In Re Hannett

Present: All the Justices

IN RE: GORDON E. HANNETT,
COMMONWEALTH'S ATTORNEY
FOR THE COUNTY OF FLOYD

Record No. 050985

OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
September 16, 2005

UPON A PETITION FOR A WRIT OF MANDAMUS AND/OR PROHIBITION

In this proceeding, which invokes this Court's original

jurisdiction, the primary issue that we consider is whether a

circuit court has the authority, pursuant to Code § 19.2-156,

to appoint an attorney-at-law to serve as acting attorney for

the Commonwealth because of the prolonged absence of the duly

elected Commonwealth's Attorney.

I.

Gordon E. Hannett is the duly elected Commonwealth's

Attorney for the County of Floyd. His term of office will

expire on December 31, 2007. Hannett is also a member of the

United States Army Reserves. In February 2005, Hannett

informed the Honorable Ray W. Grubbs, judge of the Circuit

Court of Floyd County, that Hannett had been activated for

military service in Iraq. Hannett's unit was scheduled to be

mobilized into active service on May 8, 2005. Hannett

informed Judge Grubbs that Hannett would deploy with his unit

in Iraq unless the United States Army granted him a waiver.
 Subsequently, in support of Hannett's request for a

waiver, Judge Grubbs forwarded a letter to the United States

Army. Judge Grubbs stated in the letter:

"As Judge of the Circuit Court in Floyd County,
Virginia, I am confronted with a perplexing
situation with the call-up of Gordon E. Hannett, the
Commonwealth's Attorney for said County.
"Mr. Hannett is the sole attorney in that
office, which is the chief law enforcement office
for the county.
"He prosecutes cases on behalf of the
Commonwealth and Floyd County in three (3) separate
courts, Circuit Court, General District and Juvenile
and Domestic Relations. In all, Mr. Hannett
represented the state and county in many of the
cases as shown [on an attachment to this letter].
Obviously, his services are vital for the welfare of
the Floyd County community.
"Please consider our precarious situation in
evaluating Mr. Hannett's call-up.

. . . .

"Sincerely yours,

"Ray W. Grubbs"

The United States Army denied Hannett's request for a waiver.

In April 2005, Hannett informed Judge Grubbs that Hannett

planned to seek approval from the State Compensation Board to

fund a part-time temporary position of assistant

Commonwealth's Attorney. Hannett intended to perform the

duties of the office of Commonwealth's Attorney while deployed

in Iraq with the assistance of the temporary part-time

assistant Commonwealth's Attorney. The Compensation Board

authorized funding for the part-time temporary position.

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 Hannett and Judge Grubbs met on April 29, 2005, and

Hannett told Judge Grubbs that the Compensation Board had

approved funding for the part-time temporary assistant

Commonwealth's Attorney position. Judge Grubbs suggested that

Hannett hire an attorney who practiced law in Floyd County to

serve as the temporary assistant Commonwealth's Attorney.

Judge Grubbs and Hannett met again on May 3, 2005.

During this meeting, Judge Grubbs provided Hannett with the

names of three attorneys in Floyd County who would be willing

to serve in the temporary position. According to Hannett,

Judge Grubbs stated during the meeting that if Hannett failed

to hire one of these attorneys, Judge Grubbs would appoint one

of them to serve as the Commonwealth's Attorney during the

period of Hannett's deployment. Later that day, Hannett

informed Judge Grubbs that Hannett did not intend to resign

from the office of Commonwealth's Attorney and, therefore,

Hannett did not believe that the circuit court had the

authority to appoint someone who would act during his

deployment.

Judge Grubbs and Hannett conversed by telephone on May 5,

2005. During the conversation, Judge Grubbs asked Hannett

which of the three lawyers Hannett intended to hire to fill

the temporary position. Hannett informed Judge Grubbs that

Hannett had not made a decision. Judge Grubbs responded that

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he was compelled to appoint a lawyer who would serve as the

temporary Commonwealth's Attorney. Later that afternoon,

Hannett hired Dennis E. Nagle, a lawyer who has practiced in

the City of Roanoke and Montgomery County and who is a member

in good standing of the Virginia State Bar, as a temporary

assistant Commonwealth's Attorney for the County of Floyd.

Nagle executed the required oath of office.

On May 5, 2005, about 5:25 p.m., Judge Grubbs, without

notice to Hannett, convened the Circuit Court of Floyd County.

Below is a transcript of that proceeding:

"This is the matter of the interim appointment
of acting Commonwealth's Attorney, pursuant to
section 19.2-156 of the 1950 Code of Virginia. The
Court, on its own motion, is making an appointment
for the interim Commonwealth's Attorney, and the
reasons therefore are as follows: The Court has
been advised by Mr. Hannett that he has been called
to active duty in the Armed Forces of the United
States for a period of eighteen months. That
service is to be performed in Indiana for
approximately three months, followed by deployment
to Iraq. Consequently, Mr. Hannett will be outside
the boundaries of the Commonwealth during the
eighteen month period. In said office there is no
chief deputy, and there is no other attorney
employee. To fully perform the functions of the
Commonwealth's Attorney's office in this county, as
has traditionally been accomplished, it is required
and necessary that a resident attorney be appointed
for this interim period. The Court on its own
motion is appointing Stephanie Murray-Shortt to be
the acting Commonwealth's Attorney during the
absence of Mr. Hannett, commencing at midnight May
8th, 2005, and terminating upon the return of Mr.
Hannett to this office. An Order to that effect is
entered this date, with copies to be served as
directed in the Order."

