Burks v. Hinton

Lacy, J.,

delivered the opinion of the court.

This is a contest between Hon. Drury A. Hinton and Hon. Edward O. Burks for a seat upon the bench in this court. Hon. Drury A. Hinton presents, and causes to he recorded, his commission as judge of this court, and qualification thereunder according to law, for the term of office beginning January 1st, 1883, and continuing for twelve years. Hon. Edward O. Burks was elected judge of this court in December, 1816, to fill the vacancy caused by the death of Judge Wood Bouldin. Judge Burks claims that by virtue of his election as judge of this court to fill the vacancy caused by the death of his predecessor, he is entitled to continue to occupy a seat upon this bench, although his successor has been elected by the legislature and commissioned by the governor for the term commencing on the first day of January, 1883, and was duly qualified, because the term of office of a judge of the court of appeals of this state is fixed at twelve years by the constitution; and therefore no judge can he elected for a shorter period than twelve years. The question in this case then is: Was the said Hon. E. O. Burks elected for the full term of twelve years, or for the unexpired term of his predecessor—to-wit, until the thirty-first day of December, 1882? If Judge Burks was elected for twelve years, and began his term in December, 1816, then he is still a judge of this court, and Hon. Drury A. Hinton is not entitled to that seat. But if Judge Burks was properly elected to fill the unexpired term of his predecessor only, then that term having expired on the last day of December, 1882, Ms term has expired, and Hon. Drury A. Hinton having been elected and commissioned, and duly qualified as his successor, is entitled to occupy that seat as a judge of this court, his term having commenced on the first day of January, 1883.

On the 18th of December, 1812 (see Acts of Assembly 1812-3, page 1), the general assembly of Virginia passed the following joint resolution, which was approved by the governor and has the force of law: “That all elections by the general assembly to fill vacancies in the office of judge shall he only for the unexpired term of his predecessor.” As Judge Burks was elected after the passage of this joint resolution, and confessedly elected to fill a vacancy—to-wit, the vacancy caused by the death of his predecessor (see Judge Burks’ commission of record in this court)—this legislative enactment of December, 1872, is conclusive as to his length of term,, he having been elected to fill this vacancy in December, 1876, unless it can be shown that the legislature was without authority to pass this joint resolution, because of some provision in the constitution depriving it of the power so to legislate. This brings us to consider the constitution on this subject.

If (as is distinctly conceded by the counsel for Judge Burks) the legislature had the power to j)ass this joint resolution, then that is an end of this question. Did the legislature have this power? The legislature had the power to pass this joint resolution, as will not be denied, unless prohibited by the constitution. Does the constitution so prohibit the general assembly from such legislation ?

In article v., section 22 of the constitution, we find the fol.lowing: “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 by this constitution, shall be prescribed by law. And the general assembly may declare the cases in which any office shall be deemed vacant where no provision is made for that purpose in this constitution.” There is no prohibition upon the legislature here to prohibit the prescribing by law how vacancies in office shall be filled where a vacancy exists, and no prohibition to prevent the legislature from declaring the cases in which all offices shall he deemed vacant, except in a case where provision is made for that purpose by the constitution itself. In the first article of the constitution, section seven, it is provided: “ That the legislative, executive, and judicial powers should be separate and distinct, and that the members thereof may be restrained from oppression by feeling and participating in the burthens of the people, they should, at fixed periods, be reduced to a private station—return into that body from which they .were originally taken, and the vacancies be supplied, by frequent, certain and regular elections, in which all or any part of the former members to he again eligible or ineligible, as the laws shall direct.”

Article iv, section 1.—“The chief executive powers of this commonwealth shall he vested in a governor. He shall hold office for a term of four years, to commence on the first day of January next succeeding his election,” &c.

Section 9.—“A lieutenant-governor shall be elected at the same time and for the same term as the governor.”

Article v, section 2.—“The house of delegates shall be elected biennially by the voters of the several cities and counties, on the Tuesday succeeding the first Monday in November,” &c.

Section 3.—“The senators shall be elected for the term of four years, &c. * * * * * * * The senators first elected under this constitution, in districts bearing odd numbers, shall vacate their office at the end of two years, and those elected in districts bearing even numbers, at the end of four years. And vacancies occurring by expiration of term, shall be filled by the election of senator for the full term. * * *”

Article vi, section 1.—“There shall be a supreme court of appeals, circuit courts, and county courts,” &c.

