Page:Federal Reporter, 1st Series, Volume 10.djvu/478

 466 FBDBEAl BEPOBTBE. �election to be held in 10 days, no steps have been taken for many months to supply the county with these officers se necessary to exe- cute the laws. Muoh bas been said in argument about provisions made toturnthe books and papers over to the nearest justice. That is beside the question ; beeause, while the six or seven remaining jus- tices in this county may suESce to discharge the judicial duties, no provision is made to prevent a disorganization of the county by this conspiracy of the magistrates, the sheriff, and no doubt the people of the county, to avoid the levying of this tax, although it results in leaving all other duties belonging to the coanty court in its minis- terial capacity undischarged. �It is a paralysis of this governmental agency, and, if permitted to continue, destroys it effectually. I am unable to see why a construc- tion of the constitution should be adopted whieh allows this mischief to prevail, when the other would effectually remedy it, for the mere purpose of securing to officers unrestricted liberty to surrender their offices at will, or why this freedom of the citizen should be secured at the expense of so great a calamity to the public good. The case cornes veitoin the letter and spirit of the constitutional provision, and the mischief is clearly within the remediai effieacy of the clause. It is a presumption of law that the convention saw the evil of the for- mer policy of unrestricted resignations, and desired to restore the rule of the common law for the public good, that no officer shall aban- don the discharge of his duties until his successor bas been elected or appointed and qualifled. It is a wise provision, one within the power of the state to make, and the courts are required to liberally construe it in favor of the remedy and to prevent the mischief. Cooley, Const. Lim. (4th Ed.) 71, 72, 74, 75, 79; Story, Const. §^ 800, 401; Sedgwick, Stat. & Const, Law, 859, 491. The leg- islature has given tnis constitutional provision effect by enacting a statute in totidem verbis. Act 1870, c. 23, § 7, (T. & S. Code, § 825^.) It is verj strenuously argued that this provision was only intended to apply to officers whose terms had expired, and to accom- modate the change made by the constitution of 1870 in the tenureof offices. Under the construction of the old constitution, when a va- cancy occurred the person elected to fill it held for a full and not an unexpired term, while the new constitution abrogates that construc- tion, and gives fixed terms of office, which expire at the completion of the term, whe'her held by the original incumbent or one supplied to fill a vacancy. T. & S. Code, 109, note a. There is no appar- ent reason why the clause we are construing was more needed under ��� �