The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-04-30


to nass the enabling net does not at all de-
mend unon that section, and that all the
discussion about whether there was q va
cancv or not in these offices, and whether
the Legislature has right, first to create
ard then to fill q vacancy, Is wholly BESIDE
the question we now have to decide.
f., Whatever power these officer may nave
had to continue to discharge the duties OF
their offices until otherwise provided by
law, we are clearly OF opinion that it was
competent for the Legislature to terminate
their power, whether it was derived from
common law principles, as WAS argued, or
any otherwise, except under the Constltu-
ton of the United States or of this State,
under neither Of which do we think they
have any power.
The State upon her reSdmission to repre-
sentation in Congress on the Goth of Janu-
arv. 1870, came under the control Of the
LEGISLATURE, whose duty it then was to COM
plete the organization Of the Government
under the Constitution. At that time the
only officers which had been elected under
the Constitution were the Governor, Attor-
ney-General, Lieutenanr-Governor, and
members of the General Assembly. All
the other civil offices Of the State which
existed prior to the Constitution were
filed, if filed at all, only by persons
VINO Qau previously Aetu IheAIS aoso VI
whom were military appointees. These per.
sons continued to perform the duties Of
their Offices after the readmiSsion OF the
State. But very grave doubt arose whe-
Their they had any power to do SO, and whe-
Their all their acts done under such supposed
power would not be regarded as null and
void. It was considered by some that these
offices had n6 such power, because there
was no Droyislon in the Constitution on the
schedule annexed thereto, as there had
been on former occasions OF the like Kind,
to authorize them to hold over; or because
they were mere military uppointees, whose
power necessarily ceased with the military
government, from which they derived their
power, OF because the trainers Of the Con-
stitution actually intended that their power
should cease, and that they should not hold
over by virtue of their original appointment.
Now, whether these officers had power to
hold over or not, all will admit that legIsla-
ton was proper and necessary to clear up
all doubt on the subject and place it on Il
such basis as would conduce to the well
fare of the Commonwealth. The Legisla-
ture so thought, and accordingly enacted
the enabling act, the preamble OF which
clearly and forcibly sets forth the motives
for Chahoon admit that to q certain
extent the Legislature had power to
pass this act, and it is wise and eXpe-
ltient that is, to the extent that it con-
firms what had been previously done by
these officers in the discharge Of the duties
of their offices, and to the extent that it con-
firms what might thereafter be done by
them in the discharge of those duties du-
ring the period prescribed by the act. But
the counsel deny that the Legislature had
power to provide for the appointment OF
any person to fill an Office, the duties OF
which were at that time performed by a
person holding over under an appointment
| Of the military commander, and especially
| had not power to enact the sections Of the
enabling act and herein before reclted, in
regard to the more efficient government of
| the cities and towns Of the Commonwealth.
An admission that the act is con>titu-
tional to the extent to which it is approved
| bv the counsel for Chahoon goes far to adj
NIT that it is constitutional so far as con-
| Germs the question we are now considering.
But we clearly think that it is constltu-
tional to that extent also. The Legislature
had right to say to those persons who were
performing the duties Of civil officers under
| appointments made by military power Oh
| otherwise prior to the rcadmission of the
State: owe will sanction what you have
done according to law, and will authorize
you to continue to perform the duties OF
| your office Until other persons are appoint
| ed and qualified to perform them until elcc-
| tons and appointments can be made under
| The Constitution, and we therefore pass the
| enabling act for that purpose"
1t is contended that the schedule annexed
| to the Constitution contains provisions
which show that its trainers intended that
Mayor of city at the time of the adoption
Of the Constitution should have authority
| to continue to perform them until success
| sor is appointed and qualified, at the time
and in the mode prescribed by the Con-
stitution. But certainly this argument Is
| founded on very strained Inference, and
| cannot be sufficient to shsw that tie er-
abling act is unconstitutional.
The preamble and first section ofthat sche-
| dule show the only purpose for Wh!cht was
| adopted, and that it was not intended to Sc
| cure to incumbcnts then in Office any lmnu-
| nifty in their offices, or power to continue to
hold them for any length of time against the
| expressed will of the Legislature 10 the con-
| trarv-" that no inconvenience may arise
| from the changes in the Constitution ofthiS
| State and, in order to carry the same into
complete operation, it is hereby declared
| that''-is the language of the preamble.
| Thus plainly showing that the convention
was looking to public cOnucnien and
not to the private interest OF individuals
| in continuing to hold oflice-that it WAS
| acting in this matter solely because there
| might be necessity for some such action be-
| fore it could he taken by the Legislature ;
and not because they intended to place this
matter beyond the reach or control OF
the Legislature. All the safeguards that
were deemed necessary for the conservation
| of private rights were embodied in the Con-
i - q
| dula is to provide for 4 transition from the
old to the new government, and to obyiate
| Inconvenience which would otherwise arise
| from such transition. The Convention acts
| in this matter as an ordinary Legislature,
and only because there is no necessity for
| such action before q Legislature can or will
| be convened under the Constitution. TC
| be sure, if Convention in framing tho
schedule should plainly show an intention
to place any Of its provisions beyond the
control of the Legislature, such provisions
being the act Of the representatives Of the
sovereignty Of the State without any consti
| tutional restraints, would be as cttectual anC
| binding as if they were embodied in the
| Constitutin itself. But unless such an in
tention plainly appears, the presumption i:
| that the provisions of the schedule are sub
ject to future legislation.
The language of the LIST section of the
schedule is: "The common law and thu
statute laws now in force, not repugnant tx
this Constitution, shall remain in force
until they expire by their own limitation
or are altered or repealed by The LegiSld
ture thus expressly affirming the contro
of the Legislature over the subject (thougl
such an express afirmance was unneces
sary). There seems to be two provisions o
this schedule, which are relied on by tn
counsel for ChahooD rs tending to show
that the Convention intended to continu
the Mayor III Office until his successor
elected and qualified under the Constitu