The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1876-04-12
Appointments Of Members of the
E.egi.Entszrc 40 Judicial Offices.

| EDITORS CLARION: As very important
duty is soon to be performed by the Gov
ernor and Senate, to-wit: filling the Judi
| ciary with incum bents, | ask permission to
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
fiji either the Office of Circuit or Chancery
Judge. Aside from the policy and taste of
thus filling these offices, which questions are
viewed in Il dignifed, modest and impartial
manner by the above correspondent, | enter
tain the additional opinion that said APP
pointmeats involve a constitutional question.
Sec IS, 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
emOlunents of which have been increased
during the time such Senator or RepreSen-
tative was in Office except TO such offices as
may h filed by an eleGtion of the people"
Without atteIn ping an elaborate argument
to establish the legal fact, that, under the
constitutional amendment, and the act
passed in pursuance thereof, abolishing the
old aud making Il new Chancerv system,
the office of Chancellor was created by the
present Legislature, | shall content myself
in support thereof by quoting from the
opinion of Pvy ton, CHI J., in the case of
Brady. etc. vs.. West. 80 Miss. p. 76. One
Of the questions involved in that case was,
that Vest, having been appointed to the
office of Chaneery Clerk OF the newly made
county of Tate, could not legally occupy
said Office, .'be2auSe he was member of the
Legislature at the time OF the creation of
the office of Clerk of the Chancerv Court of
said 0o1nty OF Tate. To which question
the distinguished lawyers, Harris 81 George,
Attorneys for West, made this answer in
substance: "That the act creating Tate
county did not ipSe fdct0 create the Office
of Chancery Clerk; = that the office
owes its existence to the Constitution and
not to the act creating the county" Justice
PeytoR, speaking for the court on that coca
sion, and in reference to this question, says
That the Constitution does not create the
office of Chancery Clerk. but pre-supposes
tie office to exist = The office of Cham
Gerry Clerk is a county office, and in the ma
ture of things, cannot exist until the county
exists. It springs into existence upon the
creation of the county and the extension of
the Chancery system TO It. 1t cannot be
said with any proprietY of language that the
county existed before that county was ere
ated, ETC. Now let us adopt that line of rea-
soning, with reference to ChancellOrS I'M
der the new system. The office of Chancel
lor, say of the First District under the new
So stenl. did not exist till the First District
was created. That District was created by the
present legislature Said office of Chancei-
Tor of SAID lst District (for eXamplel sprung
into existence upon the creation of said 1st
District. For it is conceded, / believe, by
the best legal minds of tie State, that the
effect OF the amendment to the Constitution,
in reference TO Chancelers, is to wipe ont of
official existence the present Chancellors,
holding as they did under the Constitution
before the amendment. If the present
office of Chancellor is the same that existed
before the amendment, then there is no
vacancy, and no removals can be made by
the Legislature and Governor, except by
joint address of two-thirds Of each branch
of the Legislature, and therefore &C appoint
ments are necessary. tJut, on 1.-THE other
hand. If said office of Chancellor OF said 1st
District, under the new system, is not the
same as ir existed before the amendment.
then this change was made by the present
Legislature. The Office of Chancellor is a
District office, AID itsprings into existence
upon the creation OF the District. 1t cannot
be said with any propfiety of language
that the Office of Chancellor of the lst Dis
tFict, under the present system, existed be-
fore that District was created by the present
Legislature. Whether the emoluments OF
the office of Chancellor under the new sys-
tenn has been increased or not, | do not
know, but the present Legislature has q
right so to do, and perhaps should. sub
nit these views. imperfect as they are TO-
Whae tnsy are worth an. :, I'm due defer
enee genuine respect for the high
order of legal talent of which the Legisla-
ture is in great part com posed.
DFAFArP IT .ITNI0R.