Section 2.—“ The supreme court of appeals shall consist of five judges, any three of whom may hold a court,” &c.

Section 5.—“The judges shall be chosen by the joint vote of the two houses of the general assembly, and shall hold their office for the term of tioelve years,” &c.

Section 8.—“At every election of a governor, an attorney general shall be elected,” &c.

Section 11.—“For each circuit a judge shall he chosen by the joint vote of the two houses of the general assembly, who shall hold his office for the term of eight years, unless sooner removed in the manner prescribed by this constitution,” &c.

Section 13.—“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. * * * They shall hold their office for the terms of six years, except the first term under this constitution, which shall he for three years,” &c.

Section 14.—“For each city or town in this state containing a population of over five thousand, there shall be elected on the joint vote of the two houses of the general assembly one city judge, * * * * who shall hold his office for a term of six years: provided that in cities or towns containing over thirty thousand inhabitants, there may he elected an additional judge to hold courts of probate and record.”

Section 16.—“ One commonwealth’s attorney, ***** who shall hold his office for a term of two years.”

Section 1*7.—“One city sergeant, who shall hold his office for a term of two years,” &c.

Section 18.—“One city or town treasurer, who shall hold his office for a term of three years.”

Section 20.—“ * * * * All other officers whose election or appointment is not provided for by this constitution shall be elected by the people, or appointed, as the general assembly may direct.”

Section 22.—“All the judges shall he commissioned by the governor, and shall receive such salaries and allowances as may be determined by law, the amount of which shall not he diminished during their terms of office. Their terms of, office shall commence on the first day of January next following their appointment; and they shall discharge the duties of their respective offices from their first appointment and qualification under this constitution until their terms begin.”

Section 23.—“Judges may he removed from office by a concurrent vote of both houses of the general assembly, but a majority of all the members elected to each house must concur in such vote, and the cause of removal shall be entered on the journal of each house,” &c., &c.

Section 25.—Judges and all other officers, elected or appointed, shall continue to discharge the duties of their offices after their terms of service have expired, until their successors have qualified,” &c.

Article vii, section 1.—“ County Organizations.—* * * and all officers elected or appointed under this provision shall enter upon the duties of their offices on the first day of January next succeeding their election, and shall hold their respective offices for the term of three years, except that the county and circuit court clerks shall hold their offices for four years,” &c.

Section 2.—Township Officers.—“ * * * who shall enter upon the duties of their respective offices on the first day of July next succeeding their election,” &c.

These sections have been changed by the constitutional amendments ; they are found, however, in the constitution as originally adopted.

Article viii, section 1.—“The general assembly shall elect in joint ballot, within thirty days after its organization under this constitution, and every fourth year thereafter, a superintendent of public instruction.”

We have thus seen the constitutional provisions as to terms of office, as to all offices of every class. It is claimed by the counsel for Judge Burks, that while a distinct period is fixed for the beginning and ending of every other office, as to the office of judge, the distinction is very marked. How is this assertion borne out by the constitution itself? By the twenty-second section of article six, it is provided that their terms of office shall commence on the first day of January next following their appointment. If they were not to end together, why make them commence together? If the constitution contemplated a term of twelve years for each judge, in every case, and no more and no less, why provide that they should discharge their duties respectively until a day certain in the future, when their terms of twelve years should all begin together, and thus necessarily all end together? If each judge was to have exactly twelve years, why not provide that each judge should begin his term as soon as he was elected and qualified, and hold for twelve years ? It is evident that the intention of the convention was to form a a court of five judges for the court of appeals, who should begin their terms of office together, and go out together, at the end of their term.

This same provision is to be found with reference to the governor, the lieutenant-governor, the attorney general, all county officers, all district and township offices, and all the offices in this constitution. All are to be elected or appointed; then to wait for a day certain in the future, and then begin a prescribed term together, each class having the same day to begin its term and the same day to end its term.

County officers elected by the people in November, to begin their terms of office on the first day of January next following their election. Township officers to he elected in May, and to begin their terms all together on the first day of July.

Judges for the court of appeals elected by the legislature to begin their terms on the first day of January next following, and to hold for twelve years and then all to go out of office.

Circuit judges to be elected by the general assembly, and their terms to begin the first day of January next following their election and to hold for eight years and then to go out together as a class.

County court judges to be elected by the general assembly, but to go into office on the first day of January next following their appointment, to begin their terms together and to end them together.

