44 Miss. 808 | Miss. | 1870
This was an application by Murray Peyton, to the judge of the circuit court of Hinds county, for the first district thereof, for a manclmius to compel Edwin W. Oabaniss, chancellor of said county, to fix the penalty of his bond as clerk of said chancery court, and to approve the sureties therein.
The petition alleges that on or about the second day of April, A. D., 1871, Samuel Donnell, who was then the lawful clerk of the chancery court of said county, departed this life, and that on the 7th day of April, A. D. 1871, the said office being then vacant by reason of the death of the said Samuel Donnell, the said Oabaniss, as chancellor as aforesaid, appointed George Donnell, of sai'd county, clerk of said chancery court to fill said vacancy, and to perform the duties of said office of clerk of said court, until a successor should be elected and qualified according to law; which said appointment was so made under a supposed authority, vested in said chancellor by the IBfch section of the act of the legislature, approved May the 4th, 1870.
The petition further alleges that after the said George Donnell had been so appointed, and had qualified and taken possession of said office, and was in the performance of the
The defendant in his return to the alternative mandamus, avers that by virtue of the said act of May 4th, 1870, the said office of clerk being vacant, by the death of the incumbent thereof, he, as chancellor of said county, appointed one George Donnell clerk of said court, to hold his office until his successor should be duly elected and qualified, and that said Donnell gave the bond required by law, and took the proper oath of office, and was duly installed in the office of clerk of the chancery court of said county, and was, at the time of the pretended appointment of the petitioner, performing the duties of the said office under said appointment, and the respondent avers that there was no vacancy in said office at the time of the alleged appointment of the petitioner, nor was there any right or power in the governor and senate, under the laws of the land, to appoint the petitioner to office aforesaid. Whereupon the court refused the peremptory mandamus at the costs of the petitioner, who brings the case to this court by writ of error.
The 6th section of the 12th article of the constitution provides that the term of office of all county, township, and precinct officers shall expire within thirty days after the constitution shall have been ratified, and the governor shall, by and with the advice and consent of the senate, thereafter appoint such officers, whose term of office shall continue until the legislature shall provide by law for an election of said officers. When these county offices are filled by the appointment of the governor, in conjunction with the senate, his power in this respect is exhausted under the constitution. And if the governor possesses the power- to fill any vacancy that may occur in any of these offices after he has once
And in pursuance of these provisions of the constitution, the legislature passed an act April 20, 1870, by which the governor is authorized and empowered to fill, by appointment, all vacancies that may then exist, or that may thereafter occur in the public offices of any city, town, county or district of this state, or in any other public office not embraced expressly in the conveyance of the appointing power by the constitution. And that in all the cases in which he shall have the power under this act, by the terms of the constitution. to appoint to office, he shall also have the power of removal from office. The power of removal is limited to the power of appointment, and the governor would have nr» power to remove the incumbent from any of these county offices unless he had the power to fill the vacancy thus created.
The governor undoubtedly had the right to make the appointment of the clerk of the chancery court of Hinds county, under this act, unless it is repealed by the 18th section of the act of May 4, 1870, which provides that should the office of clerk of the chancery court become vacant, or the clerk thereof become unable or refuse to perform any of the duties required of him, the chancellor may appoint a clerk to perform the duties of said office until said clerk may be able to perform the same, or a successor be elected and qualified. This contemplates two contingencies. Upon the happening of either of which, the chancellor is authorized
It will be readily perceived that these statutes, so far as relates to the appointment of the clerk of the chancery court, conflict with each other; and in such case the rule is, that a subsequent statute may repeal a prior one, not only by express provision to that effect, but by necessary implication, and every statute is a repeal by implication of a precedent statute, so far as it is contrary thereto for leges •posteriores ‘priores abrogtmt. 1 Steph. Com., 76. *
But this is to be understood only when the matter of the latter statute is so clearly repugnant that it necessarily implies a negative. And this, we think, is the case here. If we are correct in the view we have taken in this case, that the latter statute repealed by implication the prior statute, so far as respects the appointment of the clerk of the chancery court, and that the subsequent statute conferred full power and authority on the chancellor to appoint the present incumbent to that office, it follows as a necessary consequence, that the subsequent appointment of the petitioner to the same office by the governor and senate is null and void.
The judgment of the court below is, therefore, affirmed.
