concurring in the opinion of the court, said:
The grave importance of the question involved here alone induces me to put on record my views of this case, and not the belief that I could add clearness or strength to the able opinion just delivered by my brother Lacy.
Upon the decision of this court rest not only the conflicting claims of the contestants to a seat on this bench, hut the proper interpretation of important provisions of our state constitution, and certain legislation thereunder—legislation claimed on the one hand to he unconstitutional, null and void, and on the other to he the legitimate exercise of legislative authority, and imposed, as such, by the constitution. The delicate and very responsible duty of giving authoritative interpretation to these constitutional and statutory provisions is devolved upon this court under circumstances of peculiar interest.
The first section of article six of the constitution of Virginia provides for a supreme court of appeals for the state. The second section of said article provides that such court shall consist of five judges. By the fifth section of same article, the one relied on by the petitioner, it is declared that “the judges shall be chosen by the joint vote of the two houses of the general assembly, and shall hold their office for a term of hoelve years. I italicise the words relied on that the question at issue may be brought sharply to view. The language is peculiar and aptly adapted to the plan of classification of officers so prominent in our constitution, and by which it was the evident intention of the framers of that instrument that each class, except to the ex•tent that they might he broken by the occurrence of vacancies, *27should go in together and out together. It will he observed that the language is especially appropriate to a class. It is: “The judges shall hold their office,” &c., and not that each judge shall hold his office for twelve years.
If the language referred to was the only language or provision in the constitution hearing directly on this question the difficulty of construction would he increased; but even then the petitioner’s claim would by no means he clear, because the general plan and scoj>e of the constitution, necessarily to he preserved, would strongly tend to direct the judicial mind to an adverse conclusion.
But the provision in question is not all that must he looked to. The framers of our constitution wisely foresaw the impracticability, the impossibility, in fact, of providing for every casualty, every emergency which would, in the nature of things, arise- in the course of administering the government. Hence, after mapping out the specific plan, after making specific provisions in those cases in which it was safe to do so, it was seen to he necessary, and a provision was inserted, conferring upon the general assembly, and charging that body with the duty of so legislating, in respect to filling vacancies, and in respect to determining when vacancies in office should he deemed to exist, in all cases not otherwise expressly provided for, as to make effective the general plan of the constitution. This was effectually done by section twenty-two of article five, which reads: “ The manner of conducting and making returns of elections, of determining contested elections, and of filling vacancies in office, in cases not specially provided for in this constitution, shall be prescribed by laxo, and the general assembly may declare the cases in which any office shall he deemed vacant, where no provision is made for that purpose in this constitution.” This section is a part, and very important part, of the constitution, hearing directly on the question in hand. It is of clear unequivocal import. There is not one word in it, which, taken in connection in which it is used, and in connection with the sub*28ject matter, as part of the organic law, that can admit of the least doubt as to its meaning. The whole clause is absolutely clear, and must be looked to and obeyed as part of the constitution. It is so clear, so unambiguous, that, by the recognized rule in such cases, there is no room for construction; the only thing to do is to obey.
In December, 1812, the general assembly, then in session, passed a joint resolution, which was approved by the governor, providing “that all elections to fill vacancies in the office of judge shall be for the unexpired term of his predecessor.” This legislative enactment is plainly responsive to the duty imposed by the constitution, is plainly but the legitimate exercise of inherent legislative power, in the absence of any positive constitutional inhibition, if even said section twenty-two of article five had not been incorporated into the constitution. The legislative will is supreme, except in so far as it is restrained and subordinated by the federal and state constitutions. These impose limitations upon legislative power, and if the prescribed limits be passed, the judiciary is provided and required to pronounce all excesses unconstitutional and void—a duty, be it said to the honor of legislative bodies, which the judiciary are but rarely called upon to perform—and a duty which should ever be approached with the greatest caution, and never exercised except in cases of unquestioned usurpation.
