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

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,.<.srzsxu6
n he .eoutinusa !; tsas she word "csurt"
here embraces the judge Of the court, who
is The Mayor, and that therefore IL was
intended to continue the Mayor In ONCE.
II nav be answered III q Mayor be neces-
sary to hold one of the courts here intend.
ed 10 be continued it is not necessary that
any particular person should pc sucn Asyol,
but the court may be held by any person
whom the LEGISLATURE may appoint to take.
the Mace of him who was the incumbent
of the office when the Constitution was
adopted. -, LII -.
Convention may have intended, In the lot
mer part of the section, to continue the
then acting Mayor in office until otherwise
provided by law it did not intend to include
the MAYORS court, much less the Mayor
himself. in the word s'courts" used in the
latter part of the section. They are courts
of record, which the Mayors court is not.
They are the courts whose organlzatlon u
provided for by the sixth article OF the con
stitution concerning the Judiciary depaIr
ment," or such of them as eXlsted undeI
the old Constitution that Is, the Court Q,
Appeals. circuit courts, county courts, ana
musings courts. These courts were to con-
tinue, except, &C., "with the like powers
and jurisdiction, both in law and equity, as
if this Constitution had not been adopted,
and until the organization OF the
judicial department OF this Consti-
tuition" An immediate organization
of that department was contemplated
by the Constitution, which provided that
the judges should be chosen by the joint
vote of the two Houses of the General AS
sembly and though their terms OF ONCE
were not to commence until the 1st day OF
January next following their appointment,
vet it was provided that they should " dis
charge the duties of their respective offices
from their first appointment and quailflca-
ton under this Constitution until their
terms begin" This was "the organization
of the judicial department referred to III
the schedule and plainly it has no reference
to Mayors court, which is nowhere NEIL
toned in the Constitution nor to Mayor,
who could not be chosen under the consul
tuition earlier than the fourth THURSDAY In
May, nor enter upon the duties OF his ONCE
until the 1st day of July.
In constituting the Constitution and the
schedule and election ordinance annexed
in the light of all the surrounding clrcum-
stances under which they were made, we
think it obvious that the trainers OF the Con-
stitution purposely omitted any provision
that the persons then performing the dutles
of Office in the State should continue TO hol1
over until their successor should be elected
or APPOINTED and qualified under the Con-
stitution and that they intended that those
officers, except where otherwise expressly
provided in the Constitution, SHOULD DC I'M,
mediately, or as soon as convenient, h!teo
by the Legislature, either directly or IN 9
mode to be prescribed by law. Almost all
the offices were then held by men who were
DISQUALIFIED to hold Office by the very terms
oftheC Constitution itselfas originally framed.
1t was contemplated that there would be
Il very short interval between the adop-
ton of the Constitution and session OF
the Legislature under it, when all the
offices could be at once filled. The Con-
veution closed its labors on the 18th day OF
April, 1868 and by an election ordinance
then enacted it was declared that the Con-
stitution then adopted by the Convention
should he submitted for ratification Oh the
Cd day of June, 1863, to the voters, OF the
State that an election should be held Mt
the same time and places for members of
the General Assembly and for all State oth-
GERS to be elected by the people under the
Constitution: that the officers elected
should enter upon the duties of their offices
for which they are chosen as soon as elected
and qualified in compliance with the
provisions of the Constitution, and should
hold their respective Offices for the term or
years prescribed by the Constitution, count,
ing from the first day Of january next, and
until their successors are elcctco ana qll1u-
fed And that the General Assembly
elected under said ordinance should assem-
bic ut the Capitol, in the city Of Richmond,
on the oath Of June, 1868. And the COM
manding General was requested to enforce
| the said ordinance. Had all these things
| been done as contemplated, the Legislature,
which would doubtless have been composed
| of many, if not most, of the persons VINO
composed the Convention, would proba-
by have filed at once, by new cleo
! ton or appointment, all the remaining
Offices of the Commonwealth, and pro-
vided that the officers so ELECTED or
appointed should discharge the du-
| ties Of their respective offices IRON
| their. first appointment and qualltlcatlon,"
as provided in the Constitution in regard to
| the Judges, or Gas soon as elected and
| qualified" as provided in the election ordi-
nance in regard to members OF the
| General Assembly and all State officers to
be elected by the people under the Constl-
tuition; and thus the ship Of State would
| have set out on her new voyage with m en-
| tirely new crew.
If we be right in this view, then it follows
| that not only is there nothing in that part
of the enabling act now under considera-
| ton opposed to anything in the Constitu-
ton, but it is in conformity with the lnten-
| ton Of the trainers Of that instrument.
We are therefore Of the opinion that so
much Of the enabling act rs authorizes the
appointment Of councllmen and mayors OF
| the cities is constitutional.
AS to the argument that the enabling act
| itself confirms the title Of the incumbents
| in office, sufficient answer is that what
ever right or title that act may give is eX-
presslY limited by its terms, and extends to
| no longer than the period when the Legls-
lutme might otherwise provide; and they
| did otherwise provide, by the enabling act,
in regard to the appointment of councilmen
and mayors of cities.
| And as to the argument founded on the
supposed general principle of law, "that
a change III the organic constitution OF 60
vernment does not vacate the old offices
until successors are duly qualified the
answer is that even admitting this to be so,
"successors are duly qualified" within the
meaning of this proposition whenever per.
sons appointed to till the Offices by the lie.
! cislatiyc power Of the new Government are
duly qualified.
The incumbents Of Office at the time Of ar
organic change Of government, continuing
to hold over after such change, lin the alb
seuce of provision Of the new Con
stitution, or Of an act Of the Legislature
of the new government giving then
such authority hold by sufferance only
and upon principle of public neces
sity or convenience, not In virtue OF any
set up any claim against the Legislature
which has ample power to put an end te
their official authority at any time, and ap
point others to take their places, subjec
only to any constitutional restrictionswhicl