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 Judge Grubbs entered the following order that is the

subject of this proceeding:

"This day came the Court on its motion, for the
reasons stated of record, pursuant to the call to
active duty in the Armed Forces of the United States
of The Honorable Gordon E. Hannett, Attorney for
Commonwealth in Floyd County, Virginia, said
deployment commencing on 8 May, 2005, for an
extended period of eighteen (18) months.
"It appearing to the Court, pursuant to § 19.2-
156 of the 1950 Code of Virginia, the prolonged
absence requires the appointment of an attorney-at-
law as acting attorney for the Commonwealth to serve
for such length of time as may be necessary. Such
acting attorney-at-law shall serve in the place of
and otherwise perform the duties and exercise the
powers of such regular attorney for the Commonwealth
and while so acting, shall receive the salary and
allowance for expenses fixed by the State
Compensation Board.
"It is, therefore, ORDERED that Stephanie
Murray-Shortt be, and she hereby is, appointed by
this Court to serve in the place of The Honorable
Gordon E. Hannett for such period of time as may be
necessary, commencing at midnight May 8, 2005, and
terminating upon the return of The Honorable Gordon
E. Hannett.
"The Clerk is directed to serve certified
copies of this order to The Honorable Gordon E.
Hannett, Commonwealth's Attorney, Stephanie Murray-
Shortt, and mail a certified copy to Bruce W.
Haynes, Executive Director, State Compensation
Board, P. O. Box 710, Richmond, Virginia, 23218-
0710. Further, the Clerk is also directed to mail
certified copies of this Order to the Judges of the
Twenty-Seventh Judicial Circuit and to The Honorable
Edward Turner, Judge of the General District Court
of Floyd County, and The Honorable James Tompkins,
Judge of the Juvenile and Domestic Relations
District Court of Floyd County.

"ENTER: May 5, 2005

"Ray W. Grubbs, Chief Judge"

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The remaining judges of the 27th Judicial Circuit concurred

with Judge Grubbs' decision to appoint a temporary attorney

for the Commonwealth under Code § 19.2-156.

Subsequently, Hannett filed a "petition for writ of

mandamus, or prohibition (or both)" in this Court. Hannett

requests, among other things, that this Court enter an order

that allows him to perform the duties of Commonwealth's

Attorney for Floyd County while he is deployed on active duty

with the United States Army.

II.

A.

Code § 19.2-156 states:

"If it shall be necessary for the attorney for
the Commonwealth of any county or city to absent
himself for a prolonged period of time from the
performance of the duties of his office, then, upon
notification by such attorney for the Commonwealth,
or by the court on its own motion, and the facts
being entered of record, the judge of the circuit
court shall appoint an attorney-at-law as acting
attorney for the Commonwealth to serve for such
length of time as may be necessary. Such acting
attorney for the Commonwealth shall act in place of
and otherwise perform the duties and exercise the
powers of such regular attorney for the
Commonwealth, and while so acting shall receive the
salary and allowance for expenses fixed by the State
Compensation Board for such regular attorney for the
Commonwealth, who during such length of time shall
not receive any such salary or allowance."

Code § 2.2-2802 provides:

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 "No state, county or municipal officer or
employee shall forfeit his title to office or
position or vacate the same by reason of either
engaging in the war service of the United States
when called forth by the Governor pursuant to the
provisions of § 44-75.1, or when called to active
duty in the armed forces of the United States. Any
such officer or employee who, voluntarily or
otherwise, enters upon such war service or is called
to service may notify the officer or body authorized
by law to fill vacancies in his office, of such
fact, and thereupon be relieved from the duties of
his office or position during the period of such
service. The officer or body authorized to fill
vacancies shall designate some suitable person to
perform the duties of such office as acting officer
during the period the regular officer is engaged in
such service, and during such period the acting
officer shall be vested with all the powers,
authority, rights and duties of the regular officer
for whom he is acting."

B.

Counsel for Judge Grubbs asserts that Hannett may not

invoke this Court's original jurisdiction because he may not

use a writ of mandamus to challenge the circuit court's

conclusion that the Commonwealth's Attorney will be absent

from the performance of the duties of his office during the

period that he will be on active duty in the United States

Army. Continuing, counsel for Judge Grubbs asserts that the

circuit court's exercise of its authority under Code § 19.2-

156 is discretionary and, thus, mandamus is an inappropriate

remedy. We disagree.

