Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1886-09-19
THE CASE.

CLHuDtODg vi viz N"oS Va
Pendleton rersus Miller:
THE CASE.
This is an application on the part OF AL
bert G.. PendIeiOn. citizen or omy IN
county. Va, to the court Ior perempiory
mai damus TO compel the restoration To the
petitioner OF the Office o. superintendent Of
public schools OF 81 yth county, and the
books papers. and emoluments Of the said
Office which he AYERS are now usurped and
Withheld from him unlawfully by ID. c..
Miller.
The petition sets out that the petitioner
Albert q, PendletOn, WAS on the llth OF
November. 1884, duly appointed by the
Board OF Education, under the authority OF
the Constitution and laws OF Nireinis. SUI
peripteDdent OF the schools for the county
OF Smy ia for the term OF four years to be-
gin on the Ist OF July, 1855. and To end on
June 80, 1859 and that ne was duly cOu-
flrmed and Commissioned In said Oilice,
and qualified under his said com mission
December 3. 1884, and thereby became the
legally.appolnted, commissioned, and
-quallnsd superintendent OF schools for
that county until the SOth Of June 1889:
Smyth he duly entered upon the duties,
rights, and emoluments OF the said
office Of superintendent OF schools
OF Smyth county, and was in the
lawful and duiitul discharge. en-
JOY meat, and perfoi nance OF the same
when the said d. {. Miller seized the said
Office. books papers. and emolume Is. and
oustrd hin from the same by unlawful IN
trusiOn and usuTpatlon.
RESPONDENTS CLAIM.
The respondent. u. G. Miller, demurs 10
the petition rs insufficient In law and
answers that he was on the 18TH day OF
May 1850 duly appointed by the Board OF
Education OF the commonwealth and com
missiOued and confirmed as superin-
tendent Of schools for Smyth county for
term OF four years. beginning July /. 1855,
and. having taken the Oatn required by
law, he on July !. 1886. by virtue OF au-
tboIiiy vested in MIN by his said appoint.
ment. confirmation aud COMM ssion as
superinI endent OF schools for Symth cOuu.
~. entered upon the duties Of the said
office. and Is now and has Oeen since That
date dischsrRing the duties OF the sa me
that his SAID appointment by the Board OF
Education was made under and by virtue OF
the joint resolution Of the General Assem-
bly,. approved February 20. 1855 declaring
that the Office OF county and city superin-
tendenis OF schools IN all cases snail De
deemed vacant ON the LIST day OF July,
1856 and the regular term OF four years To
commence on that day. and that all APP
pointueuts and conn nations 20 ill vscan-
cief I'm the Office Of county and city superln-
tendents Of schools shall he only for the
unexpfed term, sc. Acts 1855 g. page 236.
The den urrer raises the question OF the
consttutioDality OF the said Joint resolu-
ton OF the General Assembly OF virginia,
clares vacant the Offices OF all county and
city superintendents of schools In all cases
on the LIST day OF July. 1855.
CONSTITUTIONAL PROVISIONS.
BY the With Article section !. OF the Con-
stltution Of Virginia. under the head OF
County OrganlZat IONS II Is provided:
"And there shall be appointed. In the man.
ner provided for in Article VII. one super.
intendent OF schools -; and by section OF
Article VIII. IL is provided there shall be
fsnF Low
ernor Superintendent OF Public lnstruc-
ton. and Attorney. General, which snail
appoint and have power to remove. for
cause and upon notice to the incumOents,
subject to confirmation by the Senate, all
county superintendents OF public free
schools.
1t paipabe that the office OF county SUI
perln,e ndent of public free schools Is con-
sliiutiousl office. and that the power or re.
moval nom That Office Is expressly lodged
by the Constitution with the Board OF Edu-
cation, for cause and upon notice tothe IN
cumbeDts, subject to confirmation by the
senate.
By the Constitution OF Virginia, Article
VII, section l, the term of office OF the
county superintendent OF schools was n&ed
at three years. and was 10 begin January
LIST next after their election or appoint
ment: ard by an amendment To the Con-
stitution adopted November, 1874, found
In Acts 1874 page 20S, the term OF tue
salt Office was definitely fixed for four years.
and TO begin July LIST next, after appoint
ment.
THE SCHOOL SYSTEM.
The public free-schoOl system OF Virginia
was inauguTated In 1870. and the superin-
tendents frst appointed entered upon their
terms OF Office January 1, 1871, and held
for three-y ears terms until July /, 1877,
when. under the amended Constitution, the
four-years terms began and IL now Is q
term Of four years, dating nom July /,
1877, and each four years thereafter.
The General Assembly OF Virginia had no
constitutional authority TO pass the Joiut
resolution Of February 20. 1855, removing
fTOm Office the county superlntendeuts or
the public free schools. nor To auridge their
constitutions lily .1Xcd and defined term OF
office; and when the hoaTd OF Education
appointed the respondent, ID. q. Miller on
inteLdcnt OF the public free schools
OF Smyih county for Il term OF four
years. TO begin july l, 1883, there
was 10 vacancy IN said office. because
the term Of Office Of the petitioner. Albert
q PendietOn. rs the Ilgntful aud legal
superintendent OF schools for Smyth county
by virtue OF his aforesaid appointment Of
huyembc II. 1854. Tor u full constitutional
{, RIM of four Yeas from July /. 1855. had
not expired and would not expire until June
80. 1859.
II follows. therefore, that the said Joint
resolution OF the General Assem- oily OF Feb
lusIy 20, So, is null ana void for repug-
nancy To the Constitution oiNirg mia; aud
the action taken under II by the Board OF
Education is null and void aud OF no avail.
The rule HiAi must be made absolute. Let q
upItmntOIg IUaQhHntlS