Clearfield Republican. [volume] (Clearfield, Pa.) 1851-1937, 1878-11-27
VINO WILL be PROIHON0-
TARYP

Inc lahJ numOcr VI lnc buVNS NV""
ty IntelligeEcer says -
Attorney General Lear, who has
been in Harrisburg since the election,
returned to his home in Doylcstown on
Friday morning. Mr. Lear has been
asked for his opinion in regard to the
tie vote for Prothonotary in this coun.
ty, and says that the Governor will
without doubt appoint Mr.. Barretts
successor, and that the matter Of elect
ing Prothonotary will come before
the people again next Fall"
The Attorney General ought to know
the law, but there seems to be two sides
to this, as to every other case. The
only question is, whether the failure
to elect creates such n vacancy as the
Constitution contemplates, and which
the Governor can fill by appointment
A legal friend at our elbow, who has
examined the question, says there is
no vacancy There is no Act of As
sembly which meets the case. The
new Constitution provides that county
officers shall be elected at the general
elections, and shall hold their offices
for the term of three years, and until
their successors shall be duly qudlDed.
The Act of February u, 1874, provides
that when the Office shall become va
cant, by death, resignation, or other
wise, it shall be lawful for the principal
deputy to discharge the duties, until
the appointment and qualification OF
his successor. The Act Of May l5i
1874, provides for the vacancy to be
filled by appointment to be made by
the Governor to continue until the
general election, and until u successor
shall be elected and qualified. 1t il
obvious that tho terms on which alone
the Governor can appoint are rdedney
IN the Office and that there can only
be vacancy when the person in pos
session, whom all acknowledge to be
rightlully in possession, having a per
feet right to exercise all the power and
duties of the office, is in some way dis
qualified. Such is not the case there
hGs been no election so far as the Office
Of Prothonolary is concerned. lftber,
be no vacancy, which the Governor
can fill, the present incumbent can hole
over. A case is reported in 9th Barr
OK rel, Broom VS.. Hanley, which seemi
to settle the law applicable to this. 1t
that case, the person elected Clerk o
the Orphans Court of Philadelphia
died before he had in any way quail
fed himself, or been qualified to fl
said office, and before commission hat
been issued TO him. The Governo
appointed person to I'll the supposed
vacancy, but the officer in possession
of the office refused to recognize him
and the matter was carried to the Su
preme Court. Judge Rogers delivere,
the opinion of the Court, which decide,
that The death Of the person electe'
TO Gil the office of Clerk of the Orphans
Court, before he has been. qualified &C
cording to law, does not create va
cancy, but the incumbent, who !
authorized to hold the Office until hi
successor shall be qualified, holds over.
The case here is stronger than tn
above, for there was no election becaus
of n tic vote. If the death OF an elect
cd, bat unqualified, officer does no
create vacancy, how can there b
one when there is no election Justic
Rogers says in his opinion "Wa
there successor duly qualified withil
the spirit of the Constitution ? is tn
point on which the question mainly,
not entirely, depends . = T..
"The successor must not only be elect
ed, but be qualified, are the words q
the Constitution, showing beyond a
question that the election and qualiica
ton do not mean one and the sam
thing" The concluding point whicl
Justice Rogers makes is the following
That ian office cannot be vacant wheI
il is filled by a person in the legitimat
exercise of all its functions, in the law
iul enjoyment of all its cmoluments,
and unless there be a vacancy ther
cannot be an appointment to fill it,
DoyleStown Democrat