Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1896-05-15
Are Com missioners of Accounts he-
movable ut rieasure!
o the Editor OF the Dispatch


TO the Editor OF the Dispatch.
The summary removal OF the Commits
sioner Of Accounts by the Corporation
Judge OF Roanoke city presents n ques-
ton Of considerable interest and import
ance. The case IS very similar In its
principal features 10 that OF ex parte
Henner, - Peters, 1880 which was de-
cided in favor OF the judge whose arbi
trary removal Of the clerk was brought
I'm question by a petition for a writ Of
mandamus. That decision, however, was
controlled entirely by a construction OF
certain provisions OF the Federal Consti-
tuition and the express legislation Of Con-
gress, while the common law was con-
fessedly excluded from the reasoning and
Judgment Of the court.
There are undoubtedly cases Of official
tenure IN which the power OF removal at
pleasure is incident to the power OF APP
pointment, but is this one Of those cases?
II seems 10 ME that a negative conclu-
sion may be reached by a fair construc-
ton Of the law of Virginia without in
voking any other authority whatever.
Section PSI Of the Code declares that
1.-THE Judge OF each court having juris-
dction Of the probate of wills. etc, shall
appoint a commissioner of accounts. who
shall have a general supervision OF oil
hduciaries admitted 70 qualify I'm said
court, and make all ex parte settlements
of their accounts" His duties are after
wards more specifically defined and PEN
alties prescribed for failure to perform
them. Nothing is said as TO the manner
Of his removal, or the duration OF his off,
cial term.
Section 1919 declares that Each Circuit
Court and each Corporation Court having
chancery jurisdiction, or the Judge there
Of in vacation, shall from time to time APP
point commissioners in chancery, who
shall be removable at pleasure"
In constituting these sections it should be
borne in mind that when commissioners
OF accounts were first created by law. I'm
1870 they we're selected by the courts
from the commissioners in chancery, and
were. I'm fact, nothing more than commits
sioners in chancery designated to perform
certain additional duties. In other words.
every commissioner OF accounts was ne
cessarily a commissioner I'm chancery
and removable at pleasure" like the
rest
But now the law is changed. and in
stead Of one appointee holding two offices,
as formerly, the offices themselves are
separated into two distinct classes-one
I'm which the power Of removal at plea
sure remains expressly given as before.
and another I'm which no such power is
given and no mode Of removal prescribed.
Can 1t be seriously contended that the
manner OF removal is the same in both
classes OF cases?
IL it could be proved that a Ia equal
10 a plus b, then possibly such a con
structon might be maintained But since
the express power OF appointment. on
the one side, and the express powers OF
appointment and of removal, on the other.
are not the same or equal powers. It fol-
lows necessarily that they do not con-
sttute an equation. We cannot make the
statutory power 10 appoint equal TO the
statutory power 10 appoint plus the
statutory power 70 remove at pleasure
without violating the simplest principle OF
logic. Commissioners OF accounts and
commissioners in chancery, therefore, oc-
cupy different positions In relation 20 the
power OF removal as win be still more ap-
parent from the following considerations.
The words removal al pleasure" were
first added in the Reyisal OF 1919. and II
they were necessary 10 make commits
sioners In chancery removable az pleasure
then, why are they not necessary to make
commissioners OF accounts removable at
pleasure ncw2 Before those words were
introduced Il Is reasonable inference
that commissioners In chancery could be
removed for cause only. and not at the
arbitrary Will Of the Judge. And this was
for those words were not used without q
meaning or without purpose They
must have been deemed necessary 10
manifest the legislative intent that
commissioners in chancery should be re-
movable a pleasure and not for cause
only
The Commissioner OF Accounts Is an
officer unknown 20 our law prior TO July
II. 1870, and by the act OF that date he
-. u.Hn Fs.F ~. gsHIrv
the commissioners In chancery and Tin
addition to his other duties" have gene
raj supervision Of all fiduciaries. etc"
As he was then only a commissioner In
chancery designated" TO act as com
missioner Of accounts. he was OF course,
liable 10 be removed at pleasure just as
any other commissioner In chancery
would have been.
This continued TO be the law. until 1857,
when new provision was made for the
appointment" mot 'designation') OF
commissioners OF accounts. and the
words removable at pleasure" were
omitted. II will hardly be contended that
the omission was Unintentional or acct
dentdl2
BY section 267l Of the Code the courts
as we have seen, were empowered 10
appoint any competent person com
missioner OF accounts. whether he was at
The time a commissioner In chancery or
not The Office OF Commissioner OF Ac-
counts was thus made a distinct and in
dependent one. and the officer was no
longer Ito be treated or considered as
commissioner I'm chancery He was com
pletely segre gated from class OF officers
expressly removable at pleasure" and
assigned 10 a new class not declared 10
be removable at pleasure Can Wa assume
that so important change was merely
accidental and that the law-maker meant
what the law does not express? And. II
the words removable at pleasure were
omitted Intentionally, by what rule Of
INTERPRETATION are the courts authorized
TO supply them? Why were they used
al ali. II they can be construed into the
law Does their absence mean nothlngF
When the Legislature constituted COM
rntssiouers OF accounts a distinct and IN
denendent class OF officers. .divesting them
~ The character OF commissioners In chan
Gerry. and not declaring that as commits
sioners OF accounts they should be re-
movable a. pleasure, as they were when
they were commissioners I'm chancery. the
conclusion Is irresistible thar the law for
the removal OF commissioners In chancery
Is not applicable to commissioners OF se-
counts. and that the Legislature made the
distinction Intentionally and with the full
est deliberation-
therefore. since there Is no statute pre-
scr,hlng how commissioners OF accounts
shall be removed, why should We not re-
.orf To the common law In order 10 ascer-
tain how the removal should be effeeted2
Certainly the common law Is a part OF
The law OF Virginia. and furnishes rule
of procedure in such cases. Indeed, nave
we a right to adopt any other than the
common law rule In the absence OF all
- n d.