The basis of Hannett's petition for writ of mandamus is

that he believes he has been wrongfully deprived of the office

7
of Commonwealth's Attorney of Floyd County. Clearly, mandamus

is the appropriate remedy. Indeed, for over 200 years, courts

in this Commonwealth have held that the writ of mandamus is a

proper remedy to restore a public officer who has been

unlawfully removed or deprived of that office. In re: Joseph

D. Morrissey, 246 Va. 333, 334, 433 S.E.2d 918 (1993); Giles

County Board of Supervisors v. Carr, 222 Va. 379, 381, 282

S.E.2d 14, 16 (1981); Bunting v. Willis, 68 Va. 144, 161

(1876); Dew v. Judges of Sweet Springs, 13 Va. (3 Hen. & M.)

1, 23 (1808); Smith v. Dyer, 5 Va. (1 Call.) 562, 566 (1799).

Mandamus is a proper remedy because this procedure accords

prompt resolution of issues relating to the operation of a

public office, and mandamus provides the most convenient and

complete relief. Bunting, 68 Va. at 161.

C.

Hannett contends that Code § 19.2-156 "does not provide

the requisite jurisdiction for a circuit court to appoint an

acting Commonwealth's Attorney merely because the elected

Commonwealth's Attorney is called to active duty in the Armed

Forces of the United States during a time of war."

Continuing, Hannett argues that the circuit court should have

applied Code § 2.2-2802, which creates certain exceptions for

public officers or employees engaging in war service or called

to active duty with the Armed Forces. Additionally, Hannett

8
asserts that even if Code § 19.2-156 is applicable, the

circuit court failed to make the requisite findings that

Hannett will be unable to continue in the performance of the

duties of his office. We disagree with Hannett's contentions.

In Virginia, courts are required to apply the plain

meaning of statutes, and this Court is not free to add

language, or ignore language, contained in statutes. Signal

Corp. v. Keane Federal Systems, 265 Va. 38, 46, 574 S.E.2d

253, 257 (2003); Halifax Corp. v. First Union Nat'l Bank, 262

Va. 91, 99, 546 S.E.2d 696, 702 (2001). We have repeatedly

stated that:

"While in the construction of statutes the
constant endeavor of the courts is to ascertain and
give effect to the intention of the legislature,
that intention must be gathered from the words used,
unless a literal construction would involve a
manifest absurdity. Where the legislature has used
words of a plain and definite import the courts
cannot put upon them a construction which amounts to
holding the legislature did not mean what it has
actually expressed."

Id. at 262 Va. at 99-100, 546 S.E.2d at 702; see also Watkins

v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934); accord

Haislip v. Southern Heritage Ins. Co., 254 Va. 265, 268, 492

S.E.2d 135, 137 (1997); Weinberg v. Given, 252 Va. 221, 225,

476 S.E.2d 502, 504 (1996). Read in this context, Code

§ 19.2-156 is the controlling statute in the case at bar, not

Code § 2.2-2802.

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 Contrary to the assertions of both litigants, Code

§§ 2.2-2802 and 19.2-156 are not inconsistent. Rather, the

two separate and distinct statutes govern different

circumstances.

Code § 2.2-2800 provides that individuals cannot

simultaneously serve as officers or employees of the federal

government and of the Commonwealth of Virginia. If a Virginia

officer or employee accepts a position with "any emolument

whatever" from the federal government, then that officer or

employee "ipso facto" vacates his office or position with the

Commonwealth. Code § 2.2-2802, among other things, creates an

exception to this "ipso facto" loss of office or position for

Virginia officers or employees who are called into active

service. Code § 2.2-2802 provides that such officer or

employee "shall not forfeit his title to office or position or

vacate the same" by reason of active service in the United

States Armed Forces. Thus, pursuant to Code § 2.2-2802,

Hannett did not forfeit or vacate the office of Commonwealth's

Attorney "ipso facto" when he began to serve on active duty in

the United States Armed Forces. Furthermore, Code § 2.2-2802

anticipates the appointment of a person to perform the duties

of the office of attorney for the Commonwealth in an "acting

capacity." This statutory authorization to perform such

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duties of office in an acting capacity does not cause a

forfeiture or create a vacancy in that office.

The General Assembly in Code § 19.2-156 specifically

prescribed a procedure for the temporary appointment of an

attorney for the Commonwealth when the attorney for the

Commonwealth was absent for a prolonged period of time from

the performance of the duties of the office. Because Code

§ 2.2-2802 and Code § 19.2-156 are not inconsistent, we need

not apply rules of statutory construction reconciling the two

statutes. In any event, Code § 19.2-156 would be the

applicable statute because it deals specifically with the

office of Commonwealth's Attorney.

Code § 2.2-2802 states in part that "[n]o state, county

or municipal officer or employee shall forfeit his title to

office or position or vacate the same by reason of either

engaging in the war service of the United States . . . or when

called to the active duty in the armed forces of the United

States." (Emphasis added). Contrary to Hannett's assertions,

he was not required to forfeit or vacate his office in

violation of this statutory provision.

