Page:Federal Reporter, 1st Series, Volume 10.djvu/479

UNITED STATES V. JUSTICES OP liAUDERDALB COUNTI. 467 �the new constitution than under the old, for it could have been ap- plied as -well under the one as the other system of terms, and would have been just as wise. There is nothing in the constitutional pro- vision itself to indicate such a restriction, nor in the proceedings of the convention, and the mischief to be remedied cornes olearly within the words, and, I think, the spirit of the clause. It is also argued that the court should not assume an intention to abrogate the settled policy of the former statutes permitting unrestricted right of resigna- tion. But it may be remarked that the constitutional convention of 1870 was a reform convention, and the radical changes it made are evidenced throughout the whole instrument, particularly in this matter of ofifice tenure; and a constitutional convention is supposed to act ■with a purpose to cure existing evils and "with a f oresight of those that are possible. If it had intended to prevent the occurrence of the dis- organization of a county government, such as the product of this con- spiracy, it would have used the very language it has used. If it had intended to restrict the provision to officers whose terms had expired, it would have said ; "AU officers whose terms have expired shall hold their offices until their successors are elected or appointed and quali- fied;" but it does not say this. It says "every officer" shall so hold, and this includes those about to resign. He may resign and croate a vacancy sub modo which authorizes the election or appointment of a successor,but he cannot abandon his office until that successor is qual- ified. It is said this literalism would continue officers removed for crime, but this is not a reasonable construction. There is a para- mount public policy which would endure the mischief of an absolute vacancy rather than have ofifenders in office continue to discharge its duties. The removal statutes are penal in their nature, and come under the general principle that crime must be punished at all haz- ards. Hyde v. State, 52 Miss. 665; Allen v. State, 32 Ark. 241. �On the whole case, after a most careful consideration, I am thor- oughly satisfied, notwithstanding the strong conviction I had at first the other way, that, on principle, the proper construction of our con- stitution is that under this clause and the statute to give it efifect all officers resigning must continue to diseharge their officiai duties until their successors are elected and qualified. The case of Badger v. U. S. 93 U. S. 599, is a direct authority for this construction, and is conclusive here, in the absence of any contrary construc- tion by the supreme court of the state. Vide S. C. 6 Biss. 308. There are some cases which support a contrary view, as Olmsted v. ��� �