Letter from Mississippi Attorney General T. J. Wharton to Mississippi Governor Charles Clark; May 30, 1864

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or appointed under the constitution and laws of the State can only be claimed by those holding such offices or appoint-ments at the time they were enrolled—if not at the passage of the act of Congress under which the such exemption is claimed.

In answering this, I have anticipated your 2^d. interrogatory, which is directed to the particular case of Mr Ragsdale—his enrollment, as already shown, having been made two months, prior to the pas-sage of the act under which he claims exemption.

You refer me to your proclamation of the 2^d. April, & ask me to con-sider his case as affected by that. If his enrollment—occurring be-fore the passage of that act—operates to deprive him of the exemptions contained it it, by parity of reasoning, it would deprive him of the benefit of a proclamation defining what class of officers would be [?] in those exemptions. To make the case still strong-er—suppose that deputy Sheriff had been specially included in the class of exempts, the exemption could have [?] back, & [?] a party who was liable to, & had been actually enrolled under a previous law—containing no such exemption.

Your 3^d. interogatory is not [?] in any thing I have said or the 7^th & 2^d. You inquired what remedy can be applied in case of above of the appointing persons?

Of course, I understand the question as directed to the action of the Sheriff, in appointing deputies under your proclamation of 2^d April last. That proclamation does not undertake to restrict Sheriffs in the number of deputies they are authorized to appoint. It recites the statute of the State—(Code [?] 122. Art. 115—which pro-vides that "every Sheriff shall have power to appoint one or more deputies, & to remove them at his pleasure." The Same Statute makes all Sheriffs liable for the acts of their deputies.

Th introgatory under consideration empels me to consider the policy, & the proper construction of the Statute cited. For if it should ap-pear that it was enacted in reference to the condition of the country at the date of its passage, & in view of the ordinary routine of duties presented

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by law for Sheriffs, & that its favors did not contemplate a different condition of the Country, & different duties to be performed by the deputies when appointed under it from them indicated in your proclamation, then the appoint-ment of a [?] number of deputies I have the ordinary duties prescribed by law for Sheriff to perform—would be obnoxious to the objection that such appointments were violation both of the spirit, & intent of the Statute, & also of the clause in the act of Congress of 17^th Feby 1864, which exempts such other State officers as the Governor may certify and necessary to a proper administration of the State Government. That statute was originally enacted June 15. 1822. Sec [Poindexter?]—Code [?] 250, Sec 6—& was reenacted in the Revised Code of 1857—[?] 122 Art. 115—

It is clear to my mind, from the Whole Statute defining the duties of Sheriffs, from which the [?] Article is taken, that the Legislature was prescribing a law for the government of the Sheriff, as a Civil officer in the execution of legal process, & as a Conservator of the peace. Hence they are required to keep the peace in their Counties by the arrest of all offenders against the penal laws—also "to quell & suppress all affrays, sects, rowdys, & unlawful asemblages, for which end they shall be empowered to call to their aid, the power of the Country. He shall also pursue apprehend & commit to jail all persons charged with treason, felo-ny, or other crimes." In the performance of those duties heis authorized to appoint "one or more deputies". The country was in a state of pro-found peace when that Statute was passed. Their power, as conser-vators of the peace were to be exorcised in the apprehension of of-fenders against the laws of the State. In the discharge of those du-ties they were authorized, if resistance was made or threatened, to call to their aid the power of the Counties—in the form of a posse, not as regular deputies.

The restrictive language of the statute—one or more—negating the idea that any large number was comtemplated.

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One or twenty five, or, one or fifty would not seem to come within the preview of the Statute.

Your proclamation of the 9^th May last states that "all State & County officers, & others exempt from military service should form mili-tary companies, & prepare for home defence". "All officers, agents & others capable of baring arms, will, when I have the power, be re-moved, unless they attach themselves to, & serve in, such companies for home defence, & to aid in the enforcement of the laws."

Here are duties [?] to those prescribed by the Statute for Deputies Sheriff, & Deputies are authorized to perform all acts requi-red of their principals. It cannot be maintained that the latter can be responsible for the acts of their deputies when those acts are outside of the duties imposed by law upon themselves. This will suffice as to the con-struction of the statute. I think it as clear that Congress, in the act of 17^th. Feby. 1864, by the words such "other state officers or the Governor of the respective States may certify " &c, had reference to the same condition of things as I have indicated above led to the enactment of the Statute in relation to the appointment of deputy Sherriffs. As to protection against the enemy now waging war against us, & to any foreign enemy invading the country, our reliance must be upon military organization proper, either by the Confederate Government, or the Government of the States, in the mode presented by law.

There views have pressed themselves upon my mind. I have ventured with great diffidence to express this, as they obviously conflict with them entertained, & acted upon by your Excellency, in issuing your proclamation of 2^d. April & 9^th May.

When, therefore, I under take to answer the question "What remedy can be applied, in case of the above of the appointing power" by Sheriff, under these proclamations, I can furnish, because I think neither the statute nor the act of Congress, alon cited, authorized or contemplated ^the appointment^ of deputies in the manner and for the purposes specified in these proclamations.

I think the "one or more deputies," referred to in the Statute, means

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so many, and no more, as may be necessary to aid the Sheriffs in the performance of the duties prescribed by law—I have already specified what is the character of those duties.

If however, I am mistaken in this view, I do not see where the power resides to correct the writ, as the statute is express "Every Sheriff shall have power to appoint one or more deputies, and to remove them at his pleasure. The power of appointment & removal is a matter of discretion with himself purely. It also makes him liable for the acts of his deputies. Of course necessary such as are within the presented routine of his official duties. He would not be responsible for any act of his deputies outside of that routine.

Observing the acts laid down in your proclamation of 9^th. May, the writs resulting from an above by the Sheriff of the appointment of deputies may be at least restrained. Let all such appointments be disregarded, when made after the parties have been enrolled I must not be understood by this, however, to admit this authority to appoint deputies for any other purpose, or to clothe them with any other power than those properly per-taining to the office, and the duties thereof, as presented by law, I have excused all reasonable bounds in this connection. My apology will be forced in the intrinsic importance of the subject, & the necessity which exists for placing in the ranks of the army all who can possibly be spared from public office and industrial pursuits.

As I differ with your Excellency in some of the views here-in expressed, I have felt it incumbent upon me to address such arguments as have brought my mind to the conclusions thus stated.

I am, Governor, Very Respy Yrs, T J Wharton Atto. Genl of Missⁱ.

Att. Gen—Opinion on Exemption of State Officers