O'Leary v. Adler

Citations

• 51 Miss. 28

Syllabus

<p>1. Vacancies : Power of legislature to provide the mode of filling vacancies.</p> <p>The constitution permits the legislature to provide the mode of filling vacancies in office only when the mode is not provided for in the constitution. If the constitution declares the mode, that is a limitation or prohibition on the legislature not to adopt a different one.</p> <p>2. Same: Act of Ma/rch 5,1875.</p> <p>This act creates the office of city judge of Vicksburg, and provides, that until the next municipal election, the judge shall be appointed by the governor and the senate, and repeals all acts inconsistent with it. Held, that it must govern the mode of filling the office created by it.</p> <p>3. Same : See. 106, Code of 1871.</p> <p>This statute requires the concurrence of the senate to appointments to terms about to expire, and to all vacancies which happen during the session of the senate. Appointments in vacation are limited to vacancies which then happen from casualty, and vacancies which happen during the last five days of the senate which arise from contingency. The words “vacancy occurring during the last five days of the session,” imply that an incumbent has caused a vacancy by ceasing to hold the office, and does not include the idea of creating an office which never has had an incumbent, and construing the mere filling of the office as vacancy which has happened.</p> <p>4. Same : Case in judgment.</p> <p>The act creating the office of city judge, and providing the mode of filling the office, was approved March 5,1875. The senate adjourned March 6, 1875. On the 16th of March, 1875, the governor appointed a city judge of Vicksburg. Held, that the act creating the office provided the mode of filling it, and that the governor could not make an appointment to fill the office in the recess of the senate.</p>