Here the convention shows distinctly that it had in contemplation the expiration of their term. The term is fixed at six years, but as the expiration of the second period of six years would concur with the expiration of the first term of the court of appeals, judges who were to hold for twelve years, and also the second period for corporation judges, in all probability to keep these classes distinct, it is provided that the first county judges elected should be elected for a term of three years only, a provision which experience has shown to be a wise measure on the score of convenience in electing the large number of county judges, and perhaps for other reasons. And thus upon a contemplation of the scheme of the government as contemplated by the convention we find that that tody never lost sight, throughout all of its deliberations, of the seventh section of the first article, previously adopted, and which we have seen already—that all the officers of the government, whether legislative, executive or judicial, should at fixed periods be returned to a private station, and the vacancies be supplied by frequent, certain and regular elections. Throughout the whole scheme of the constitution we can find no variance from this rule. All the officers have fixed terms, and all these terms have fixed, definite future time to begin, and a fixed, definite day to end; and, as we have seen, judges are not only not excepted, but are expressly in terms included in the general plan.

We come now to the question, how, under this constitution, vacancies occurring in office are to be filled. We have seen under the twenty-second section of the fifth article that the manner of filling vacancies in office, not specially provided for by this constitution, shall be prescribed by law. It is earnestly and seriously contended that this section applies to filling vacancies only in offices .other than judges, that judges are not included, and not intended to be included in the term officers generally.

Judges, it is true, are not specially mentioned in this section, nor is any other class specially mentioned—the language is “filling vacancies in office”—and we have seen already that judges and other officers are included in the same terms throughout the constitution.

It has been argued in this case that some light may be thrown upon this section hy cotemporaneous construction, and by comparison of this section in the present constitution with the corresponding section in the constitution of this state, which immediately preceded this constitution.

In the constitution of 1864, which was the immediate predecessor of the present constitution, and in force at the time of the adoption of the present constitution, we find the section corresponding to this section to read as follows:

“The manner of conducting and making returns of elections, of determining contested elections, and of filling vacancies in office, not specially provided for by this constitution, shall be prescribed by law; but sj>ecial elections to fill vacancies in the office of judge of any court shall be for a full term. And the general assembly may declare the cases in which any office may be deemed vacant, when no provision is made for that purpose in this constitution.”

In the constitution immediately preceding the constitution of 1864—to-wit, the constitution of 1851—we find the corresponding section in that instrument to be in all respects the same as in the constitution of 1864. And we find this provision in the words concerning judges appearing for the first time in the constitution of 1851. Before the constitution of 1851 there was no such provision providing how vacancies in the office of judge should be filled. In the constitutions preceding the constitution of 1851, it would seem that the constitutions provided, though not in express terms, for the filling of vacancies in the office of judge. Under the constitution of 1829-30, the judges held office for life; the beginning and ending of the judicial term was thus fixed:

The tenure was life or good behavior in each case; when the life terminated, or the removal for cause took place, then the term ended, and the constitution prescribed in precise terms the tenure of the succeeding judge. He took the vacant office from the time of his own appointment until his death or removal, or voluntary retirement. There could, therefore, be no such thing as the unexpired term of a judge.

But under the constitution of 1851, the life tenure was abolished, and it was provided that judges should be elected by the people, and hold for a term of years; and so in the section to which reference has been made, it was provided that special elections to fill vacancies in office generally should he as provided by law. But the convention provided that special elections should he held for the election of judges in every case; that no election of judge should he held within thirty days of any political election (article 6, section 16 of constitution of 1851).

The constitution of 1851 left the filling of vacancies to the legislature in every case, except in the case of vacancy in the office of judge, and as to judges, and in the same section, provided as we have already seen for the exception in the following language: “But special elections to Jill.vacancies -in the office of judge of'any court shall he for the full term,.”

Under that constitution, the vacancy occuring in the office of judge was filled by the election of a judge for the full term, as was plainly provided in the constitution itself. The legislature, under that constitution, in the exercise of powers not denied it by the constitution, provided that elections to supply vacancies shall he for the unexpired term of such office, except in such cases as are provided for by the constitution.

(See Acts of 1857—-8, ch. 2, sec. 80.)

The constitution of 1864 followed the constitution of 1851. Under the constitution of 1864, it was provided that “the judges shall he chosen by the joint vote of the two houses of the general assembly from persons nominated by the governor.”

