74 Va. 119 | Va. | 1880
This is an application for writs of habeas corpus in two cases. The petitioners are, however, merely nominal parties. The real controversy, which is of an amicable nature, is between Honorable John C. Weedon on the one hand, and Honorable C. GL Howison on the other, each claiming to be the judge of the county court of Prince "William.
The former was elected in the month of March, 1878, to fill a vacancy occasioned by the death of Judge Hicol. The latter was elected at the last session of the legislature. The sole question to be decided is whether Judge Weedon v/as elected and is entitled to ' hold for the frail constitutional period of six years, or for the remainder of Judge Hicol’s unexpired term. This question involves the official tenure of one of the judges of this court, two or more judges of the circuit court, and several judges of the county court, and is otherwise of considerable importance and interest in the administration of justice.
By reference to 13th section of article 9 of the Constitution we find the following provision upon the subject of the county judges :
“ County judges shall be chosen in the same manner as the judges of the circuit courts. They shall hold their offices for a term of six years;, except the first term under this Constitution, which shall be three years.” The provision relating to the circuit judges is as follows : “ Por each circuit a judge shall be chosen by the
"Whenever elected, or for whatever purpose elected, the incumbents shall hold for six "years. The language is general and positive. It embraces all the judges. It refers to the offices of all. If, therefore, in any case we hold the duration of a term to be less than six years, it must be done by supplying words not found in the Constitution. The second section of the fifth article provides that the governor,'during the recess of the general assembly, may fill pro tempore all vacancies in those offices for which the Constitution and laws make no provision, but his appointments shall expire at the end of thirty days after the commencement of the next session of the legislature. Now, as the duration of the governor’s appointment is expressly limited, if it was intended that the legislative appointment, upon the happening of a vacancy, should be also limited, the fair inference is it would have been so expressly declared. The term of an office is the estate or interest the incumbent has in it. When he abandons or forfeits that interest by resignation or removal the office reverts to the people or other appointing power.
Yacancy ex vi termini means vacancy iri the office and not in the term. When we speak of vacancy in an
Under the Constitution of 1829, the election of judges was for the life of the incumbent. Upon his resignation, or removal, his successor was also elected for life. Could it be said, with any sort of propriety, that in such case the election was merely for the unexpired term; that the incumbent would hold only for the life of his predecessor ? This would be the inevitable result if the proposition sometimes advanced be correct, that the vacancy is in the term and not in the office, and the incumbent is entitled merely to the residue of the unexpired term.
By the express words of the present Constitution the only mode of filling -the office permanently, however the vacancy may occur, is by election, and when that is made it is declared “they (the county judges) shall hold their offices for the term of six years.”
Similar words are found in the constitutions of nearly all the States, and it so happens they have been judicially construed in numerous cases involving the identical question now before us. A reference to some of these cases will materially aid our inquiries here.
In Banton v. Willson, 4 Texas 400, Hemphill J., in commenting upon like provisions in the Texas constitution, said, when the term of an office is fixed by the Constitution at say four years, each succeeding incumbent, although elected to fill a vacancy, is entitled, unless it be otherwise provided in the Constitution, to
These citations may be multiplied almost indefinitely, for this identical question has been repeatedly decided in other States—besides those mentioned— and those decisions have been almost uniformly the same way. I shall content myself with simply referring to some of the cases on the subject, for which I am mainly indebted to the researches of counsel, and an article, in the January Ho. of the Law Journal. Marshall v. Harwood, 5 Md. 423-431, and cases there cited; Sansbury v. Middleton, 11 Md. 297; The State v. Huison, 1 McCord 240; The State v. McClintock, Id. 245; Crowell v. Lambert, 9 Minn. 283; Keys v. Mason, 3 Sneed’s R. 6; People v. Burbank, 12 Cal. 378; Wammach v. Holloway, 2 Ala. 31.
