Year: 1876

which it is understood by the Honorable
Manager, that he ought to be convicted
of ignorance and stupidity. Now, if ig.
norance and stupidity-either one Oh
them or both together-could constitute
An impeachsble otiense, it might be that
some others would be in danger Of suffer-
ing from aslmllar proceeding.


He then proposed to consider these
articles of impeachment in the order IN
which they had been considered by the
Manager. The frst article Is that which
relates to the failure Of the respondent
to make certain reports to the
Governor, under clause in
the Constitution, and under .
statute made in pursuance OF that clause
and for which failule it is alleged, BY the
manager, that he committed perjury. l
refer the Court to that first article and
also to the language of the Constitution
and the statute-they are verbatim
which will be found on page %, Acts Of
1928. 1t is worthy Of observation that
that provision was not contained In any
previous constitution OF this State or
Virginia, so far as l am advised, certain
" not in tho old constitution OF this
State, so that by virtue Of this provision,
not 30 much new duty was imposed
upon certain executive officers
as moro frequent performance Of duty
familiar to all OF those officers Tho
Auditor has always been required to
make reports to the Governor, which
were communicated to the Legislature.
These have bsen annual, but under this
last provision they must be semi-annual,
and in addition to this, at least every
two years the Auditor makes his bien-
nal report, which is nearly, and, As l
understand, a combination Of the four
preceding seml-annual reports. Now the
first qliry that would naturally arise
in seeking for an Interpretation
Of the Constitution, would be-,
What is its purpose and object?
He submitted in hehalf OF the
respondent that the only purpose and OBJ
ect oe the provision that could have been
contemplated by the Convention was
that there should be frequent and faith
full reports to the Governor and, throug h
him to the Legislature, Of all the public
monies received by the several Executive
officers, or handled or disbursed by them.


He submitted in the second plea that
even if this construction be erroneous, 1t
is reasonable construction and one upon
which all the affairs of this state seem to
have acted. He assumed that no citizen
of this state, high or low, private or off,
cial, can be convicted Of an offence which
is,found to consist. merely in miscon-
structlon Of some statute which he is re-
quired to execute.


He contended in the first place that
the construction given to that clause OF
the Constitution and Of the Statute made
in pursuance thereof, is the only true
and correct construction, and in the Sec
ond place that, even if it is shown to be
erroneous-that the official is mistaken
in his construction of the Constitution
and Statute, that it is not an otfense in
dctabe or impeachable.


He then called the attention Of the
court to this consideration, which is q
most important one in considering the
con .tructon of statute or Of constitu
tional provision. That is: What is the
construction which it has received by
those to whom its execution has been
committed! Contemporaneous con-
struction is not only entitled to the
highest consideration in ascer-
tanning the true meaning Of
constitutional provision or
statutory enactment, but where it has
been acquiesced in for any length OF
time, it Is absolutely conclusive. This
has been settled in the case Of Stewart
rs. Laird, lst Cranch U. S. Supreme
Court Reports.


The same doctrine was estab lished by
the Supreme Court of Appeals Of this
State in the case Of Bridges rs. Shallcross,
! where all the authorities are collected
and cited. True the Constitution has
only been in existence since the 22d Of
August, 1872, and the Statute since lit
tie later period. what construction have
thev received? At the time the Secre-
tary of State, the Auditor and the Treas
urer and State Superintendent of Free
Scholastic only officers required under
the Constitution to give practical con-
struct,on to thcm-have construed them
to mean precisely what is here claimed
bv this respondent. That is to say, that
in contemplation of the Constitution and
the Statute the fees that are incident to
certain services certain inconsderable
services, which are required to be per
formed bv certain Executive officers,
are not included within the requirements
Of that clause and statute. Tho Secre-
tarv of State being called here-the ap-
pointee of the Governor himself-informs
this Honorable Court that he did not so
construe the Constitution; that in his
Judgment, and not only in his judgment,
but he was proceeding to act upon that
construction, and did act upon it.


He was proceeding 10 act upon that
construction, and it is highly probable
that neither the Auditor nor the Treas
urer, nor the Secretary of State nor Su-
perintendent of Free Schools had ever
thought of that question in the first in
stance. For, what interest could the gen.
eral public have In inquiring into the
mere office fees that are received by any
officer?


The Secretary of State says, in his tes
timony, that if he is required to
report to the Governorithe fees received
from all sources, in :he very same Ian
guage he is required to account for the
disbursement Of them. What can that
mean7 Ii would not be sufficient re-
mort Of the disbursements for the Secre-
tary of State or the Auditor to show that
he had applied it to his own private use;
that is no report of disbursements. II he
must report what portion he applied to
the purchase of meat and flour; what
portion he appropriated to his iamily
and the clothing of his children. The
Court must see that the result Of this
would be to bring it into ridicule, and
how supremely ridiculous that conclusion
would be. And this must be done under
the solemnity OF an oath; it might be
most embarrassing duty for some gen
tlemen TO perform. 1t is not only in
49,. !. ;s ,ba 5rIty Of the Auditor