The leader. [volume] (Brookhaven, Miss.) 1895-1905, 1900-05-16

Tue IlrculC court OF Lincoln County
in said judicial district, and is unlaw.
fully holding and exercising functions
Of the judge of the court; wherefore,
the Attorney General prays that the
said Robert Powell may be removed
from the office and debarred from ex-
ercislng the functions thereof, and
that he be ordered to deliver over all
records, books and papers in his Gus
tody or under his control belonging to
said office.
Gen. McClurg prefaced his filing of
the above instrument with an oral
statement; saying that the proceedings
about to be taken were not to be con-
strued in any sense as personally
prejudicial to Judge Powell or his
record as judge, but that they were
taken simply in order to test the con
stitutionality of the elective judiciary
amendment and as the shortest cut to
attain that end. He added that while
he was not authorized to speak for the
Governor, he was certain, even if the
case should be decided by the court
adversely to Judge Powell, that Gov.
Longino would promptly reappoint
him as his own successor
In answer to the information filed by
the Attorney General, Mr.. Thompson,
defendants counsel, filed a written
plea, which fully sets forth the legal
points and facts involved in the con.
troversy. In doing so he stated that
Judge Powell would never have con.
sented to such a constitutional test of
his title to the office of judge had Gov.
Longino seen fit to appoint another as
his successor.
Judge Robert Powells answer was,
in part, as follows:
defendant was, on the Goth day of
January, 1900, duly appointed by the
Governor of the State to the office of
judge of the Circuit Court for the
Seventh Circuit Court District of said
State, of which district and State this
defendant was a resident and qualified
elector, and he was then and had been
for more than five years next preceding
a practicing lawyer Of this State, and
had then attained the age of twenty-siX
years and possessed all the qualifica-
tions for accepting and holding said
office, and the said county of Lincoln
is embraced in and forms a part of
said district, and defendant was so
appointed for the full and complete
terms of four years from said date;
and the said appointment of this de-
fendant to said Office was at once, on
said Doth day of January, 1900, by the
Governor of this state, submitted to
the Senate of the Legislature of this
State, then In session, for contirma-
ton, or rejection, or refusal to confirm,
and the Senate did, on said day, Jan.
~, 1900, confirm and approve of de-
a Mt fn
office, and thereupoD, on the same day,
duly notified the Governor of its con-
firmation and approval of said appoint
ment.
Defendant further shows that the
pretended amendment, or amendments,
Of the State Constitution, known as the
Noel amendment, or amendments,
printed in the volume entitled, Laws
of Mississippi-lS9S,' and therein de-
nominated section l45,' did not and
could not affect this defendants right
to hold said office, because he says;
The concurrent resolution proposing
said amendment or amendments en-
braced more than one, several, pro-
posed amendments to the Constitution
of the State, all of which were submit
ted to the qualified voters of the State
at one and the same time and at one
and the same election, and they were
not submitted in such manner and
form that the people might or could
vote for or against each amendment
separately; but they were submitted
in such manner and form that the
voters were compelled to vote for all
of them or none, against all of them or
none. or not vote at all directly, either
for or against any or all of them; and
even when so submitted at the election
held in November, 1899, they, or, if but
one, it, did not receive majority of
the qualified electors voting at said
election; they, or if but one, il, received
only 21, ,l69 votes in the entire State,
while there was cast for the Office of
Governor at said election the full num-
ber of 4S,370 votes, and there were cast
against said proposed amendment or
amendments 9643 votes; large num-
bers of the qualified electors of the
State who voted at said election for
Governor and other State, district,
county and county district offices, did
not vote directly either for or against
the said proposed amendment or
amendments, but whose votes, not
being for it or them, should be counted
as if voted expressly against it or them,
and the majority of the electors
voting at said election did not vote for
the said proposed changes, alterations,
amendment or amendments.
THAT the Legislature of the State
did not take any action or pretend in
any way to insert the said supposed
amendment or amendments as part
of the Constitution of the State until
the Goth day of January, 1900, after the
appointment, confirmation and com
missioning of this defendant as afore-
said, and after the defendant had
qualified and entered upon the dis.
charge of the duties of the said office
now held by him.
"This the defendant is ready to YER
ify"
The following is the full text of the
constitutional amendment tor amend
ments) the validity of which Judge
Poweh's plea denies:
"Strike out of the constitution
sections Nos. l45, 149, 15l, 152 and 153
thereof, and insert in lieu thereof the
following:
Section 145. The Supreme Court
shall consist of three judges, any two
of whom, when convened, shall form
quorum. The Legislature shall divide
the State into three Supreme Court
districts and into convenient circuit
and chancery court districts. The
terms of the offices of judges of Circuit
Courts and chancellors shall be four
years, and of judges of the Supreme
Court eight years, and judge shall
be elected from each supreme and
circuit court district, and a chancellor
from each chancery district, at time
the same manner, as far as applicable,
as provided for election of State
officers. The Legislature shall enact
laws providing that the present su-
preme judges shall hold for their regu-
larly appointed terms and provide that
thereafter, except in elections to fill
vacancies, as near one-half as praetica-
BILE of the judges of the Supreme Court