The decisions in all these cases, or nearly all, were based upon Constitutions of the different States, which,
In all of them the requirement that the judge or other officer “ shall hold for a term of years specified” has received the same interpretation. In every instance those words have been construed as requiring an election for the fall constitutional term, whether the vacancy he created by death or resignation, or by expiration of a regular term. Each incumbent holds for the length of time prescribed by the Constitution, unless prohibited by express enactment or implication equally plain. When we see certain provisions incor- - porated into our Constitution also found in the Constitutions of other States, and these provisions have received uniformly the same construction in numerous cases, we must suppose it was intended they should he construed in like manner here. At all events it would he a little surprising if this court should now give to these provisions a construction entirely different from that given in every other State by judges of the highest respectability and learning. So far from there being in other parts of our Constitution anything militating against this interpretation, there is abundant matter to confirm and sustain it.
The second section of the sixth article of the Constitution, after providing for the election of clerks, sheriffs, Commonwealth attorneys, and other county officers, farther provides that all regular elections for county officers shall he held on the first Tuesday after the first Monday in November, and all said officers shall enter upon the duties of their offices on the first day of January next succeeding the election, and shall hold their respective offices for the term of three years, except that the county and circuit court clerks shall hold them for four years. With respect to the township offices, like provision is made for filling them at
These references are sufficient to show that in filling the offices elected by the people the primary object is uniformity, to avoid as far as possible the necessity of special elections, and to establish a system of general elections throughout the State.
And although it is not expressly so provided, it follows by necessary implication that whenever a vacancy occurs the election is for the unexpired term only. For if the incumbent is permitted to hold for the full constitutional "term, in the course of time the deaths, resignations, and removals occurring in the different counties would have the effect practically to abrogate the system of regular elections. “When, therefore, the Constitution provides that certain officers shall be elected at a regular election, and that this election shall take place on a certain day, named at regular stated periods, it follows by inevitable implication that the terms of all such offices are to be controlled by the regular election held throughout the State.
By this system the confusion and expense incident to frequent special elections are avoided, and the importation of fraudulent votes from other counties in some measure prevented.
¥e look in vain for the slightest indication of any such policy in the election of judges. No day is appointed for the purpose. Nothing is said even as to the years in which they are to be elected. If the legislature should fail to make an election at the expiration of the regular term the incumbent would hold over until his successor is chosen and qualified. This distinction between the offices of judges elected by the legislature and offices elected by the people is not accidental. It is recognized in the Constitutions of other
In the cases of Hughes v. Buckingham, 5 Smedes & Marshall 648, and Smith v. Halfacre, 6 How. Miss. R. 582-602, this very distinction was much considered by the Supreme court of Mississippi. In the latter case Chief-Justice Sharkey, in the course of his opinion, said: 4‘ Counsel rely entirely on the force of the provision contained in the 11th section of the 4th article, which •declares that the circuit judges shall be elected by the qualified electors of each judicial district, and hold their offices for the term of four years.”
This section considered alone might justify this construction, but the whole instrument is to be taken together with reference to all its parts. Other parts of the instrument provide that a general election shall be held biennially in November for the purpose of electing officers under the Constitution. The term of four years is to be taken in connection with this other provision.
The conclusion irresistably forces itself on us that the Constitution intended that all terms of office should begin and terminate with the regular election. The same view is strikingly presented in the cases decided by the Supreme court of Maine, but it is unnecessary to do more than refer to them here—61 Maine 601; 64 Maine, 596.
"Whether, therefore, we look at the clause of the Constitution relating to the election of judges by itself, or, what is more correct, in connection with other parts of the instrument, we are led to the same conclusion. There is but a single circumstance which at all militates against the view now taken. The Constitution of 1851 contained a provision that special elections to fill vacancies in the office of judge of any court shall be for the full term. See Article 4, section 38, Con
To this it has been very properly answered that the motives that influenced the framers of the Constitution in leaving out the provision are at best a mere matter of conjecture and inference. They may have thought it superfluous, and therefore unnecessary. They may have supposed such a provision with reference to the term of the judges might be construed as establishing a different rule with respect to the terms of all other offices, and therefore calculated to mislead.