The convention, when engaged in framing the constitution of 1864, changed the mode of electing judges, hut retained the provision providing for the filling of vacancies in the office of judge, and provided that vacancies in the office of judge should he filled for the full term, thus retaining the exception as to filling vacancies in the office of judge, that mode to he for the full term, while it was still left to the legislature to prescribe the manner of filling vacancies in all other offices, although the judges were to he, under that instrument, elected by the legislature.

When the convention which framed the constitution, which was adopted July, 1869, came to consider this section, with regard to the filling of vacancies in office, and to prescribe when any office should be deemed vacant, (which is sec. 22 of art. v. of this constitution, was sec. 38 of art. iv. of the constitution of 1851, and was sec. 35 of art. v. of the constitution of 1864), the convention adopted the provision as to officers generally, in general terms, and left out the clause which provided for an exception in the manner of electing judges, to fill vacancies in the office of judge, and so far as that section goes, left the legislature to provide the manner of filling vacancies in all offices.

It is, however, contended that the section does not have any reference to judges when it refers to officers generally; that judges are the peculiar favorites of the constitution, and that as it does not in terms provide that vacancies in the office of judge should be filled by elections for the unexpired term, or that the legislature shall have the power to prescribe how the vacancy occurring in the office of judge shall be filled, that the legislature cannot prescribe the manner of filling vacancies in the office of judge, because the constitution declares that judges shall hold their offices respectively for twelve years as to one class, for eight years as to another class, and for six years as to two other classes.

In construing this constitution on this point we will consider the plain meaning of the language used first, and if it is necessary in order t.o discover the intention we will look to the proceedings of the convention which framed it and seek there to discover distinctly the intention of the framers of the instrument.

Thus far we have reasoned from the term of the constitution, and have derived our conclusions from what appears upon the face of the instrument. But if, departing from this, we look into the debates of the convention "which framed the constitution, in the history there afforded of the. section of the constitution under which the great question in this case arises, into tire intention of the framers of the constitution as expressed in debate, we shall find abundant confirmation, and, it seems to me, demonstrative evidence of the correctness of the views we have taken and of the conclusions at which we have arrived.” (See 7th Ohio State R. 173.) (Opinion of Brinkerhoff, J.)

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. (26 Wendell, 602, Clarke v. The People, opinion of Chancellor Walworth; see also Constant v. The People, 4 Wendell, 515; People v. New York Cen. R. R., 24 New York, 496). In Mathews and Garner v. The Commonwealth, 18th Graft. 989, opinion of Moncure, P., it is said: “We have looked to the printed journal of the house of delegates for 1866-7, during which this act was passed, and it conclusively shows that our construction is correct. In the case of the Baltimore and Ohio Company v. Wightman’s adm’r, 29th Gratt. 438, opinion of Staples, J., says:

“We think it is 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 on whose behalf the action is brought. Our statutes contain no such provision, and the very fact that it is omitted, whilst other provisions of the English statutes are adopted, would seem to indicate a deliberate purpose on tbe part of tbe legislature to dispense with sucb statements.”

In the case of Robertson v. Clopton, Judge, &c. (Law Journal, 1881), opinion of Staples, Judge: “ There areno other provisions in the constitution having any bearing on the subject. When the framers of that instrument deliberately omitted the disqualifying causes affecting the commonwealth’s attorney, without substituting others in their place, we must suppose it was intended that this disqualification should thereafter cease.”

Upon an inspection of the journal of the convention which framed the present constitution, we find that the committee on the legislative department reported to the convention for its adoption the 22d section of the 5th article, in the precise words as it is found in the old constitution, so that it was proposed to the convention by the said standing committee that in providing that the manner of filling vacancies should be prescribed by law, it was proposed to except judges who should, when elected to fill vacancies, be elected for the full term, and not for the unexpired term. Upon the presentation of this section by the committee on the legislative department, a member of the committee on county courts, &c., moved to strike out the words, “But special elections to fill vacancies in the office of judge of any court, shall be for the full term,” and it was agreed to ; and then the section as am.en.ded was adopted. The convention then struck out, after consideration and with deliberation, the exception contained in the section which provided for the election of judge to fill a vacancy in the office of judge, to he for the full term, and not for the unexpired term, and then adopted the section as we find it, providing that the manner of filling all vacancies in office shall he prescribed by law—that is, by the legislature—and thus, as we have seen, striking out the only provision to be found in the constitution which made any distinction between the office of judge and any other office, as to filling vacancies therein. Are we not to suppose, then, that the convention intended, as it had in terms provided, that the manner of filling all vacancies in office should be prescribed by laxo ?