"With these plain provisions of law in full force, and long acquiesced in without question by the authorities and by the people, the petitioner, the Hon. E. O. Burks, was elected to fill a vacancy occasioned by the death of his predecessor, and was elected to hold for the unexpired term. Under the law he could not have been elected for any longer or other period. Such being the law, how is it possible for the ingenuity of man to conceive a plausible pretext even for holding that the petitioner was elected for a full term of twelve years, and not for the unexpired term which ended with the 31st day of December, 1882? This case, foreshadowed in the case of ex parte Meredith, 33 Gratt. *29119, is new and novel in its presentation. It must be considered not alone in reference to the language, “shall hold their office for twelve years,” &c., but with reference to the whole constitution and every part thereof bearing upon the subject. Section twenty-two of article five, as has been already said, is not only an important part of the constitution, it bears directly on the question under consideration; without it many questions of vital importance would be left to vague conjecture, and to that extent the constitution would he hut a rope of sand. Being part of that instrument, must it be held nugatory or not at the will of the judge, according to the exigency of each particular case? Or must it be looked to and observed as part of the supreme law, and equally inviolable as every other part? Unquestionably the latter.
The well recognized rule in such cases is, that constitutions are not to be intrepreted according to the words used in particular clauses. But taking the terms employed in their common and ordinary acceptation, the whole and every part must be considered with a view to ascertain the sense in which the words were employed, because they were so understood by the framers and by the people who adopted the constitution. This is unquestionably the correct rule of interpretation. The constitution, unlike our legislative enactments, owes its whole force and authority to its ratification by the people, and they judged it by the meaning, apparent on its face, according to the general use of the words employed.
Under this cardinal rule of construction, how is it possible for this or any court to construe the words relied on by the petitioner otherwise than in connection with the whole instrument, and especially other clauses having an express and necessary bearing upon the subject?
The twenty-second section of article five of the constitution expressly excepts from its operation every case of vacancy otherwise provided for. It is very important to observe this fact. Said twenty-second section, or so much of it as hears on this case, *30taken in connection with the words found in the fifth.section of article sixth, have precisely the same effect, the same meaning as if they stood together in one and the same clause, so as to read: “ Judges shall hold their office for a term of twelve years; hut the manner of filling vacancies, which may occur in the office of judge during said term, shall he prescribed by law.” If this be not so, it can only be because the said section twenty-two-is a nullity, or has been abrogated by judicial construction; and I hold that the judiciary can rightfully exercise no such power.
In our preceding constitution of 1851, and also in the intermediate one, known as the Alexandria constitution, there was a corresponding section, identical with said section twenty-two, except that in each of them, after the word “ law,” there occured the words, “ but special elections to fill vacancies in the office of judge of any court, shall be for a full term.” These words were omitted by the framers of our present constitution. Hot only were they omitted, but were, on consideration, deliberately stricken out, when, and though reported by the appropriate committee as part of said section twenty-two. The words thus embraced in the two former constitutions, and stricken out of the present one, when in course of formation, were, it must be conceded by all impartial minds, absolutely essential to create the exception in favor of judges; without them there could have been no plausibility, no possible pretext for saying that judges did not fall within the general rule prescribed for the election to fill vacancies of all other offices under those constitutions. That the office of judge was thus made an exception under the two former constitutions, and that the action of the framers of our present constitution in rejecting and casting out the very words which were necessary to create such exception, operated to destroy said exception, are matters so plain that they beggar all argument. To hold otherwise is about the equivalent of saying that a thing is so, because it is not so.
Under our constitution the filling of vacancies in office is an *31intensely practical question; it engaged the earnest attentio n of the framers of that instrument. In framing the executive department, it was further provided, that during the recess of the general assembly, the governor should fill pro tempore all vacancies in those offices for which the constitution and laws make no provision; his appointments to such vacancies to be by commissions to expire at the end of thirty days after the commencement of the next session of the general assembly. Here again is the express recognition by the framers of the constitution, of all legislative authority in all cases where no constitutional limitation is imposed. And in this provision empowering the governor to fill vacancies, we see displayed a wise foresight which guards against the consequences of a failure to act on the part of the legislature. Had the general assembly done less than it did in passing said joint resolution, providing that elections of judges to fill vacancies, should be for the unexpired term, it would have failed in performing a clearly imposed duty.
