The Montgomery advertiser., 1904-11-01
IS TO PROBATE JUDGES
ArronNEx-GENERAL WRITES AZ
 I1GrOREANT OPINION.
osa Csunty Omesrs wfn Net Hsie over and Several of Then May
 Make Spirited Con- S teuts.

and Several oR Them May Make Spirited Con- | sgS testA. .@e
 Attorney-General Massey Wilson. for the State. has given it as his opinion that Judges of Probate now in once hold over until their successors are elected and qualified; that those judges elected November 6. next. will assume ofice as soon as they qualify. notwithstand- ing the new law says they are not to take over their offices on November 2, next after their elections. and that 1t will not be necessary for the judges who hold over for their successors to I qualify, to furnish new bonds for this | short time.
 This opinion was transmitted to oov- ernor Cunningham by Attoruey-Genera Wilson yesterday morning.
 That the old Judges must hold over ! untii their successors qualify Is oDvt' ous. In no other way could the ofFices l be continually administered. n 1t were not so stipulated in the old statute un- der which they were chosen. The time consumed to make bond and look after other details will probably force the old men to stay at their posts until late in November.
 The new officers will be elected Mo- vember 6, and cannot qualify for ten or fifteen days. The statute fixing the beginning of the terms declares that they shall begin November ,, next after their election. which would make. on a Jaw, the terms of the new men begin November :, 1904 Does this statute govern and postpone the right of the newly elected oficers to 1905? It does not, contends the Attorney General. because when that law was enacted. the election was held In Au- gust. It should be read as If It sail the term beginning on November srd next after the August election.
 The statute fixing the election in Au- gust was repealed by the more recent peaied law may be looked to In ascer. taining the meaning of the statute con- eernins the Beginning of the oficiaf term.
 Another reason for the position thus taken is that the Constitution fixes the terms Of ofice of Probate Judges and some other oficiais at six years. The Legislature could not extend thp term for twelve months. as would be the eff feet should 1t be held that the new term does not begin until November,
  Those officials who will hold over will not have to make bond for the ex- tended term because, In the eyes of the law, their old bonds hold over. This time is not regarded as other than of reasonable length to allow the new men to qualify, not extending likely over ten or fifteen days.
 A contrary conclusion was reached In the case of officers whose terms expire cS. A.- 4-A tz and one-half months. too long to force, to remain liable; hence new bonds are required of them.
 There is no certainty that all the of ficers affected by this opinion--Judges of Probate. Clerks of the Circuit Court, Circuit Judges and Chancellors--will abide by 1t. Tn fact, the contrary is anticipated. The Probate Judegship. in county like Jefferson. Is reported to be worth more than s25.ooo year, and the conclusion seems natural that Judge J. P. Stiles win not retire until he is fully satisfied that he is not with. in the rights of the law in staying in. It Is, as matter of fact. reported that Judge Stiles will make a light to hold over until November, 1s05. s.s It is also fairly we'll established that some of the Circuit Judicial officers will not retire without Q contest, In fact, Judge J. J. Ray of the Fourteenth Circuit has indicated his intention to fight for 1t in a letter printed in one of the Birmingham newspapers He sad 1t was hardly likely to presume that nearly 150 ofnceholdcrs affected by the position taken are going to step quiet ly out of year'st ineumbency simply on the word of the Attorney General.
 The full text of the opinion of the Attorney General is given below:
 'sTerm of once of Judges of Probate. Hon. R. M. Cunningham, Lieutenant
 and Acting Governor, Capitol:
 Dear Sir--In response to your re. quest, I beg to give you my opinion Of the following questions of law:
 "(I) May the Judges of Probate now in office rightfully continue therein af- ter the third day of November next, the date upon which the term of such ofil- cers will expire?
 "(2) When will the successors of such judges, who. are to be elected Mo- vember 8, next, be entitled to take charge of their offices?
 "(3) If the present judges may hold after November 3, will 1t be necessary for them to give new bonds?
 q will proceed to answer the fore- going questions in the order above
 
 "(1) The Judges of Probate now in ofice may rightfully hold during the Interim between the expiration of their term on November 3. and the time when their successors will be entitled to en- ter upon the discharge of the duties Of their ofices The reason for this con- cIusion and the authorities upon which is 1t based are given at length in an opinion to you relating to the term of Justices of the Peace. on the 24th day of August, last, and need not be repeated now.
 "(2) The term of Judges of Probate is defined in the Code to be six years from the 3rd day of November next after their election. and until their suc- cessors are elected and qualified. Code. 3054). The Judges of Probate now in ofice will have served six years on the 3rd day of November next, and their successors will have been elected on the Sth day of November next. and will have quaIined within short time thereafter. The two events will then have happened, upon the happening Of which the right of the incumbents to the offices was to terminate. they VIII have had their offices for six years, and successors will have been elected and qualified. But the new judges will not be elected till the sth day of November, and the Code declares that their term shall begin on the 3rd day of November | next after their election. The 3rd day | of November next after the sth day otI November. 1904 will be the Srd day ot l November, 1905. The question, then, Is. | will the new judges not be entitled to l
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