The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1882-01-04
PERKINS vs. wADDELL.
Opinion Of Lieut. Governor Stands
Delivered IN the Senate, Jan
nary s, 1882.

general eiecIloA helu IN November, 1873 j.. b
Perkins and ] p. Walker we're elected Senator
for the 9th District of Mississippi. and receive,
their commissions as such, and. in the succeed
ing January, took the oath Of office, and oecu
pied their seats as Senators in the Legislator,
Of Mississippi, during that session the term o
office being four years In this controversy
p. Walker is not interested.
By public records coming from the offices O.
the Governor and Secretary of State, which
we're placed in my hands prior to the hour fol
the organization of the Senate, aaa informed
that the Governor, on the oath day of -geptem
Der, 1881, issued to the commissioners of cleo
tions of the counties composing the 2Tth Sena
torial District, his writ of election alleging
therein that " it appears, from information on
file in the Executive Department, that the Hon
j. B. Perkins, state Senator from the 9th Sen
atorial District has removed from the State OF
Mississippi, and is now a citizen of the State OF
Tennessee, whereby said Office has become
vacant and further alleging that the law re-
quires said vacancy TO be filled By the people =
which writ directed the holding oil an election
in the counties composing the eth District at
the time of the general election in 1881, for
the purpose Of eleeting one State Senator
from the 18th District to fill out the unexpired
term OF said J. B. Perkins,
The authority of the Governor for this action
is found IN article ), section g. of the Constitu-
tion and sections 153 and l57, Code of 1880.
Inc TcG3Tus presenter To EI6 luEElRF snow EQd4
an lection was held in pursuance of this writ,
and that Y B. Waddell received majority OF
the votes east thereat for the office of Senator
to fill the vacancy, and that due return thereof
has been made to the Secretary of State and
that commission, complying with all legal re-
quirements, has been issued to V. B. Waddell,
as Senator from the 9th District, and Y B.
Waddel is now in attendance upon this session
of the Senate, asking that the oath of office be
administered to him. and and that he be admit
ted to seat in the Senate.
j. B. Perkins is also present claiming the
seat.
The question for solution is, which of the two
is entitled to the seat in the organization of the
Senate. 1t is permissible for the chair to de-
eide no other question.
This is question of extraordinary difficulty
to me, because my researches into the history
of the organization of legislative bodies have not
developed precedent. TIE first legal princi-
pie from which / can draw an inference peril
nent to the issue, is the well established maxim
that there always exists presumption that
every public officer has rightly performed the
duties incumbent upon him This principle
the very structure OF our government;
for, owing to its form, the execution of its tunc
tons must be left in the hands of public agents
whose fidelity must be taken on trust. For
breaches of faith punishments are pr seribed,
but neither the severity nor certainty Of the
punishment can prevent the violation OF trusts
and the commission of crime There is, then,
an undisputed legal presumption that the
Governor, in declaring vacancy and issuing
his writ of election, used properly that author
ity with which he alone is othed by our Con-
and laws.
This being taken for granted, the next ques-
ton is, how much heed shall the Senate give to
this lawful act Of the Governor. Fortunately
for u.s. while We have been unable to find pree-
edents arising out of complications in legisla-
tive offices, the courts OF the country have
settled the bearings of questions of like import
in relation to other offices. The case that first
attracted my attention, is found in 18th Indi-
ana, 356; and on first reading it appeared to
unlock the situation Another reading deyel-
1ped this important difference between the In
Hama case and the one under consideration
The claimant for the office in thai case did not
nave behind him any declaration of vacancy
BY any lawful authority whatever, and |, there
fore, think, without noting other points of diff
ference that the Indiana case does not help 10 |
,ettle the question at issue here.
The case of Hill VS.. The State of Alabama, !
LIST Alabama, New Serfes,) page $50, presents |
almost the identical question here presented /
i differs only in the eharaet r of the office, |
that being Sheriff office. That case also DIS
closes constitutional provision in Alabama, I
very similar to the state of law made by our
Constitution aid the Statutes hereinahove cit /
3D. That Court says; when commission t
issues supposed vacancy, it is entitled to |
respect from every one, because it is the act Of |
.he proper department, and prima facie gives a /
light to exercise the office but as the vacancy /
IS the only matter which can authorize the |
its whole virtue is at an end when |
t is iudicially ascerlained that the Office was
not vacant, although the commission of the |
execution is entitled to this respect, yetif given
% one who has, in fact, no right to an office, /
t does not destroy the legal title of the incum-
oent any more than entry, by one who, dispo- I
asses another Of his freehold, would destroy |
,he legal tile of the latter He may be com
oelIed to resort to a court of law to |
regain his possession, but his right to the same I
IS as before the custer. So in case of commits /
lions for the same office to different individual s.
he legitimate claimant may for time be busted |
If the franchise which he isentitled to, but nis /
title is In no way impaired though he may be t
forced to an action for the recovery of the
1ficep
.''-iss,-al,4l .aritY seems definitely to fix the |
1alue of the commission held by Waddell that /
$, it gives prima facie right to exercise the
,fice
The case of Beebe vs. Robinson, So Alabama, I
IS while not exactly in point, supports the doc
rine announced in the case quoted from above /
and is a well considered opinion and it espec-
ally impresses the idea that the public should
aot be deprived of the benefit of an office,
merely because it was uncertain who had the
right to enjoy its privileges and perform its
lu;ies, quoting with approval The People VS.
Drayer, "a Barb, 265, as well as the opinion of
Chancellor Walworth, in kindred matter, re-
ported in Paige, 500.
1t has occurred to me, that a ruling which
,eats the holder of the Governors last commits
,ioa in this case might cause some alarm as
precedent. 1t may be urged that in this way
Governor might change the complexion of a
hostile Legislature, There are several satisfae-
ory answers to this proposition, but shall only
.efer to the well established maxim, that it can
never be lawfully presumed that public officer
Il
10 an illegal act.
If we once enter the field OF wild speculation,
md look for imaginary dangers, and presume
hat public officers will commit crime the Sc
Iuence will necessarily be to abolish all these
agencies, for it is possible for every public
,ficer to commit wrongs upon the people. 1t
no more probable to nv mind, that Govern
" would endeavor to change the political COM
,lexion of hostile legislature by resortingJ to
he plan above imagined, than that he would
Use his authority as commaHder-in-chief of the
militia Of the Stote, aud organize force to
,ust Legislature by violence. The Court, in
3eebe VS.. Harrison cited above in speaking of
he act of public officer who had certified a
Tacaney in an office, says " We are not at hber-
y to act upon the idea that in the performance
# an official duty devolved unon him BY law,
le did not-act ceuscientiously and properly
My investigation having lead me to believe
hat Mr. Waddelfhas prima facia right to ex-
rcise The office of Senator under the Governors
commission, pending the organization of the
louise, will administer the oath Of office to
lin. am solicitors, however, that the cor
ectness of this ruling may be brought before
be Senate by resolution or appeal, so that the
ullest debate may be had thereon, and the
Trong righted by the Senate, il have commit
ed wrong in this ruling.
An appeal from the ruling Of the President
ras taken, and the President was sustained by
he Senate.