In the Constitution of 1851 such a provision found its appropriate and necessary place. Inasmuch as all the judges under that instrument were elected by the people, it might be inferred that all of them were to be elected at some regular or general election, and it was no doubt apprehended the legislature might so construe it. It was to guard against these contingencies, to place the terms of office beyond all interference, that the framers of the Constitution, out of abundant caution, adopted the provision in question. In the present Constitution it 'has been seen that such a provision was wholly unnecessary, because the judges are now elected by the legislature, and their terms of office fixed in words of plain and unambiguous import.
If we are to believe the attention of the men who framed the present Constitution was called especially to this subject, if their purpose was that in cases of vacancy the incumbent shall hold only for the unexpired term, would they not have said so in plain and unmistakable language? Would they have left a matter of so much importance in doubt and uncertainty? A single line, the change of a word in the phraseology of the Constitution of 1851, would have
We come next to consider the joint resolution passed by the legislature the 18th of December, 1872, which declares that all elections by the general assembly to fill all vacancies shall be only for the unexpired term of the predecessor. This resolution was adopted nearly four years after the Constitution was framed, by a legislature composed of entirely different men from those who sat in the Convention. It is therefore not entitled to any weight as a contemporaneous exposition of the Constitution.
It seems, however, to show that, in the opinion of that legislature at least, elections by the general assembly to fill vacancies would be for the full term of office in the absence of legislation on the subject, and therefore it was a different rule was sought to be established by statute.
The only provision in the Constitution which by possibility can be construed as authorizing the general assembly to exercise a power of that sort is found in the twenty-second section, article fifth, of that instrument. It declares that the manner of filling vacancies in office in cases not specially provided for by the Constition shall be prescribed by law. Clearly, however, the manner of filling a vacancy has no sort of connection with the term of the incumbent after the vacancy is filled. The Constitution fixes the term of office, but leaves to the legislature the power of declaring the
It is universally conceded to be a most delicate exercise of authority to pronounce an act of the legislature unconstitutional. It is one which a judge, conscious of his fallibility, will shrink from exercising in -any case where he can conscientiously avoid the responsibility. But when the conflict between the Constitution and the law is plain and palpable, the court must decide between them. One of them must of necessity give way to the other. The Constitution is the supreme power in the State, and we are sworn to obey it. If that supreme power gives one rule and a subordinate authority gives a contradictory rule, the latter is inoperative and void, and the court must so decide.
If the Constitution of Virginia fixes the tenure of all her judicial officers, and upon this point there can be no doubt, it is clear that any attempt of the legislature to change that tenure is a plain usurpation of power. Upon this point, fortunately, there is abundant authority. In Washington Keys v. Mason, 3 Snead, 6, it was held that as the Constitution of Tennessee fixed the term of justices of the peace at six years, the incumbent, although elected to fill a vacancy, was entitled to hold for the full term, and the act of the legislature limiting the term to the remainder of that of his predecessor in office was unconstitutional and void.
In People v. Burbank, the Supreme court of California said: “ The legislature may direct the time and prescribe the'mode of election, but it cannot change the tenure. It can no more prescribe that the judge elected shall hold for a part of a constitutional period than for double the time. If a commission, issued by
“As soon as the ordinary is elected he is in office under the Constitution, and entitled to all the rights and immunities conferred by that instrument.” “If,” says Mr. Justice Huger, of the constitutional court of South Carolina, “ the people declare and ordain in their Constitution that an office shall be held by a particular tenure, it would be as much usurpation in the legislature to alter that tenure as it would be in the governor to commission for a longer period than directed by the legislature.”
