The Montgomery advertiser., 1904-08-26

Attorney Generai vs. BuThhah'
 H. 5e4.
 If the Justices of the peace now hold ing office had no other ground upon which to rest a claim to the right oi their offices for the time which VIII eiapse between September the iirst' next, and the election and quahfica- tion of their successors in November 1t probable would be safer to act upon the presumption that they have no such right. The conclusion would De in harmony with the expressed under standing, if not the decision of our Supreme Court. But think the fact that the legislature repealed the law
 which provided for the election Of successors before the first of Septem- Der. and enacted in its stead law which fixes the election at a date later 1 than that. is entitled to weight in the decision of the question. The legisla- ture made no provision for filling these offices during the intermin unless 1t extended by implication the terms of the incumbents. No express pro- vision is made thereof It seems that | the Governor would have no right to I appoint for this intervening time un- der his authority to fill vacancies, Such authority seems to extend only to cases in which a person has been elected for the term, and for some req son a vacancy occurs leaving an un- expired term: or, after m election to term A ere has been a failure to quail fly; or. after the expiration of the term there has been failure to elect at a general election for that purpose. (Code. 2659, 414S, 30S5.l
 Little vs. Foster. lao. Ala. 154; Fox ys. McDonald 101 Ala. 5l, and 6, H. N, 70-1
 It will thus be seen that if the term ends September first, next, the Gov ernor will have no authority to ap- point for the time intervening be- tween that date and the elction and qualification of successors in Novem- Der. A special electtSn might be held but construction should be avoided, if possible which would cause the public expense and inconvenience, which would result from a spe cial election, Ithink the statute which postpones the election of suc- cessors (considered in connection with the statute that the present officers shall hold till successors are elected ard qualified) extends, to that extent. the terms of the incumbents. It Is usually held that wyhere statute di- rects the legislature to prescribe an official term. and the legislature has enacted a law fixing the term. and an officer has been elected for the pre- scribed term, the legislature is power less to extend such term, as 1t would be to extend a term the length of which Is fixed in the Constitution itself.
 State vs. Arlington, IS Nev. 412. People vs. Bull. 46 N. Y. 57. Am Rep. 302.
 People vs Mckinney, 52 N. T., 347. tA1 TaJA State vs. Tallman, 24 Wash. 326. People vs. Randall, 151 N. r., 497
 People vs. Palmer. 154. N. r., 133. It was also been held, however, in many Jurisdictions. that while under such circumstances the legislature may not extend a term, still, it may change the date of election to suit the public convenience. or to avoid frequent elec tions, although such change may incl dentally result in the extension of the term, unless there Is something ap- parent upon the statute which indi- cates that the change In the date of the election was really for the purpose of extending the term, and not fixing In good faith. a convenient date for holding the election
 State vs. Ranson, 73 Mo- T8.
 State vs. McGovney 92 Mo. 42s
 Jordan vs. Bailey. 37 Minn., 174.
 State vs. Benedict. 15 Minn.. 198.
 Wilson vs. Clarke. 63 Kansas, 505.
 State vs. Anderson, GA Kan, 47.
 People vs Church, 6 Cal, 76.
 think the justices now holding of- flee may rightfully continue to exer- else the powers and duties thereof un- til the election and qualification of their successors.
 There is little risk that injury will result from following this course, even should my conclusion be erroneous If the incumbentS continue to hold by virtue of their former election, and the statutes above cited and to exer- else the functions of their offices, they will. at least, be de facto officers, and so far as the public is concerned.
 Cary vs. The State, 76 Ala, 7s, 6 h, n. S4-6
 You did not ask that I express an opinion as to which the term of the successors of the present officers will begin, and upon that question no opin- ion is expressed.
 The terms of these officers having been impliediy extended, they are within the Act Approved Sept F, 1903. General Acts 1903, page 23S) requir- Ing county officers whose terms have been extended to execute new bonds for such extended terms. The sureties on their present bonds will not be lin- ble for breach occurring after the expiration of the time within which. | under the old law. Code 2661, 3OsO. | New bonds should be filed and an- proved on or before the tenth day of l September. A failure to give such new bond will cause a vacancy.
 Very respectfully
 Massey Wilson,