The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1882-03-10

sion. There Is but single cirsuuis'.n.v
which at all initiates against the view now
taken. The Constitution OF 1891 con "a, i'
a provision that special elections TO NIL va.
camcies in the Office Of judge OF any court
shall be for the full term. see Ar.lc'c w.
section %, Constitution OF 1851. Ihat pro
vision Is not found in the present Cons,'-
tuition. and It has been argued that the
omission Is evidence OF an INTENTION !"
change the law on the subject.
To this Il has been very properly an.
swercd that the motives that Influenced
the trainers OF the Constitution IN leaving
out the provision are at best q mere matter
Of conjecture and inference. They may
have thought II superfous, and therefore
unnecessary. They may have supposed
such a provision with reference to the
term OF the judges might be construed as
establishing different rule with respect
10 thc terms OF all other Offices, and there
tore calculated 10 mislead.
In the Constitution OF 1851 such pro-
vision found its appropriate and necessary
place. Inasmuch as Ill the judges under
that instrument were elected by the peo-
ple. II might be inferred that all OF them
were to be elected ut some regular or
general election, and IL was no doubt APP
pretended the Legislature might so con-
strue II. 1t was to guard against these
contingencies to
ACE THE TERMS OF OFFICE BEYOND ALL IN
PREFERENCE
that the trainers OF the Constitution, out OF
abundant caution, adopted the provision In
question. In the present Constitution 1t
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
III we are to believe the attention Of the
men who framed the present Constitution
was called especially to this subject, Ii their
purpose was that in cases OF vacancy the in
cumbent shall hold only for the unexpired
term, would they not have said so In plain
and unmstakable language? Would they
| have left q matter OF so much importance in
doubt and uncertainty! A single line, the
change OF a word in the phraseology Of the
Constitution OF 1851, would have accom-
plished the purpose. In the language OF
Judge Marcy, in The People rs. Green, al
ready cited, "the trainers Of the Constitu-
ton must have foreseen that such cases
would happen very frequently, and il is
therefore reasonable to infer that il they in
tended that persons elected to I'll vacancies
in the Office OF sheriff should hold for a
shorter period than the general term they
would not have left that intention TO be
evolved by ingenious distinctions and dr-
bious inicrences."
We come next to consider the joint resO-
| luton passed by the Legislature the 18th Of
December, 1872, which declares that all
elections by the General Assembly TO fill all
vacancies shall be only for the unexpired
term Of the predecessor. This resolution
was adopted nearly four years after the
Constitution was framed, by Legislature
composed OF entirely different men from
those who sat in the Convention. II is
therefore not entitled to any weight as a
contemporaneous exposition OF the Consti-
tuition.
1t seems, however. to show that, in the
OPINION or THAT LEGISLATURE
at least, elections by the General Assembly
| to fiji vacancies would be for the full term
OF Office in the absence OF legislation on
| the subject, and therefore it was differ
ent rule was sought TO be established by
statute.
The only provision in the Constitution
which by possibility can be construed US
authorizing the General Assembly TO exer-
else n power Of that sort is found in the
odd section, article 5th, of that instrument.
| II declares that the manner OF filling Udcdn-
Cies in Office in cases not specially provided
| for by the Constitution shall be prescribed
by law. Clearly, however, the manner OF
| filling vacancy has no sort OF connection
with the term OF the incumbent after the
vacancy is filled. The Constitution fixes
| the term OF Office, but leaves to the Legis-
lature the power OF declaring the manner
in which vacancies shall he filed; and this
power has been repeatedly exercised with
respect to all officers elected by the people.
Sec. 81, chap. 6, Code 1873.
II is universally conceded to be a most
delicate exercise OF authority TO pronounce
an act Of the Legislature unconstitutional.
IL is one which judge. conscious OF his
falibility. will shrink from exercising in
any case where he can conscientiously
avoid the responsibility. But when the
conflict between the Constitution and the
law is plain and palpable, the Court must
decide between them. One of.them must OF
necessity give way to the other. The Con-
stitution is the supreme power in the State.
and we are sworn to obey il. Ii that SUI
preme power gives one rule and q siIbordi-
nate authority gives Il contradictory rule,
the latter is imperative and void, and the
Court must so decide.
III the
CONSTITUTION or VIRGINIA FIXES THE TENURE
OF all her judicial officers, and upon this
point there can be no doubt, it is clear that
any attempt OF the Legislature 70 change
that tenure is 4 plain usurpation OF power.
Upon this point, fortunately, there is album
dan MI itv In ~
Mason, 3 Snead, page 6, it was held that
as the Constitution OF Tennessee fixed the
term OF justices of the peace at six Years,
the incumbent, although elected TO fill a
vacancy, was entitled to hold for the full
term, and the act OF the Legislature limit
ing the term to the remainder OF that Of his
predecessor in Office was unconstitutional
and void.
In People Us. Burbank the Supreme Court
OF California said "The Legislature NAV
direct the time and prescribe the mode OF
election, but il cannot change the tenure
Il can no more prescribe that the Judge
elected shall hold for part OF a constitu-
tiona period than for double the time. IL a
commission issued by the Governor cannot
control the provisions Of an act OF the Le-
gisature. neither can an act OF the Legis-
lature control provision OF the Constitll-
ton"
"As soon as the ordinary is elected he is
in office under the Constitution, and enti-
tied to all the rights and immunities con-
ierred by that instrument" of" says
Mr.. Justice Huger, Of the Constitutional
Court of South Carolina, "the people de-
clare nd ordain in their Constitution that
IN Office shall be held by a particular
tenure, it would be as much usurpation in
the Legislature to alter that tenure as it
would be- in the Governor to commission
for longer period than directed by the