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


II has been argued that the omission Is eyi-
dencc OF an intention 10 change the law on
the subject.
TO this 1t has been very properf, an
swered that the motives that Influenced the
trainers OF The Constitution in leaving out
tbe provision are at best mere matter Of
conjecture and inference. They may baye
tb0ught II superflnous, ana therefore an
necessary. They may have supposed such
q provision with reference 10 the term af
the Judges might be construed ss establish
ing q different rule with respect TO the
terms OF all other offices, and therefore cal
culated to mielead.
La ,he Consultation OF 1851 such q pro-
vision found its appropriate and necessary
place. lDasmuch as all the Judges under
hat instrument were elected by the people.
II might be inferred that all OF them were
TO be elected at some regular or general
election, and ii was no doubt apprehended
the Legislature might so construe 1t. 1t
was to guard against these contingencies to
PLACE THE TERMS OF OFFICE BEYOND ALL IN.
TEMPERANCE
that the trainers OF the Constitution. out OF
abundant caution, adopted the provision in
question. In the present Constitution il
has been seen that such provision was
wholly unnecessary, because the judges are
now elected by the Legislature, and their
terms OF Office fixed in words of plain and
unambiguous import. wv
III we are to believe the attention OF the
men who framed the present Constitution
was called especially to this subject, il their
purpose was that in cases Of vacancy the in
cunbeD shall hold oubg for the unexpired
term, would .hes not have said so in plain
and un nistakable language? Would they
have left matter Of so much importance in
doubt and uncertainty A single line, the
change OF word in the phraseoogy Of the
Constitution Of 1851, would have accom-
pllshed the purpose. In the language OF
Judge Marcy, In The People rs. Green, al
ready cited, "thc trainers of the Constitu-
lion must have fofeseen that such cases
would happen very frequently, and il is
therefore reasonable 10 infer that il they in
tended that persons elecie1 to ill vacancies
in the cfice OF sheriff should hold for Il
shorter ierlod than the general term they
would not have left that intention to be
evolved by ingenious distinctions and du-
bious inferences."
We come next to consider the joint reso-
luton passed by the Legislature the 18th OF
December, 1872, which declares that all elec-
tiOns by the General Assembly to ill all va
cances shall be only for the uneXpired term
Of the predecessor. This resolution was
adopted nearly four years after The COnsti-
tuition was framed by Legislature COM
posed OF entirely different men from those
who sat in the Convention. Il is therefore
not entitled TO any weight as contempora'
neous exposition OF the Constitution.
1t seems, however, TO show that, in the
OPINION OF THAT LEGISLATURE
at least, elections by the General Assembly
to OH vacancies would be for the full term
OF Office in the absence OF legislation on the
subject, and therefore it was a different
rule was sought to be ostlblished by statute
The only provision in the Constitution
which by possibility can be construed Il:
authorizing the General Assembly to eXer
else power Of that sort is found in the DC
section, article 9TH, Of that instrun ent. II
declares that the manner Of filling UdCdn
cieS in Office in cases not specially provided
for by the Constitution shall he prescribed
by law. Clearly, however, the manner o
filing q vacancy has no sort OF connection
with the term OF the incumbent after tht
vacancy is filed. The Constitution fiXe
the term OF office, but leaves to the Legisla
ture the power Of declaring the manner il
which vacancies shall be filled; and thi
power has been repeatedly exercised Will
respect to all officers elected by the people
Sec. ei, oI,ep. O, 1s72, Code.
1t is universally conceded to be a mos
delicate exercise OF authority to pronounc
an act OF the Legislature unconstitutional
| Ii is one which a Judge, conscious OF III
| fallibility, will shrink from exercising II
any case where he can conscientiously ayOi
the res possibility. But when the conflic
between the Constitution and the law
plain and palpable, the Court must decid
between them. One OF them m lst OF ne
ccsSity give way to the other. The Consli
tuition is the supreme power in the State
and we are sworn to obey 1t. Ii that 81
preme poWer gives one rule and subord
nate authority gives q contradictory rult
the latter is imperative and void, and th
Court must so decide.
Ii the
CONSTITUTION OF VIRGINIA FIXES THE TENCR
. Of all her judicial officers, and upon tn
\ point there can be no doubt, it is clear thi
4 any attempt OF the Legislature to chang
g that tenure is plain u>urpation OF powe
|
e dant authority. In Washington Keys u
: Mason, 3 Snead, page 6, it was held that q
a the Constitution OF Tennessee fixed III
i term OF justices OF the peace at six year
!. the incumbent, although elected to fill
y vacancy, was entitled TO hold iOr the fu
4 term. and the act OF the Legislature limi
n ing the term TO the remainder OF that OF b
4 predeces sor in Office was unconstitution
l. and void.
h In People Us. Brabant, the Supren
+ Court of California said: "The Lcglslatu
may direct the time and prescribe the mo-
OF election, but il cannot change the tenul
Il can no more prescribe that the the lud
= elected shall hold for part of a constit
e tiona period than for double the tiu
r lIf n commission, issued by the GoyernC
cannot control the provisions OF an net
l. the Legislature, neither can an act OF
u Legislature control provision OF the C
: st,ution."
5 GAS soon as the ordinary is elected he
= in Office under The Constitution, and er
It tied TO all the rights and immunities CT
- ferred by that Instrument" .It," says \
:. Justice Huger, OF the Constitutional Coz
y OF South Carolina, "the people declare a
: ordan in their Constitution that an of
Y shall be held by particular tenure, ii wol
= as much usurpation in the Legislature
!, alter that tenure as 1t would be in
: Governor TO commission for a longer peri
than directed by the Legislature"
!, In the case OF Bradley Us. Crabbe, alrea
3. cited. Chiei-Justice Hemphill, on deIveri
: the opinion OF the Court, said There
e nothing in the terms of the CONSTITUTE
70 which can initiate against the plain a