The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1880-04-02

| NOT s1TTING-THE OPINION IN FULL-ABLE
| DISCUSSION OP AN INTERESTING SUBJECT.
In the judges habeoS corpus cases the
Supreme Court of Appeals Yesterday de-
cided that when there is vacancy in the
Office OF any OF the judges OF this State, oc-
casioned by death, removal. or resignation
OF the incumbent, his successor Is under
the Constitution elected and entitled to
hold for the full term prescribed by the
Constitution, and not for the residue Of his
predecessors term.
The opinion, delivered by Judge Staples,
is as follows:
Ez parte w. s. Hawison-Er parte 4.
b. Meredith.
This is an application for writs OF hQbedS
corpus in two cases. The petitioners are,
however, merely nominal parties. The
real controversy, which Is Of an amieable
nature, Is between Hon. John G.. Weldon
on the one hand, and Hon. c. q. Howison
on'the other, each claiming TO be the Judge
OF the County Court Of Prince William.
The former was elected in the month OF
March, 1878, TO fill vacancy occasiened by
the death Of Judge Nicol. The latter was
elected at the last session OF the Legisla-
ture. The sole question TO be decided is
whether Judge Weldon was elected and
is entitled 10 hold for the full constitutional
period Of six years, or for the remainder
OF Judge Nicops uneXpired term. This
question Involves the official tenure OF one
Of the judges OF this court, two or more
Judges OF the Circuit Court, and several
Judges OF the County Court, and is other
wise of considerable importance and inter-
est in the administration OF justice.
IN IOth ofntinn Of artiola 9th
of the Constitution we find the following
provision upon the subject OF the county
Judges:
"County judges shall be chosen in the
same manner as the judges OF the circuit
courts. They shall hoid their offices for a
term Of sir gears. except the first term
under this Constitution, which shall be
three years" The provision relating to
the circuit Judges is as follows: "For
each circuit a Judge shall be chosen by
the joint vote Of the two houses OF the
General Assembly, who shall hold his office
fer term OF eight years. 1t is also pro-
vided that the judges Of the Court Of Appeals
shalt hold for term OF twelve years, and
the judges OF the corporation courts for a
) term OF SIX years." These are
ALL THE PROVISIONS OF THE CONSTITUTION
H"' ih- "ff P(NilbS uDOH tue uUtNllOll lIdI
need now be mentioned. 1t will be OBJ
served there is no reference whatever TO I'M
expired terms OF Judicial officers No dis
tinctiOn is made between the Term OF a
county Judge elected at the expiration OF
the constitutional period OF six years and
the term of Judge elected to fill vacancy
occasioned by death, resignation, or reno.
. val.
Whenever elected, or for whatever pur-
, pose elected, the incumbents shall hold for
: six years. The language is general and
positive. 1t embraces all the judges. Il
}. refers TO the offices OF all. II, therefore, In
8 any case we hold the duration OF a term tC
. be less than six years, it must be done by
q supplying words not found in the Consti
:. tuition. The I'd section OF the Oh
article provides that the Governor, du
r. ring the recess of the General As
a sernb!y, may fill pro tempore all yacan
cies in those Offices for which the Con
n stitulion and laws make no provision, bu
o. his appointments shall expire at the end @
thirty days after the commencement OF til
II next session OF the Legislature. Now, q
the duration Of the Governors appointneu
ar is expressly limited, if it was intended tina
the legislative appointment, upon the haI
penn0 Of a vacancy, should be also limited
70 the fair inference is it would have been S
40 expressly declared Tae term Of an offiC
10 is the estate or interest the incumbent b;
n. in it. When he abandons or fOrfcis th'
Y. interest by resignation or removal the oifiC
10 reverts to the people or other appointin
is power.
VACANCY EX VI TERMIN0
g, means vacancy in The office and not in Il
Il, term. When we speak OF vacancy in an 0
le fee we mean there is no incumbent-no oI
:; entitled TO exercise its powers and recei'
u, its COMPENSATION. .-2d Abbott, Law Dicti0
e. ary. 62l; People Us. Waite, 8 Mead. 8
Y; When an election is made 10 fill vacanc
i. the election carries with it all the right
ne immunitieS, and privileges attached to q
r. office. one of which is the right to hold +
the full period prescribed, and not to mere
ce,ye o,It vacant term Of Office OF pred
- cessOr.
r. Under the Constitution Of 1929, the ele
or tion or Judges was for the life OF the incur
On bent. Upon his resignation, or remoyl
Is, his successor was also elected Tor III
d. Could it be said, with any sort OF prophet
e. that in such case the election was mere
n for the unexpired term; that the incur
r; bent would hold only for the life OF 1
"a. predecessor This would be the ineyitab
mt result il the proposition sometimes a
1 !; vanced be correct, that the vacancy Is
rd the term and not in the office, and the /
es cumbent is entitled merely to the res.d'
b. Of the uneXpired term.
m Bv the express words Of the present Co
ed stitution the only mode OF flliLg the oifi
l., nermapently, however the vacancy mi
occur. is by election. and when that is MAJ
If is declared "tbey (the county Judge
y shall hold their offices for the term OF 5
lS years" ~, ..;.
I'd Similar words are found in the constit
~ tions Of nearly all the states, and 1t so ha
mems they have been iudicially construed
q numerous cases involving the ldentlC
v. onestion now before us. A reference
some of these cases will materially aid o.
ID inquiries here. ,r ,c
~ In Banton rs. Nelson, 4 Texas, AZ
no Uempbill j., in commenting upon
or LIKE PROVISIONS IN THE TEXAS CoNsTll
IN TI0N,
said when the term OF an office IS hXed
IS: The Constitution at say four years, ca
10 succeeding incumbent, although elected
ld fll a vacancy, is entitled, unless it be otht
wise provided in the Constitution, to nc
the office for the full period. See Brad
re ns. Brabble, Dallam Digest 5O4 OIL. .
Brewer as. Davis, Humph, 2OS-2l3, I
,g Conrt saws: "The amended Constitution
as nlain terms provides that clerks OF in1erl
courts shall be elected for four years. The
y is no authority to be found in the Constit
eu lion for an election for shorter pertO
:, And although the election may be fixed,
~ in this case, at time different from IN
III annojnted by law for the election OF coun
ls- officers in other courts OF the Stale, or
6ll a racancy occasioned 6y the death.