The Roanoke times. [volume] (Roanoke, Va.) 1890-1895, 1892-05-06
THE JUDICIAL QUESTION.

To THE EDITOR OF TIE TINES: The
bar of this city, and, indeed, the whole
community, learned yesterday, with
profound regret of the determination
of Judge Robertson to resign the posi-
ton of Judge of the Hastings Court
His ability, learning, integrity and
firmness fitted him in peculiar degree
for the duties of the office, and it will
be difficult task to supply his place
on the bonch.
In connection with his resignation
the question of the right Of the cover.
nor to fill the vacancy has been much
discussed in legal circles. l hope thai
you will allow me a small space in your
paper to express my views on that Ques
ton, not that the views have any par
ticular value, but for the reason that
their expression may elicit articles on
the question from ADLER pens than mine.
After such an investigation as the
limited time and emeans at my disposal
would permit, l venture to express the
opinion that the governor has the right
to fill such vacancy. The constitution
of the State provides that the governor
shall have power y during the
recess of the general assembly, to
fill, pro tempore, all vacancies
in those Offices for Mhich tho constitu-
ton and laws make no provision; but his
appointments to such vacancies shall be
by commissions, to expire at the end of
thirty days after the commencement of
the next session of the general assem-
bly," Article ", section 5.
This is the only constitutional provis-
ion on the subject. Do the laws make any
icio fNr -
ration Judge?
The code of 1887 provides that "When
vacancy, by reason of death or resig-
nation, exists in the Office of Judge Of
county or corporation court, the cle5k
OF such court shall certify the fact to
the governor of the State, who is hereby
authorized y to designate a
Judge of any other corporation court
to hold the regular terms of the corpo-
ration court in which such vacancy
exists, until the vacancy be filled"
know OF no other statute on this
subject. Is this such provision of tho
laws for filling the Office of corporation
judge as takes away from the governor
tho power to fill tho vacancy? | think
not. In an able article in the Virginia
Law Journal for March, 1891, w. b.
Petit, one of the ablest and most
learned lawyer in the State, in speak
ing of vacancy in the county judgeship,
and his remarks are equally applicable
to corporation judgeships, says: "Obvi-
ously this statute does not provide for
flling the vacancy, nor purport to do so.
lt'provides for only the tenn porary hold
ing of the regular terms of the county
court until the vacancy be filed The
vacancy is not filled by the designation
of another county judge to hold the
terms. He is a mere locum tenens,
called upon to supply present emer-
gency, in order, perhaps, TO give the
governor more time for deliberation in
selecting the person to fill the vacancy.
Certainly the vacancy remains to be
filled. The statute does not provide for
filing it, and the constitutional provi-
sion above quoted rem aims in full force,
for there is no statutory law making
provision for filling the vacancy" 1t
seems to me that Mr.. Pettit's view is a
strong one if not conclusive. But in an
article in the Virginia Law journal for
June IL, 1891. Mr.. John w. Bell strongly
combats Mr.. Pettit's position, as above
stated. BE says: "Mr. Petit also con-
tends that the vacancy is not filled when
the governor 'desi {nates' the juge of an
other county court to hold the
regular terms of the county court
Wuoto IHo VACANCY oXlStS. With
Difference, this position is more
specious than substantial. In case of
vacancy on the court of appeals and the
circuit court bench of the State, to FIJI
it the Governor appoints person re-
commended (designated) to him by his
friends and gives him his commission
under the seal of the Commonwealth.
In case of county court vacancy the
Governor confers the honor on his
choice; in other words, he desiRnates
Judge A. as his choice, precisely as he
designates (aDpoints) person (Mr Al
for circuit judge and gives him the com.
mission. temporary in either case, which
expires at the end of thirty days after
the NEE ting OF the next general as
sembly. To all intents and practical
purposes the vacancy is filled and filled
in legal and constitutional way"
give Mr.. Bells construction of the
statute that it may be compared with
Mr. Pettit's. Mr.. Bells reply does not
shake my faith in Mr.. Pettit's position.
Roanoke, May 5. II. TIP.
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