Is the judgeship an office ? Can a vacancy occur in the office of judge during the term for which he is elected ? Did the framers of the constitution, in words of obvious meaning, require the general assembly to prescribe by law the manner of filling vacancies in office? And has the general assembly so prescribed? It is inconceivable that any unbiased mind would undertake to answer either of the foregoing questions otherwise than affirmatively. Yet, practically, the claim asserted by the petitioner makes a negative response to each and all of them. There is not the slightest plausibility in the case stated for the petitioner. And the general assembly having in its own right and by authority of the constitution declared that all elections to fill vacancies in the office of judge shall be for the unexpired term, and the petitioner having been so elected, and the term for which he was elected having expired, he is no longer a judge of this court, but a private citizen, and as such returns “into that body from which he was originally taken.”
It has been argued with great earnestness for the petitioner *32that the question under consideration comes within the rule stare clecisis, and in support of this doctrine the late majority decision of this court in ex parte Meredith, 33d Gratt. 119, is relied on as conclusive of this case for the petitioner. I propose to review that case in the light of our constitution, the reasons given, and authorities referred to by the able judge who delivered the opinion. Such is the contrariety of judicial opinion and determination, so often do courts find it necessary to appeal to common sense and manifest right against the effect of even their own previous decisions, that it may be said that the doctrine of stare decisis is an unsteady light, the “ Will-o’-the-Wisp” of the law. That this is so, is amply attested by the long list of overruled cases, both American and English. Hence an eminent law-author has with great propriety said: “ The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been decided contrary to principle.” Bono., L. D., vol. II., 542. I do not mean to intimate that the courts in proper cases should not be bound by well-settled previously adjudicated questions. On tbe contrary, where questions involving important property rights, or where contracts have been entered into in reference to the law as long settled, then I conceive it to be the plain duty of tbe courts to follow previous decisions. But in the case under consideration no property rights were involved, no matter of contract had to be determined. It was purely a question of tenure of office—a question between a sovereign state and one of its subjects, the latter claiming that the former had granted him more than the terms of the grant imported. Such was the case of ex parte Meredith. This court in that case responded affirmatively to the claim of the petitioner.
In view of the interpretation now given by this court to the provisions of the constitution in question, it can hardly be necessary to further elaborate that view, than to say the decision in question is in direct antagonism to both the spirit and letter of the constitution. The constitution nowhere forbids such *33action as was taken by tbe general assembly in tbe passage of tbe joint resolution in question, which was in ex parte Meredith declared to be a usurpation and void. On the contrary, the framers of the constitution, out of abundant caution, took pains to impose as a duty that which was done by the legislature in the passage of said resolution.
The reasons given by the learned judge who delivered the opinion in ex parte Meredith, are unsound. In commenting upon the absence, iii our present constitution, of the words, “ hut elections to fill vacancies in the office of any judge, shall be for the full term,” he says: “In the constitution of 1851, such a provision found an 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 he elected at some regular or general election, and it was, no doubt, apprehended that the legislature might so construe. 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.”
