The morning news. [volume] (Savannah, Ga.) 1887-1900, 1898-07-07
SAID THERE WAS NO VACANCY.
GOV. ATKINSON REGARDS MIR.
WEST STILL A COMMISSIONER.

w. d. simultaneously Attorney
saussy Takes IA Different Ground.
Holds That the Acceptance Of "a
Commission, while It Does Not
Vacate an Office of Itself, Is an
Occasion for Declaring Vacancy.
Mr.. Lyons 10 BE sworn in rs n
Commissioner To-day.
Gov. ". Y. Atkinson has declined TO
issue a commission to Mr.. W. d. Simkins
as q. commissioner and ex-ohioio judge of
Chatham county to take the place vaca-
ted by Commissioner II Newell West ON
the ground that the acceptance of an Of
flee 10 the volunteer army of the United
States does not necessarily vacate a civil
Office
a letter was received from the Cover
nor yesterday morning stating this fact
and saying the commission could not be
issued under the circumstances, as no va
cancy existed. The letter was written on
the advice of Attorney General Joseph VI.
Terrell and upon its receipt Chairman J.
torney, Mr.. J. r. Saussy, who viii reply
to it.
The commission for Mr. John Lyons ar
rived however ana is at present i'm the
office of the ordinary. Mr.. Lyons was not
sworn in yesterday as Judge Hampton
L. Ferrin was out Of the city. Judge Fer
rill will be here to-day, however, and
Mr.. Lyons will take the oath of Office.
That will be necessary i'm order TO give
the board quorum as Mr. f. 5. Lathrop
has gone North, and Chairman Dale and
Commissioner Guckenheimer are the only
members here.
With regard to the case of Commission
er West the county attorney agrees with
the attorney general that the acceptance
of commission in the volunteer army of
the United States does not Immediately fof
itself vacate a civil office, but he holds
that under the code it is an occasion for
declaring vacancy whenever it becomes
necessary. The code distinctly says that
the acts of such a person while holding a
commission in the civil service are valid
as the acts of an officer de facto. In
other words until his official status is
determined his acts are valid as long as
he holds the commission. But the vacat-
ing of the office, Mr.. Saussy holds should
extend from the time that the fact is
judicially ascertained and declared by the
proper tribunal.
In case a civil officer moved to another
state and took UP his residence there, he
would of course, vacate his office; but
the holding of commission in the vol
unteer army IS not regarded as in any
wise a similar case. But the holding of
any office under the United States, except
that of postmaster, is sufficient cause for
vacating any civil office, Mr.. Saussy
says. The United States army is an
autocratic body so to speak. Its mem
bers act not in accordance with their own
volition, but are subject to orders to go
wherever they are sent. Under such cir
cumstances he is satisfied that there Is
occasion for declaring a vacancy as soon
as the fact of the acceptance of such a
commission is judicially ascertained
Pending the correspondence with regard
to the matter nothing can, of course. be
done. 1t is not known whether the Gov
ernor will stand by or recede from his
action, when the facts stated are brought
before him. A statement of the case viii
be sent 90 Atlanta, and it may be that
the matter viii be put in a different light,
but that remains to be seen.
The trouble is just now chat the COM
missloners stand in danger of being left
without a quorum for a month or two
and they are required by law to hold
regular monthly meetings Mr.. Lathrop
is away and Chairman Dale expects to
leave the city about the middle of this
month. This would leave only Commits
sioners Guckenheimer and Lyons in the
city, and il takes three to make a quorum.
The only chance now appears TO be In
getting the Governor to recede from his
position, or only one member of the board
can go away from the city at a time.