Leachman v. Musgrove

45 Miss. 511

• Court: Mississippi Supreme Court
• Decided: October 15, 1871
• Status: Published

Opinion

Simrall, J. :

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 of-, A. D. 1868, he was appointed judge of the circuit court for the eighth district, by the commandant of the fourth military district, and that he continued to discharge its duties, until the 11th day of May, 1870, when, by the reorganization of the districts, the counties included in the eighth district were assigned to other districts. That his salary has been paid up to the 25th of March, but from that time to the 11th May, 1870, there is due him the sum of $321 45, for which the auditor refused to issue his warrant.

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 pertained to congress and not to the executive to prescribe the conditions upon which there should be a restoration of the state to federal relations. “The powers exercised by the president was supposed, doubtless, to be derived from his functions as commander-in-chief; so long as the war continued he might institute temporary government within insurgent districts, which would be considered provisional. ” Texas v. White, 7 Wall. The right to legislate in the premises was claimed to be derived from that clause of the constitution guaranteeing to each state a republican form of government. Not simply in the sense of institutions founded upon popular sovereignty, and a government administered by agents or representatives chosen by the people; but, in addition to this, a state in full and inseparable association with the other states in the union under the constitution, so that there may be a perpetual union of indestructible states ; the national government guarantees a perpetual preservation of the state in the union, whether as against domestic insurrection or foreign power.

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 their judgments and decrees may be executed, there must be the appropriate body of executive and ministerial officers.

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 disorder, confusion and sudden political change, to which reference may be made to hold society to its organization, and to which the rights of men, absolute, relative, and of property may be subordinated, which principle recognizes the incumbents of the retiring government as so far rightfully in place as to validate their official acts, until the incoming government declare otherwise. The officials oí the old government will be regarded as holding over at the sufferance of the new. Without title to the office, they shall nevertheless be respected and obeyed, and their acts are received as d e facto incumbents. Kimball, Raymond & Co. v. Alcorn, Fisher,

* and Cooper v. Moore, † are recent instances of the assertion of the principle in this court. Although the title to the office of circuit judge may have terminated on the day of the passage of the “admission act” by congress, yet all things done by them afterward (if otherwise rightfully done) are valid as official acts, so long as the incoming government suffered them to be incumbents of office. In the case of the contested mayoralty, reported in 19 Grattan, 672, arising out of the transition of Virginia from the military to the civil government, it is said “that the incumbents of office, at the time of an organic change of government continuing to hold over after such change (in the absence of a provision in the new constitution, or an act of the legislature of the new government) hold by sufferance only, and on a principle of public necessity or convenience.” It- was ruled by Chief Justice Chase, on the circuit in Woodson v. Fleck, 9 Am. L. Reg. N. S. 439, that the municipal authorities of Harrisonburg, elected under the insurgent government of Virginia, after the town had been captured by the United States. forces, and was in their possession, “ continued in being defacto, charged with the duty of maintaining order until suspended by the regular government.” The same principle was enforced by the supreme court of the United States in Cross v. Harrison, 16

How. 164. A military government had been established in California during the war with Mexico ; speaking of it, the court say: “The termination of the war left an existing government defacto. .This will continue with the presumed consent of congress until it shall provide for them a territorial government. * * * The great law of necessity justifies the conclusion.”

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.

It has been usual, therefore, when a charge is made in the organic law, to provide for officials then in place to continue in office, until their successors were brought in. This was attempted to be done in the sixth section of art. 12 of the constitution. The language, however, is not broad enough to include all the officers of the state. Nor was this necessary. The governor, auditor, treasurer, attorney-general, and secretary of state, were elected at the same time the constitution was ratified by the people, and were ready to enter upon their several functions, and did do so, the very moment the military government was withdrawn. The sixth section provides that the incumbents of all county, township, “district” and beat offices, shall hold their respective offices until their survivors ' are “legally appointed or elected,” and duly qualified. The proviso to the section is broader than the enumeration in the body of it. Those mentioned in the body hold until provision is made by the legislature for their election.

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 sixth section of the twelfth article was to enable the incumbents of state offices under the military rule, whose places were not filled by popular election, and whose services were absolutely necessary to the orderly administration of authority, to hold over, in order to avoid the evils of an interregnum. This manifest purpose' should be steadily kept in view, and that interpretation placed upon its language, if possible, which will accomplish the result. In 1 Story’s Com. 383, a principle of construction is stated, eminently wise and proper. “ The primary object of a constitution is harmonious order in the operations of the several departments of the government, and where the instrument is doubtful or not sufficiently specific in its provisions, we may safely conclude that it was not the intention of the framers to produce disorder and confusion.’ ’ Again, the commentator says: “If the design and object be clear, although the provisions be doubtful, we have a sure guide to a proper construction.” In 9 Wheat. 1, the court lays down the rule “that where the constitution is not entirely explicit in itself, and requires construction, it ought not to be so construed as to cripple the government and render it unequal to the objects for which it was instituted.” See, also, Cooper v. Moore, 44 Miss. If, therefore, it was doubtful whether a circuit judge was included in the term “district” officer, as used in the sixth section, I should feel altogether warranted, in accordance with these canons of interpretation, in order to give effect to the object aimed at, to hold that he was.

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., * * * so that the constitution kept in force the act quoted-. As to the result reached, it matters not whether the circuit judges hold over, under the sixth section of the constitution, or under the law of 1857.

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, and from that time his right to salary terminated. If, after that, he acted officially at chambers, while the thing done (if otherwise legal).would be valid, his claim for compensation would depend on the pleasure of the legislature.

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.

Tarbell, J., being interested in the question, takes no part in the decision.

Supra, p. 15Í.

44 Miss. 386.