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


Predecessors; The Old Court Reversed and
Hon. Drury A. Hinton seated in Place OF
Hon. T.. G. Burlgs-Cpinions by Ihrce
judges, Including a Dissenting One By
Judge Lewis, President OF the Conrt-steps
Taken by the Attorney General TO Decide
the Nedicai.CoIIese Question, &c, &c.
In the Supreme Court Of Appeals yester-
day Judge Lacy delivered the opinion OF
the court in the matter OF the contested
iudgeship OF Burks Us. Hinton.' He first
stated the claim OF each gentleman then
the constitutional provision in reference To-
The election OF Judges, and carefully eX-
amined former Constitutions on this SUD-
| iect: also, the proceedings OF the Conven-
| ton which adopted the present Constitu-
ton, and Joint resolutions OF the General
Assembly, approved by the Governor,
under which he held that Judge Burks
took Office. These authorities were quoted
and considered at great length. Concluding,
| he proceeded to review the decision upon
which Judge BurSs manly relied. On this
subject he said:
The decision Of the court in re Meredith
cannot be sustained upon the reasoning oi
the Judge who delivered the opinion.
| II proceeds upon the declaration that the
Constitutions Of Mississippi and other
States mentioned contain similar prOvi-
sions TO our own. What these similar pro-
visions are we are left TO conjecture; and
uDon n careful examination OF the said Con-
stitutions we have not found them, unless
reference Is had 10 the fact that they all
declare distinct and definite periods Tor the
terms Of officers OF the government.
II il not pretended that these Constitu-
tions contain the identical provision which
is contained in the Constitution OF this state,
and so the decisions constituting them upon
the tenure OF office are not applicable to the
case in hand. In one Constitution there
cited the provision is the same as we have
said. but the distinction in that case is
broad enough, because we do not find that
the deliberate striking Om OF the
provision in the Constitution which
was proposed to provide that elcc-
tions TO fill vacancies III the Office OF Judge
should be for the full term. Ii the Con-
vention OF 1S67-'S had denied that elec-
tiops OF Judge to I'll vacancies which should
occur i'm the Office OF Judge should be
made by elections OF a judge for the full
term. all il had TO do was TO adopt the re-
port Of its committee as we have seen; but
il refused to adopt the entire report; and
what was necessary TO be done TO provide
that the Legislature should determine the
manner OF filing all vacancies in Office was
to strike out the provision which made an
exception OF the Office OF Judge Qor so the
committee had reported it), and the Con-
vention did strike out the clause IN the
said committee report, tchich made an
erception as to judges. So it does not
seem to be q violent presumption that
the Convention intended to leave the
question as TO vacancies in all Of
| fees to the Legislature, and not TO make
anu exception IN fdUOr Of judges. 1t IS no
argument to say the Constitution OF hiSsis-
sippi. New York, or any other State makes
no such provisions as the 22d section Of
| Article V. II ought not to be in the Vir-
ginia Constitution. Judges ought to be
dependent; judges ought not to be de-
pendent upon the will OF the Legislature,
which is so often Influenced by recent po-
litical excitement, and leaves about it the
heat, and dust, and stain OF the hustings,
and NAV have garments stained in the dirty
pool OF poitics-all that might have been
addressed to the Convention which framed
the Constitution, but it has no place before
this court. The Constitution, the supreme
law of the land, placed that power in the
hands of the Legislature; and, while II
may be we'll hoped that the Legislature
may wisely use it, il is in their hands, and
there il must remain until taken away
bv the people OF this State. 1t viii
not be, it ought not to be, 1t can
not be, taken out Of the legisla
tive hand by this court. Such decision
would be i'm defiance Of the Constitution
and would be but futile endeavor-woulC
be like the decision OF this court in ca
parfe Meredith) but iudge-made law, anc
would not long survive. II has been elo
ouently argued by counsel that to over
rule er parte Meredith would be to put Tho
courts at the feet and at the mercy OF tlit
Legislature OF the State; that the web o.
one argument might weave ere long 0ul
own judicial shrOud. Those things arr
not worth considering; ii there Is no way
TO save the judicial life OF this court but b!
setting at naught the Constitution whicl
we are sworn TO support and maintain
then perish our judicial life. The Consti
tuition must be maintained.
II is claimed by counsel for the petitioner
here that the decision Of this court in the cast
in re Meredith is binding on this court 4.
finally settling the rule on the subject; anC
even if this court shall regard the case a
ulainlv wrong, itmust, nevertheless. sustain
the decision thus made, upon the principle
of stare deciSiS, because it has been accepted
rs the law, and acquiesced in TO this time
II docs not appear to come within the rule
In the first place, the ease n re Broadu
had preceded il in this court and was
] ogI ITn1gr NrE lasf
named decision the judges Throughout
the State had acted; had vacated th,
bench. and gone without question TO tht
bar and commenced again the practice o
their profession. Was the case in r.
Broadus within the rule Of stare deciSiS
II not, why not? In tie second place, th'
case OF er parte Meredith was not argued
except on one side. 1t may have been con
sidered on the other side that the rule haC
been settled by the Broadus case. The
Hon. Charles q. lIowison was one OF thu
iudges which this court had unanimously
declared in that case entitled to his Office
from the lst day OF January, 1880, for siA
years, and II that decision was adhered tC
il was truly settled that said Charles G.
Howison was the judge OF Prince William
county when the Meredith case was de
cided; but the court decided otherwise
and decided that the old Judge held over
although in the Broadus case the entir
court had declared he did not hold over. /
the rule OF stare deciSiS did not apply t.
the Broadus case, when the court hearing
the case was unanimous, and when it wa
heard after argument on both sides by th'
ablest counsel, how can this rule apply t
the Meredith case, which was decided by
dipided court, and not argued at all on th,
losing side? The able president, perhap
the ablest mind on the court, dissenting
and perhaps 1t may not be considered tha
tbo rourt was 90 very uneyenly divided