It is true that under the constitution of 1851 the judges were all elected by the people; but it is not true that the provision in question was appropriate and necessary for that reason; it is not true that the provision was inserted lest the legislature might construe the law to admit of the election of judges at some regular or general election. The judge overlooked very important facts which completely refute his argument. He overlooked the fact that the words in question were absolutely necessary to create the exception in favor of judges which was created by their employment in that constitution; and that they were appropriate and necessary for that reason, and not because the judges were then elected by the people. He overlooks the fact that by the six*34teentli section of article sixth of the constitution of 1851, it is expressly provided, “Ho election of judge shall be held within thirty days of the time of holding any election of electors of president and vice-president of the United States, of members of congress, or of the general assembly.” And if it be said that the judge used the expression “regular or general election,” in reference to county or other elections than those above enumerated, it need only be replied that as to such the constitution of 1851 did not prohibit the election of judges at or near their occurrence—so that the reasoning is equally fallacious in the latter as in the former case. And, moreover, the judge lost sight of the very potential fact that in the succeeding or Alexandria constitution the identical words and provision found in the constitution of 1851 were retained; yet, under that constitution, like the present one, judges were elected by the legislature, and not by the people. How does it come, then, that the, provision in question—especially for the reasons stated—was necessary in the constitution of 1851, and not necessary in the present constitution ?. It is perfectly apparent that the whole argument is utterly fallacious. If, as Judge Staples says, said provision was inserted in the constitution to guard against the possibility of legislative misinterpretation, and to fix the judicial term beyond all question, why was the expression “filling vacancies in office” used as well in the constitution now in force as in that of 1851? Simply because the framers of the latter ■intended to say, and did, in effect, say, in plain and unambiguous terms, that in all cases not specially provided for in that constitution, it should be the duty of the legislature to prescribe by law the manner of “filling vacancies in office,” except the office of judge, in which case, though elected to fill a vacancy, he should, or they should, in all cases be elected for a full term. Excepting the provision respecting the filling vacancies in the office of judge, the corresponding sections in the two preceding constitutions are identical with section twenty-two of article five of the present constitution. In the constitution of 1851, as *35well as in the present one, in every case the language designating the term is equally explicit—“shall hold,” &c.—as the language in our present constitution respecting the term of office of judges of this court. In all other cases the legislature has acted under the constitutional mandate in question, and no voice of complaint has been heard. As all are officers, why is not all this legislation, as well as the joint resolution in question, unconstitutional and void ? If ex parte Meredith is a true interpretation, then to that extent we have had no constitutional government under the present organization.
As to the effect of the omission of certain provisions in framing constitutions and adopting statutes of other states, let us look to the previous decisions of this court. In the case of the Baltimore and Ohio Railroad Company v. Weightman’s administrator, 29 Gratt. 431, Judge Staples, delivering the opinion, said: “We think it very clear that the framers of these enactments had before them, at the time, the English and New York statutes on the same subject, from which the statutes of the different states of a similar character are generally taken. It will he perceived that our legislature has omitted some of the provisions of these statutes, and materially changed the phraseology of others. Thus the English statute requires the plaintiff to file with his declaration a full particular of the person or persons in whose behalf the action is brought. Our statute contains no such provision, and the very fact that it is omitted,, whilst other provisions of the English statute are adopted, ivould seem, to indicate a deliberate purpose on the part of the legislature to dispense with such statement.” Why, I ask, did not the omitting and deliberate rejection by the framers of our constitution of the clause creating the exception in favor of judges, as contained in two previous constitutions, evince a like deliberate purpose to dispense with, to destroy the obnoxious exception ? ■ There can, under the rule, he no good reason why.
Again, in the case of Robertson v. Clopton, Judge, &c., reported in the July number, 1881, of the Law Journal, Judge *36Staples, again delivering the opinion of this court, said: “ There are no other provisions in the constitution having any bearing on the subject. When the framers of that instrument deliberately omitted the disqualifying clause affecting the commonwealth's attorney, without substituting others in their place, we must suppose it was intended that this disqualification should thereafter cease.” Why should not the deliberate wiping out of the exception in question by the framers of our constitution, have the same, effect ? Judge Staples was thoroughly right in his rulings in both the cases referred to. His opinions, on the point in question, are sustained fully by numerous authorities in and out of Virginia : prominent among them may be mentioned, Matthews v. Garner, 18th Gratt. 989; Crowell v. Lambert, 9 Minn. 283; People v. N. Y. Cen. R. R., 24 N. Y. 496; People v. Pesby, 2 Hill, 37; Constant v. The People, 4 Wend. 515, and Clarke v. The People, 26 Wend. 597. In the last named case, Chancellor Walworth, delivering the opinion, said': “ One mode of construing this section is to take the constitution as we find it, without reference to the manner in which its different parts were proposed and adopted, and another is to look at the proceedings of the convention and endeavor thereby to discover the probable intention of the framers of the constitution as we now find it. In either case, we must look into the actual state of things which existed when the constitution was framed and adopted.” If we apply this test, we find the constitution, as it is, without any exception in favor of judges; if we look to the preceding constitution we see there was such an exception; that it was reported by the committee as part of section twenty-two of article five, and was stricken out. The intention is manifest. There is no room for cavil.
