Letter from Mississippi State Attorney General George E. Harris to Mississippi Governor Adelbert Ames; March 15, 1875

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Letter from Mississippi State Attorney General George E. Harris to Mississippi Governor Adelbert Ames; March 15, 1875

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People

Ames, Adelbert, 1835-1933 Brady, Unknown Harris, G. E.Osborn, I. N.Shadd, J. D.West, O. F.

Events

Legislation Legislation. Mississippi Political Office--Appointment to office Political Office--Removal from office Political Office--Resignation Political elections Political elections--Mississippi Voting

Organizations

Courts and Judicial Systems Courts and Judicial Systems--Chancery Courts Courts and Judicial Systems--Circuit Courts Mississippi--Executive Department Mississippi--High Court of Errors and Appeals Mississippi--Legislature Mississippi--Legislature. House of Representatives Mississippi--Office of the Attorney General

Businesses

Publishers and Printers Publishers and Printers--Van Beek, Barnard & Tinsley, Stationers (Saint Louis, Mo.)

Occupations

Clerks Judges Mayors Politicians Secretaries

Places

Mississippi--Hinds County. Jackson Mississippi--Tate County Mississippi--Warren County. Vicksburg Missouri--Independent City. Saint Louis

Page 1

[seal]

Office of Attorney General
Jackson Miss. Mch. 15, 1875

To his Excellency
Adelbert Ames
Govr. of Miss.

Sir:

I am in receipt of your communication of this date, inclosing the application of J. D. Shadd for appointment to the office of City judge for the city of Vicksburg and asking my opinion "as to his eligibility to said office, he having been a member of the Legislature, when the act passed creating said office. The act refered to, approved March 5, 1875. Sec 5. provides "That the said judge of the city court be and he is hereby appointed by the govenor, with the concurrence of the senator. to continue in Said office until the

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next general election for Said city which offices shall be there elected by the qualified voters of Said City" There is some peculiar phraseology employed in the framing of this Section, "be and he is hereby ap =pointed by the govenor," but the widest intention of the legislature, was, to confer upon the governor the appointing power.

Again the 6th Section provides that the act shall " take effect after its passage." and we are left to con =jecture when and how long "after its passage" but we are to presence that this was an omission of the words "from and "and that the legislature intended it to take effect "from and after its passage." J.D. Shadd was a member of the legislature and speaker of the House of Representatives at the time of the passage of the act creating the office refered to. The act revives the office of city Judge

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of the City of Vicksburg. This office had formerly existed, but was abolished by the act of March 28, 1874 which act confered the duties and powers of the city Judge upon the mayor of the city. The Act of March 5, 1875, revives, or creates anew. the said office. [gap] The constitution of this State Art. IV. Sec. 38. provides that "No Senator or representative, during the time for which he was elected, Shall be appointed to any office of profit under this state which shall have been created or the involvements of which have been increased during the time Such Senator or representative was in office except to such offices as may be filled by an election of the people."

J. D. Shadd was elected representative from Warren County at the general election in November 1873 his time of office commenced on the first Monday of Janry 1874. for two years, and will terminate on the

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first Monday of Janurary 1876. He is now in office and his resignation would not alter the case under the provisions of our constitution, above cited. This question was adjudicated by our Supreme court in the recent case of Brady Dist. Atty Ex rel vs. O. F. West not yet reported in that case O. F. West was a member of the House of Representatives when the act was passed creating the County of Tate, the act provided that the same person could hold the offices of clerk of the chancery and circuit courts and that the Governor should appoint to fill the office until the next general election, as in this case. [gap] The Governor appointed O. F. West to the office before the expiration of the time for which he was elected a representative. An action of [gus?] warrants was brought and prosecuted against him, to oust him from the office and the court held under these facts.

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That the defendant under the 38 Section of 4 Article of the Constitution, was at the time of his appointment incapacitated to hold the office."

But it further appearing, that the time of office for which he had been elected as a representative had expired before the suit was brought ^that^ he was then elligible to the office yet this worked a for=feirture under his appointment it being void ab initio having been made before the expiration of his time of office as a representative. This decision shows that there was a vancy in the office by reason of his incapacity at the time of his appointment but the court say he is now eligible and your excellency reappointed him. [gap] This case is paralel in every particular. Here is an office created by the Legislature to be filled by appointment, A member of the House of rerepresentatives applies for the appointment, and that too,

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"during the time from which he was elected" [gap] There is nothing clearer in my mind than that J. D. Shadd is incapacitated and can not hold the office during the time for which he was elected a representative and as in West's case, he will remain under that incapacity until the 1st Monday of Janry 1876 even though he might resign the office he now holds

Very Respectfully

G. E. Harris
Attorney General

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[image: eagle holding a shield with the American flag on it]
Van Beck, Barnard & Tinsley, Stationers St. Louis.

STATE OF MISSISSIPPI,
Executive Office
Jackson, Miss. March 15^th 1875

To His Excellency
Adelbert Ames
Governor

Sir

I have the honor to apply for the appointment of City Judge for the City of Vicksburg and respectfully present the enclosed petition

Very Truly Yours &c

J. D. Shadd

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EXECUTIVE OFFICE,
STATE OF MISSISSIPPI.
Hinds County.

From Geo. E Harris
Address Jackson
Dated Mar. 15" /75.
Received _{" "}
Answered [gap]

SUBJECT:

Official opinion as to the eligibil-ity of J.D. Shadd to hold the office of city judge for the City of Vicksburg

ADELBERT AMES,
Governor.

I. N. OSBORN
Private Secretary.