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

SOnS 10 supply NheahticS 40 W 1ho a.. ~
or any other election OF judges under
the Constitution I Upon this subject l
cannot doubt rs to the intention OF It's
trainers. That intention, / think, Is ear
ried out by the construction for which
contend. The result OF the construction
would tend 10 secure the services not only
OF independent but OF lit and qualified
Judges; while by the contrary construc-
tion it seems to me the intention Is in
measure defeated. II but one year, or
two years, or any other short period OF the
term Of n predecessor is left unexplred,
and the election is for the uneXpired term
only, where is the lawyer OF large practice
and OF conspicuous qualifications to be
found willing to make the sacrifice an ac-
ceptance OF such an election would In
yolye? I do not hesitate TO say that not
one could be found in the broad limits OF
the Commonwealth.
Now, il Is well settled that "vacancy
eL vi termini means vacancy in the otiice
and mol in the term. 1t follows therefore,
in the absence OF a constitutional provis-
ion, either express or implied, to the con-
trary. that judge chosen to Fla vacancy
is chosen for full term, and not fer the
uneXpired term OF his predecessor. Nor
is this principle confined to the filling
OF vacant judicial offices. 1t has been
held TO apply as well TO the offices
OF sheriff. clerk, register, and others.
See People rs. Green, Wend., 2G6 I;
People Us. Contout, II ID, 1872, 5l1 (;
Brewer as. Davis, 9 Humph. (Tenn.). 2OS;
Burbank, IL Cal, 37s. In harmony with
Il; ,,;. hoe Ian ,a tAroptiao Iln6Dr fhp
Federal Government from lts foundation.
Take the offices OF district attorney, mar
sha, and the like. When vacancy occurs
it is filed by appointment for the full term
prescribed by law without reference to the
length OF service of the appointee's prcde-
cessor. And such seems to be the rule in
almost all of the States except where va
ried by constitutional authority. In the
Constitutions OF some OF the States proyi-
sions are found requiring elections to fill
vacancies TO be for full term; but such
provisions. it would seem, are inserted not
so much from necessity as out OF abundant
caution. See People rs. Burbank, II Cal,
Supra.
4 case strikingly opposite to the one be-
fore us is the case last referred to.
BY article W., section 8, OF the Constr
tuition OF California it is provided that the
district Judges shall be elected by the quail
fed electors OF their respective districts at
the general election, and shall hold their
Office for the term OF six years.
After the adoption OF the Constitution
the Legislature passed an act providing for
filling vacancies in the office OF Judge for
the uneXpired term" The relator in that
case was elected to fill vacancy. and it
was insisted by the respondent that he was
elected for the uneXpired term Of his pre-
decessor only. But the Supreme Court OF
California, constituting the section OF the
Constitution referred to, held that he was
elected for the full constitutional term OF
six years, and that the act OF the Legislo-
ture, so far as IL provided for less term,
was unconstitutional and void.
The same question had been previously
decided by the same court in the
case OF the People Us. Weller, II Ca. a..
And IN that decision Judge Field united,
then member Of that court, now
recognized as one OF the ablest and most
accomplished judges of the Supreme Court
Of the United States. In the course OF the
opinion in that case the Court said: The
policy OF the trainers of the Constitution
was to give to each district Judge elected a
right to hold for six years, and thus to Sc
cure the independence Of the judiciary !;
and it is obvious that this reason applies
to Judges whenever elected.
The case Of Keys rs. Mason was decided
by the Supreme Court Of Tennessee IN
1855, and is reported in Snead's Reports,
page 6, &c. The Constitution Of that State
then in force provided that justices Of the
peace should be elected for the term OF six
years. And by another section of the Con-
stitution il was provided rs follows: The
filling OF all vacancies that may happen by
death, resignation, or removal, not other
wise directed or provided for by this Con-
stituti0n, shall be made in such manner as
the Legislature shall direct" 1t will be
observed that this provision is almost iden-
tical with the language OF section %,
Article ", OF our own Constitution,
relied on by the Attorney-General
in his oral argument and printed
brief in this case, which Is in
these words: "The manner OF
filing vacancies in Office in cases not spe-
cially provided for by this Constitution
shall be prescribed by law, and the General
Assembly may declare the cases in which
any Office shall be deemed vacant, where
no provision is made for that purpose in
this Constitution" BY an act OF the Le-
gislature OF Tennessee it was enacted that
n person elected TO ill vacancy in the
Office OF Justice OF the peace shodld hold
for the uneXpired term OF his predecessor,
and no longer. Again it will be observed
that this act is almost identical with the
Joint resolution OF our Legislature, ap-
proved December Is, 1872, upon which
the Attorney-General and his learned asso-
ciales almost entirely rely in this case, and
which is i'm these words: "All election.
by the General Assembly to fill vacancies
In the Office OF Judge shall be only for the
uneXpired term OF his predecessor"
The act OF the Tennessee Legislature
was assailed as unconstitutional and void,
and II was so pronounced by the Supreme
Court OF that State. The singlllarly cleal
and able opinion OF the court delivered
by Caruthers, J., is so applicable 20
this case that | cannot forbear tc
quote from it. He said: The statute
sis clear and legitimate exercise OF
power, so far rs the 'manner' OF filling
vacancies is prescribed; but where was Tho
authority to shorten the term OF service
fixed by the Constitutiony BY that, every
Justice of the peace shall be elected iol
the term Of six years ,; and by this act, FOL
any period thai might remain Of the tern
OF his predecessor, whether one, two
three. four, or five years, or even portion
OF a year. Here, then, is Il palpable con
flict between the Constitution and the ac
as to the duration OF the term for which ;
Justice of the peace shall hold his Office
after his election by the people. The
former being supreme, must prevail. Th'
term is there fixed at six years under al
circumstances and without exception; anC
no power is given to the Legislature to alb
breyiate it, but only to provide for the mode
and manner Of keeping the office filled
This is the extent Of the power delegated
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