Cooper v. Moore

Simrall, J.:

Judgment was rendered March 31, 1870, against the appellant, in the circuit court of Choctaw county, the presiding judge being an appointee of the late military commandant of this district.

It is assigned for error that judgment is void, and, therefore, the injunction restraining its execution, ought to have been made perpetual.

The objection made in the bill is that, upon the'adoption of the constitution, the functions of the circuit judges then in office by the military appointment, immediately ceased, and all their judicial acts are null and void.

The constitution was adopted in convention, May 15,1868, ratified by the people the 1st of December, 1869, and accepted and approved by congress, the 23d February, 1870.

The constitution makes no express provision in respect to any officers, except those enumerated in section 6 of arti-tle 12. These are county, township and precinct officers, whose terms shall expire thirty days after the ratification of the constitution. Thereafter, the governor shall appoint such officers, with consent of the senate; provided, that such officers shall hold their offices until successors are appointed. District officers are enumerated in the proviso, though not specified in the first clause of the section. If the circuit judge be embraced in the term “ district officers,” then, very surely, by the letter of the constitution, he holds office until displaced by his successor.

It should be borne in mind, by all called upon in any official position, to construe the constitution, that it was framed as an instrument of government, to organize society under authority, and that must be the truest interpretation, which best harmonizes with its design, its object, and its general structure. 1 Story’s Com., 445. Government is a practical thing, made for the happiness of mankind, that liberty, *391 industry and its- fruits, and property, protected by law, may be enjoyed. Primarily, then, we look to tbe constitution, its nature and design, its scope and general scheme, as apparent, from the structure of the instrument, received as a whole, and also in its component parts. Contemporary history may be resorted to as furnishing aid to interpretation. When the test is susceptible of two interpretations, that should be resorted to which is most consonant with the obj ecte and intent of the constitution; that which will give efficacy and force as a government, rather than that which impairs its operations, and reduces it to imbecility. All of its parts are to be taken together, and that interpretation given, which agrees with the general scheme or plan developed. Where the instrument is not entirely explicit in itself, and requires construction, it should not be so construed as to cripple the government, and render it unequal to the objects for which it is declared to be instituted.

The preamble recites, “To the end that justice be established, public order maintained, and liberty perpetuated, etc., we the people do ordain this constitution.” It would be most remarkable, therefore, that such construction should be given to the instrument, as for a time, would leave no tribunal where justice was administered, and law had an interpreter, or means to repress disorder. Looking to the actual condition of affairs, we find a state government organized under the constitution, to take the place of an anomalous government, at the head of which was a military commandant. There was, however, a judiciary administering justice according to law. Unless compelled by the very text of a positive provision, an interpretation, which would produce for a time, an interregnum, a cessation of authority in these departments especially which are, or ought to be, perpetually in existence, in readiness to interpose in behalf of “justice and order, and liberty” should, if possible, be avoided.

It is plainly inferable, that other officers, not enumerated án the 8th section of art. 12, were intended to continue in *392 office until some practical provision was made by law, for others to discharge their functions. The judges in office by appointment of the military commandant, would remain in office until the legislature should organize the districts, and a way be opened for the induction of the new judicial system. Some parts of the constitution was operative propria vigore, from the date it Avent into effect. Such are most, if not all, the provisions of the'bill of rights. Other parts required legislation, to provide the machinery by and through which its provisions could be made effective. The chancery courts is an example of this. These courts could not be organized without legislation districting the state.

There is another aspect of the subject which is conclusive against the case made in the bill. It is a very ancient and salutary principle of the common law, where a person claims to hold an office, his title shall not come in question in an action to which he is not a party; but while he holds the office defacto, his acts and doings therein will be deemed good. 7 Bacon Ab., 283; Fowler v. Bebee, 9 Mass., 231; Justices of Jefferson v. Clark, 1 Monroe, 86; ex parte Bolman, 4 Cranch, 75 ; People v. Collins, 7 Johns., 549 ; McKein v. Somers, 2 Penn., 269 ; 2 Kent’s Com., 330.

Art. 109, Rev. Code, 138, is declaratory of the common law. This makes valid, official acts in so far as third persons are interested therein, or affected thereby, whether such person be lawfully entitled to hold such office, or whether lawfully qualified or not. For the usurpation, or unlawful holding, or exercising its functions without lawful right, the person may be dealt with, and punished at the suit of the state. Such a rule is essential to the repose of society, .and the orderly administration of the functions of public authority. It were impossible, for any practical good, to administer any department or sub-division of the state government, if, at every exertion of authority, the functionary could be chai-lenged to produce the evidence of his right to the office, and the question oould be made of his title thereto.

The incumbent cannot be impeached collaterally and indi- *393 reotly; if he is in-possession of the office, discharging its ordinary functions, his official acts are conclusive as to all persons interested or affected by them. If he is a usurper in possession without right, the state, whose authority he abuses, can move directly for his ejection and punishment.

Where a statute makes void the official acts of persons who have not been duly appointed or qualified, the courts have so pronounced, as in Shelby v. Alcorn, 36 Miss., 292 ; McNutt v. Lancaster, 9 S. & M., 570 . It was doubtless from the great inconvenience and evil pronounced by such rulings, that the Revised statute introduced the principle above quoted.

In McNutt v. Lancaster, a defaulting tax-collector was released from liability on his bond, because he had not taken the oath of office.

The decree of the chancellor is reversed, and decree here sustaining demurrer and dismissing the bill.