The Savannah morning news., 1901-03-05
SOME QUESTION 1T
LEGAL OPINIONS AS TO STATUS OF
TAX COLLECTOR NOT UNANIMOUS.
Mr.. BARROW STILL FIRM.
STANDS BY THE VIEW OF THE LAW
EXPRESSED IN HIS INTERVIEW.

Doesn't Believe MIR. Wells Has Any
Right to BE Representative From
This County in the General Assem-
bly, and at the Same Time Tax Col
Iector-A Section of the Code and
Its Construction the Basis of Argu-
ment-Does the Phrase either of
the several states" Include
GeoraIa-Mr. Wells Himself Rests
Easy in the Midst of Discussion.
The interview with Mr.. Pope Barrow,
which was printed in the Morning News
yesterday and in which the opinion was
expressed that Tax Collector David Wells
was now holding that office without war
rant of law, created considerable conster-
nation in the haunts OF the politicians.
Mr.. Barrows high standing in his pro
fession and the well-recognized value Of
his legal opinion gave weight to his ut
terances on this subject and revived the
doubt as to Mr. Wells right to be tax
collector and representative of the coun-
~ in the Legislature, which was enter
tanned at the time of his appointment
by the County Commissioners to the ad
interim term he is now serving.
The question depends, in Mr.. Barrow's
opinion, upon the construction of an en-
actment of the general assembly which IS
codifed as Section 223, of the Code of 1895
Mr.. Barrow himself entertans no doubt
whatever as TO the proper construction
of this section, and is convinced that the
statement made by him and published in
the Morning News correctly expresses Mr.
Wells legal status as tax collector of the
county. That statement was that MI
Wells was de facto officer, purely and
simply The section, so far as it relates
TO the subject under discussion, is as fol-
lows:
1.-THE following persons are held and
deemed ineligible to hold any civil office
in this state, and the existence of either
of the following states of facts is a suffi-
cient reason for vacating any office held
by such person. but the acts Of such per-
son, while holding a commission, are valid
as the acts of an officer de facto. viz:
Persons holding any office of profit or
trust under the government of the United
States (other than that of postmaster),
or of either of the several states, or of
any foreign state"
Mr. Barrow says that this means that
any person who is already holding an Of
flee of profit or trust under the state of
Georgia. which he thinks is included in
the phrase Either of the several
states" is ineligible to hold any other
civil Office in this state. Upon the con-
struction OF this phrase depend the rights
of the case. In this view Mr.. Barrow
is supported by the American and Eng
lish Encyclopedia of Law.
Other lawyers who were seen yesterday
do not agree with MIR. Barrow in his con-
struction 70 this section. They say that
it is intended to exclude from the right
to hold Office only those who already hold
office OF profit or trust under a govern
ment other than that of Georgia, and
that the phrase Either of the several
states" means the other states of the
Union, and not this one. These law
yers say that the general form and
structure of the section indicate that ii
is intended to cover those holding offices
under other states or governments and
that it has no reference to Georgia.
In Mr. Barrow's mind this view of the
law. creates a patent absurdity. IF it
we're the correct view he said, "a most
singular state of facts might well exist.
Suppose that the judge of the Superior
Court should resign his Office and the gov
ernor should appoint the judge of the City
Court to fill it. If Judge Norwood is en-
titled to hold two offices, why then when a
writ of certiorari from the City to the
Superior Court was granted he would have
a right, i'm one capacity. to pass upon the
legal sufficiency and propriety of his acts
done in another capacity. l don't believe
the law contains such an absurdity."
This is one phase of the situation. An
other possible question may be made by
If he Cn1a
that mo person shall hold, in any man
ner whatever, or be commissioned TO holl
at one time, more than one county Office,
except by special enactment of the Leg
slature heretofore or hereafter to be
made" For any strength that this sec
ton may have Il must depend upon the
designation of a legislator as "a county
officer. He is this in tie sense only that
he is elected by the people of the county,
but all of his powers and duties are eX-
erted in the enactment of laws for the
government of the entire state. Most of
the lawyers approached on the subject
did not attach much weight to this pro-
vision as affecting the status of Mr..
Wells
Mr.. Wells himself is not at all annoyed,
and throughout all the discussion on the
subject maintains the unrufied compos-
ure of his accustomed manner.
i am no lawyer ne SAID. ana i am
not going 10 get into dis
sion with a lawyer on this
subject. All / know is that law
yers, like doctors, sometimes differ, and
this appears to be one Of che cases upon
the rights of which they do not agree"
When asked il he intended TO resign,
Mr. Wells said he had reached no con-
cusion in the matter. but would probably
decide it within the next few days. 1t is
understood, OF course, that Mr.. Wells does
not care to keep the Office of representa-
tive. and that he continues TO hold il be-
cause OF what he esteems to be his duty
TO the public and his political and per-
sonsl friends. 1t may be that before the
election he will resign, in order to
remove the possibility of any an
noyance on the subject Even If
il should ultimately transpire that
the advice he has received. to the effect
that he has right 10 retain the office of
representative and al the same time be
a candidate for the Office of tax collector
states the law correctly the possibilities
of trouble would not vanish before that
positive decision had been rendered In
the meantime Mr.. Wells might have run
for tax collector. received "A majority OF
the votes cast and been declared elected,
and still have to face quo warranto pro-
ceedngs Instituted by his unsuccessful
opponent.
II he Is ineligible to hold the office Of
lax collector while he is still a represen-
tsiive, he cannot be elected to Ill It,
and even though he received a majority