79 Va. 642 | Va. | 1884
delivered the opinion of the court:
This is an application on the part of the Hon. John D. Foster' to this court for a writ of peremptory mandamus to compel the restoration to the petitioner of the office of county judge of the county of King & Queen, which he claims is now usurped and withheld from him by the Hon. J. H. C. Jones. The petition sets out, that in January, 1880, the Hon. John D. Foster was elected and commissioned as judge of the counties of King & Queen and King William, which then formed what was known as district Ho. 41, and proceeded to discharge, and was discharging, the duties of his said office on the 7th day of February, 1884, when the said J. H. O. Jones, claiming that he had in January, 1884, been elected judge of the county of King & Queen by the general assembly of Virginia, took possession of the said office of county judge for the county of King & Queen, and refuses to render the same hack to the petitioner. It then goes on to allege that the election by the general assembly of the said Jones to the office of county judge of King & Queen was unconstitutional; that his commission is illegal and void, and that he is not entitled to said office. To this the respondent answers: “ That the general assembly of Virginia, by virtue of the power vested in it under the constitution, passed an act, which was approved on the 18th day of January, 1884, to district the state for county judges, whereby the county of King William, which "had been theretofore attached to the county of King & Queen, was separated
From this brief statement of the case, as disclosed in the pleadings, it will be readily seen that the real inquiry is, whether Judge Foster, notwithstanding the division of the district, and his residence in the county of King William, is still judge of the county of King & Queen, and the answer to be given to this inquiry must depend upon the power of the legislature to curtail the territorial jurisdiction of a county judge after his election. The determination of this question in this case is freed of much of the difficulty which usually attends the decision of cases of this character, by the circumstance, that the legislature has been careful, in making the division, to leave Judge Foster as judge of King William, the county in which he resides. The State ex rel. Ives v. Choate, 11 Ohio, 511; State v. Messmore, 14 Wis. 170. We think it may fairly be assumed in the outset to be an undeniable proposition, that the two branches of the legislature, as the direct representatives of the people, have the right, when no restrictions have been imposed upon them, either in express terms or by necessary implication by the constitution, to create and abolish offices accordingly as they may regard them as necessary or superfluous. And that they may also, under like circumstances, deprive the officers of their salaries, either directly, by removing them from office, or indirectly, by so changing the organization of the departments to which they are attached as to leave them without a place. But of course this power in the legislature cannot be construed to extend to any of the various classes of officers which are known as constitutional officers; that is, to any of those
Now, it will be observed that the office of county judge is fixed by the constitution, and the term of office is clearly defined in the same instrument. It is, therefore, a constitutional office, and the county judge is a constitutional officer. In passing upon any question, by the determination of which the rights of any such officer may be supposed to be affected, the courts must look to the constitution, and give to its provisions such a construction as will preserve to the officer his clearly defined constitutional rights, and yet shall not trench upon the inherent rights of the legislature, which should seldom be adjudged to have been surrendered in a doubtful case. Cooley on Const. Lims. 173.
Section 13 of article VI of the constitution of Virginia, reads as follows: .“In each county of this commonwealth there shall be a court called a county court, which shall be held monthly by a judge learned in the law of the state, and to be known as the county court judge; provided, that counties containing less than eight thousand inhabitants shall be attached to adjoining counties for the formation of districts for county judges. County court judges shall be chosen in the same manner as judges of the circuit courts. They shall hold their office for a term of six years, except the first term under this constitution, which shall be three years, and during their continuance in office they shall reside in their respective counties or districts,” &c.
Prom the mere reading of these provisions it will be seen that if it is not made the duty of the legislature to elect a county judge for each county of the commonwealth, having a population of eight thousand inhabitants (upon which point we express no opinion), at least they are not prohibited from doing so whenever, in their judgment, it may be deemed expedient or proper.
Now, as there is nothing in the constitution which expressly or impliedly confers upon the county judge the right to a terri
Mandamus denied.