Letter from George E. Harris to Mississippi Governor Adelbert Ames; January 24, 1876

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Letter from George E. Harris to Mississippi Governor Adelbert Ames; January 24, 1876

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Alcorn, J. L. (James Lusk), 1816-1894 Ames, Adelbert, 1835-1933 Brady, Unknown Buckingham, Unknown Fisher, E. S.Hadley, Unknown Halfacre, Unknown Harmon, Unknown Harris, George E. (George Emrick), 1827-1911 Howe, Unknown Hughes, Unknown Moss, H. K.Quitman, Unknown Rhodes, Travis Smith, Unknown Stafford, Unknown Vance, Unknown

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Legislation. Mississippi Legislation. Mississippi. An Act in relation to Circuit Courts (1870)Legislation. Mississippi. An act to provide for filling temporarily the various city, town, county district or other public offices in this State and other purposes (1870)Legislation. Mississippi. Revised Code of the Statute Laws of the State of Mississippi (1871)Political Office--Appointment to office Political Office--Resignation Political elections Political elections--Mississippi Voting

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Courts and Judicial Systems Courts and Judicial Systems--Circuit Courts Mississippi--Executive Department Mississippi--Judicial Districts Mississippi--Legislature Mississippi--Legislature. Senate Mississippi--Office of the Attorney General

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Mississippi--Hinds County. Jackson Mississippi--Holmes County. Howard Missouri--Independent City. Saint Louis

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[image: eagle with shield]
Van Beek, Barnard & Tinsley, Stationers, St. Louis.

Attorney General's Office,
JACKSON, MISS. Jany 24^th,, 1876

To his Excellency
Adelbert Ames
Governor of Miss.

Sir

Yours of the 22^nd,, to hand inclosing communication of Hon. E. S. Fisher for my opinion on the question presented therein. It is ^in^ the words and figures following to wit:

"Judge Vance who was appointed Judge early in June 1870, died sometime in July 1870. E S Fisher was appointed on the 23^rd,, day of July 1870, to fill said vacancy until the action of the Senate—Judge Fishers name having been sent by the Governor to the Senate, he was confirmed on the 14^th,, day of January 1871"

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"The question which I have the honor to sub-mit is—that my appointment on the 23^rd,, day of July 1870, was only to fill a tempora-ry vacancy until the meeting of the Senate and that when the appointment was confirmed by the Senate, it was confirmed for the term of six years from the Senates action, on the 14^th,, day of January 1871"

(Signed)

It will be seen that the appointment of Judge Fisher was made and that he was con-firmed prior to the adoption of the revised Code of 1871. It was made subsequent to the adoption of the present constitu-tion, and by virtue of the act of the Legis-lature approved April 20^th,, 1870. (see pamphlet acts of 1870, p. 150) It is entitled "an act to provide for filling temporarily the various city, town, county district or other public offices in this State and for other purposes" and provides for the appointment by the Governor of all the officers of the State

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not embraced expressly in the conveyance of the appointing power by the constitution. The appointment to be made by and with the consent of the Senate, if made when the Legislature shall be in session, and if made when the Senate is not in session, they shall be submitted by the Governor for confirmation within five days next after the commencement of the first session thereafter.

There are two important questions pre-sented. 1^st,, was the appointment made to fill the unexpired term of Judge Vance or was it for the full term of six years. and 2^nd,,—did the term of six years com-mence from the date of the appointment by the Governor, or did it commence from the date of the confirmation by the Senate.

1^st,, In the case of Smith v Halfacre 6^th,, Howard Miss. R. 582, It was held that when a judicial District was created by the Legislature, at such a time that the first election for Judge did not take—

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place at the regular Election. It was determined that the Judge held his office until the next regular general election for circuit Judges. This case arose in 1842 when the office of circuit Judge was filled by Election by the voters of the district

A later case is that of Hughes v Bucking-ham 6^th,, S. & M. 632. This was a contest for the clerkship of the Superior Court of Chancery in 1846, which office was filled by appointment by the chancellor by the Act of 1833, by act of same year the term of all offices not otherwise provided for was four years. Chancellor Quitman in organizing the court appointed H K Moss June 15^th 1833 for four years. Moss held the office about a year, and his successor was appointed for four years. The act of December 1833 having limited the term of Office to four years, Hadley was ap-pointed July 24^th,, 1834. The law failed to fix any time when the term of office

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should begin to run or when it should ter-minate. In that case the court say:

The term of four years relates to the incum-bent, not to the office. The office or the in-terest in it is not divided out into periods of four years each. each incumbent has an interest which may continue four years or it may be forfeited or abandoned sooner. A term by the common law does not signify merely a given time, but the estate or interest which the holder has in the thing held. The term therefore may expire during the continuance of the time. Let us suppose the Legislature clothed with power to dispose of this office and that it is first granted to. A. for the term of four years, and to B four years after A^s term shall have expired. A holds one year and resigns, does not B^s term immediately begin? certainly it does.

