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

IN error lritO WHICH titutI Oui pitutS'ssVio
or ourselves may have inadvertently fallen
merely upon the ground Of such erroneous
decision having been previously rendered.
The questions to be considered in these
cases have no application whatever to the
title or transfer Of property, or to matters
OF contract. They involve the construction
and Interpretation OF the organic law, ana
present for consideration the structure OF
the Government, the limitations upon lc-
cislatiye and executive power. Certainly
il cannot be seriously insisted that ques-
tions OF this character can be disposed OF
by the doctrine of stare decisiS. In such
case the former decision or previous con-
struction is received and weighed merely
rs an authority tending to convince the
| Judgment of the correctness OF inc par
| ticuiar conclusion, and not as rule to be
| followed without inquiry into correct
ness" This IL the language OF learned
Judge in one of the states OF this Union.
! (Sce Willis Us. Owen, 4S TeXan.) In an
other case is is said: "We are by no means
unmindiul OF the salutary rule Of stare
decisis, but at the same time we cannot be
unmlndiul Of the lessons furnished by our
own consciousness, as well as by Judicial
history, Of the Inability to error and the
advantages OF review" (See Pratt Us.
Brown, 3 Wisc.) The noted cases OF Davis
&Turner. 4th Graft, wherein we find the
oft-quoted and truly eloquent opinion
Of great Judge, TO which Judge
Staples himself pays respect and ho-
mage in the case OF IIiIb, &C., rs.
Peyton, and, following the example OF
Judge Cabell, reviewed and reversed his
own preyiously-expressed views. furnishes
a shining precedent for review OF q wrong
decision even II we had ourselves rendered
il. We are satisfied that the decision in re
| Meredith is erroneous we are satisfied
that by the Constitution all rdcGncieS in all
offices are TO be filed in the manner to
be prescribed by law; and hence it
is our opinion that the Legisla-
ture, having provided that all elections
to ill vacancies in the Office OF judge shall
he for the uneXpired terms: that Judge
Bmls was elected to fill the uneXpired
term of twelve years beginning January
/, 1871 that his term expired on the 3lst
day of December, 1882; and that he is no
longer q Judge of this court. But that
Hon. Drury A. Hinton, having been elect
ed for the term OF twelve years beginning
on the lst day OF January, 1883, and having
been commissioned, and duly qualified by
taking the oaths prescribed by law, Is 4
! Judge OF this court, and Is entitled to oc-
cupy his seat upon this bench.
After the reading OF the opinion by
Judge Lacy, the president OF the court
| rJudge Lewisl took the vote thereupon.
Judge Fauntleroy said with emphasi9:
/ concur.
Judge Richardson said that he concur
red in the opinion in all respects, but that
! he had intended to write out his own opin-
| ion. ard having been unable 10 finish it he
would deliver his views orally; which he
did, taking one hour 10 do so.
Judge Lewis read dissenting opinion.
Judge Lcwis's Opinion.
am unable to concur in the judgment
Of the Court in this ease, and will state the
reasons for my dissent:
The only provision Of the Constitution
relating specifically to the election and otli-
cal tenure OF the judges of this court Is in
these plain and mambiguous words {: " The
| Judges shall be chosen by the joint vote OF
the two houses Of the General Assembly,
and shall hold their office for a term OF
twelve years. ."-Article VI, section 5.
! The trainers of the Constitution, and the
people who adopted it, must be understood
TO have employed these words in their nat
!
have said. Nor can doubt that they were
deliberately used, and for a wise and beneti-
cent purpose. Ii their universally accept
ed meaning is in any manner qualified by a
SINGLE clause or line in the Constitution
am free to say, after diigent search, have
been unable TO find it. The provision,
then, is express, imperative. and unquaIi-
fed that the judges, when chosen by the
Legislature, shall hold their office for a
term OF twelve years. No exception is pade
whatever. The language is general ard
sweeping, and, in my view of it, sitting
here as a Judge to construc IT, it imposes
upon me duty which cannot be disre-
garded. IF in any case" says Chief
Justice Marshall speaking for the Supreme
Court. "the plain meaning OF [constitu-
tionall provision, not contradicted by any
other provision in the same instrument, is
to be disregarded because we believe the
trainers OF that instrument could not in
tend what they say, il must be one in which
the absurdity and injustice OF applying the
provision TO the case would be so mon
strous that all mankind would without
hesitation unite in rejecting the applica-
tion. ."-Sturges rs. Crow ninshield, 4
Wheat, 10. Giving, then, to the consti-
tutional provision in question the interpre-
tation which the plain meaning OF its words
seems to me 10 require, can arrive at no
other conclusion than that when Judge
OF this court is chosen by the Legislature
TO supply a vacancy, except in Il ease here
after TO be mentioned, the election is for
the full constitutional term OF twelve years.
If i'm any case FOR shorter term, where is
the provision Of the Constitution that says
SOP III such exists. / repeat | have been
unable TO find it.
Surely il an exception was intended TO
be made in so important matter the
trainers OF the Constitution would have said
so in terms too plain TO be misunderstood.
In respect to temporary appointments by
the Governor TO fill vacancies the COnstitu-
tion is careful TO limit the term OF service.
! WHY. then, If the construction OF the ma
iority OF the court is correct are not limits
as carefully prescribed in respect to elec-
tions OF Judges by the Legislature to fill
vacancies? The answer, TO my mind is
that none were prescribed, because none
were intended to be prescribed further
than provided by section D, Article W..
already quoted.
II we look beyond the language and TO
the policy OF the trainers OF the Constitu-
ton the result is the same. To the credit
OF those men, be it said, in no particular is
their design made more manifest than their
purpose to secure to the people OF Virginia
the blessings of an independent judiciary.
1t was doubtless the melancholy eXpe-
rience OF our English ancestors, espe-
cially in the reigns OF Charles III. and
James H., that prompted that great man
Chief-Justice Marshall, when member OF
, | tho Constitutional Convention of 1000 ia
utter these memorable words: 81 have
, always thought, from my earliest youth till
} now, that the greatest scourge an angry