The Montgomery advertiser., 1904-08-26
JUSTICES OF THE PEACE
 WILL CONTINUE IN OFFICE
Attorney General Wilson Holds That the Justices Will Hold Until Their Successors ar: Elected
 and Qualified in November.

In the opinion of Attorney General
 Massey Wilson the justices of the peace
 of Alabama whose terms expire Sep
 tember l will continue in their offices
 until their successors have been se-
 lected in the November election, and
 have qualified for the discharge of their duties.
 The opinion is an important one, i'm pcrtant not only to the justices of the peace, but to other officers whose terms expire September 1, and who are un- certain as to what course to pursue. The Attorney General alludes to the doubt that Is involved in the question. The Supreme Court of Alabama has lnever passed directly upon 1t. but af- ter reviewing the law and the author ities, the Attorney General says: T think that the justices now holding office 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 vir- tue of their former election, and the statutes above cited and to exercise the function of their offices they will at least be de facto officers, and their
 acts will be valid and binding so far
 as the public is concerned"
 The Attorney General holds, however,
 that the justices will have to execute
 new bonds for the performance of their
 duties until their successors have quail filed
 The opinion of the Attorney General
 fin full is as follows:
 Hon C.unoinRham JIeutenant
 and Acting Governor. Capitol:
 Dear Sir-I beg to acknowledge re-
 ceipt of your recent letter asking that
 I advise you whether or not the jus
 tices of the peace now in office may
 continue therein until their successors
 are elected and aualihet.
 The Constitution does not fix the
 term of office of justices of the peace.
 but directs that the term of office of
 ed by law" Constitution. 1888; Con-
 stitution of 1875. Art. VI, Sec. 2e.) In obedience to this constitutional man date the Legislature provided, in the code of 1896, that two justices of the peace for each election precinct, shall be elected on the first Monday in Au- gust, 1900, and each fourth year there-
 after" Code 1576). that justices of the peace shall hold office for four years. and until their successors are qualified" (Code 2658); and that jus- tices of the peace shall hold their of- fees flor the term of four years from the first day of September next after their election. and until their success ors are elected and qualified" Code 3055.) No election was held for jus tices of the peace on the first Monday in August, 1904. The Legislature had, before that date, changed the time of the election for justices of the peace from the first Monday in August to
 the first Tuesday after the first Mon-
 day in November, 1904. and every fourth
 year thereafter. General Acts 1903
 pages 449-45O.) Hence, successors of
 the incumbents of these offices will not
 have been elected, and cannot qualify
 until hfter the expiration of the fixed term of four years Under the statute above cited they are entitled to their offices until the first day of Septem- Der, 1904, and "until their successors are elected and qualified. ." As above pointed out their. successors will not have been elected and qualified on the first day of September next What ef- feet. then, has the clause. until their successors are elected and qualified" found in the statute fixing the term?
 In an opinion to the Governor dated January 3l. 1903, had occasion to discuss the right of an officer whose term had expired. to hold over by vir- tue of a clause identical with that now under consideration, in which I said: 50 far as I have been able to ascertain the direct question has never been decided by our Supreme Court In at least two cases our court says that under such circumstances there is a vacancy The question, however,
 
 cision of either of these cases, and the court, should the question again rise, might not feel bound to follow the dictum of these cases. In one of the cases referred to above, Chief Jus tice Brickell speaking for the court, and referring to the clause until his successor Is duly elected and qualified" says: The manifest object of the clause Is, to prevent a misconstruction of the charter. possible if there was not express provision for the interval elapsing of necessity between an cleo ton and the qualification of the off, cer. This interval may vary in length under particular circumstances; but it was never within the legislative con- that, under this clause, an official term could be prolonged be- yond a reasonable time for the newly elected officer to qualify. If for such time he failed to qualify. there would be a vacancy. to be filled as the charter directs. This is the whole scope of the clause: and so construing 1t, har- the whole provision, and ef- fleets the intent of the legislature. that the term of office shall be for two years nd not of indefinite duration.' V. Hughes, 65 Ala 201-7.
 Tse case from which this extract was taken was an action against the sureties on the official bond of an officer. and the reasoning of the de- cision was that the sureties could not be presumed to have contracted for the liability during the term and also for an indefinite time thereafter in case a successor should not be elected and qualify So the statement by the 1 court of the foregoing proposition | could not be more than an argument at most, and Is not the direct decision of the question. In the case of Lane V. Kolb, 92 Ala. 636, on pages 645- 655-656, the court assumes as sound the statement in Montgomery V | Hughes, but in that case, us in the | former case, the point was not directly l in issue. The courts in the other | states are divided on the question. The | weight of authority outside of Ala bama seems to be that if an officer Is | elected for a given number of years l and until his successor is elected and | qualified If no election is held at the l expiration of his term, there Is no va cancy because there is a person re- maining in office qualified to discharge | the duties of the office
 Mecham on Public Offices, sec. 12S-