Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1922-06-08
OPINION OF
JUDGE MONCURE
ON ELECTION
Holds no General Election
For Clerk Possible
By Law
AUTHORITIES QUOTED
Concluding Judge Says it IS Beyond
Jurisdiction of Court to Order an
Election.

The following is the opinion given
nv Judge Moncure in the petition
fleJ bv the law firm OF Cation and
Cation asking for q special election
November I for the purpose Of elect
mo clerk of the court for term
of eight years from February l.
1928.
In the matter of the petition OF
lanes X. Cation, Jr., and others
CnoIified voters of the city of Alex
andria. for an order directing a writ
of election 10 issue for an election
IN he held on the 7th day Of Novem-
her 1922. for the election OF a clerk
Of this court to fill the full term
commencing February l, l925.
The said petition coming on to De
beorj this Tth day of June, 1872, ana
being argued by counsel, upon con-
Sideration whereof, and it appearing
10 the court that y. ) Greenaway
was duly elected and qualified as
clerk Of this court for term OF
eight years beginning February J.
1918. and at the November, i9@l
election was elected 70 succeed him.
self Cor the term of eight years be
ginning February l, 1928, but never
qualified as such. and died on Aprll
3, 1922. and that this court ON MAY
=, 1922, appointed Elliott r. HON
man for the uneXpired term OF SAID
y. :. Greenaway and Cnth ms sue
ceSsor should he elected and quail
fed. as we'll as for any other vacancy
in said Office incident 20 the death OF
said y. s. Greenaway, and that SAID
Elliott +. Hoffman has within thirty
davs of his appointment dulv quail
flied in the manner required by law;
the court doth order That the prayer
0s said petition be ana the same Is
hereby denied. and that the ordr for
n writ of election TO issue directing
that an election be held on November
:. 1922, for the election of a clerk OF
this court to fill the full term of Of
flee of said clerk commencing Feb
ruarv |. 1923. be and the same Is
hereby refused,
And the court states reasons as
follows:
/. The order appointing said I'll
lott F. Hoffman clerk certainly COW
crs the residue Of the current uneX-
pired term to-wit: until February l,
1928. and the authority therefore is
clearly and exclusively within the
power of this court. This authority
is not disputed bv petitioners
(Code Va. Sec. 1876; Opinion Atty.
Gen. Va). Even if there were at the
date of the entry Of the appointment
order such vacancy (Which the court
does not consider as now or hereafter
existing under the law as herein
after set forth) in the new term be-
ginning February I. 1923, and run
ming for eight years thence next en-
suing. a contemplated In said See.
1876. which the court could appoint 20,
said Hoffman would hold same b.
virtue OF the language of the ar
pointing order. to-wit: "to fill all
vacancies i'm the said office Of clerk.
,. Should however the power Of
appointment in the court only eX-
tend TO the residue Of the current
meXpired germ. then the succession
or continuance is q matter or law,
dependent upon express conStitu
tional and statutory enactmcntS and
general common law and common
sense uriuciUleS.
A. Said Hoffman having been duly
appointed and qualified not only
holds and discharges the duties of his
office until February 1928. but
continues theroeftcr to DO so until
his successor has qualified. ICONS,
Va. Sec. 22' Code Va. Soc. 134: 0pin-
ion Attv. Gen Va: Common Law
Maxim "Nacarcv IN Office is ahhor-
rent Prirciplp Of common sense.
tn-wit: Thet the imnortant office Of
clerk intimately dealing with all
W0n'S affairs should at all times ho
filed by 4 competert public servant:
Chadduck V Rrrke Na. GQ4: Wavt V.
Glasgow 100 Va. 10. and authNri-
ties citod in each case: Hovt V. Met
cqfo IS y. F. 7&S. so Ohio St 94t-
State on rel Az. Gen Y. Speidel g.
Ohio St 1867
What RIGHTS then has p successor
70 qualify? The court deems. to-
wit: ONLY by virtue of a GIe legal an
pClUtmoCt Or election.
Is. The appointment so far as tn,
appointing order IS concerned has
been discussed N (D above. and rs
under (2-A above By automatic ON,
GRAFTON of law there is no vacancy
on rn@ after February | 1923. this
co'lrt ther necessarily has no ap-
poiNtivc Nn"er. and really could nor
make 2 new 2ppOiNtm"nt is II so de
s|CortsruoI -, D.. T.-lAN