The word "forfeit" means "to lose or lose the right to by

some error, fault, offense, or crime: alienate the right to

possess by some neglect . . . ." Webster's Third New

International Dictionary 891 (1993). A public official who

11
has forfeited title to the office lacks the authority to

perform the duties of that office during the term of office.

See, e.g., Shell v. Cousins, 77 Va. 328, 332 (1883) (sheriff

who forfeited office created a vacancy in that office);

Commonwealth v. Fugate, 29 Va. 724, 726 (1830) (justice of the

peace who forfeited office legally incapacitated from ever

acting under his commission). The order entered by the

circuit court did not result in a forfeiture of the office of

the Commonwealth's Attorney of Floyd County because Hannett

will be able to resume the duties of Commonwealth's Attorney

upon the conclusion of his active duty with the United States

Army.

The circuit court similarly did not decree that Hannett

had vacated the office of Commonwealth's Attorney of Floyd

County. Hannett remains the Commonwealth's Attorney of Floyd

County. He is the incumbent who possesses the title to the

office of Commonwealth's Attorney.

Murray-Shortt, who has been appointed as the "acting

attorney" for the Commonwealth for Floyd County, is not the

incumbent of that office. Her temporary authority to exercise

the powers and discharge the duties of the office will abate

when Hannett ends his prolonged absence on military duty and

returns to Floyd County to resume his duties as the

Commonwealth's Attorney. Simply stated, Murray-Shortt, the

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acting Commonwealth's Attorney, will be divested of all

authority to perform the duties of that office upon the

cessation of Hannett's prolonged "period of time [absent] from

the performance of the duties of his office." While Murray-

Shortt is temporarily vested with the duties of the office of

Commonwealth's Attorney under Code § 19.2-156 and the circuit

court's order, she is not and could not be vested in the title

of that office.

Hannett's status as the Commonwealth's Attorney for Floyd

County and Murray-Shortt's status as the temporary acting

attorney for the Commonwealth are illustrated by the

consequences that would ensue if either Hannett or Murray-

Shortt resigned. If Murray-Shortt resigned, the office of

Commonwealth's Attorney would not be vacant, and the circuit

court, acting pursuant to Code § 19.2-156, would enter an

order that appointed a lawyer to discharge the duties of the

office of the Commonwealth's Attorney. However, if Hannett,

the incumbent who holds title to the office resigned, a

vacancy would indeed exist. Thus, pursuant to Code § 24.2-

228.1(B), the circuit court would make an interim appointment

"until the qualified voters fill the vacancy by election and

13
the person so elected has qualified and taken the oath of

office." Code § 24.2-228.1(B).*

D.

Hannett argues that the circuit court erred by

concluding, pursuant to Code § 19.2-156, that it shall be

necessary for him to be absent for a prolonged period of time

from the performance of the duties of his office. We

disagree. The verified statement of facts and exhibits before

this Court contain facts that support the circuit court's

conclusion that the Commonwealth's Attorney of Floyd County

will absent himself for a prolonged period of time from the

performance of the duties of his office.

Hannett admitted that he advised the circuit court that

Hannett's Army Reserve unit had been activated for military

*
Code § 24.2-228.1 states in relevant part: "The highest
ranking deputy officer, or, in the case of the office of
attorney for the Commonwealth, the highest ranking full-time
assistant attorney for the Commonwealth, if there is such a
deputy or assistant in the office, shall be vested with the
powers and shall perform all of the duties of the office, and
shall be entitled to all the privileges and protections
afforded by law to elected or appointed constitutional
officers, until the qualified voters fill the vacancy by
election and the person so elected has qualified and taken the
oath of office. In the event that (i) there is no deputy
officer or full-time assistant attorney for the Commonwealth
in the office or (ii) the highest-ranking deputy officer or
assistant attorney for the Commonwealth declines to serve, the
court shall make an interim appointment to fill the vacancy
pursuant to Code § 24.2-227 until the qualified voters fill
the vacancy by election and the person so elected has
qualified and taken the oath of office."

14
service in Iraq and would be mobilized on May 8, 2005. Even

though Hannett had informed the circuit court that he could

perform the duties of his office while deployed on active

duty, the court was not required to accept this conclusion.

Code § 15.2-1627(B), which prescribes certain duties

imposed upon attorneys for the Commonwealth and their

assistants, states:

"B. The attorney for the Commonwealth and
assistant attorney for the Commonwealth shall be a
part of the department of law enforcement of the
county or city in which he is elected or appointed,
and shall have the duties and powers imposed upon
him by general law, including the duty of
prosecuting all warrants, indictments or
informations charging a felony, and he may in his
discretion, prosecute Class 1, 2 and 3 misdemeanors,
or any other violation, the conviction of which
carries a penalty of confinement in jail, or a fine
of $500 or more, or both such confinement and fine.
He shall enforce all forfeitures, and carry out all
duties imposed upon him by § 2.2-3126."

