Letter from Mississippi Attorney General T. J. Wharton to Mississippi Governor Charles Clark; November 14, 1864

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Letter from Mississippi Attorney General T. J. Wharton to Mississippi Governor Charles Clark; November 14, 1864

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Clark, Charles, 1811-1877 Wharton, Thomas J.

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Appointment to office Collecting of accounts Crime Criminal Procedure--Convicted Criminal Procedure--Indictments Default (Finance)Mississippi. Legislation Mississippi. Legislation. Chapter XLIV (1861)Mississippi. Legislation. Revised Code of the Statute Laws of the State of Mississippi (1857)Political elections Taxation Taxation--Mississippi Trial United States. Constitution

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[seal]

Attorney General Office
Jackson, Nov^r. 14^th 1864

His Exy Char Clark,

Governor,

Y^r. fav. of the 9^th. inst. by rea-son of delay of mails did not reach me until Saturday night. I despond at the earliest man out after having examined the questions submitted.

You inform me that many Sherriffs in the State, who were reelected at the special elections last month now in de-fault in payment of taxes due to the State. that such default existed prior to their reelection, and you inquire of me—

1^st. Can commissions issued to the parties when the parities is known to you that they were in default at the time of election—

2^nd Are the votes given for these Parties to be counted, or all not the parties, next present on the poll to the commission—

3. Should a new election be ordered by the Pres^t. B^d. Police, or in case of his vacancy, &ifso, before 1^st Jany—

4. In case of new elections & no man elected do the parties hold on after the 1^st Jany.

5. When Shff acted as returning officer and is reelected, does this [initiate?] his election—Can he be commisioned on his own return

6^th When a party, other than the Sheriff held the election can he be commisioned on his own return, if elected Sheriff, or have other office—

You call my attention in considering the questions propounded, to the later clause of Art.112 Page 20 of the Code, which is as follows, "No person shall be eligible to the office of Sheriff who shall have held the office for the two next proceding terms; & who shall at the time of the election Is a defaulter to the State, or any County thereof, & to the United States"—

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So much of said clause as many Sheriffs ineligable after two terms is repealed by act of Nov. 23. 1861— See acts 1861 p 84—There is much other legislation upon the subject, & the mbrs of construction require that all, in Pari Materia,be consid—ered together. The law has prescribed the time within which Sher-iffs or tax collectors shall pay into the State Treasury taxes collected— & the penalty for failure to comply. It imposes thirty per cent dam-ages, which may be unitted, or certificates of the Governor & Attorney General that the delay was not willful or avoidable—The Auditor is, moreover, required to notify the District Attorney, of the proper district, of the failure, & to furnish him a statement of the amt due, & the Dis^t. Att^o. shall for^th^with institute Code p 85 Art^s. 59—60—He is also required to within thirty days after the time when the returning of taxes are to be made to his office, to furnish the Governor a list of all in default, with the amount of taxes due for each, & the Governor may, therefore, upon such defaultry for office, & notify the Board Police on Code 72—Art 8—who may appoint a collector, until the vacancy is filled—It is also provided that if any State or County officer shall be found by inquest to be an idiot, lunatic ^&c during the period for which he is elected, or be found guilty of felony, or any infa-mous crime, corruption, or predations in office, or shall be re-moved from office by the Senator of any County of competent jurisdic-tion, the office held by him shall be thereof vacated &c—

Code page 95. Art. 24—

It is further provided that if any public officer in this State shall be convicted, on any indictment for malconduct as misdemeanor in office, the County ~~may~~shall, in addition to such

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other punishment as may be punished, adjudge that the defendant be removed from office, & the office of such person shall be therof rendered vacant—Code p 138 Art 198— the whole scope of legislation, considered in the light of the Constitution which secures the right of trial by jury, and declares that no man shall be deprived of life, liberty or property but by due course of law, leads me to the conclu-sion that the summary power of removal from office by the Governor in the cases refered ^to^ upon the simple report of the auditor that they had failed to pay over the taxes within the time required by law, does not exist.

