-04-14
Decisfcm OF the saPreme Court
BIans the Governor Exercised
the AppOfmafm% Power Tin
c0nsaffutiomaIRy.

consaffutiomaIiy.
When Gov. Ames ignored the Senate
and proceeded to make appointments of
Chancellors and to establish them In their
important functions independently of that
body, it was charged that he was guilty
of a high-handed usurpation TOR which he
deserved impeachment. If the chief
Executive officer of the State sets the
example Of wilfully violating the Con-
stitution and trampling its essential pro-
visions under foot, what respect can the
masses of his party who look to him as a
leader and follow him blindly, be expect
ed to manifest for the laws
A case involving the question of the
constitutionahty of the Governors acts,
came before the Supreme Court from
Pamela county, in which the Court Judge
Simrall delivering the opinion, which is
luminous and able)-held
+" 1t is very manifest that the Senate
shares with the Governor in the duty and
responsibility of filing the judicial offices
of the higher courts, and since the judges
of the Supreme, Circuit and Chancery
Courts hold for definite time, the Con-
stitution intends that their appointment
to their respective terms shall be partici-
pated in by the Senate. That purpose is
carried out by section LOG of the Code of
1871, which provides that ''the Govern
or shall fill by appointment. with the adj
vice ard consent of the Senate, all offices
subject to such appointment under the
Constitution and laws when the term of
the incumbent is about to expire" He
shall do this in advance of the expiration
of the term, so that the Senate may with
him do its duty under the Constitution in
advising and consenting to the appoint
ment. He must select such time before
the expiration of the term, so that he
may obtain their concurrence. The
meaning is that the Governor shall make
his nominations to that body at a session
immediate preceding the expiration of
the term. The idea is that the term of
a judicial office will come to an end be-
fore the end of the next regular session
of the Senate and. this action is neces-
sary in order that the appointment to
Tull term may not be made without the
consent Of the Senate.
Constituting the 18th section of the 9th
article of the Constitution as giving pow
er to regulate the filling of vacancies,
and considering the laws enacted to give
the section effect, the court lays down
these propositions
First-A term of the Chancellor which
will expire in the vacation of the Senate,
must be filled by a nomination by the
Govern to the Senate, and confrma-
ton a. e session preceding the confr-
nation.
Seconl-Vacancie which arise from
the ending of the term, or from casualty
during the session of the Senate, must be
then filed by the Governor and the SEN
ate, unless vacancy (from contingent
cause alone perhaps occurs during the
last FIVE days Of the session.
Third--It the Senate refuses to con-
firm an appointment or nomination, the
Governor shall not fill such vacancy in
vacation unless it happened within five
days before the Senate adjourned. But
vacancies occurring in any other than
these enumerated modes may be filed by
appointments in vacation, which includes
only such vacancies as happen in the re-
cess of the Senate from casualty, as
death, resignation, etc.
The question, then, was whether the
appointment for the Tenth District was
made in accordance with the Constitution
and statute. The term of Chancellor
Simmons expired July 2, 1874.
"To have conformed to the law" the
court says. ''the Governor ought to have
asked the advice and consent of the SEN
ate at the session next preceding the I'd
of July, 1874, when the incumbents
term expired"
Two points are decided in this case:
1st. That Gov. Ames had no power to
make appointments of Chancellors in the
vacation of the Senate. The court held
that the Governor had no power to APP
point, but that the Chancellor was de
facto officer, and therefore could appoint
an interim clerk, until an election.
End. That the appointment of Howe
Clerk of Pamela county by
Chancellor appointed by the Governor in
NttS1t1OA was NOIu, CAldb tic SdlO 11OWO
was a defaulter of public monies unac-
for and was therefore Ineligible |
to Office of profit or trust in this State,
under our Constitution. The Court held |
that it is not necessary, as was commended
by counsel for Howe, that there should
be judgment fixing the liability of
Howe for the public monies before this
in the nature of a quo AGAR
ra,sto, could be instituted and sustained |
There may be others holding office
n this State who are liable for public
monies, and if the people desire to pro-
iced against them, this decision will be
\ useful guide.
The Conditions on which Railroad Com
panies are Liable for Stock Killed
or Injured by their Trains.