Stonestreet v. Harrison

• Decision Date: 25 May 1824
• Citation: 15 Ky. 161
• Parties: Stonestreet v. Harrison.
• Court: Kentucky Court of Appeals

15 Ky. 161

Stonestreet v. Harrison.

Court of Appeals of Kentucky.

May 25, 1824

FROM THE CLARK CIRCUIT COURT, THE HON. GEORGE SHANNON SOLE JUDGE.

HANSON for plaintiff

CRITTENDEN SHARP, BARRY and TRIPLETT for defendant.

OPINION

BOYLE CH. J.

During the September term, 1823, of the circuit court for Montgomery county, the office of clerk of that court became vacant, by the resignation of the former incumbent, and Harrison, the defendant in error, having produced a certificate from the judges of the court of appeals, of his qualification, was appointed to the office by an order of the court " pro tempore, to wit, until the second day of the next March term." He thereupon took the oaths of office and executed bond, as required by law, and continued to hold the office and discharge its duties, until the second day of the next March term, when the court made an order appointing Stonestreet to the office during good behaviour, he having produced to the court a certificate from the judges of the court of appeals, of his qualification, and Stonestreet thereupon took the oaths of office and executed bond as required by law, and has continued since to discharge the duties of the office and to receive the fees therefor. To recover these fees Harrison, claiming a right to the office brought this suit against Stonestreet; and on an agreed case comprising among others, the foregoing facts, the court below gave judgment for Harrison, to reverse which, Stonestreet prosecutes this writ of error.

A person producing a certificate from the court of appeals, of his qualification as a clerk, and appointed by a court, clerk pro tempore, to wit, until the 2d day of the next March term is entitled to hold the office during good behaviour.

As each party claims the clerkship in virtue of his appointment, the main question is, which of the two is entitled to the office.

An appointment of another, on the 2d day of the next term, is illegal.

On the part of Harrison, it is contended that a court has no power, under the constitution, to appoint a person clerk pro tempore, who produces a certificate of his qualification; that he, having produced to the court, when he was appointed, the requisite certificate of his qualification, his appointment conferred upon him a right to hold the office during good behaviour, and that the limitation annexed to the appointment is unconstitutional and void. On the contrary, it is urged on the part of Stonestreet, that a court may, at its discretion, constitutionally make an appointment pro tempore, of one who produces a certificate of his qualification, as well as of one who has no such certificate; and that the limitation annexed to the appointment of Harrison, is notwithstanding the production of his certificate, constitutional and valid.

In support of these conflicting positions, both parties appeal to the 10th section of the 4th article of the constitution, and upon the proper construction of that, the controversy principally depends. That section declares, that " each court shall appoint its own clerk, who shall hold his office during good behaviour; but no person shall be appointed clerk, only pro tempore, who shall not produce to the court appointing him, a certificate from a majority of the judges of the court of appeals, that he had been examined by their clerk in their presence, and under their direction, and that they judge him to be well qualified to execute the office of clerk, to any court of the same dignity with that for which he offers himself." The section then provides, that clerks shall be removable for breach of good behaviour, by the court of appeals only, and requires two thirds of the members to concur in the sentence.

Had this section stopped at the end of the first clause, and the constitution had contained no other provision upon the subject, there would have been no difficulty in the case. The first member of that clause, gives to each court an unlimited power to appoint its own clerk; but it confers no further power. And the second member of the clause, fixes the tenure of office, by declaring, that the person who is appointed " shall hold his office during good behaviour." Upon the supposition just mentioned, therefore, it is...