The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1904-08-27
FULL OPINION OF
ATTORNEY GENERAL
Gives Reasons for Tenure of
Justices of Peace,
MAY RIGHTFULLY CONTINUE
Quotes Extensively to Sustain Position
Taken That Justices May Con-
tlnue until Successors Are
Elected or Qualified.
MAY RIGHIFULLY CONTINUE

Montgomery, August 26.-(Special.) 1.-The
following is the full text of the opinion
rendered by the attorney general on the
questions of tenure of justices of the
! peace:
Hon. R. NJ. Cunningham, Lieutenant and
Acting Governor, Capitol:
Dear Sir-I beg to acknowledge re-
ceipt of your recent letter asking that l
advise you whether or not the justices
of the peace now In office may continue
therein until their successors are elected
and qualified.
The constitution does not fix the term
of office of justices of the peace, but di-
reefs that the term of office of such
justice shall be provided for by law"
Constitution, 16s; constitution of 1875
article vi, sec. 26) In obedience to this
constitutional mandate the legislature
provided in the code of 1896 that two JUS
tees of the peace for each election pre-
clnct "shall be elected on the first Mon
day In August, 1900, and each fourth year
thereafter" Code 1b70; that justices Of
the peace shall hold office for four
years and until their successors are quail
flied" (code 265S); and that justices of the
peace shall hold their offices FOR the
term of four years from the first day OF
September next after their election, and
until their successors are elected and
qualified" (code 3O55). No election was
held for justices 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 Monday in
November, 1904. and every fourth year
thereafter general acts. 1903, pages 449-
50). Hence the successors of the incum-
bents of these offices Will not have been
elected. and cannot qualify until after
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 September, 1904, and until
their successors are elected and quail
ihed." AS above pointed out their sue
cessors will not have been elected and
qualified on the first day of September
next What effect, then, has the clause,
until their successors are elected and
qualified" found in the statute fixing the
term?
Not Decided BY Supreme Court.
In an opinion to the governor dated jan
uary 81 1908, | had occasion to discuss the
right of an officer whose term had ex-
pired to hold over by virture of a clause
Identical with that now under consider
dllO1, Ill WHICH L Sdid. too leiA 90 nav y
been able to ascertain the direct ques-
ton has never been decided by our own
supreme court. In at least two cases our
court says that under such circumstances
there Is a vacancy. The question, how
ever, was not directly involved, in the
decision of either of these cases, and the
court, should the question again arise,
might not feel bound to follow the die
tum OF those cases. In one of the cases
~ Oh rbfnf Tucftap Rtiplxal1
speaking for the court and referring .
the clause until his successor is duly
elected and Qualified says:
The manifest object of the clause is to
prevent misconstruction of the charter
possible If there was not express pro-
vision for the interval elapsing of neces-
sity between an election and the qualifi-
cation of the officer. This interval may
vary in length under particular circum-
stances; but 1t was never within the
legislative contemplation that under this
clause. an official term could be pro-
longed beyond 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 char
ter directs. This is the whole scope of the
clause; and so constituting 1t, harmonizes
the whole provision and effects the intent
of the legislature, that the term of office
shall be for two years and not of indefin-
lite duration" Montgomery VS. Hughes, 65
Ala, 201-7.
Reasoning of Decision.
The 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 decision was that the
sureties could not be presumed to have
contracted for the liability during the
term and also for indefinite time there
after, in case a successor should not
be elected and qualify. So the statement
by the court of the foregoing PROPOSE
ton could not be more than an Argument
at most, and is not the direct decision of
the question. In the case of Lane VS..
Kolb, 90 Ala. 636 on pages 6i5-655-656, the
court assumes as sound the statement in
Montgomery vs.. Hughes, but In that case,
as in the former case, the point was not
directly in issue. The courts in the other
states are divided on the question. The
weight of authority outside of Alabama
seems to be that If an officer is elected
for a given number of years and until
his successor is elected and qualified, IL
no election is held at the expiration of
his term there is no vacancy because
there is person remaining In office quail
flied to discharge the duties of the office.
Mecham on public officers, Sec 1888
and notes.
lnroop Oh puDHc oUlcers, sec. $50.
The state, ex. rel. Carson vs.. Harrison
1l3 Ind. 434.
People vs. Tilton 81 Cal 614.
Commonwealth VS.. Handey, 9 Pa. State
rep. 513.
Johnson vs. Wilson. 2 N II. 2O2.
State VS.. Howe, Is Am. Rep. (Ohio) 321
Parsons VS.. Edwards. % Pac. Rep. sSl.
There Is authority, however, in line
with the dictum found In the Alabama
cases. These cases hold that If no cleo
tion Is held or no successor qualities
within reasonable time there is a va
cancy in the Office
Robert VS.. Murphy, 10 So. Rep CFla)
705
State VS.. Thomas. 1o2 Mo. IS. 90
Attorney General VS.. Burnham, 81. N
H. 594.
II the justices of the peace now holding
office mad no other ground upon which
to rest claim to the right to their Of
fees for the time which will elapse be-
tween September l next and the cleo
| tion and qualification of their success
ors in November, 1t probably would be
safer to act upon the presumption that
they have no such right. That conclusion
would be In harmony with the expressed
understanding, If not the decision Of
our supreme court. But | think the fact
that the legislature repealed the law
which fixes the election at a date later