Based upon the record before the circuit court and this

Court, it was certainly reasonable for the circuit court to

conclude that Hannett could not discharge his statutorily

prescribed duties during deployment on active military duty

and engagement in a war thousands of miles from Floyd County.

And, we note that the Commonwealth's Attorney in Floyd County

prosecutes cases on behalf of the Commonwealth and Floyd

County in the circuit, general district, and juvenile and

domestic relations district courts in that County. Also, the

15
circuit court was of the opinion that Hannett's services were

"vital for the welfare of the Floyd County community."

We recognize that Hannett hired a temporary assistant

Commonwealth's Attorney for the County of Floyd, Dennis Nagle,

to assist Hannett. We observe that Nagle possesses the lawful

authority to act as an assistant Commonwealth's Attorney for

the County of Floyd. However, the appointment of Nagle as a

temporary employee did not impair the circuit court's

statutory authority to appoint an acting attorney for the

Commonwealth who will serve for such length of time as may be

necessary. And, contrary to Hannett's assertion, the judges

of the 27th Judicial Circuit concurred in the decision to

appoint an acting attorney for the Commonwealth to serve for

such length of time as may be necessary pursuant to Code

§ 19.2-156.

The circuit court failed to give Hannett notice of the

hearing that occurred on May 5, 2005. The record does not

reflect why Hannett, a constitutional officer, was not

accorded notice of the hearing and an opportunity to appear

and present evidence. However, Hannett does not raise these

issues in his petition and, therefore, they have been waived.

E.

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 Hannett also seeks, in this proceeding, a writ of

prohibition. However, it is well-established in the

jurisprudence of this Commonwealth that:

"The writ of prohibition does not lie to
correct error, but to restrain an inferior court
from acting in a matter of which it has no
jurisdiction, or in which it is transcending the
bounds of its jurisdiction."

Moss v. Barham, 94 Va. 12, 14, 26 S.E. 388, 388 (1896); see

also Shell, 77 Va. at 332. We recently applied this well-

established principle in In re: Commonwealth's Attorney for

the City of Roanoke, 265 Va. 313, 316-17, 576 S.E.2d 458, 461

(2003).

In this proceeding, the writ of prohibition clearly does

not lie. The circuit court had jurisdiction to consider the

question whether it was necessary for the attorney for the

Commonwealth of Floyd County to be absent for a prolonged

period of time from the performance of the duties of his

office and if so, what attorney should be appointed as acting

attorney for the Commonwealth to serve for such length of time

as may be necessary.

III.

Finding no merit in Hannett's contentions, we will

dismiss the petition for writ of mandamus and the petition for

the writ of prohibition.

Dismissed.

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JUSTICE KINSER, with whom JUSTICE KOONTZ and JUSTICE LEMONS
join, concurring in part and dissenting in part.

I conclude that the Honorable Ray W. Grubbs, judge of the

Circuit Court of Floyd County, unlawfully deprived Gordon E.

Hannett of the office of Commonwealth’s Attorney of Floyd

County. The effect of the circuit court’s order of May 5,

2005 was to require Hannett to vacate his title to office

because he had been called to active duty in the armed forces

of the United States. Thus, that order violated the express

provisions of Code § 2.2-2802. For that reason, I

respectfully dissent with regard to sections II(C) and III of

the majority opinion and would issue the writ of mandamus. I

concur with the other sections of the majority opinion.

Under the provisions of Code § 2.2-2802, “[n]o state,

county or municipal officer or employee shall forfeit his

title to office or position or vacate the same by reason of

either engaging in the war service of the United States . . .

or when called to active duty in the armed forces of the

United States.” (Emphasis added.) That statute creates an

exception to the general prohibition set forth in Code § 2.2-

2800 precluding a person from “holding any office of honor,

profit or trust under the Constitution of Virginia” while at

the same time holding “any office or post of profit, trust, or

emolument, civil or military, legislative, executive, or

18
judicial, under the government of the United States.” Code

§ 2.2-2800; see City of Lynchburg v. Suttenfield, 177 Va. 212,

215-20, 13 S.E.2d 323, 324-26 (1941) (applying the exception

as set forth in a predecessor statute to Code § 2.2-2802).

Except in the situations covered in Code § 2.2-2802, the

acceptance of any such office with the government of the

United States “ipso facto[] vacate[s]” any such office “under

the government of this Commonwealth or under any county, city,

or town thereof.” Id. at 216, 13 S.E.2d at 324.

The majority concludes that Code § 2.2-2802 is not

applicable to the facts of this case because the action taken

by the circuit court did not require Hannett either to forfeit

or to vacate his title or position as Commonwealth’s Attorney.

No forfeiture occurred, according to the majority, because

Hannett can return to his position when he concludes his

active duty in the armed forces of the United States, and the

office of Commonwealth’s Attorney was not vacated because

Hannett remains the incumbent. The General Assembly used the

operative verbs, forfeit and vacate, in the disjunctive,

meaning that the provisions of Code § 2.2-2802 apply if the

May 5, 2005 order required Hannett either to forfeit or vacate

his position. While I disagree with the majority’s analysis

in both respects, I will focus on its conclusion that the

19
circuit court’s order did not require Hannett to vacate the

office of Commonwealth’s Attorney of Floyd County.

