The Montgomery advertiser., 1905-01-11
BLOW TO FOLLOWERS
SUPREME COURT DECIDES MAREN- co COUNTY CASE.
Probate Judge ProweIl Must Reiin- Quish once to Mir. Hasty-De-
 cision May Affect Other Con- troversies over once.

yesterday. All ofthe SC judicial om- cers who were elected in 1898, and have refused to yield their ofices to their successors who were elected last November are no more.
 This came as the result offa decision of the Supreme Court yesterday affirm- ing the judgment of the Marengo Cir cult Court which awarded the office of probate judge of that county to A. l.. Nasty. the newly elected man, to whom past Judge S. P. Prowell refused his papers several weeks ago after he had qualified and had been commits. stoned by the Governor.
 The decision In favor of Judge Has ty may or may not be taken to apply to all the county officers and circuit solicitorships which are in doubt. These are, as Is well known, circuit solicitors. clerks of the circuit courts, county treasurers and county superin- tendents of education. The Supreme Court has before 1t cases which in- volve the final titles of these offices and 1t Is intimated that in a very few days separate decisions affecting all the offices besides probate judgeships will be handed down.
 The decision of the court yesterday which settled the ownership of the office of probate judge of Marengo County casts a gloomy futurity over the hopes of other old officers who are attempting to hold until August, Sep tember, October and November, 1905. There are so many general enuncia- tions of law in the opinion of Justice Simpson in the case of Prowell versus Nasty that 1t would seem the fate of the kindred old officers has been fore told.
 We hold" said Judge Simpson, ttfhat ha laori ial tfx,e intn tN the terms of office, notwithstanding the changes in the time of holding the elections, is so clear that the mere fact that two sections of the code, which belong to the old system when elections were held in August have been left without being specially re- pdiled, cannot operate to defeat the plain purpose of the constitution and laws as they now stand"
 The old sections of the code here re- ferred to are those upon which the officers elected in 1898, based their con- tentions for holding over. They pro- vide in short, that the cA,tain officers in question shall hold until the third of November next following the elec- tion of their successors. The new election statute simply changes the time of the election of the officers but contains nothing that specifically re- pealS the olQ sections.
 Justice Simpson puts a special con struction on the phrase. until his suc- cessor Is elected and qualified" saying that 1t does not in any case prolong a term beyond a reasonable time after the election to enable the newly elec- ted to qualify.
 ''The legislature did not intend" continues Judge Simpson, Ito extend terms of judges for a year and to pro- vide that the officer elected November 8. 1904. should not enter upon the du- ties of office for year after the elec- tion. There was a clear in- tention on the part of the constitution makers to fix the terms of office and without a very clear expression to that effect we will not not presume that the legislature intended to ex- tend the, term fixed by the constitution for another year when no reason has been suggested or can be imagined why such a thing shall be done.'
 The opinion of Justice Simpson puts the contention of the hold-over off, cers under the spectroscope, so to speak, of the constitutional law.
 "Section 15S, of the present consti- tution," says he, shows that a term should not be extended beyond tho limit fixed by the constitution, for it provides that, in case of a vacancy oc- curing, an appointment shall be made and that the appointee shall hold of- flee until the next general elec- tion.'" Now, under the construcs tion of the law as contended for by the appellant (Judge Prowell,) if he the person appointed in his stead could have held only until the next general election, and then there would have been a vacancy of a year with the man already elected by the people prohibited by the very law Of his election from assuming the duties of office to which he had been cleo. ted"
 Justice Simpson reminds the hold- overs that the question of the legisla- ture extending the terms of judicial officers is a very serious one. He quotes in his opinion a ruling of the New York Court of Appeals which throws light on the point as it allowsf If the legislature can by extending the term of such an office continue in 1t the holder Slereof one year 1t may for any number of years; and thus the duration of the term thereof may be perpetuated by the legislative power, and the people by one exercise of tho constitutional power of choosing cer- tain of their officers are ever after deprived of it."
 The opinion concludes: '"The act oE 1903, is a general revision of the elec- ton laws of the State. It Is an old and well-defined statutory construc- tion that a subsequent statute revis- ing the whole subject matter of former one and evidently intended as a substitute for it. although 1t contains no express words to that effect, must operate as a repeal of the former"
 Attorney General Massey Wilson was asked what application the decI. sion of the court has to the other offices which were in doubt besides that of probate judge.
 I think that the opinion recognizes the newly elected men in all the offices in doubt" he replied. But there is some question of its reaching the ap- pointlve County Superintendents of Education. In those cases where spe- cial acts have made the offices appoin- tive the chances are they are not aE. fected by the decision"
 State Superintendent of Education I. W. Hill was of the same opinion. He thinks the appointive superinten. dents are not touched by tho decision of the Supreme Court The lengths of terms of these officers vary and some of them did not expire last November.
 All of the county Superintendents of Education used to be appointive but most of them have become elective and 1t was thought that the general election law of the last leeis. lature made them all elective. This will most likely be decided in the caso before the Supreme Court wherein the l old Superintendent of Education of