Burks v. Hinton

Lewis, P.,

dissenting.

I am unable to concur in the judgment of the court in this case, and will state the reasons for my dissent.

The only provision of the constitution relating specifically to the election and official tenure of the judges of this court is as follows:

“ 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 twelve years.” Article six, section five. The framers of the constitution, and the people who adopted it, must be understood to have employed these words in their natural sense, and to have intended what they have said. For can I doubt that they were deliberately used, and for a wise and beneficent purpose. If their universally accepted meaning is in any manner qualified by a single clause or line in the constitution, I am free to say, after diligent search, I have been unable to find it. The provision, then, is express, imperative, and unqualified that the judges, when chosen by the legislature, shall hold their office for a term of twelve years. Fo exception is made whatever ; the language is general and sweeping; and in my view of it, sitting here as a judge to construe it, it imposes upon me a duty which cannot be disregarded. “If, in any case,” says Chief Justice Marshall, speaking for the supreme court, “ the plain meaning of a [constitutional] provision, not contradicted by any other provision in the same instrument, is to be dis*42regarded, because we believe the framers of that instrument, could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case would be so monstrous that all mankind would, without hesitation, unite in rejecting the application.” Sturges v. Crowninshield, 4 Wheat. 122. Giving, then, to the provision of the constitution in question, the interpretation which the plain rpeaning of its words seems to me to require, I can arrive at no other conclusion, than that when a judge of this court is chosen by the legislature, to supply a vacancy—except in a case hereafter to be mentioned—the election is for the full constitutional term of twelve years. If in any case for a shorter term, where is the provision of the constitution that says so ? If such exists, I repeat, I have been unable to find it. Surely, if an exception was intended to be made in so important a matter, the framers of the constitution would have said so, in terms too plain to be misunderstood. In respect to temporary appointments by the governor to fill vacancies, the constitution is careful to limit the term of service. Why, then, if the construction of the majority of the court is correct, are not limits as carefully prescribed in respect to elections of judges by the legislature to fill vacancies ? The answer to my mind is, that none were prescribed, because none were intended to be prescribed, further than provided by section five, article six, already quoted.

If we look beyond the language and to the policy of the framers of the constitution the result is the same. To the credit of those men be it said, in no particular is their design made more manifest than their purpose to secure to the people of Virginia the blessings of an independent judiciary.

It was doubtless the melancholy experience of our English ancestors, especially in the reigns of the Stuarts, that prompted that great man, Chief Justice Marshall, when in the constitutional convention of 1829, of which he was a member, to utter these memorable words : “I have always thought, from my earliest youth till now, that the greatest scourge an angry hea*43ven can inflict upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent judiciary.” And, it may "be added, that experience demonstrates .that to establish a dependent judiciary is to establish a corrupt or ignorant judiciary, or both. Against such a “scourge” the framers of the constitution intended to guard the people of this commonwealth, by securing for them, as'their predecessors had done, an intelligent, a pure, and an independent judiciary. To that end ample provision is made by the constitution. It prescribes for the judges of this court a fixed and certain term of twelve years. It provides expressly that the compensation of none of the judges shall he diminished during their term of office, and, impliedly, that they shall in no case be deprived of their offices, except as provided by the constitution itself.

But how can the independence of the judiciary he secured otherwise than by securing the independence of its members individually ? And if that is supposed to be most safely assured by prescribing a tenure of respectable duration, why does not the same reason apply to the selection of persons to supply vacancies as to the first or any other election of judges under the constitution? Upon this subject. I. cannot doubt as to the intention of its framers, and that intention I think is carried out by the construction for which I contend. The result of that construction would tend to secure the services not only of independent but of fit and qualified judges, while, by the contrary construction, it seems to me the intention is, in a measure, defeated. If hut one year, or two years, or any other short period of the term of a predecessor is left unexpired, and the election is for the unexpired term only, where is the lawyer of large practice and of conspicuous qualifications to be found willing to make the sacrifice an acceptance of such an election would involve? I do not hesitate to say that not one could he found within the limits of the commonwealth.

How, it is well settled that “ vacancy,” ex vi termini, means vacancy in the office, and not in the term. It follows, therefore, *44in the absence of a constitutional provision, either express or implied, to the contrary, that a judge chosen to fill a vacancy is chosen for a full term, and not for the unexpired term of his predecessor. Nor is this principle confined to the filling of vacant judicial offices. It has been held to apply as well to the offices of sheriff, clerk, register and others. See People v. Green, 2 Wend. 266; People v. Constant, 11 Id. 132, 511; Brewer v. Davis, 9 Humph. (Tenn.) 208; Keys v. Mason, 3 Snead, 6; People v. Burbank, 12 Cal. 318. In harmony with this view has been the practice under the federal government from its foundation. Take the offices of district attorney, marshal and the like. When a vacancy occurs, it is filled by appointment for the full term prescribed by law, without reference to the length of service of the appointee’s predecessor. And such seems to be the rule in almost all of the states, except where varied by constitutional authority. In the constitutions of some of the states provisions are found requiring elections to fill vacancies to be for a full term; but such provisions, it would seem, are inserted not so much from necessity as out of abundant caution. See People v. Burbank, 12 Cal., supra.

