The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1883-01-18

Poyneuo VI salary stopped, IL Is QlluCult
, conceive how the public interests could re
quire diminution; and thus the proYisiol
OF the Constitution would be nugatory.
There was another question submitted Il
US which is more difficult of solution-that is
whether judge elected to fill Vacanc,
holds for 1ullterm or only tor the unex
pired term of his predecessor
his question may, and probably will, b
: practically solved by the Encouragement O
J the circuits, If one is made; for, in our view
the Office OF any Judge may be vacated b.
destroying his circuit, whether his term ha
expired or not
But majority of the committee are of thu
opinion that the judges elected to ill vacan
cles hold only for the unexplred term of thei
predecessors.
This we conclude to be the law, from th,
analogy to other officers, both OF the State
and the United States, and the inyariabI
practice in regard to filling vacancies. The
Senators OF the United States, under the Con
stltutlon, are elected for six years." but, il
case OF death or resignation, the practice ha.
been to fill the vacancy Tor the unexpireC
term so it has been in the Stats Senate un
der the present Constitution, and so of count,
officers, sc.
The Constitution of 1860 Article ", sec
ton 80, expressly provided, that special cleo
blOuS W fdCdHCl6S IN lUe OIQCe OF 1uQ0,
OF any court tor the full term"
In the present Constitution, Article ", sec
ton %, that provision is omitted, while tht
balance OF the section is copied verbatim from
the old Constitution. This is pregnant fact
and the reason vi the omission is probably Il
be found in the change OF the manner OF elect
ing Judges
But the General Assembly have already
/ passed upon this question. BY a Joint reso.
luton approved 10th December, 1879 (Acts O,
1S72-'3, page 81 it was provided that all cleo.
lions TO I'LL vacancies IN the Office OF Judge
shall only be for the unexpired term Of his
predecessor" and it SO happens that both oil
the judges chosen to fill vacancies were elected
since that resolution was passed, and it is pre-
sumed with knowledge of that resolution and
subject to it.
But it may be considered that the Joint res
olution itself is in conflict with the Constitu-
ton, and so null and void.
We think the power to pass that resolution
is found in section %, Article ", which pro-
viGes that the manner OF filling vacancies in
office in cases not specially provided by this
| Constitution, shall be prescribed by law" And
it is just at the end OF this clause that the pro-
vision quoted from the Constitution of 1850.
requiring the election of judges to be for the
full term, came IN, showing what was in the
IL.
| they meant by the manner Of filling vacancies
| in office, and that unless the provision in re-
gard to judges had been there inserted, the
General Assembly would have had the power
to provide for the case OF a vacancy
Now, section %, Article V, lis identical with
section 50, Article w, with the exception of
that provision directing how vacancies in the
office OF judge should be filled and this Gen
eral Assembly has the same power in regard to
the office OF judge as the General Assembly
under That Constitution had as to other offices
except judges, and as is CLAIMED and has been
exercised by the General Assembly under the
present Constitution as TO other officers.
The same section provides that the General
Assembly may declare in what cases any office
may be deemed vacant &c.
Here, then, is a power TO declare an office
vacant, and to provide for filling the vacancy,
and seems to include, necessarily, to provide
how long the officer elected TO fill the vacancy
shall hold his office.
1t will be seen from the foregoing report
that the Senate Committee for Courts of JUS
tice was composed of John W. Daniel, CHAIR
man; Judge D. A. Grimsey, of Culpeper;
General Bradley I. johnson, of Richmond
Hon. b. +. Bland, of Gloucester Judge James
Marshall, OF Craig; Judge Sinclair, of King
William; Hon. j. II. Gayle, ot Portsmouth;
Hon. James V. Brooke, OF Fauquier; Hon.
John Paul ,ot Rockingham Hon A A Phlegar,
OF Montgomery; and Hon. H. w. Murray, of
Louisa-all distinguished lawyers. and some
have occupied hign judicial positions. The
House Committee for Courts OF Justice was
composed OF Robert Coghill, OF Amherst,
Willis j. Dance, of Powhatan; Thomas s.
