San Antonio daily light. [volume] (San Antonio, Tex.) 1886-1907, 1891-02-07
The District clerk appointment.


Mr. EDITOR:
n district clerk to fill the vacancy caused
by the death of Mr.. Dashiell, has created
unite difference of oppinion among the
members of the bar as to who has the an
thority TO make the appointment.
1t seems to me, and in this / believe |
am supported by majority of the bar,
| that there can be no possible question but
what an appointment made by the two
Judges would be perfectly legal-this will
be more readily observed when We refer
to the constitution of 1S76-which create
this Office, and is the source of the power
to appoint an incumbent.
| Art. 5, Sec. Q. There shall be clerk
for the district court of each court"
| IN case OF vacancy the Judge of the dis
trict court shall have power to appoint a
clerk who shall hold until the office can
| be filled by election"
! The foregoing is the only provision to
| be found in our constitution upon the sub
| ject, and upon the construction of this
depends the right to fill the vacancy.
The bill that has been drafted with the
view of meeting any possible objection
believe is legal, but it is unacces Sary,as it
can only be reiIeratiOn OF theprovIsiOns
| OF the constitution, or in other words, ii
| the judges have no highlander this pro-
vision of the constitution to make the APP
| pointment, then the legislature cannot
pass law that will give them the right.
Those who differ with me contend that
the words ''can be filled by the
| ton, contemplate an immediate election
to fill the vacancy, and the APP
pointment to be only temporary based
on the fact that language used in the
constitutions, 1s45-1S61 and 1866 differs
from that used in the present constitu-
tiOn in that those constitutions express
ly provided that the appointee should
hold until the regular election. That
this is not so, is forcibly illustrated by
the fact that during all the limitations
of government from 1910 until now, the
legislature acting under the provisions
of these several constitutions have passed
the same laws, and that the act of 1916
under the constitution of 1S45. ''That
in case Of vacancy the District
Court shall appoint the clerk, who shall
head the office until the next regular
election is virtually the same as that,
which is now on. our statue books and
passed under the present constitution.
Not only this but the District Courts act
ing under this law ever since the consti-
tuition of 1876, have given the same con-
Struction to it.
Again, admit their construction to be-
correct: who are to be the judges as to
when this election is to be he'd, certainly
the legislature, and if they have this
right they are as fully authorized to fix
its date at The next regular election as to
say it shall be held at any other time,
but, further than this to cover any such
possible contingency as an interregIium
in office. Art. 49, sec. II of the conStitu-
tion, provides that all officers shall hold |
until their successors are elected and |
qualified.
Suppose for the purposes of this com
that i admit the judged have
no authority to make the appointment |
Yet l question whether any good lawyer |
will doubt for moment but that the |
acts of their appOintee in the exercise of |
the functions of the Office as the officer |
Defacts, would be as legal as the acts of |
the officer DeJwee. Such has always
been he law. and such must be the law. |
in all countries where the administration
is constantly changing. to require of cit |
izen who is dealing with person exercis-
ing the functions of public office, to
inquire into the conStitutionality of his
appointment or election, would be an alb
solute farce. 1t is the policy of our gov
eminent, that its machinery should be
kept in continual motion, especially the |
judicial department. That the doors of |
our courts may be always open, otherwise
valuable rights may be ieapordised, or |
even lost, while we are specializing on the |
possibilities of legislative action. In the |
meantime we have a court without a !
clerk. LAWYER.