I will next notice -some of the authorities from other states of the Union relied on to sustain the ruling in ex parte Meredith. Prominent among them- is the case of Hughes v. Buckingham, 13 Mississippi, 672. The constitutional convention of that state, among other things, .created the office of judge *37of the superior court of chancery, hut did not create the essential office of clerk for said court—in fact was silent on the subject. Soon after the convention had adjourned the legislature was convened, and that body created the office of clerk for said court, but failed to designate the commencement of the term of that officer. In the meantime the chancellor elected for said court had organized the same, and in doing so, as best he could under the imperfect act of the legislature, appointed his clerk for four years, there being in the constitution of that state a provision prohibiting life-tenure in any office. The appointment, thus made under the common law rule, clearly stated by Chief Justice Marshall in the case of Marbury v. Madison, 1 Cranch 137, took effect from the date of the appointment, and each successive appointee would take in the same way and hold for the period for which appointed. Soon after the appointment thus made, the legislature again assembled and fixed the term of all officers not otherwise provided in the constitution at four years, hut still failed to designate the time at which the term should commence. This left the common law rule in force, so that the clerk already appointed by the chancellor was in for four years from the date of his appointment, and had the chancellor made his appointment for a shorter or longer period it would have been good, as the only constitutional limitation was for a period of years—not fixed. About one year after the appointment of said clerk he resigned, and his successor took under the rule above stated and the statute then in force for four years, dating from the time of his appointment. Thus under the constitution and law of Mississippi there could be no holding by such officers as a class for regular periods or cycles as under the express provisions of our constitution. Still later. After some four years from the appointment of the first clerk, the Mississippi chancellor removed the incumbent and appointed another clerk, who claimed that the preceding clerks together had held for a full term of four years, and that his appointment was good. The court held *38otherwise, and let the old clerk hold out four years from the date of his appointment: and rightly, under the law of Mississippi so held. The simple statement of the case as above given, ought to suffice to show that it does not sustain the conclusion arrived at hy the court in ex parte Meredith. There is a manifest wide difference in the two cases. Chief Justice Sharky in delivering the opinion in Hughes v. Buckingham, clearly states the distinction between the class of cases like the one he was considering, and that to which this case belongs. He says: “The great difference between this and the offices created by the constitution is, that the law does not designate any particular time at which the chancellor shall make his appointment. The sense of the provision is, that the clerk when appointed shall hold four years.” In another part of his opinion the able chief justice makes the* distinction yet plainer if possible. In referring to Smith v. Halfacre, 6 How. (Miss.) 582, he says: “ The great struggle in that case was to show that no period was fixed by the constitution for the commencement of the-judge’s term of office, and that he was therefore entitled to hold for the' full period of four years from the time of his election. And it was fully conceded by the court that this zoould have been the result of an omission to designate the commencement of the term. But we held that on a fair construction the constitution did provide for the beginning and the end of the term.”
Upon principle, the case of Hughes v. Buckingham is authority, not against, but for the respondent here, and it contributes nothing whatever in sustaining ex parte Meredith. For our constitution not only fixes the beginning and ending of the regular-judicial term, but in mandatory terms makes it the duty of the general assembly to. prescribe the manner of filling vacancies in office, including the office of judge. The legislature has performed the duty; and the consequence of their act cannot be avoided, unless it can be made to appear that a judge is not an officer, and his station not an office.