BococK, of Appomattox General William B.
Taliafero, OF Gloucester; james D. johnson;
Of Giles Edmunds,of Halifax George Walk
ar nf Mort m m 1Qrlo md 80
Frederick, now judge OF the Court OF Appeals
William W. Henry, OF Richmond city George
). Bernard, OF Petersburg; Judge George s.
Stevens, of Nelson and Atklsson, of Chester
field, all distinguished lawyers.
While these reports cannot be regarded as
law, yet emanating from such high judicial
source, officially charged with the legislative
duty OF constituting the Constitution touching
the judicial tenure of office, | have considered
it proper to submit in full their reports.
An examination of the legislation of Vir.
ginia will show that all officials, State county,
district, and corporation, elected or appointed,
to fill vacancies in office are entitled only to
hold for the unexpired term. (See Code 1873.
pages 461, 467, 1858, SOP, 1881, 1O66-'7) And
an examination of the Constitution of the
United States will show that the same rule
prevails IN regard to members of Congress
and all officers OF the United States. whether
elected or appointed. While by the 35th Sec
ton of chapter s, treating of the term of Of
flee OF all State, district, county, and corpor-
alton officers generally lit is provided "that the
term OF office OF any person at a special cleo
ton to I'LL vacancy az any public office shall
commence as soon as he shall quality for the
performance of the duties of the office to which
he is elected; ana. shall be for the a1aerpired term
OF such office" 1t is worthy of remark here
that this section was enacted in 1S69'70, chap
ter 76, hard after the adoption Of the present
Constitution of the State of Virginia.
The only authorities adverse to the fOrego-
ing views are reported in 32d and SD Grattan
each of which was decided by divided court,
or by the, members of court who were so sit
uated that in some cases they did not sit, while
in others they did sit, though personally inter-
ested in the legal inclusion arrived at and
thel efore most respectfully submit that these
cases are deprived Of that force that ordinarily
attaches to judicial decisions
Iere Broa ldus In re w alsh, 32d Graft. page
779, Judge Staples, whose brother is the judge
OF Patrick county, and elected for an unex
pired term, did not sit-nor did Judge Burks,
who was personally interested in kindred
question; and the case was decided by Mon
| cure, Anderson, and Christian, Js.-in which
Christian j., rendered dissenting opinion.
In Meredith, er pGrte, Harrison er pGrte, SD
Graft, page 119, Judge Burks did not sit for
the above named reasons, and the cases were
decided by Staples, Christian, and Anderson,
U.s.. while President Moncure dissented.
IL Fisher, &c parte, 80 Graft, page 232, all of
the judges seem TO have sat, although they in
volved virtually the same questions as the
cases that preceded them.
In the Bland and Giles county Judge case,
33d Graft, page 443, President Moncure and
Anderson, j., were absent, and the case was
decided by Christian, Staples, and Burks, u.s.
In Estes o. Edmondson, sheriff, 33d Graft.
page 510 only four judges seem to have been
present-Anderson, Staples ,Burks, and Chris
tian, Js.-whlle Moncure, president, was alb
sent and certainly President Moncare did
not concur in this or any of the cases ad-
judging that judge elected for an unexpired
term is entitled to full term. 1t seems how
ever, that some of the judges, who were in
terested personally or otherwise, did sit in
most or all of the foregoing cases, and l re-
peat that these decisions are not entitled to
that weight that ordinarily attaches to judi
cial decisions.
But how can there be any doubt Of the pro-
position submitted when we recur to section
%, Article ", OF present Constitution, where
it is expressly, positively, and clearly pro-
vided that F" the manner of filling
vacancies in office, in cases not specially pro-
vided for by the Constitution, shall be pre-
sc7Sbed By lGao' that is to say, shall be prescri-
bed by the General Assembly, that is the law
making power of the State Now here was
direction, and even command, by the Consti-
tuition. to the General Assembly, that such
prescription as to the manner of filling vacan-
cies in office should be enacted. The Consti-
TO- ,la&a -,.kl..