To understand what it means to vacate the title to a

public office or position, it is necessary to consider two of

this Court’s prior decisions, Chadduck v. Burke, 103 Va. 694,

49 S.E. 976 (1905), and Frantz v. Davis, 144 Va. 320, 131 S.E.

784 (1926). Both cases involved the question whether a

vacancy existed in a particular public office at the end of an

incumbent’s fixed term.

In Chadduck, the office of “Superintendent of the Poor”

was for a term commencing on July 1 and ending on June 30 four

years later. 103 Va. at 695, 49 S.E. at 976. However, under

a new Constitution that had been adopted, the term of the

office was to begin on January 1. Id. at 696, 49 S.E. at 976.

All county officers who were in office when the Constitution

became effective were authorized to remain in their respective

offices until the next January 1. Id. The new Constitution

also specified “all officers elected or appointed shall

continue to discharge the duties of their offices, after the

terms to same have expired, until their successors have

qualified.” Id.

By statute, a specific procedure for filling the term of

the office of Superintendent of the Poor commencing on January

1 was required, but the county judge failed to follow the

20
procedure in filling the office. Id. at 696-97, 49 S.E. at

976-77. Since no valid appointment had been made for the new

term of office, the question before the Court was whether, as

of January 1, a vacancy existed in the office of the

Superintendent of the Poor that the county judge could fill by

virtue of authority conferred under a different statute. Id.

at 697-98, 49 S.E. at 977. In that context, we explained the

word “vacancy”:

It is said that the word “vacancy,” as applied
to an office, has no technical meaning; that an
office is vacant or not according to whether it is
occupied by one who has a legal right to hold it and
to exercise the powers and perform the duties
pertaining thereto. A vacant office is one without
an incumbent. Vacancy in office is one thing and
term is another. An office may be vacant and filled
many times during a term of four years; but it
cannot become vacant at the end of a term where the
incumbent is authorized to hold over, for the
instant the successor is duly appointed and has
qualified he becomes entitled to the office, and
there has been no hiatus at all. So long,
therefore, as an office is supplied with an
incumbent, in the manner provided by the
Constitution or law, who is legally qualified to
exercise the powers and perform the duties which
appertain to it, the office is not vacant.

Id. at 698, 49 S.E. at 977.

We then concluded that no vacancy existed in the office

of the Superintendent of the Poor on January 1. Id. at 700,

49 S.E. at 978. Although the regular term of the incumbent

expired on January 1, “he was just as fully authorized by law

to hold the office and exercise the powers and perform the

21
duties appertaining to it after that time, until his successor

had been duly appointed and qualified, as he was before the

expiration of his regular term.” Id. at 698, 49 S.E. at 977.

Continuing, we stated “the period between the expiration of

his term and the qualification of his successor is as much a

part of the incumbent’s term of office as the fixed statutory

period, when the law provides that he shall hold until his

successor qualifies.” Id. at 698-99, 49 S.E. at 977.

Similarly, the question in Frantz was whether a vacancy

in the office of city treasurer existed when the corporation

court of the City of Roanoke declared petitioner’s election as

the new city treasurer null and void. 144 Va. at 322, 131

S.E. at 784-85. Believing that a vacancy existed because of

the action of the corporation court, the city council elected

the petitioner to the office. Id. at 322, 131 S.E. at 785.

The respondent, who held the office of city treasurer before

the election, claimed that there was no vacancy in the office

and that the city council therefore was not authorized to

appoint his successor. Id. at 323, 131 S.E. at 785. The

respondent asserted that he was entitled to discharge the

duties of the office of city treasurer after his term expired

until his successor qualified. Id. at 323-24, 131 S.E. at

785.

22
 We again relied upon the explanation in Chadduck

regarding the word “vacancy” but decided, based on different

statutes than those at issue in Chadduck, that a vacancy in

the office of city treasurer did exist when the election was

annulled and that the respondent was not entitled to hold over

in that office. Id. at 324-27, 131 S.E. at 785-86. Thus, we

concluded that the city council was within its rights when it

appointed the petitioner to succeed the respondent as

treasurer. Id. at 327, 131 S.E. at 786.

In both of these cases, the question whether a vacancy

existed in the particular office at issue turned on whether

the incumbent was authorized by law to hold over after the end

of his fixed term until his successor qualified. The point to

be gleaned from our decisions is that there is no vacancy in a

public office when it is occupied by a person who has the

legal right to hold the office, to exercise its powers, and to

perform the required duties. Chadduck, 103 Va. at 698, 49

S.E. at 977. That person is referred to as the “incumbent.”

