45 Miss. 511 | Miss. | 1871
Robert Leaehman instituted suit by mandamus against the auditor of public accounts, having for its object the issuance of a warrant on the treasurer, for a balance claimed to be due him as judge of the eighth judicial district.
The relator states in his petition, that, on the-day
The auditor, in his response, states that the relator “had declined or neglected to take the oath prescribed by the act of congress of 23d February, 1870, for the admission of the state to representation in congress.” And further, that by an act of the legislature of 20th April, 1870, in relation to circuit courts, the said eighth district was abolished; and with it the office of judge of that district.
The circuit court awarded a peremptory mandamus for so much of the salary claimed as accrued between the 25th March and 22d of April inclusive. From which judgment both parties have prosecuted a writ of error.
The right of the relator to recover salary depends upon the solution of the question, when his title to the office terminated.
The act declaratory that the state has conformed to the requirements of congress, by the adoption of a constitution acceptable to that body, and that senators and representatives should be admitted to their seats, was passed on the 23d of February, 1870.
The fifth section of the first of the series of the reconstruction laws, passed 2d March, 1867, among other things, declared in effect, that when the state shall have complied with the conditions, and declared entitled to representation in congress, then the military government shall cease and become inoperative. The state government then in existence was declared to be illegal, so declared, doubtless, because the law-making department maintained that it per
If, therefore, either by domestic or foreign war, the federal relations of the state should be for a time interrupted and broken up, the national government is under obligation to do whatever may be necessary and proper to restore the state and her people to their normal place in the union.
While congress declared the state government brought into existence in 1865, under the proclamation of the executive, to be illegal, it did not undertake to abolish it; but continued it, provisionally subject, as announced in the law, to the paramount authority of congress, and subject also to- the military authority. The scope of these laws clearly indicates the purpose to continue the machinery and functionaries of the state government as an instrumentality, by which the civil rights, both of persons and property, should be conserved and protected. Mainly, was the judiciary to be looked to to administer both civil and criminal justice. The courts were to be kept open as aforetime, to judge the people according to the law of the land ; and that
The re-construction laws meant to deal with the political relations, more especially, of the people and the state; their policy was a re-construction of the institutions and fundamental law, upon a basis adapted to the new conditions of society, wrought by the war.
But society in its civil and domestic relations was to be as little disturbed as possible. Business, occupations, trade and commerce were to go on; transfers of property were to be made in the mode and according to the formula of law. Necessarily there would be marriages, births, deaths, testacies and intestacies, creditors and debtors. Congress designed that 'these great interests and relations, which constitute the cohesive and constituent elements of organized society, should be left under the protection and regulation of the laws already in force. Therefore the state government, with its magistracy, in all the departments of administration was to remain provisionally subject to the authority of the military commandant to remove and appoint its officers at pleasure. This state government would retire contemporaneously with the withdrawal of the military authority, and that time would arrive so soon as the new government was inaugurated. It is absolutely necessary, when one government succeeds another, that there should be no vacuum, no interregnum, otherwise, for a time, there might be an absence of authority, resolving society into a condition of chaos and anarchy.
The military government and the provisional state government, as an adjunct to it, expired oii the 23d of February, 1870. It would follow that the title of every appointee of the military commandant to office would on that day expire, unless competent authority had made provision for their continuance until the complete installment of the new government. Bat there is a principle of the common law, having its foundation in the fitness of things, resting upon the necessity of some authority, .especially in times of dis
In Griffin v. Cunningham, and Washington, Georgetown and Alexandria R. R. Co. v. Washington and Alexandria R. R. Co., 20 Gratt. 31, it was held that the judgments rendered by the court of appeals of Virginia, under military appointment, after their right to office had expired, and after the military government had been withdrawn, were valid, on the ground that from the necessity they were de facto incumbents.
