The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1874-06-06


Vious to the 10Th November, 1869. It |:
true that the Constitution was adopted
ana the organization made to obtain admis
sion TO representation In Congress, but it il
equally true that it was framed and ratified
Dy the people as and for constitution o
State government. Admission might follow
It's adoption, but was not necessary to give
IT effect. On the contrary, Congress required
that 1t should become operative and have eff
iect before the admission could be granted
In the act Of April 10, 1860, it was pro
vldcd that at the time the vote upon the rat
itcation was taken there should be an cleo
ton by the voters of members of the Gene
raj Assembly and all the officers of State
provided for by the Constitution; that il
| the Constitution should be ratified the Legis
lature should assemble at the capital on q
day named, aud that, when lawfully organ
lied, it should act upon the ratification o.
the proposed amendments. There certainly
could be no lawful action by Legislature
under the Constitution unless The Constitu
ton was i'll force at the time the actor
was had. That Congress understood
that the Constitution was in force and
operative ut the time Of the admission is
apparent from the terms of the act grant.
ins such admission. In that it was recited
that the people or Virginia had framed and
adopted 4 constitution Of State government
which was republican; that the Legislature
elected under the Constitution had ratified
the fourteenth and fifteenth amendments
the performance of which acts in good faith
was condition precedent to the representa-.
ton Of the State in Congress. and because
this had been done such representation was
permitted.
1t is true that the Government was moi
fully organized in all its departments under
the Constitution, and that the United States
retained its supervisory powers under the
reconstruction acts, until the final action Of
Congress. Complete organization OF The
1vernment, however, was not necessary
to give effect to the Constitution, and nc
modification of the particular provision now
under consideration was ever attempted by
the United States. The Government estab'
liShed by the people remained as established
until actually changed by the United States
in the exercise OF It's supervisory powers.
In our opinion the Constitution of Fir-
ginia took effect, so far as it related to the
provision for exemptions, on the 9Th Of July
1SG9-the day of its ratification by the peo-
pie. 1t follows that the exemption laws
passed to give effect to that are to become
operative for the benefit Of its citizens from
that date. AS against Roberts & Co., there.
fore, the bankrupt is entitled to his home
stead.
The order of the District Court allowing
an assignment of the homestead as against
the claims of Smith, Wanderiink and Schinde
is reversed. but it is affirmed as against that
Of Roberts Il Co.
The Homestead Waiver not tUnconstitntional
Chiel.Justice Waite also delivered the fol.
lowing highly important opinion
In re JOSEPH SOLOMON: 4 Bankrupt. Pc.
tition for review under the second section
of the bankrupt act:
Waite. Chief-Justice.-O the 31St Janu
ary, 1878, the bankrupt executed to Glaze
brook & Thomas, at Richmond, Va, his note
for the payment to them, or their order, OF
the sum of S234.50 at sixty days after date
1t contained the following clause: 81 here.
by waive the benefit of the homestead en-
empton as TO this debt"
i Glazebrook e. Thomas endorsed this note
to Gibson & Crilly.
Solomon was adjudged bankrupt, on hi:
own petition, upon the 1st OF May, 1878
lGibson 4 Crily made proof Of their claim
against the estate on the oath May. An as
signee was appointed, who on the 10th
of February, 1874, set Oft to the bark
rupt his homestead exemption under
the laws of Virginia, without regard to
the waiver expressed in the note Of Gibson
& Crily. They thereupon fled their peti
ton in the District Court, the object o
which was to set aside this action OF the as
signee, so far rs it operated to prevent thei
subjecting the property set of to the pay
ment Of their debt in case the remainder Q
the bankrupt's estate should prove insufn
/ 4. q 4, :
cent for that purpose. Their claim Tor lhl
relief is predic;itcd entirely upon the waive
of the exemption which is contained in thei
note. We are therefore called upon to con
slider the effect of this waiver.
BY section l, article NJ, CT the Constltu
, ton it is provided that every householder o.
head Of family shall be entitled to hold eX
empt from levy, &C., property to the value
not exceeding $4,000, to be selected by him
, by section 3 it is further provided tha
nothing in the article should be construed t.
interfere with the sale of property ex
cmpted, or any portion thereof, by rir
, tue of any mortgage, deed of trust
pledge, or other security thereon. AM
by section that the General Assembl.
should at its first session under the Consti
, tuition prescribe in what manner, and OF
what conditions, the said householder O.
head of a family should thereafter set apar
, and hold for himself and family bomesteat
: ont of the property thereby exempted, ant
might. in its discretion, determine in wha
manner, and on what conditions, lie nigh
{ thereafter hold for the benefit of himself ant
family such personal property as he nigh
have and coming within the exemption
thereby made, but that said section shoult
not be construed as authorizing the Genera
, Assembly 10 defeat or impair the Deneul
intended to be conferred by the provision
+ of this article. By section ! it was provide;
, that the provisions Of the article should b
, construed literally, to the end that all In
interests thereof might be fully ana properl.
t carried out. -,
In June, 1870, the General AssembI
! passed al act such as was required oS sc.
+ ton ). and in its third section provided tha
! in all cases where debtor or COZ
tractor shall declare in the body Q
/ the bond, note. or other evidence
!. the debt or contract that he valves as l
such debt or contract, the exemption Iron
, liability of the property which he may D
, entitled to hold under the provisions OF SAL
, act, the property whether previously SET apar
| or not, should then be liable to be SUBJECTED
| for such debt or contract under legal pre-
cess in like manner and to the same eXten
as other estate of the said debtor or contrac
Itor; provided, that when such DEBTOR 0
contractor is possessed Of other estate Ina
> that which he may be entitled to hold eH
empt in the county in which suit is brough
against him, or the property set apart unde
the provisions of this act may be, then suci
: other estate snail be subjected and exhausted
before that which is exempt could be sold