See Justice v. Campbell, 410 S.W.2d 601, 602 (Ark. 1967) (“An

incumbent of an office is one who is in present possession of

an office; one who is legally authorized to discharge the

duties of that office.”); Lee v. Peach County Bd. of Comm’rs,

497 S.E.2d 562, 563 (Ga. 1998) (“An incumbent is one ‘who is

legally qualified to exercise the powers and perform the

23
duties which pertain to it.’ ”); State ex rel. Sanders v.

Blakemore, 15 S.W. 960, 961 (Mo. 1891) (“An incumbent of an

office is one who is legally authorized to discharge the

duties of that office.”); State ex rel. Peters v. McCollister,

11 Ohio 46, 50 (1841) (same); Black’s Law Dictionary 782 (8th

ed. 2004) (defining the term “incumbent” as “[o]ne who holds

an official post”).

On the effective date of the circuit court’s appointment

of Stephanie Murray-Shortt to serve as the Commonwealth’s

Attorney of Floyd County, Hannett was no longer the

incumbent.12 At that moment, he was not the person in

possession of and holding the title to the office; he was not

the person legally authorized to discharge its duties; he was

not the person receiving the salary fixed by the State

Compensation Board for the position of Commonwealth’s Attorney

of Floyd County. Instead, Murray-Shortt was that person,

i.e., the incumbent. It does not matter that Murray-Shortt

was authorized to act as the Commonwealth’s Attorney only

until Hannett returned from active military duty. During the

period of her appointment, although it was temporary and

1
On May 13, 2005, this Court stayed the circuit court’s
order of May 5, 2005. That fact does not affect my analysis.
The stay is in effect only until this case is resolved. Under
the majority decision, Murray-Shortt today will become the
acting attorney for the Commonwealth in Floyd County.

24
indefinite, she replaced Hannett as Commonwealth’s Attorney

and held the title to the office with the attendant duties,

responsibilities, and salary. At most, Hannett had “merely

the inchoate right to be restored” to the office upon his

return. Gullickson v. Mitchell, 126 P.2d 1106, 1111 (Mont.

1942). Thus, for the majority to say Hannett “is the

incumbent who possesses the title of the office of

Commonwealth’s Attorney” and to use that reason to conclude

that the circuit court’s order did not vacate the office of

Commonwealth’s Attorney of Floyd County misconstrues the term

“incumbent.” If, as the majority concludes, Hannett remains

the incumbent, two individuals simultaneously were authorized

to discharge the duties of the office of Commonwealth’s

Attorney and to receive the salary for the position. In other

words, the office had two incumbents at the same time. Many

years ago, one court described such a situation as a “legal

absurdity.” Commonwealth ex rel. Broom v. Hanley, 9 Pa. 513,

520 (1848).

That an “incumbent” is the person presently possessing

the title to office and authorized to perform the duties of

the office is consistent with what we said in Chadduck and

again in Frantz: “So long, therefore, as an office is supplied

with an incumbent, . . . who is legally qualified to exercise

25
the powers and perform the duties which appertain to it, the

office is not vacant.” Chadduck, 103 Va. at 698, 49 S.E. at

977; see also Garcia v. Miller, 408 S.E.2d 97, 98 (Ga. 1991)

(“An office is not vacant so long as it is filled by ‘an

incumbent who is legally qualified to exercise the powers and

perform the duties which pertain to it.’ ”); State ex rel.

Plunkett v. Miller, 137 So. 737, 738-39 (Miss. 1931)

(“ ‘Vacancy in office’ means the absence of an incumbent of

the office who has been legally inducted therein.”); Holtan v.

Beck, 125 N.W. 1048, 1052-53 (N.D. 1910) (“ ‘A ‘vacancy in

office’ . . . can never exist when an incumbent of the office

is lawfully there and is in the actual discharge of official

duty.’ ”); State ex rel. Whitney v. Johns, 3 Ore. 533, 537

(1869) (“Vacancy in an office means the want of an incumbent

at the time.”); Richardson v. Young, 125 S.W. 664, 686 (Tenn.

1910) (“The term ‘vacancy’ means . . . a want of the proper

officer to officiate in such office.”).

Obviously, the question in the case before us is not

whether a vacancy existed in the office of Commonwealth’s

Attorney because of the absence of an incumbent but whether

the circuit court’s order required Hannett to vacate his title

to office. Since a vacancy in a public office means the

absence of an incumbent, it follows that the verb “vacate” as

used in Code § 2.2-2802 means to deprive one of an incumbency.

26
See Webster’s Third New International Dictionary 2527 (1993)

(the word “vacate” means to “deprive of an incumbent” or “to

give up the incumbency”). There can be no doubt that the May

5, 2005 order required Hannett to give up his incumbency,

i.e., his title to the office of Commonwealth’s Attorney and

the legal authority to discharge the duties of that office.

Thus, I conclude that Code § 2.2-2802 is indeed applicable to

this mandamus proceeding.