This case differs from the case of Smith v Halfacre in this. 1^st,, in the former case the commencement and end of the term was fixed, in the latter

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case it was not.—2^nd,, in the former it was filled by election, in the latter by appointment, 3^rd,,—In the former filled by election, for the sake of convenience it was necessary to preserve uniformity, in the latter this was not necessary, as the appointment could be made at any time with convenience.

Now in what particular does the case under consideration differ from the case of Hughes v Buckingham supra. Judge vance was appointed for a full term of six years and was confirmed. he served but a very short time and ~~was~~ died. Was Judge Fisher appointed for the balance of Judge Vance's unex-pired term, or was he appointed for a full term of six years? Neither the constitution or the act of the Legislature designate the the time when the office shall commence or end. Elective offices commence with the beginning of the politi-cal year for convenience, it is not neces-sarily so when the office is filled by—

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appointment and I am clearly of the opinion that this case comes within the rule in Hughes v Buckingham and that Judge Fisher was appointed for the full term of six years and not to fill the unexpired term of Judge Vance. This doctrine has been recognized by the Executive in the case of Chancellor Stafford—Chancellor Harmon was appointed in 1870 by Governor Alcorn and after holding the office for nearly two years, and resigned, and Chancellor Stafford was appointed for the full term of four years, and not for the unexpired term of Chancellor Harmon, and he is yet holding the office.

2^nd,,—Did the term of 6 years commence from the date of the appointment by the Governor, or did it commence from the date of the confirmation by the Senate?

The constitution Art. 6. Sec 11 provides, "The Judges of the Circuit Court shall be appointed by the Governor, with the advice and consent of the Senate, and shall hold their offices for the term of six years."

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The act of the Legislature approved April 20^th,, 1870 provides for the filling of vacancies temporarily as above cited, but the act approved April 22^nd,, 1870, two days later, entitled "an act in relation to circuit Courts" (acts of 1870, p. 66, Sec. 5.) provides among other things, "That a Judge shall be appointed for each District created by this act, whose term of office shall commence the day of the date of his commission and continue for the term prescribed by the constitu-tion." This amounts to the same thing as though it had said, Six years from the date of his appointment because no ^legal^ commission can issue until the Judge is legally appointed, thus the commission is only prima facia evidence of the fact of the appointment. But can the Governor appoint without the advice and consent of the Senate? He can designate, nominate, or rec-ommend, but the Senate must par-ticipate in the appointment, this the

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Senate does by the act of confirmation. In the case of Brady v Howe—50 Miss. 616. The Court says, "The appointing pow-er is placed in the hands of the Governor and the Senate. The ini^ti^ation, that is the selection of the person is with the Governor, but the appointment be with the advice and consent of the Senate. If there were no other provisions on the subject it would not be doubted that the appointment by the Governor alone would not confer a right to the office."

Apply this doctrine to the case of Judge Fisher and he surely had no right to the office ^except temporary^ until January 14^th,, 1871, and the only remaining question is this, did the act of confirmation January 14^th,, 1871, relate back to the appointment July 23^rd,, 1870? The appointment was temporary and the Governor had a clear right to have withheld his name and sent to the senate another name instead of his, and if his name was not sent to

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[seal]

the Senate his term would then expire, but the sending in of his name was a renewal of the appointment and for a ~~renewal of~~ full term of six years, and could not relate back. It requires the act of both the Governor and the Senate to appoint a Judge of the circuit court for a full term of six years. Where the action is had at different dates it must take effect from the date of the last act, because it is inoperative until that date, and could not relate back to the first act, except in some cases where two acts are necessary to complete a title to real estate, and where the the rights of third parties may have intervened, but never in the conferring of an office, and I am of the opinion that the term of office of Judge Fisher commenced on January 14^th,, 1871 for six years from that date.

Respfy &c

G. E. Harris
Atty Gen^l &c

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EXECUTIVE OFFICE,
STATE OF MISSISSIPPI,
Att'y. Gen'l. ~~County,~~

From Geo. E. Harris
Address Jackson Miss.
Dated Jan'y. 24, 1876
Received ^,, 24^,,"
Answered [gap]

SUBJECT:

As to right of Judge E. S. Fisher to hold his seat till Jan'y. 14^th,, 1877.

Opinion Favorable.

(Inclosures [gap] )

ADELBERT AMES,
Governor.

TRAVIS RHODES,
Private Secretary.