Consider by itself the clause quoted for Art 8 p 72— would seem to rest in the Governor a discretionary power of rem-oval. It is certainly qualified by the other papers I have gatherd. Standing alone, It would be repayment to the enlightened and liberal principles of the Constitution, to which I have referd to above. This consideration would incline me, if the doubt existing, or growing out of the legislation when the sub-ject was not as strong as it is, to the opinion, that only the fact when ascertained by judicial decision that the Sheriff was a defaulter could oust him of his office. A man has an estate, or property in an office for the law for which he was elected. I think he must be deprived of it—just as of any other property—by due course of law—

When ever that, by Art^s. 59—60, page 85— of the same Chapter, the the Governer & Att^o. Gen^l. may remit the damages imposed by law for a failure to settle with the Auditor within the time required, when they are satisfied that the delay was not affected.

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and when not they remitted, although they are specif-ic, and are entered up by the Auditor, they can only be collected by suit or the bond of the Collector against myself and security. Now this last Statute must certainly be construed as a limitation or modifica-tion of the first—for if the damages can be re-mitted then there is no pretense to any that the Governor may at once forward to remove them from office, when the Auditor sends you his report. Who determines the fact of disqualification? I main-tain that it can only be determined in a direct pro-ceeding against the Sheriff before a Court of competent jurisdiction.

The Statute against dwelling disfranchising all per-sons concerned—principals, seconds, surgeons?, advising &c & declare that they shall be incapable of holding or being elected to any part of power, prospect &c under the Constitu-tion and laws of this State, & their appointment to any office, & all votes given to any such Juror for any office are de-clared illegal, and that no such votes shall be taken or Counted—Yit the fact that the party was concerned in a [duel?] must be judicially acertained.

It cannot be aproved by the Sheriff heading the election that he had been so engaged, and all votes polled for him be rejected.

So here. Although the law imposes that he cant [?]—[?] for failure to pay over taxes within the time pre—scirbed, & makes it the imperative duty of the Auditor to write them up, no exceptionscan infere against the de-faulting Sheriff. Why, for the reason that it is not an judicial decision.

For these reasons, I do not think you can aford to issue commissions, on the ground that the persons elec-ted to the offices are known to you to be defaultory: unless the fact be made known to you by sentences of a court of competent jurisdictions.

This view of the 1^st makes it unnecessry to consider the 2^d. 3^d. and 4^th interrogations proposed by you In answer to the 5^th I remark, that the law has provided that when the Sheriff is a candidate,

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or shall not attend the election he shall sum-mon the Coroner, or some justice of the peace of the County, who shall act as witnessing officer, & shall appoint deputies for the several precincts, & perform all the duties enjoined by law upon the Sheriff: Code page 91—Art. 4—It is further pro-vided by Art. 13—that the returning officers of the several precincts shall within two days after the vote shall have been counted, deliver to the return–ing officer of the County, a statement of the whole number of votes given for each person, & shall, within ten days after the day of said election, deliver a certif-icate of his election to the Juror having the ^~~[?]~~greatest number of votes, &c.

Your question does not suggest whether the Sheriff relected had Candidatcy—that is the candition expressed in the Statute. If they were not, they had the right, and it was their duty to act as returning officers. A person may be elected to, without being a Candidate for an office. The Statute has not said that even when he is a candidate, acting as returning officer would [initiate?] the election, if he should be re elected. It has forbidden him so to act, & has said who shall be appointed, but is silent as to the effect of a fail-ure to present the Statute. Inclined to think in such ^case^ ever. (I mean where he was a Candidate—acted as returning officer, & was re elected) The election would be voidable only. I think the Statute is directory as to the mode &^c. This will suply an answer to your 6^th which supposes the care of another than the Sheriff holding the election—within he can be commissioned on his own return, if elected Sheriff, or to any other office That is a case entirely outside of the Statute—is a [causes?][omi?]—[sus?]. I do not think, for any reason Stated in the interrogatory, you could aford to issue the com-mission.

I am, Governor,
Your Obt Sev't

T J Wharton

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T.J. Wharton Esq
Atty Gen
Nov '64

Opinion as to Elections—