The People v. Burbank, 12 Cal. 378, also relied on to sustain *39the case of ex parte Meredith, arose under the constitution of that state, which, it is true, contains a provision fixing the terms of office, which is common to all the states so far as I have observed. But there is no provision in that constitution even, remotely resembling our twenty-second section of article five; therefore, there can be no analogy between that case and this.
In People v. Green, 2 Wend., and People v. Constant, 11 Wend., I find nothing, when looked at from the standpoint of comparison between the constitutions of New York and Virginia, that gives the least support to the case of ex parte Meredith.
The case of Crowell v. Lambert, 9 Minn. 283, is just the converse of the case under consideration, and is, on principle, authority for the respondent. Yet, this case is relied upon- to sustain ex parte Meredith. The Minnesota case is this: One body of the convention had adopted a section of the article on the judiciary containing the words, “and such successor shall be elected for the unexpired term.” Upon a conference of the joint committee of the two bodies these words were stricken out. Delivering the opinion and speaking of this Judge Emmett said: “We think there is special significance in the fact that these words were thus stricken out or omitted by the committee, since it may be regarded as the joint act of the two conventions, and as a deliberate rejection of a proposition to elect for the unexpired term only when a vacancy should happen in the office of any judge; the very proposition upon which the plaintiff or applicant here predicates his application for a peremptory writ of mandamus.” Comment upon this case is unnecessary.
So the case of Banton v. Wilson, 4 Texas, 400, will, on examination, he found in the same category. There is a somewhat striking resemblance between the constitutions of Tennessee and Virginia; so the case of Powers v. Hush, 2 Humphrey, 24, would approximate, being a case in point for the petitioner, hut for the pregnant fact no exceptional clause had been struck out, as in the framing of our constitution. But if the analogy existed in this particular, the Tennessee case could not weigh a feather’s *40weight against the plain letter of our own constitution. It is useless to pursue the authorities further; it is sufficient to say the decision in ex parte Meredith is contrary to our constitution, is in conflict with previous decisions of this court, is at war with the doctrine of stare decisis, and cannot he abided hy upon either reason or authority. Lastly and above all, I call attention to the case in re Broadus, 32 Grattan, in which the opinion was delivered hy the late president of this court, Judge Moncure, and in which all the judges sitting concurred in settling this question just the reverse of the case ex parte Meredith. The circumstances of the two cases were, it is true, different, hut the principle involved in each was the same. Nor did I understand counsel for the petitioner to contend differently. The argument was that the case was not well considered; that no authorities are cited in its support, and that the great judge delivered that opinion when “the messenger of death had already entered into the chamber of the brain.”
It is not for me to discuss these questions. The opinion speaks for itself; it is founded upon the plain letter of the constitution, the highest, authority, and that which it was the delight of that great jurist to” obey.
Whether this opinion is to be ranked with the body of those which so prominently mark him as a great judge, or is to he treated as the last bright gleam of a singularly accurate legal mind, is not material. If the latter, then the last view he took of the constitution of the state he loved so devotedly and served so well, was a strikingly clear and unanswerable one. It stands nobly forth in defense of the constitution as written. It is not only a proud monument by which he transmitted to posterity his just title to fame, hut as a judicial achievement for its simple truth and grandeur, will rank among the greatest of Eldon, Hardwick, or Mansfield. Judge Moncure studied, understood and obeyed the constitution and laws of his state.
In view of the plain letter of the law and for the reasons here stated, I am of opinion that if the rule stare decisis has been *41disturbed in this state, it lias been done by the ruling in ex parte Meredith, and that case must 'cease to be operative as authority. And that, as a consequence, the joint resolution in question must be held to be constitutional and right. For these reasons, I repeat, I fully concur in the opinion delivered by my brother Lacy.