To avoid the well-established meaning of the term

“incumbent,” the majority separates the duties and powers of

the office of Commonwealth’s Attorney from the title to that

office and concludes that Murray-Shortt was vested only with

the duties and powers of the office. Even if such a

proposition were possible under Virginia law, the terms of

Code § 2.2-2802 provide that a public officer such as Hannett

shall not vacate either his “title to office or position” by

virtue of being called to active duty in the armed forces of

the United States. There can be no doubt that the circuit

court’s order that appointed Murray-Shortt “to serve in the

place of” Hannett caused Hannett to vacate his position. He

could no longer perform the duties, exercise the powers, or

receive the salary of the office of Commonwealth’s Attorney.

Since the circuit court required Hannett to vacate the

“title to office or position” of Commonwealth’s Attorney

27
despite the clear mandate of Code § 2.2-2802 that “[n]o state,

county or municipal officer or employee shall . . . vacate”

his office or position “when called to active duty in the

armed forces of the United States,” the order of May 5, 2005

unlawfully deprived Hannett of his title to office unless the

provisions of Code § 19.2-156, the statute utilized by the

circuit court to appoint an acting attorney for the

Commonwealth, prevail over those of Code § 2.2-2802. Unlike

the majority, I conclude that the provisions of those two

statutes, in the context of this case, are conflicting. I

resolve that conflict by applying an established rule of

statutory construction: “[W]hen one statute speaks to a

subject in a general way and another deals with a part of the

same subject in a more specific manner, the two should be

harmonized, if possible, and where they conflict, the latter

prevails.” Virginia Nat’l Bank v. Harris, 220 Va. 336, 340,

257 S.E.2d 867, 870 (1979); accord Frederick County Sch. Bd.

v. Hannah, 267 Va. 231, 236, 590 S.E.2d 567, 569 (2004);

County of Fairfax v. Century Concrete Servs., 254 Va. 423,

427, 492 S.E.2d 648, 650 (1997); Dodson v. Potomac Mack Sales

& Serv., Inc., 241 Va. 89, 94-95, 400 S.E.2d 178, 181 (1991).

In deciding which of the two statutes at issue is more

specific, I recognize that Code § 2.2-2802 applies to a large

group of public officers and Code § 19.2-156 pertains only to

28
Commonwealth’s Attorneys. However, if a circuit court can

appoint an acting attorney for the Commonwealth when the

Commonwealth’s Attorney is absent from performing the duties

of the office for a prolonged period due to any reason,

compare Code § 19.2-156 (authorizing appointment of acting

attorney for the Commonwealth when Commonwealth’s Attorney has

a prolonged absence from performing the duties of the office,

with attendant loss of salary) with Code § 19.2-155

(authorizing appointment of acting attorney for the

Commonwealth when the Commonwealth’s Attorney “is unable to

act, or to attend to his official duties . . . due to

sickness, disability or other reason of a temporary nature”,

without loss of salary), that general authority is limited by

the more specific provisions of Code § 2.2-2802 protecting a

public officer from forfeiting or vacating the title to office

because of being called to active duty in the armed forces of

the United States. Moreover, as I stated previously, the

provisions of Code § 2.2-2800 prohibit holding an office under

the Constitution of the Virginia while at the same time

holding an office under the United States government. The

narrow statutory exception to this prohibition provided in

Code § 2.2-2802 for public officers who are called to active

duty in the armed forces of the United States reflects an

29
important policy choice by the General Assembly that should

not be ignored.2

Additionally, the General Assembly last amended Code

§ 19.2-156 in 1975, 1975 Va. Acts ch. 495; whereas, the

General Assembly amended Code § 2.2-2802 in its entirety in

2001, 2001 Va. Acts ch. 844. “ ‘[I]f a later statute does not

by its terms or by necessary implication repeal entirely a

former one in pari materia, yet if it clearly appears that the

later statute was intended to furnish the only rule to govern

a particular case, it repeals the former to that extent.’ ”

Standard Drug Co., Inc. v. General Electric Co., 202 Va. 367,

379, 117 S.E.2d 289, 297 (1960) (quoting American Cyanamid Co.

v. Commonwealth, 187 Va. 831, 841, 48 S.E.2d 279, 285 (1948)).

Factors to consider in deciding that question include “ ‘the

occasion and the reason of the enactment, the letter of the

act, the context, the spirit of the act, the subject matter

and the provisions of the act.’ ” Standard Drug Co., 202 Va.

at 379, 117 S.E.2d at 297. If the General Assembly did not

intend for the protection of Code § 2.2-2802 to apply to

2
Under Code § 2.2-2802, Hannett had the discretion to ask
to be relieved of his duties as Commonwealth’s Attorney for
the period of his service in the armed forces of the United
States. He chose not to do so, but instead obtained
permission from the State Compensation Board to hire a part-
time assistant Commonwealth’s Attorney.

30
Commonwealth’s Attorneys, it could have so stated when it

amended Code § 2.2-2802 in 2001. But, it did not do so.

For these reasons, I respectfully concur in part and

dissent in part. I would issue the writ of mandamus.

31