Reports of Civil and Criminal Cases Decided by the Court of Appeals of Kentucky, 1785-1951 Volume 3; V. 26
This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1832 edition. Excerpt: ... or in law, thcr- was no vacancy, the error is executive, and not judi Taylor cial. Tlie inferior courts have no power to remove Qmj"', their clerks. Taylor's removal from office has not. been attempted in this case. The county court has acted on the fact, or the assumption of the fact, that he was not in office. The court had the right to appoint H clerk, whenever it had no clerk. F determining that there was no clerk, and appointing o'ne, it acted in its executive, and not in its judicial character. The governor possesses the general appointing power. The courts have the special power of appointing their own clerks. Neither the governor nor a court can rightfully exerc ise the power of appointment to an office unless it be vacant; and if either should arrogate the power or exercise it through a mistake of law or fact, this court would have no more right to revise the error of the one, than that of the other. In neither case (as has been observed) is it material whether it he expressly declared or decided that the office was vacant, because by appointing a successor, it is, necessarily implied, that the appointing power had determined that there was a vacancy. Whether, therefore, the county court had simply appointed Talliaferro its clerk, or had, as a reason for appointing him, also first declared that Taylor had surrendered or forfeited the office, by the acceptance of another incompatible with it, the act of the court is, in legal effect, the same. Therefore, if Tavlor can maintain a writ of error to the order, declaring that he was not the clerk, he might 'yon rationed prosecute the like writ, to reverse the order appointing Talliaferro, clerk, or "lotidem verbis" that the office had become vacant. Talliaferro cannot be...
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