In the case of Bradley v. McCrabb, already cited, Chief Justice Hemphill, on delivering the opinion of the court, said: “ There is nothing in the terms of the Constitution which can militate against the plain and just conclusion that the person appointed by the elective power to the office of district clerk is entitled, whenever he may be elected, to hold the same for four years. It cannot, therefore, be material, in point of fact, to ascertain whether McCrabb was elected for a less or even a greater period than the term of four years.
“ The Constitution prescribes the tenure of his office, and under its high guarantees he could not be disturbed even by a solemn act of the legislature without subverting the fundamental principles of the social compact.” There are numerous other authorities to the same effect, but these sufficiently illustrate the principle. See the cases already cited, and Horn v. Gamble, 62 Penn. St. Reports 343, and Howards. State, 10 Ind. 99; Lowe v. Commonwealth, 3 Met. R. 237; Brown v. Booth, Grover v. Booth, 1.
If the legislature of 1872 and ’73 was constitutionally competent to enact that every judge elected to fill a vacancy shall hold for the unexpired term only, another
If the tenure of judges in cases of death, resignation, or removal, is not fixed by the Constitution, what was the tenure before the joint resolution was adopted? What would it be had the legislature failed to take action? The Honorable Wood Bouldin was elected a judge of this court to supply a vacancy occasioned by the death of Judge Joynes. This was nearly a year before the passage of the joint resolution. What was his term of office at the time of his election? Was it uncertain ? Had the Constitution made no provision for the term of its highest judicial offices in cases constantly recurring? Such an idea is at war with the whole spirit of that instrument; no one can read it without an absolute conviction that the term of every constitutional office is plainly prescribed therein.
Judge Bouldin was entitled, as soon as elected, to hold for the term of twelve years, or merely for the residue of Judge Jaynes' unexpired term. It was one or the other. Which was it? The Constitution says the judges of the court of appeals shall hold for the term of twelve years. There is no other term prescribed.
My opinion, therefore, is that when a vacancy occurs in the office of judge by reason of death, resignation, or removal, the incumbent elected to fill that vacancy holds for the full term, as declared in the Constitution. This has been the policy of the State from the beginning.
Under the Constitutions of 1829 and 1776 the judges were elected for life of the appointee, whether the
There is no doubt, however, the main purpose of the ' framers of the several Constitutions was to secure the ■complete independence of the judiciary.
This is the cardinal principle of constitutional government. It is recognized and enforced in the federal Constitution and in the Constitutions of nearly all the States. The paramount object is to make the judges secure from interruption in any quarter; to protect them against the action of other departments of the
This is not done from any special regard for the judiciary department, but because its peculiar function is to expound the Constitution and laws, to settle controversies, to punish crime, to enforce the safeguards thrown around persons and property, and, if need be, to protect private rights against the exactions of arbitrary 'government. It is, therefore, wisely provided that the compensation of the incumbents shall not be diminished during their terms of office, and those terms are fixed by the Constitution only to be changed by the people themselves in the exercise of the highest sovereign powers. Men do not change their natures when they become judges. They are none the less prone to be swayed by the suggestions of self-interest,, the promptings of ambition, and timid apprehensions, of loss of power and official position.
When the incumbent understands that his tenure of office is brief, and that he is again to undergo the ordeal of an election, there is always more or less; danger that he may unconsciously to himself conform his action to the dominant power in the State, or shape his conduct with a view to his re-election.
Considerations of this sort, as well as others which might be mentioned, led, no doubt, to the adoption of those constitutional provisions, here and elsewhere, under which the judicial tenure of office is the same,, whether the vacancy be occasioned by death, removal, or resignation, or by the regular expiration of the constitutional term. But whatever may have been the motives of the framers of the Constitution, with which the courts have perhaps but little to do, the language of the instrument is plain, and in my judgment admits of but one interpretation. If there existed a reasonable doubt on the subject, that doubt would of course
Christian and Anderson, Js., concurred in the opinion of Staples, J.
Moncure, P., dissented.
Judgment in eavor oe Meredith, and against Harrison.