The Daily clarion., 1876-04-09
Appointment OF Members of the
Legislature TO Judicial Offices.

EDITORS CLARION: AS very important
duty is soon to be performed by the Gov
ernor and Senate, to-wit filling the Judi
submit the following views with reference
thereto, which have been, in part, elected
by the report that the offices of Circuit
Judges and Chancellors, were, in the main
to be filled by present members of the Leg
islature, and in the language of your COR
respondent upon the same subject, who signs
himself Democrat" under date of March
31st, these are the views of one "who see ks
no appointment and has no private interest
to subserve," claiming neither the qualifi-
cations for nor entertaining the desire to
fill either the office of Circuit or Chancery
Judge. Aside from the policy and taste OF
thus filling these offices, which questions are
viewed in dignifed, modest and impartial
manner by the above correspondent, enter
tain the additional opinion that said ap-
pointments involve constitutional question
Sec. 80, Art. 4, State Constitution, SAYS
mo Senator or Representative, during
the term for which he was elected, shall be
appointed to any office of profit under this
State, which shall haze been created, or the
emoluments of which have been increased
during the time such Senator or Represen-
may be filled by all election of the people.n
Without attempting an elaborate argument
to establish the legal fact that, under the
constitutional amendment, and the act
passed in pursuance thereof, abolishing the
old and making a new Chancery system.
the office of Chancellor was created by the
present Legislature, shall content myself
In support thereof by quoting from the
opinion of Peyton, Oh. j., in the case of
Brady etc., VS.. West, so Miss, p. rs. One
OF the questions involved in that case was,
that Vest, having been appointed to the
office of Chancery Clerk of the newly made
county of Tate, could not legally occupy
said office, because he was a member of the
Legislature at the time of the creation of
the office of Clerk of the Chancery Court of
said county OF Tate. To which question
the distinguished lawyers, Harris & George.
Attorneys for West, made this answer in
substance: "That the act creating Tate
county did not ipSe facto create the office
of Chancery Clerk; that the Office
owes its existence to the Constitution and
not to the act creating the county" Justice
Peyton, speaking for the court on that occa-
sion, and in reference to this question, SAYS:
1hat the Constitution does not create the
once OF Chancery Clerk, but pre-supposes
the office to exist =. The Office of Chan
Gerry Clerk is county office, and in the ma
ture OF things, cannot exist until the county
exists. 1t springs into existence upon the
creation of the county and the extension of
the Chaneery system to it. 1t cannot be
said with any propriety oflanguage that the
once OF Clerk of the Chancery Court of Tate
county existed before that county was cre-
aztec, Now let us adopt that line of rea-
sonlng, with reference to Chaneellors un-
der the new system. The office of Chancel-
lor, say of the First District under the new
system, did not exist till the First District
was created. That District was created by the
present Legislature. Said office of Chancel
ior OF said lst District (for example) sprung
1Hto existence upon the creation of said 1st
District. For it is conceded. T believe bu
the best legal minds of the State, that the
enect OF the amendment to the Constitution.
IN reference to Chancellors, is to wipe out OF
omclal existence the present ChancelIors
holdlng as they did under the Constitution
peiore the amendment. If the present