A case strikingly apposite to the one before us is the case last referred to.

By article six, section five of the constitution of California, it is provided that the district judges shall be elected by the qualified electors of their respective districts, at the general election, and shall hold their office for the term of six years. After the adoption of the constitution, the legislature passed an act providing for filling vacancies in the office of judge “for the unexpired term.” The relator in that case was elected to fill a vacancy, and it was insisted by the respondent that he was elected for the unexpired term of his predecessor only. But the supreme court of California, construing the section of the constitution referred to, held that he was elected for-the full constitutional term of six years, and that the act of the legislature, so far as it provided for a less term, was unconstitutional and void. *45The same question had been previously decided by the same court in the case of The People v. Weller, 11 Cal. 77. And in that decision Judge Field united—then a member of that court, now recognized as one of the ablest and most accomplished judges of the supreme court of the United States. In the course of the opinion in -that case the court said: The policy of the framers of the constitution was to give to each district judge elected a right to hold for six years, and thus to secure the independence of the judiciary; and it is obvious that this reason applies to judges whenever elected.

The case of Keys v. Mason was decided by the supreme court of Tennessee in 1855, and is reported in 3 Snead’s Reports, page 6, &c. The constitution of that state, then in force, provided that justices of the peace should be elected for the term of six years. And by another section of the constitution, it was provided as follows: “ The filling of all vacancies that may happen by death, resignation, or removal, not otherwise directed or provided for bv this constitution, shall be made in such manner as the legislature shall direct.” It will be observed that this provision is almost identical with the language of section twenty-two, article five of our own constitution, relied on by the attorney-general in his oral argument and printed brief in this case, which is in these words: “The manner * * * 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.” By an act of the legislature of Tennessee, it was enacted that a person elected to fill a vacancy in the office of justice of the peace, should hold for the unexpired term of his predecessor, and no longer. Again, it will be observed that this act is almost identical with the joint resolution of our legislature, approved December 18, 1812, upon which the attorney-general and his learned associates almost entirely rely in this case, and which is in these words: “ All elections by the general assembly to fill *46vacancies in the office of judge, shall be only for the unexpired term of his predecessor.”

The act of the .Tennessee legislature was assailed as unconstitutional and void, .and it was so pronounced by the supreme court of that state. The singularly clear and able opinion of the court, delivered by Caruthérs, J., is so applicable to this case that I cannot forbear to quote from it. He said: The statute “is a clear and legitimate exercise of power, so far as the ‘manner’ of filling vacancies is prescribed; but where was the authority to shorten the term of service fixed by the constitution? By that, every justice of the peace ‘shall be elected for the term of six years,’ and by this act, for any period that might remain of the term of his predecessor, whether one, two, three, four, or five years, or even a portion of a year. Here, then, is a palpable conflict between the constitution and the act, as to the duration of the term for which a justice of the peace shall hold his office, after his election by the people. The former being supreme must prevail. The term is there fixed at six years.under all circumstances, and without exception; and no power is given to the legislature to abbreviate it, but only to provide for the mode and manner of keeping the office filled. This is the extent of the power .delegated ; and it does not reach the term of service; that is unalterably fixed at six years by the highest law, and it is not competent for the legislature to shorten, any more than to lengthen it.” And he added, “It is for us to declare the law as we find it, without regard to results.”

Analogous principles were declared by the supreme court and the court of errors of the state of New York in the cases already referred to in 2d and 11th Wendell’s Reports, and which I will not stop to review.

A multitude of authorities to the same effect might be referred to if it were necessary to do so. Many of them are cited in the opinion of this court, in ex parte Meredith, 33 Gratt. 119, and may be seen by referring to the report of that case.

*47These cases containing, as they do, the decisions of the highest courts of other states, construing provisions of the constitutions of those states analogous to the provisions of our own constitution now under consideration, are entitled to our profound respect and attention. Indeed, having been decided before the adoption of our constitution, and, therefore, presumably familiar to its framers, they have with me the force of controlling authority. I should not feel at liberty to disregard but would feel bound by them, if a doubt existed in my mind after reading the provisions of the constitution under consideration.

“ Where a particular clause of the constitution,” says Judge Cooley, “has been adopted in one state from the constitution of another, after a judicial construction had been put upon it in such last mentioned state, it is but just to regard the construction as having been adopted, as well as the words; and all the mischiefs of disregarding precedents would follow as legitimately here as in any other case.”

. In support of this proposition he refers to many authorities. See Cooley’s Const. Lim. (4th edition), marg. page 52.