It is never to be supposed, when one government is retiring, and another taking its place, that there shall be an interval of time, when there will be no magistracy to discharge the functions of administration. To displace all officers, and withdraw all authority, would uproot the foundations of society, and entail upon it untold evils. The mind cannot compass the manifold mischiefs, present and prospective, which would ensue if the theory should prevail, that between the 23d of February, 1870, when the military government was superseded, and the several periods when the magistracy, under the new state governments, were installed in their places, there were no officers in many of the most important departments ; there would be ho judge to deliver from false imprisonment, or to order a provisional and remedial writ; no justice of the peace to issue a warrant; no sheriff to arrest a felon; no jailor to receive him; no magistrate to take the acknowledgment of deeds or record them ; no clerk to keep the public records, to issue a marriage license ; no person to celebrate the marriage rite. Indeed, the ligaments which hold society together would for a time be broken, and life, liberty and property would not be under the protection and guaranty of law.
The proviso embraces “district” offices in addition to those previously named. The incumbents hold until successors are legally appointed or elected. The district attorney is included in the proviso, he takes office by election. There are no others, who could be said to hold by appointment, except the circuit court judges. The thirteenth section of the constitution of 1832, art. 4, declares that the circuit judges shall be elected by the qualified electors of each judicial “ district.” The thirteenth article directs the state to be divided into convenient “ districts.” This sixth article of the present constitution describes the offices therein referred to, “territorially” as “county,” “beat,” “district,” etc. It is obvious that the sheriff, clerks of the court, and probate judge come under the description of county officers ; would it do any violence to the language that circuit judges may as well be embraced in the term “district” office, as the prosecuting attorney for the state. In the supervisor’s case decided at last term it was said, that the district attorney was of that class of officers. The obvious intention of the
The chief justice is of opinion, that the circuit judges are not embraced in the sixth section of the twelfth article of the constitution; but that provision is made for holding over by art. 183, p. 136, Code of 1857, which declares that the term of all officers not otherwise provided for by law shall be limited to four years, “and until the successor therein shall be duly qualified.” Aided by section second of schedule, which continues in force all laws not repugnant to the constitution, except certain specified acts, etc., * * *
On the 22d April, 1870, the legislature passed a law apportioning the counties into fifteen districts, which took effect from and after its passage. The relator was appointed judge of the eighth district, as organized by the Rev. Code of 1857. Not a single county embraced in that district is included in the eighth district under the statute of 1870, but all these are assigned to either the first or second districts. The fourth section of this act transfers all pending and undecided causes to the circuit courts of the several counties as created by the act. The effect of this law was to abolish the district of which the relator was judge. Circuit courts could no longer be held in the counties, as prescribed by the Code of 1857. The relator in fact ceased to be judge of the circuit court of the eighth district.
There can be no such office as that of circuit judge without a district. Circuit courts as arranged and provided for in the ten districts by the law of 1857, were repealed by the law of 1870, creating fifteen districts, arranging them into territory and appointing different times for holding the courts. The military commandant assigned the relator to the district as established in .1857, when that district was repealed and its territory divided between districts one and, two. It could not be properly said that the relator was circuit judge for the eighth district.
The claim to salary is preferred under the state law. The statute proposes to compensate the judge for services rendered in holding the terms of his court in the several counties of his district. His duties at chambers are few, and are incident to his office. When, therefore, the new government took from him his district, and made it impossible for him to discharge the important functions of circuit judge, his right to the salary ceased also. It was such legislation as dispensed with his services as circuit judge,
We do not think that it was incumbent on military appointees to take the oath prescribed by the second section of the act of congress, 23d February, 1870. The terms of the act evidently make it applicable “to members of the legislature before taking or assuming their seats, or before the officers of said state shall enter upon the duties of his office;” limiting it to those functionaries assuming office under the constitution recently adopted.
The provision does not apply to officers of military appointment who might hold over under the sufferance and permission of the incoming government. Nor was there reason that it should. Military appointees were required to take the oath of office prescribed by the act of 1862,- which was more stringent than this, and which many persons, accepting office under the constitution, could not take.
We affirm the decree.
Supra, p. 15Í.