“ This provision does not seem obscure or doubtful; hut if it so appears, we are told by a great authority that ‘in seeking aid to construe an obscure or doubtful statute considerable weight is attached to the opinions in regard to it, entertained by persons learned in the law at the time of its passage.’ ‘Great regard,’ says Lord Coke, ‘ought, in construing a statute, to he paid to the construction which the sages of the law, who lived about the time, or soon after it was made, put upon it, because they were the best able to judge of the intention of the makers at the time when the law was made;’ and this, in the terse and admirable language of the civil law, as is expressed by the maxim contemporánea expositio est fortissima in lege. As we shall see hereafter, this same principle has been applied in this country to a certain extent in the construction of the constitution.”

What was the cotemporaneous construction of this section of the constitution to which we have referred? We have seen the framers of the constitution strike out the only distinction to he found in that section between the manner of filling vacancies in office; and we look in vain in any other section of the constitution for any distinction in the manner of filling vacancies in office.

“ The exposition of statutes by subsequent legislative bodies has weight.” Sedgwick on Construction, &c., page 214.

What has been the legislative exposition of this section?

The very legislature, chosen at the same time this constitution was ratified by the people, lost no time in construing this section of the constitution, and at its first session in providing, one after another, for the filling of all vacancies in every office, from the highest to the lowest township office by election for the unexpired term; and then, as if their authority in the premises was wholly free from constitutional limitation, dedared as follows: “Provided, that the term of office of any person chosen at a special election to fill a vacancy in any public office shall commence as soon as he shall qualify for the performance of the duties of the office to which he is elected, and shall be for the unexpired term of such officeSession Acts 1869-70. And at the same session proceeded to elect judges and all other officers elective by the legislature; and, in 1872, provided as we have seen, that judges should be elected only for the unexpired term when elected to fill vacancies.

This law was passed by the legislature in pursuance of this section and in construction of it, before Judge Burks was elected to this bench—several years before. So the law was written, and so the law appears until the expiration of the three years from the first day of January, 1871, (at which date all judicial terms in this state began,) and when, in 1873, the legislature elected -the large number of county judges, whose terms began on the first day of January, 1874, to run for six years, we find, by reference to the legislative journal, that the legislature elected a county judge for every county, or county court district in the state; not one being omitted.

When the six-year term for corporation judges expired, the legislature elected judges for all the corporations entitled to one under the constitution, and not one claimed to hold over. And so when the eight-year term of the circuit judges was about to expire, on the first day of January, 1879, we find by reference to the journals of the preceding legislature, to wit: 1878-9, that the legislature elected judges for every circuit in the state, except two, and that these two were new circuits created by the legislature by dividing existing circuits, and the declaration is found on the journal, that, in the new circuits, the term had not expired; whereas in two circuits wherein vacancies had been caused in the years 1874 and 1875, respectively, by resignation of the judges, and judges had been elected in each circuit, to fill the vacancy; one in 1874 and one in 1875. The legislature declared that the term of the incumbents would expire on the last day of December, 1879, which was the end of the original term of eight years, which the predecessor of each judge would have had, if he had not resigned. And, indeed, as has been cited by counsel, the legislature gave forcible expression to tbeir construction of the constitution on this point, “when both bodies declared that the circuit judges, who were elected to fill vacancies, are entitled to hold office under said election only during the unexpired terms for which their predecessors were originally chosen.”

In article six of the constitution, which exclusively concerns the judiciary department, there is no provision for filling vacancies in judicial positions, but in article five, which relates to the legislative department, it -is provided, as we have seen in the twenty-second section already cited and examined.

Pursuing the requirements of the constitution, the general assembly in 1869-70 elected sixteen circuit judges, whose terms of office commenced (under section twenty-two, article six of the constitution), on the first day of January, 1870, for eight years, expiring January 1st, 1879. And subsequently thereto, by virtue of section twenty-two, article five, it adopted a joint resolution, which reads as follows:

“JResolved by the senate (the house of delegates concurring), That all elections by the general assembly to fill vacancies in the office of judge shall be only for the unexpired term of his predecessor.” Acts 1872-3, page 3.

