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

BURKS vs.. HINTON.
In the Supreme Court of Appeals
| SYNOPSIS OF ARGUMENT OF F. 8. BLAIR IN BE-
HALF OF JUDGE HINTON DELIVERED BEFORE
The COURT OF APPEALS OF VIRGINIA.
| This is a contest by Hon. Edward G. Burks,
before the Honorable Supreme Court of APP
peas of Virginia, by motion against Hon.
Drury A. Hinton, by which the former claims
the seat of the latter, upon said Supreme
Court.
The facts of the claim are briefly as follows:
/ The late Hon. W. s. Joynes was elected and
commissioned for q term of twelve years as
judge of said court, to commence on 1st JAN
uary, 1871. Said Joynes resigned said position
on--day Of, 1877; on the 18th March,
1872, the late Hon. Wood Bouldln was elected
by joint vote of General Assembly to fill the
vacancy occasioned by the resignation of Judge
Joynes. Upon the death of the said Bouldin,
the Hon. Edward G. Burks was on the 10Th
December 1875 regularly elected an6 commits
stoned as a judge Of said court, to fill the va
cancy created by the death of Judge Bouldin.
| Thus it will be seen that the term of Judge
Joynes for twelve years, and which began on
1st January, 1871, ended on 31st December,
| 1889, SO that when he resigned, and his sue
cessor, Judge Bouldin, was elected and COM
missioned on 18th March, 1873 to fill his va
cancy, about one year, three months and
| eighteen days of his term was spent; and on
10Th December, 1875, when Judge Burks was
elected to complete the vacancy in said office
of twelve years, there was then spent of it five
years, eleven months and fifteen Gays. and
there was left for Judge Burks six years and
! fifteen days, as he was elected only to fill the
vacancy In said office-on the LIST January,
| 1888, when the new term began. Judge Hinton
was duly elected by the General Assembly of
| 1872 and commissioned for the term pre-
scribed by law Twelve years., to commence on
| LIST January, 1888. TITS w
| Isubmit the legal proposition that Judge
Hinton is clearly entitled to said seat, as said
vacancies have been fully filled, and new
term began 1st January, 1883. 1t is impossible
| for an ordinary mind to comprehend how it
were possible to carve longer term than
| twelveyears out of tenure of Office fixed by
the Constitution of the State at twelve years.
| In contemplation of law, Judges Joynes, Boul-
| din, and Burks together filled the complement
| of that term-the former having resigned and
| the latter at different subsequent periods hav-
ing been elected to fill vacancies in said term.
| How could the latter take more of the term
than his predecessors had or could leave? Had
Judge Joynes not resigned he could have en-
joyed only twelve years of the term, and it is
pertinent to ask how his successors could, by
any device of law enlarge or prolong that
| term. As well might an heir, whose ancestor,
at death, had left him one thousand dollars,
claim double as much.
| Lere Broaddus and In re Walsh ante, Pres
| ident Moncure says: 81 think the Constitution
| ought to receive not a strict and narrow, butt
| liberal and reasonable construction. The Leg
islature is invested by the Constitution with
the elective franchise in this case for the ben
eft, of course, of the State. 1t is entrusted
with the duty Of filling the county judgesblps,
| &c.-all of which have become vacant" Page
| 78o.
1t is well established principle of law that
the rules of construction that apply to the in
depreciation of statutes are alike applicable to
| the ascertainment of the spirit and meaning
of constitutions. Polters Dwarris on Statutes
and Constitutions, top page 754, chapter 10.
| See Cooley on Con. Linn, 48-9 note, 68 70.
| 79-102, 67-72. where the rules for construction
| of constitutions are given in detail, and from
which it is easily deduced that the intent of
the trainers should govern, as gathered from
all proper antecedent and cotemporaneous cir
cumstances, 80 that the real question presented
| in case is whether Judge Burks. who was
elected to fill vacancy, occasioned by the
death of the former judge, is elected for a full
| term of twelve years. or only for the unex-
| pired term of the former judge.
| In nv view of the case, a mere comparison
| of the Alexandria Constitutions and that of
| 1851 and our present Constitution furnishes an
easy solution of the proposition BY article
| 4, section 38. of the Constitution of 1851, and
| by section IS Of the corresponding article of
| the Alexandria Constitution, it is provided,
NIl,,t elections tn fill vacancies in the
| office of Judge of any court shall be for full
| term" Now, under those constitutions, it is
clear that all elections to fill vacancies in the
| office of Judge were for full term; but by
reference to the present Constitution, article
S, section %, it will be found that the words of
the former constitutions referred to-to-wit,
"But special elections to fill vacancies in the
office of Judge of any court shall be for full
term"-are wholly omitted, so that the Con-
stitution in that regard now reads: "The man.
ner of filling vacancies in Office, in cases not
specially provided for by this Constitution.
shall be prescribed by law" This omission is
quite significant, and indicates, of itself,
change of intention on the part OF our law
makers U f-ss5
But will now proceed to show that this
| omission was not accidental, but was inten-
tional By reference to the report of the COM
mittee on the legislative department, Docu-
! l,pd
Convention of 1878, it will be seen that by
section %, the language of the Constitution of
! 1851 was reported for adoption, but from page
302 to 5 inclusive, Document 40, there was
report in the language of the present COde,an
| from the journal OF that convention, page 313,
of March 31st, 1869,t will be further seen that
| when the report of the committee on legisla-
| tive department came up for consideration and
discussion, that section % of the majority re-
port was read, and upon motion of Mr.. Hine,
to strike out, "Dut special elections to fill vacan-
cies in the office Of judge of any court shall
be for full term" his motion was agreed to,
and the section as amended was adopted. This
would seem to be conclusive of the question,
as it shows clearly the spirit of the Constitu-
ton and the intention of its trainers.
This Interpretation was cotemporaneous
with the adoption of the present Constitution
| ITSELF and any further discussion of the point
would seem to be superfuous and unnecessary,
for it has been held, in nearly every State, that
| not only the cotemporaneous Interpretation of
such an instrument by its trainers is an impor-
tant canon of constitutional construction, but
that the legislative construction of such an in
strument is also entitled to much weight. See
| IL Wheat, 270 is Pick, 95; 80 N. H., 312;
Cranch., 1873.
now beg to call the Courts attention to the
fact that by the 22d section of the present Con-
stitution referred to, it is provided that the
General Assembly may declare the cases in
which any office may become vacant where no
provision is made orthat purpose in the Con-
stitution. By virtue of this provision the Gen
eral Assembly by a joint resolution, approved
December IS, 1872, Acts of 1928 page 1,
en- acted, "that all elections by the General AS
senbly to fill vacancies in the office of Judge
shall be only for the unexpired term OF his pre-
| decessor." 1t is worthy of observation that
Judge Burks accepted his position after this
| resolution and thus accepted the position with
| full notice Oft this legislative construction.
By Acts of 1878-'79, page 16, the General
| Assembly again passed a joint resolution, fix
| ing the term of office of the seventeenth and
eighteenth judicial circuits, which are the
declarations OF two distinct Legislatures as to
their right under the Constitution 10 declare
the terms tor which the judges are elected
The foregoing authorities also show clearly
| the weight to which these legislative declara-
| lions are entitled
/, further, most respectfully submit to the
court that the dogma that judges elected for
an unexpired term are entitled to full term is
not only contrary to reason and Justice, but
is IN conflict with the spirit OF the Bill of
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