The morning news. [volume] (Savannah, Ga.) 1887-1900, 1898-07-14
STANDS BY HIS OPINION
City Attorney Adams and the Fire |
Commission Case.


Commission Case.
ON account of the fact that there seems
to have been a divergence Of opinion
whether volunteering by civil officer IN
to the United States army for active serv-
ice vacated his office, and some have been
inclined to critfcise the action of the city
Council in declining to grant leave OF ap-
sence to Fire Commissioners Grayson and
Men. the views of the city attorney haV-
| ing been requested upon these questions
MIR. Adams has made the following state
ment;
I'm no event can Council be blamed be
| cause il was advised by its legal adviser
! that in his opinion Messrs. Grayson ana
| Nell vacated their offices by entering the
| military service of the United States ana
it was the duly of the Mayor and Council
| TO fill these appointments. If any mistake
| has been made therefore, 1t is his mis-
take. After carefully looking into the au-
| thorities, l see no reason to question the
| correctness of the conclusion reached by
| me. Under paragraph of section 229 OF
| the Code of Georgia, an office is vacated
| Gpso facto vacated by the incumbent
abandoning the Office or ceasins to per-
! form its duties" 1t would seem that when
| a man enters the active service or the
! government. and assumes an engagement
! which necessitates his absence from the
| city and destroys the possibility of his per-
! forming any of the duties of the office
! for an indefinite period, he at least ceases
| to perform its duties" Construction of
! this plain language ought not to be nee
| essary. Reading paragraph 4, of the same
| section, with paragraph of section 70, L
! think the conclusion would be that man
! holding a civil Office under the state or
! city might accept a local federal office,
which would only give a ground for de-
! clariug his first Office vacant, and that
| there are some cases where the Office
would be vacant only from the time that
| this vacancy Is properly declared. This is
true, because the holder of an Office, un
! der the state or municipality, could hold
| any one of a number of civil offices under
the government and could discharge the
duties of both efficiently and thoroughly.
| Instances of this character might easily
be cited but, if the acceptance of an Of
flee, or place of any kind under the gov
| eminent, like that of an officer In its ac-
tive military service, involves the aban-
| Comment of the first office, or the cessa-
ton of the performance of its duties,
then, under our statute, vacancy imme-
diately occurs.
without reference to the statute, It Is
a well settled principle, recognized by Mr..
Dillon In his work on municipal corpora
TONS and by all the teXt-writers and au-
thorities, so far as / can discover, that
the acceptance of a second office of any
kind, the duties of which are incompatible
with those of the first, ipso facto vacates
the first Office without the necessity of
any judgment or decision declaring such
vacancy, as completely as If the incum-
bent were to resign the first Office or were
to die. In dealing with this specific ques-
ton as to what is an abandonment of an
office, Mr. Dillon, (than whom there is no
| better authoritY)adoptS, with his approval
a decision of the Indiana court holding
that a voluntary enlistment by a civil
officer in the military service of the Uni
| ted States for three years, or during the
war, vacates the civil office, being con-
| structive resignation by abandonment"
| Il quote Mr.. Dillon's exact language and
| all other text writer's that deal with this
subject, so far as I can ascertain, adopt
the same view. The matter becomes the
more clear in view of the other clause
of our code which have quoted.
Learning from the public prints that
the city of Atlanta had given a leave of
absence to a member of one of its com
missions, l wrote to Its city attorney to
ascertain his view of the legal question
involved. In reply, Mr.. Anderson writes
that the matter had not been referred to
him, or his opinion asked, that this leave
had been granted in one case where the
commission had a good working majority
without the absent member, and that he
did not disagree with me as to what the
law was. In my letter l stated that had
come to the conclusion that the office was
ispo facto vacated by the incumbent en-
tering the army
Anxious to be set right If my opinion
l was erroneous, l also wrote to the attor-
ney general and have his reply. 1 asked
him for a copy of his opinion and for a
reference to the authorities which con-
duced to its formation. In his reply he
writes that he gave only an oral opinion
20 the Governor in o. conversation, and,
in the conclusion of his letter says:
while I have not fully Investigated the
, question raised In your letter l am rather
l inclined TO the opinion that the acceptance
of a commission in the volunteer forces
of the United States viii not bring an Of
ficer within paragraph of section 229 OF
the code" Chat which causes the office
! TO be vacated by an abandonment of the
office or ceasing to perform its duties)
but such an act upon the part of the
officer may be included within paragraph
4 of that section" which, in the cases
! there mentioned. provides, that the vacan-
! cy exists only from the time the fact is
ascertained and declared by the proper
tribunal 1t will be noted that the opn-
ion of the attorney general is very guard
eddy expressed. He cites no authorities
to sustain the inclination of his mind. If
; we accept, however, as the true law the
opinion TO which he seems inclined, then
S the only result would be that while the
{ entering of the army by the two fire
$ commissioners vacated the Office under
e the law, they remained officers until this
fact was determined by the proper tribu-
\ nal Under the local law establishing the
$ board of fire commissioners, II is the
duty of the Mayor and Council (the Mayor
! appointing and Council confirming 10 iii
! a vacancy within thirty days after AZ
exists. 1t may be. therefore, that there is
nothing in the idea TO which the attorney
e general seems to he inclined which is
= inconsistent with the course taken by
, | Council.
I IF Council had possessed a discretion to
. permit these two gentlemen to hold their
r Offices while absent indefinitely in the
z United States service. IL seems to me it
would have been obviously improper for
Council TO have granted such leaves of
absence. These two constituted a majori-
J " Of The board. and. under the act az.