The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1883-04-29

o,,niou Or the supreme Court m Ne
lfvsred BY Judge hewfs fn Judge
Wolladayss Case.

GD&1 u WH1tACt MY " "
urss salary AZ Judge OF the Chanccry Court
AZ the city OF Richmond Is payable ont Of
the state Treasury. And that depends upon
She prcper construction Of certain ccnsti-
tutionaI and statutory provisions. now 70
b referred to-
Tive Consultation declares that there shall
be : Suprene Court OF Appeals, Circuit
(hurts and County Courts.-Asticie VIZ
sectiou 1. And then, among its provisions
rrlafinr 10 the government OF cities n
sovns-v n further provides that "for each
clfv and town in the State, containing n
uonalafjon OF five thousand, there Shall be
Sjecsed on the Joint vote Of tie two houses
n \ General Assembly. a city Judge,
who shall hold q corporation or hustings
court of said city or town as often
and as many DAYS In each month as
NAV be prescribed by law, with
sisiar jurisdiction which may be given by
law 10 the circuit courts OF This State, and
who shall hold his Office for q term OF six
wears: provided, that in cities or towns
containing thirty thousand inhabitants
there NAV be elected an additional Judge
"a hold courts OF probate and record, sepa-
rte and apart from the corporation or
hastings courts, aud perform such other
duties ms shall be prescribed by law
Article VI. section IA
In Of authority thus confer
red, the Legislature. by act approved AprlI
=. 1870. established the Chancery Court OF
the city OF Richmond and defined It's juris-
dicfion. BY an act approved May Is, 1870,
the compensation Of the judges OF the sew
cral courts Of the Commonwealth was
fixed; and by the same act, after fixing the
salaries of the Judges OF the Supreme Court
Of Appeals, the Circuit Courts, and County
Courts. it was provided that 1.-the judges
of the city and corporation courts shall re-
ceive the following annual salaries. re-
spectiyely The Judge Of the Hastings
Court OF Richmond, the sum OF $1,000;
the Judge OF the Probate or Cbancery
Court of the city of Richmond, the sum OF
3d. 300; the city judge OF Norfolk, the
sum OF $1,000" and so on in respect
to all the judges Of the city or corporation
courts in the State. 1t was also provided
that the salaries Of all the judges should
be paid quarterly out OF the treasury OF the
State.-Acts Of Assembly 1S69-'70, p. ia.
&c. But afterwards, by an act entitled
San act providing for the pay OF city and
corpol alton Judges" approved April 1,
1873, and which expressly repeats all in
consistent acts, IT was enacted that ''the
Judges OF the city and corporation courts
Of this Commonwealth shall be paid out Of
The treasury Of their respective corpora
tions."-Acts Of Assembly 1928, p. 331:
Code 1873, chapter Is, section 13.
1t Is under the provisions OF this act that
the Acknowledgement contends that nc part
OF the compensation of the Judge OF the
Chancery Court OF the city OF Richmond is
payable out OF the State Treasury. The
counsel for the petitioner, however, insists
that the act cannot be held to apply to the
Judge of that court, and for these reasons :
/, because he is not the Judge OF a city
court; 2, because il ii was originally in
tended TO so apply, its uniform construc-
tion to the contrary, by both the executive
and Legislative branches Of the government
since It's passage, operates as an implied re-
peal of the act; and 3, IL not repealed,
then, so fur as its terms may extend to this
case, 1t Is unconstitutional and void.
1. 1t is plain. we think, from the Ian
guage Of the Constitution, already quoted,
that the design OF It's trainers was to estab-
fish city courts, to be held by city judges.
BY 1t the Legislature is empowered to elect
for each city or town containing a popula-
ton OF five thousand cone city Judge" to
hold the corporation or hustings court,
with similar jurisdiction to that OF the cir
cult courts; and in cities containing thirty
thousand inhabitants IN additional Judge
to hold the court Of probate and record
and to perform such other duties as may be
prescribed by law. The judges OF both
courts stand upon the same footing,
and are included in the same category.
One Of them is expressly designated as q
& city Judge" and the other rs an add-
tional Judge for a city containing thirty
thousand inhabitants. 1t is manifest, there
fore, that the nature and extent OF the jul
risdiction of those courts is of itself no
criterion by which to determine their char
acter or that Of the judges chosen to hold
them. That must be determined by refer
ence to the Constitution itself, and not by
the duties which under its authority are
imposed upon them. The right of the
people. speaking through the Constitu-
ton, to create city courts and to en-
power the Legislature to impose upon
them such duties as in its wisdom
it may see fit to prescribe by law, is unde-
niable. And our conclusion Is that such
is the character Of the Chancery Court Of
the city OF Richmond that it was appro-
priately SO classified by the act Of the Lee
g~islature approved May IS, 1870, and that
the Judge thereof is embraced within the
terms Of the act Of April 1. 1878 supra.
9. But it is contended that the latter act
has been repealed, not expressly, but by
implication
There is no doubt that a statute NAV be
repealed by implication as well as express
ly, but the leaning of the courts is against
the doctrine. In Fox's administrators Us.
The Commonwealth, 16 Graft. /, Judge
Moncure. speaking for the Court, said /:
"The law does not favor a repeal by inn
plication unless the %repugnance be quite
plain, aud then only to the extent OF such
rcpugnance- The presumption is that the
Legislature, when il entertains an intention,
will express 1t in clear and explicit terms
n IT Is generally to be taken that the Lee
glslature only meant to modify or repealth the
provision Of any former statute in those
cases where such Its object Is expressly de-
clared."
Now, by the conceded facts OF this case
1t falls within the settled rule thus stated
by Judge Moncafre. They are these: Tha,
nom the foundation OF the Chancery Cour!
the Auditor invariably included In his an
uual estimates mad reports to the Legisla
ture nm amount Sufficient for the paynsen
OF the ehanceilor's salary, and that the LIE
Rtslattire, while nt appropriating specifi
cally any sum for the payment OF his sal
AIRY, has uniformly appropriated a sum |,
gross for the & officers OF government on
Of which the salary has always been paid
without question. at the Treasury, until tn
recent refusal Of the respondent to pay tn
petitioner bis salary Tor the month OF Marc
lask-
Ihis h certainly conclusive evidence q
easregard by the Treasury officials OF tn
.! q AprH 1, 1878, lat affords no sue
evidence at IN intention on the part of til
Legislature to repeal II as to justify us Il
holding that II has been repealed. The es
umMes Of the Auditor are no part Of tn
xpprcpftAfion acts OF the Legislature. ant
- eve Them The effect commended for In thi
Meoso u 10 announcea doctrine un