Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1882-01-28

ton of the patent OF office, formal accept
ance of the surrender or resignation, or i'm
pliedIy BY the appointment or election of a
successor Indeed, the common law would
compel the acceptance of an office and a
refusal to assume it was indictable an
offense 70 Comyn's Dig, title "Officer," B.
l. Ibid K, 4, 9, possiH. Ibid title Justices
of Peace" A. !, BAG. Alb, p. 322. NJ. Anon,
12 Mod. 256. Rex. rs. Mayor OF Ripon, .
salk,,, 4aS; S. c. / Id. Raym-, $50 Rex.rs.
Pattison, B. and A. Is Worth Is. Newton,
l.. r. 10 Exch., 247. London 70. Headen, y
n. C., y. Stratton 70. Oultop, % Cal, 45.
People rs. Stratton, ibid, 3s2. Edwards rs.
United States, supra. Thompson rs.
United States, supra. Nor was
there wanting solid founda-
ton of good reason Tor the principle The
services of officers necessary to organized
society; and any hiatus or interregnurn tends
| to disorganization. III ones property, serv-
ices as a soldier, his very life in fact, may be
| taken to preserve society there Is no reason /
| why his personal services in an official ca
pacily NAV not be dem anded and insisted on I
| by the State. Enforced jury service fur I
nishes a conspicuous example OF the prin- /
/ ciple as we'll as compulsory attendance OF |
witnesses, and there may be others. Our own |
| constitution says: No mans particular |
services shall be demanded, or property
taken or applied to public use, without the
consent OF his representatives, or without |
| just compensation being made therefor Art
l., sec. 81, 7. and S. code, p. 50.
Not only is this doctrine OF compulsory
service supported under this doctrine of ne
cessity, but likewise under the contract. II
is true the bestowal of an Office is not in the
| ordinary technical sense contract-at least
not with us-but is the imposition of pub
lie trust by agreement between the
State and the offceholder. Why may not
the State attach as a condition to the be-
IF fha hnn 1
ing out OF the trust, that it shall not be sur
rendered until the State has designated its
successors, SO that the public interests shall
not suffer? 1t must be admitted that under
our free American institutions there has
grown up tendency to recognize such upre-
| strained personal liberty that the citizen has
acquired a sort of right to refuse to serve the
State in any official capacity, and it is often
said that no man can be compelled to hold
an Office against his will; but non constat that
the State may not reasonably restrain this
right for the public good. There can be no
more reason for requiring an officer whose
term has expired to hold until his successor
is qualified than of making the same require
ment of one who resigns; one is great
burden as the other. Counsel say this is a
"momentous question:" but reduced to its
exact dimensions, it is simply defense by
these respondents of the right to re-
tire from their offices some ten
days sooner than under this con-
struction OF the constitution and laws of the
State they would be permitted to do; and in
furtherance of their right to do this they
insist that the words of the provision should
be restricted as to exclude them from its
operation. 1t is no great harship to say to
justice of the peace that he shall continue
in Office until his successor is elected and
qualified, when that process in due course of
law can be contaminated in some fifteen
days. And it will be found that as to all
offices the constitution and statutes make
abundant provision for very speedily sup
plying a successor to a resigning officer, and
ordinarily there is
NO LACK OF PATRIOTIC CITIZENS
ready to take advantage of the rare oppor-
tunity of becoming a successor to one resign
ing On the other hand it may be said, as it
has been argued here, that this abundant
provision for supplying successors is the only
remedy the law has afforded for the evil of
having an Office vacant, and that the law
makers considered that speedy process of
filling vacancies an ample guaranty against
the mischief. But this case illustrates the
contrary. Where there is an epidemic of
designations, caused by conspiracy to de-
feat the law, which will defeat and has in
this case destroyed the machinery of local
government and paralyzed all governmental
functions SO far as they pertain to those
assumed by these respondents, the wisdom of
Z,
although the sheriff or coroner is required
by fair implication to give immediate notice
of election to be held in ten days, no 3.
steps have been taken for many months !,
to supply the county with these officers so :
necessary to execute the laws. Much has been
said in argument about provisions made to
turn the books and papers over to the near
est Justice; that is beside the question, be-
cause, while the six or seven remaining JUS
tices in this county may suffice to discharge
the judicial duties no provision is made to
prevent disorganization of the county by
this conspiracy of the magistrates, the sheriff
and no doubt the people of the county, to
avoid the levyiDg of this tax, although it
results in leaving all other duties belonging
to the County Court in its ministerial
capacity undischarged.
IT is A PARALYSIS
Of this governmental agency and, if per- h
mitted to continue, destroys it effectually. / Il
am unable TO see why construction OF the q
constitution should be adopted which Il
allows this mischief to prevail, when the 81
other would effectually remedy it, for the 81 81
stricted liberty to surrender their offices at .
will, or why this freedom of the citizen should
be secured at the expense of so great calam- =
Ity to the public good. The case comes
within the letter and spirit of the constitu-
'ional provision, and the mischief is clearly
|
It is presumption OF law that the conven-
ion saw the evil of the former policy of I'M
restricted designations and desired to restore
he rule of the common law for the public
rood, that no officer shall abandon the dis
charge of his duties until his successor has
,een elected or appointed and qualified. 1t is
wise provision one within the power of the
State TO make and the courts are required to
literally copstrue it in favor of the remedy
md to prevent the mischief [Cooley's
Jonst. Lin, 4th edition, II, ~, "a, rs, 20.
,trong's Const., secs. 400, 401. Sedgwick's
AZURE has given this constitutional provis-
on effect by enacting statute in tot dem
cribs. Act 1870, chap. %, sec. Z. T. and s.
ode, sec. 1925 81 1t is very strenuously ar
ued that this provision was only intended
o apply to
OFFICERS WHOSE TERMS HAD EXPIRED,
nd to accommodate the change made by the
constitution of 1870 in the tenure of Offices.
Under the construction of the old constitu-
ion, when a vacancy occurred the person
lected to ELL it held for full and not the
nexpired term, while the new constitution
brogates that construction, and gives fixed
erms of Office, which expire at the compile
ion of the term, whether held by the orig
nal incumbent or one supplied to fill va
ancy. T. and s. Code, p. 100, note a.
here is no apparent reason why the clause
he new constitution than under the old, for
could have been applied as well under the
ne the other system of terms, and would
ave baen just wise. There is nothing in
ne constitutional provision itse to indicate
lch restriction, nor in the proceedings of
lie convention, and the mischief to be reme-
led comes clearly within the words and,
link, the spirit of the clause. 1t is also
rgued that the court should not assume an
,tention to abrogate the settled policy of
lie former statutes permitting
UNRESTRICTED RIGHT OF RESIGNATION
But it may be remarked that the con-
itutional convention of 1870 was
form convention, and the radical changes uI
made are evidenced throughout the whole w
particularly in this matter of
lice tenure; and constitutional convention -
supposed to act with a purpose to cure
listing evils and with foresight of those =
lat are possible. II it had intended to pre-
mt the occurrence of the disorganization of
county government, such as the product OF
lis conspiracy, it would have used the very
nguage it has used. If it had intended to
strict the provision to officers whose terms
ad expired it would have said: "All
Ulcers whose terms have expired shall hold