The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1883-01-16

a.
mind after reading the provisions OF the
Constitution under consideration.
"Where particular clause OF the Con-
sttutioD," says Judge Cooley, "has been
adopted in one State from the Constitution
OF another, after judicial construction had
been put upon 1t in such aforementioned
State, il il but just To regard the eonstrllc-
ton as having been adopted ~ wei as the
words; and all the mischiefs Of Disregard
ing precedents would follow ~ legitimateIy
here as in any other case" In support Of
this proposition he refers TO many authori-
ties. See Cooley's Const. Lin. tith edition),
marg. p. So.
In opposition to these views counsel
mainly rely, as have said, upon the Joint
resolution OF the Legislature, approved
December IS, 1872. 1t provides that an
election OF Judge to fill vacancy shall
be for the unexDired term OF his pre-
decessor. Now, II the Legislature had
the authority 10 pass 10, undoubt-
eGly it would have the effect for which
counsel contend. But to my mind II
is so plainly unconstitutional and void
| that [ cannot hesitate to so pronounce II.
IL is the high prerogatiye OF this Court to
see that the Constitution, which the people
have adopted as the fundamental law OF
the State, is not violated, and that each
branch OF the government is kept within
its appropriate sphere Of action. And
while appreciating the delicacy OF the duty
to declare void an act Of the Legislature as
i'm conflict with the Constitution, 1t Is never
theIcss duty from the performance OF
which | shall never shrink when occasion
requires it so long as / occupy seat upon
this bench.
The power Of the Legislature to pass the
Joint resolution in question is placed by
counsel upon two grounds: First, because
n State Legislature has full power over all
subjects OF legislation except so far as such
power il prohibited by constitutional pro-
vision; and, second, because authority TO
do so il conferred by Article v, section
%, OF the Constitution, which empowers
the Legislature to prescribe the manner OF
filing vacancies in Office not provided for
by the Constitution.
The first proposition, think, has already
been sufficiently disposed Of by what has
been said. | will only add that when
the Constitution fixes the term OF an
office. and does not, expressly or mpliedly,
give the Legislature the power to alter it,
it is equivalent TO an express denial OF the
power. The authorities already referred
to abundantly sustain this view. 1t is
difficult to see how any other could pre-
vail.
Upon this subject the Supreme Court OF
California, in People as. Burbank (Sapr0),
quoting approvingly Mr.. Justice ltrger,
OF the Constitutional Court of South Caro-
lima. said " II the people declare and or
dain in their Constitution that an office
shall be held by q particular tenure, 1t
would be rs much usurpation in the Le-
gislature to alter that tenure rs ii would be
in the Governor TO commission for longer
period than directed by the Legislature"
AID in another case the same Court said:
The Governor, in granting commission,
acts ministerially, and therefore ought to
make it conform to the law and the Consti-
tntion. The commission does not confer
the office; it il only evidence Of it, and
cannot change the tenure by which the
Constitution declares it shall he held"
The second ground is equally untenable; (;
and, as we have seen, has been so held by
the most respectable decisions OF courts OF
other Substantially in the case OF Keys
rs Mason, 3 Snead.
To say that the power 70 prescribe the
manner OF filing vacancies confers the au-
thOrity to make vacancies, or in any wayto
prescribe the tenure OF IN Office fixed by
the Constitution, is "a proposition, to say
the least, somewhat startling. Obviously
the section relied on does not relate 10 fill
ing vacancies in the Office Of judge; il for
no other reason because the manner OF
electing judges, rs we have seen, rs specih-
cally provided for by the Constitution.
In the argument much stress is laid by
counsel on the fact that in the section as
reported from committee to the convention
the words "but special elections TO ill va
cancies in the office OF Judge OF any court
shall be for full term" were stricken oat.
by which, it is insisted, the intention Of
the trainers Of the Constitution 10 require
such elections TO be for the uneXpired term
only is clearly manifested. | cannot so re-
gard it. What motives influenced such
action we have no means OF ascertaining.
We are not informed by the proceedings
Of the Convention, and are, therefore,
left to conjecture. 10 my mind, upon
the authority Of Judge Cooley, the
rational explanation is that the words were
regarded az super1uous, as the language
employed in Article W., section ., pro-
duced the same result, and had been so
construed by the courts whose decisions
have been referred to.-COoIey's Const.
Lin. 9th ed.), 81.
As further evidence Of the intent OF the
trainers OF the Constitution TO prescribe
uniform elections OF judges, and shy
classes Or "in blocks" as il has been
eXpressed-the Attorney-General refers to
section OF the Bin OF Rights, which de-
cares that vacancies in Office should "be
supplied by frequent, certain, and regular
elections" The same provision IL contain
ed in the Bill OF Rights adopted along with
the Constitution OF 1851, under which cleo
tions TO fill vacancies in the Office Of Judge
were tor full term. IL also appears in the
Bill OF Rights appended TO the Constitrl-
, tion OF 1929, under which the Judges were
: elected for hfe. 1t clearly, therefore, cam
not have the effect contended Tor it in this
, ease.
But counsel inquire how ana for what
term. under any other construction than
that for which they contend, IL vacancy
in this court 10 be filled which occurs
during the session OF the Legislature and
, after a regular election ut wh6h the men,
? bers Of this court have been chosen for the
: term commencing on the lst day OF Janu-
: airy followingy
| The answer il obvious. b IL made the
duty OF the Legislature TO elect the judges.
In such a case, therefore, having dis
: charged that duty, QuOdd the term eom-
t mencing on the lst Of January following,
/ nothing Of its authority remains but TO
2 supply the vacancy until tho commence
2 mcnt OF that term. And this not by ex-
Q press provision OF the Constitution, but 10y
| necessary implication and from the Reces-
sity OF the case.
have thus considered the ease as II the
9 question it involves were now for the first
. time presented here for decision. But, in
fact, il has been decided by this court in al
/. laaot eiN rasea which have heretofore come