The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1882-02-19
The Terms of the Judges.

ont n case Tor It's irfeuuS III s"S
eaucns In the matter Of their determination
10 eject certain Judges In contempt OF the
acc,s,on OF the Supreme Court OF Appeals
that the offices OF those Judges are not va
cant and therefore cannot constifutionaily
he filed At the present session OF the Gene
raj Assembly. But Of course all the Wings
ingenuity docs not enable Il to succeed In
the effort, Il Is SIMPLY impossible TO
eyadc the facts OF the case. When we state
that Jy,,dcr wEgpox's title to his office has
been passed upon by the Supreme Court OF
Appeals, and that that court Of last resort
has decided that his term will non expire
until IssA and consequently that the pres
sent Legislature has no power TO elect his
successor, we state facts which must put
nm end to all doubt in the minds OF the
members Of the Legislature. They must
feel and know that il l. for the courts, not
for the Legislature, 10 decide all questions
AZ Ia the proper construction OF the Consti-
tut'on.
Upon what grounds do the courts set
aside unconstitutional legislation? Simply
upon the ground that in their Judgment
the sid legislation conflicts with the Con-
stitution II doesn't matter straw what
the Legislature thinks about the matter.
That body has nothing 10 do with 1t. That
body dare not set up its opinion against
TINT OF the tribunal authorized by the Con-
stitution 10 construc the Constitution
The words Of Judge MCFARLAND. OF the
Supreme Court OF Tennessee, in the case
now occupying so much Of the attention
OF the country, are applicable here. He
says:
"The ground upon which courts set
aside unconstitutional laws, as we shall
hereafter see, is wholly different. In such
cases the courts simply determine whether
there Is conflict between the two laws
the constitutional and the legislative acts
and il so, the former must prevail"
That's all. In other words, IL the Courts
construction does not agree with the Legis-
iature's construction, the latter mast give
way. Judge MCFARLAND further says:
~ law is primd fdcie valid; but II the
court CAD look far enough 10 see this much,
they can look farther and see that il is in
respects the jurisdiction exercised by the
Supreme Court 81 the United States in en-
forcing the clause of the Federal Constitu-
ton against State laws impairing the OBJ
ioation OF contract even where the
contract to he upheld is the contract Of the
state. Ia such eases, although the State
officers may be acting under the authority
Of lazy OF the State priina tocie valid,
and although the fourteenth amendment TO
the Federal Constitution prohibits the suit
against the State, yet the Federal courts
take jurisdiction OF the officer, and il the
law OF the STATE under which he IL acting
be found TO impair the contract embraced
in any previous act. the former is declared
void and The oaiccr is compelled 10 execute
the iaw as the count may declare 1t.
The State Supreme Courts have the same
power rs to the State Constitutions which
the United States Supreme Court has as TO
the Federal Constitution. II a law is
found to be unconstitutional, ii is declared
"roiG," 10, merely yoidable, rand the
officer Is compelled 10 erocute he talo Us the
COURT may declare IT, Yes, as tie
court may declare il; not rs Il set Of men
not trained in the law may consider ii to be-.
But it really does seem to us that ii is
very much like arguing to establish the
truth of an axiom for lis thus 10 be trying
to prove that the courts, and not the Lcgis-
hture, are empowered TO decide all cues
fions Of constitutional construction. In
the name OF commOn-sense, what does the
Wig understand the Constitution OF Yir-
ginia to mean when ii says:
"The assent OF majority OF the judges
elected TO the court shall he required in or
der to declare any law null and void by rea-
son OF its repugDance 10 the Federal Con-
stitution Oh TO the Constitution Of the
State"
Isn't that conclusive: When q law is
thus declared to be unconstitutional, isn't
that decision binding upon every citizen Of
the Commonwealth, and with extra force
upon the members OF the Legislature, who
have taken an oath 10 support the Consti-
tufioni II were utter nonsense to empower
the courts 10 say that law providing for
the election Of judges 10 serve out UneX-
pred terms is unconstitutional. and then
to say that the Legislature has power to
disregard that decision and act upon its
own Judgment
Again: The Constitution provides that
the Supreme Court OF Appeals shall not
have jurisdiction in civil eases where the
matter in controversy exclusive Of costs is
less in value or amount than five hundred
dollars, except in controversies OF certain
kinds, OF when "the constitutioaaHty of q
lau" l. involved. Isn't that proof enough
Why should such questions be referred to
the court il It's decisions are not to be bind
ing upon the Legislaturey Thus the court
Is expressly empowered to declare that the
Legislature erred in passing the law. VIII
any member Of the Virginia Legislature
dare to vet up his opinion that Judge
BuRKs's term, or Judge WEEDoS's term, or
Judge CHRISTIANS term, ends next Janu-
AIRY, against the solemn decision OF the SUI
preme Court Of Appeals tkit those terms
will end several years hencey
Death of Captain Chamberlayne.