On the senate journal of 1874 we find the following entry: “ Henry E. Blair having received all the votes cast, was declared duly elected judge of the fourteenth judicial circuit for the unexpired term of Judge Mahood, resigned”-—a complete illustration of the legislative construction of the twenty-second section of article five of the constitution. In 1879, the second expiration of term of county judges coming around, the legislature proceeded luithout question to fill all the county judgeships, holding (nem con in any department of the government) that the regular period for that class of judges to hold office having expired, all the county judges went out of office together, as their predecessors had done, at the end of the regular term—they were all commissioned by the governor without question, but the general assembly which met in December, 1879, not completing the election of all the county judges before the first day of January, 1880, when the new terms began, a dispute arose among those elected after the beginning of the regular term and their predecessors, that as the new judges were elected after their terms began, to wit, the first day of January, 1880—that under the twenty-second section of article six, which declares their terms of office shall commence on the first day of January next following their appointment, &c., the new judges could not go into office until the first day of January, 1881; and that under the twenty-fifth section of the same act, which declares that judges and all other officers, elected or appointed, shall continue to discharge the duties of their offices after their terms of service have expired until their successors have qualified, the old judges would be entitled to hold their offices until January 1st, 1881, and receive the emoluments of the same. This question led to the decision of the case in re Broadus in this court, reported in 32 Grattan, 779, and here we will leave the question of cotemporaneous and legislative construction and follow the subject in our enquiries into the courts, where this section has been judicially considered and passed on. In the case in re Broadus, &e., Judge Moncure, who delivered the opinion of the court, said: “How a term of six years of the county court judgeships of the state commenced on the first day of January, 1880—a like term of these same judgeships having ended on the preceding day—to-wit, the thirty-first day of December, 1879. Ho doubt it was expected and intended that all the judges who were to act as such on and after the first day of January, 1880, would be appointed, and would qualify on or before that day. But only a portion of the said judges then was appointed and qualified. Still, whether they were appointed and qualified on, before, or after that day, the term of office to which they were appointed respectively commenced on the same day— to-wit, the first day of January, 1880—and was to continue for the period of six years thereafter. Certainly it was not the intention of the framers of the constitution that the terms of the particular judgeships might begin and end on different days. They intended the contrary, and fixed upon the first day of January as the proper day for that purpose, though that day was a long way off when the constitution was adopted and went into operation.”

Here we see this court, in terms and with emphasis, endorsing the legislative construction of the twenty-second section of article five of the constitution: for if (all the county judges in office in December, 1879, went out of office on the 31st day of December, 1879, the expiration of the six-year period for all the county judges by express mandate of the constitution), as the court unanimously affirms in this case, then Hon. John C. Weedon was elected for an unexjfired term—(for Christian, Judge, while he delivered an opinion in some respects differing with the reasoning of Judge Moncure, he in express terms agrees with him in this.) Christian, Judge, says: “So ’that it is plain that under the twenty-fifth section, Minor, whose term of office was limited by the constitution to the first day of January, 1880,” etc. It might often happen that from some unforeseen cause or accident the legislature could not, from mere physical impossibility, elect all the county judges before the first day of January, there being about eighty in all. And this manifest difficulty would often arise, that while their terms all expired on the first day of January, each one would hold over one year longer than the term fixed by the constitution. Thus upon the question we are here called upon to decide we find this court, when so called upon, unanimously endorses the view we have taken, and so expressly declared. For it was a fact well known to this court that out of this large number of eighty county judges some had died and some had resigned during the six-year term for which they were originally elected, and it was a matter of history that every legislature which assembled during that period had been called on to elect judges to fill vacancies in the office of county judge.

The effect and force of this decision as a judicial construction of the constitution, is sought to be diminished, if not entirely destroyed, by counsel for Judge Burks, by strongly assailing the mental capacity of Judge Moncure, who delivered the opinion of the court in this case, on account of age or bodily infirmity. If this be true of Judge Moncure, what becomes of the other tioo judges? in a court of three, they constituted the majority of the court, and were fully able to prevent the mischief they complained of; but they both concurred; one dissented on one point, but concurred on the only question of importance here. However that may be, it was the unanimous decision of this court, and is a judicial construction of the constitution, by this court, sustaining the cotemporaneous and legislative exposition hereinbefore referred to. We are referred, in the printed report, to the fact that Judge Staples did not sit because of the interest of his brother, and that Judge Burks, the petitioner here, did not sit because he was personally interested in a kindred question. What that kindred question was that record does not disclose more distinctly, but we may suppose that in this controversy we have the explanation. Therefore it cannot be contended that when this court unanimously construed the constitution on that subject, that the subject-matter of this controversy was not considered. It was uppermost in the mind of at least one of the five judges, and was in an emphatic manner brought to the mind of the whole court by the retirement of Judge Burks.

It is argued by counsel for Judge Burks now, that this case has been settled in this court by a subsequent decision to be found in the 33d volume of Grattan's reports—in re Meredith. That, in that case, this court declared the law of 1812, prescribing the mode in which vacancies in. the office of judge should be filled, to be unconstitutional, null and void, because it is repugnant to the provisions of the constitution on this subject; but many of the cases, as we have seen, relied on in the opinion of Judge Staples in the Meredith case, do not support his conclusion; but the opposite. In Sansbury v. Middleton, 11 Md. 296, which was a case of a clerk elected to fill a vacancy, the constitution of that state provided that the state’s attorney, elected to fill a vacancy, should be elected for the unexpired term of his predecessor; but there was no such provision as to the clerk, who took a stated term. Where is the application of that case as authority in this? So in the case of Marshall v. Howard, 5 Md. 423. In that case the constitution had made no provision for filling a vacancy in the office of librarian, nor was that authority granted to the legislature, so it was held that the constitutional term obtained.

In the case of the People v. Green, 2 Wend. 266, the court construed the constitution of New York, which is altogether different from the constitution of this state, is a case in favor of our view conversely. Crowell v. Lambert, 9 Minn. 285. In 3d Sneed 6, Keys v. Macon, and Brewer v. Davis, 9 Humphrey, 208, from Tennessee, the question turns upon the provision of a constitution, not like ours in all respects, because there we are without the' light of the constitutional exposition which we have considered here. In Smeedes and Marshall’s report, in the case of Hughes v. Buckingham, the constitution of Mississippi is construed; and while that is different from the Virginia constitution, there was another important distinction as to the particular office in question, that no period was fixed for the beginning of his office in the constitution or in the acts, and it was held that his term therefore began from his appointment.

The decision of the court in re Meredith cannot be sustained upon the reasoning of the judge who delivered the opinion.

It proceeds upon the declaration that the constitution of Mississippi, and other states mentioned, contain similar provisions to our own; what these similar provisions are we are left to conjecture; and upon a careful examination of the said constitution we have not found them, unless reference is had to the fact that they all declare distinct and definite periods for the terms of officers of the government. '

It is not pretended that these constitutions contain the identical provision which is contained in the constitution of this state, and so the decisions construing them upon the tenure of office are not applicable to the case in hand. In one constitution there cited the provision is the same, as we have said, hut the distinction in that case is broad enough, because we do not find there the deliberate striking out of the provision in the constitution which was proposed to provide that elections to fill vacancies in the office of judge should be for the full term. If the constitution of 1867—8 had desired that elections of judge to fill vacancies which should occur in the office of judge should be made by elections of a judge for a full term, all it had to do was to adopt the report of its committee, as we have seen; but it refused to adopt the entire report. And what was necessary to he done to provide that the legislature should determine the manner of filling all vacancies in office, was to strike out the provision which made an exception of the office of judge (for so the committee had reported it), and the convention did strike out the clause in the said committee report which made an exception as to judges; so it does not seem to he a violent presumption that the convention intended to leave the question as to vacancies in all offices to the legislature, and not to make any exception in favor of judges. It is no argument to say the constitution of Mississippi, New York, or any other state, makes no such provision as the twenty-second section, article five; it ought not • to he in the Virginia constitution ; judges ought to he independent; judges ought not to he dependent upon the will of the legislature, which is so often influenced by recent political excitement, and hears about it the heat, and dust, and stain of the hustings, and may have garments stained in the dirty pool of politics;—all that might have been addressed to the convention which framed the constitution, but it has no place before this court. The constitution, the supreme law of the land, placed that power in the hands of the legislature ;• and while it may he well hoped that the legislature may wisely use it, it is in their hands, and there it must remain—until taken away hy the people of this state, it will not he, it ought not to he, it cannot he taken out of the legislative hand hy this court; such a decision would he in defiance of the constitution, and would he hut futile endeavor— would he (like the decision of this court in ex parte Meredith) but JUDGE-MADE law (as to judge-made law see Spencer v. State, 5 Ind., 76), and would not long survive. It has been eloquently argued hy counsel that to overrule ex parte Meredith would he to put the courts at the feet and at the mercy of the legislature of the state; that the weh of our argument might weave, ere long, our own judicial shroud. Those things are not worth considering; if there is no way to save the official life of this court hut hy setting at nought the constitution which we are sworn to support and maintain, then perish our official life; the constitution must he maintained.

It is claimed hy counsel for the petitioner here, that the decision of this court in the case in re Meredith is binding on this court, as finally settling the rule on the subject; and, even if this court shall regard the case as plainly wrong, it must, nevertheless, sustain the decision thus made, upon the principle of stare decisis, because it has been accepted as the law, and acquiesced in to this time. It does not appear to come within the rule. In the first place, the case in re Broadus had preceded it in this . court, and was a decision the other icay. Under which last named decision, the judges throughout the state had acted, had vacated the bench, and gone without question to the bar, and commenced again the practice of their profession. Was the case in re Broadus within the rule of stare decisis ? if not, why not ? In the second place, the case of ex parte Meredith was not argued, except on one side ; it may have been considered on the other side that the rule had been settled hy the Broadus case. The Hon. Charles' Gf. Howison was one of the judges, ■which this court had unanimously declared in that case entitled to his office from the first day of January, 1880, for six years, and if that -decision was adhered to, it was truly settled that said Charles G-. Howison was the judge of Prince William county, when the Meredith case was decided; hut the court decided otherwise, and decided that the old judge held over, although in the Broadus case the entire court had declared he did not hold over. -If the rule of stare decisis did not apply to the Broadus case, when the court hearing the case was unanimous, and when it was heard after argument on both sides by the ablest counsel, how can this rule apply to the Meredith case, which was decided by a divided court, and not argued at all on the losing side ? The able president, perhaps the ablest mind on the court, dissenting, and perhaps it may not be considered that the court was so very unevenly divided when we consider the circumstances surrounding the question, the embarrassments of some of tbe members of the court, and the consistency attaching to the dissenting judge, and the inconsistency of some of the majority.

The rule upon this maxim of stare decisis has been often stated and considered. “The doctrine grows out of the necessity for a uniform and settled rule of property, and definite basis for contracts and business transactions. If a decision is wrong, it is only when it has been so long the rule of action as that time and its continued application, as the rule of right between parties, demand the sanction of its error; because when a decision has been recognized as the law of property, and conflicting demands have been adjusted, and contracts have been made -with reference to and on the faith of it, greater injustice would be done to individuals, and more injury result to society by a reversal of such decision, though erroneous, than to follow and observe it. But when a decision is not of this character, upon no sound principle do we feel at liberty to perpetuate an error into which either our predecessors or ourselves may have inadvertently fallen, merely upon the ground of such erroneous decision having been previously rendered. The question to be considered in these cases have no application whatever to the title or transfer of property, or to matters of contract. They involve the construction and interpretation of the organic law, and present for consideration the structure of the government, the limitations upon legislative and executive power. Certainly it cannot be seriously insisted that questions of this character can be disposed of by the doctrine of stare decisis. In such case the former decision or previous construction is received and weighed merely as an authority, tending to convince the judgment of the correctness of the particular conclusion, and not as a rule to be followed without inquiry into correctness.” This is the language of a learned judge in one of the states of this Union. (See Willis v. Owen, 43 Texas.)

In another case it is said: “We are by no means unmindful of the salutary rule of stare decisis, but at the same time we cannot be unmindful of the lessons furnished by our own consciousness, as well as by judicial history of the liability to error and the advantages of review.” (See Pratt v. Brown, 3 Wisc.) The noted case of Davis v. Turner, 4th Gratt. 422, wherein we find the oft quoted and truly eloquent opinions of a great judge, to which Judge Staples himself pays respect and homage in the case of Hilb, &c. v. Peyton; and, following the example of Judge Cabell, reviewed and reversed his own previously expressed views, furnishes a shining precedent for reviews of a wrong decision, even if we had ourselves rendered it. We are satisfied that the decision in re Meredith is erroneous; we are satisfied that by the constitution all vacancies in all offices are to be filled in the manner to be prescribed by law; and hence it is our opinion that the legislature having provided that all elections to fill vacancies in the office of judge shall be for the unexpired term, that Judge Burks was elected to fill the unexpired term of twelve years, beginning January 1st, 1871; that his term expired on the 31st day of December, 1882, and that he is no longer a judge of this court, but that Hon. Drury A. Hinton. having been elected for the term of twelve years, beginning on the first day of January, 1883, and having been commissioned and duly qualified by taking the oath prescribed by law, is a judge of this court, and is entitled to occupy his seat upon this bench.