In opposition • to these views counsel mainly rely, as I have said, upon the joint resolution of the legislature, approved December 18, 1872. It provides that an election of judge to fill a vacancy shall be for the unexpired term of his predecessor. How if the legislature had the authority to pass it, undoubtedly it would have the effect for which counsel contend. But to my mind it is so plainly unconstitutional and void, that I cannot hesitate to so pronounce it. It is the high prerogative of this court to see that the constitution, which the people have adopted as the fundamental law of the state, is not violated, and that each branch of the government is kept within its appropriate sphere of action. And while appreciating the delicacy of the duty to declare void an act of the legislature as in conflict with the constitution, it is nevertheless a duty, from the performance of which I shall never shrink when occasion requires it, so long as I occupy a. seat upon this bench.

*48The power of the legislature to pass the joint resolution in question is placed by counsel on two grounds: 1. Because a state legislature has full power over all subjects of legislation, except so far as such-power is prohibited by constitutional provision ; and 2, because authority to do so is conferred by article five, section twenty-two of the constitution, which empowers the legislature to prescribe the manner of filling vacancies in office not provided for by the constitution.

. The first proposition, I think, has already been sufficiently disposed of by what has heen said. I will only add that when the constitution fixes the term of an office and does not, expressly or impliedly, give the legislature the power to alter it, it is equivalent to an express denial of the power. The authorities already referred to abundantly sustain this view. It is difficult to see how any other, could prevail.

Upon this subject the supreme court of California, in People v. Burbank (supra), quoting approvingly the language of Mr. Justice Huger, of the constitutional court of South Carolina, said: “If the people declare and ordain in their constitution that an office shall be held by a particular tenure, it would be as much a usurpation in the legislature to alter that tenure as it would be in the governor to commission for a longer period than directed by the legislature.” And in another case, the same court said: “The governor, in granting a commission, acts ministerially, and therefore ought to make it conform to the law and the constitution. The commission does not confer the office; it is only evidence of it, and cannot change the tenure by which the constitution declares it shall be held.”

The second ground is equally untenable; and, as we have seen, has been so held by the highest courts of other states—notably in the case of Keys v. Mason, 3 Snead (supra).

To say that the power to prescribe the manner of filling vacancies confers the authority to make vacancies, or in any way to prescribe the tenure of an office fixed by the constitution is a proposition, to say the least, somewhat startling.

*49Obviously, the section relied on does not relate to filling vacancies in the office of judge, if for no other reason, because the manner of electing judges is specifically provided for by the constitution.

In the argument, much stress is laid by counsel on the fact, that in the section as reported from the committee to the convention, the words “but special elections to fill vacancies in the office of judge of any court, shall he for a full term” were stricken out. By which, it is insisted, the intention of the framers of the constitution to require such elections to he for the unexpired term only, is clearly manifested. I cannot so regard it. What motives influenced such action, we have no means of ascertaining. We are not informed by the proceedings of the convention, and are, therefore, left to conjecture. To my mind, upon the authority of Judge Cooley, the rational explanation is, that the words were regarded as superfluous, as the language employed in article six, section five produced the same result, and had been so construed by the courts whose decisions have been referred to. (Cooley’s Const. Lim., 4th ed., 52.)

As further evidence of the intent of the framers of the constitution to prescribe uniform elections of judges, and “by classes,” or “in blocks,” as it has been expressed, the attorney-general refers to section seven of the bill of rights, which declares that vacancies in office should “be supplied by frequent, certain, and regular elections.” The same provision is contained in the bill of rights, adopted along with the constitution of 1851, under which elections to fill vacancies in the office of judge were for a full term. It also appears in the bill of rights appended to the constitution of 1829, under which the judges were elected for life. It clearly, therefore, cannot have the effect contended for it in this case.

But counsel enquire, how and for what term, under any other construction than that for which they contend, is a vacancy in this court to be filled, which occurs during the session of the legislature and after a regular election at which the members of *50this court have been chosen for the term commencing on the first day of January following?

The answer is obvious. It is made the duty of the legislature to elect the judges. In such a case, therefore, having discharged that duty, quo ad the term commencing on the 1st January following, nothing of its authority remains hut to supply the vacancy until the commencement of that term. And this, not by express provision of the constitution, hut by necessary implication, and from the necessity of the case.

I have thus considered the case as if the question it involves were now for the first time presented here for decision. But, in fact, it has been decided by this court in at least six cases which have heretofore come before it. It was first distinctly presented and decided in ex parte Meredith, 33 Gratt. 119, in which'the opinion of the court was delivered by Judge Staples. . I can add nothing to that opinion. It is able, and, to my mind, convincing. Nor is there anything in conflict with that opinion to he found in ex parte Broadus, or in any other case cited by the majority, as the most cursory examination will show.

But we are asked to overturn these decisions, and to give to the constitution a different interpretation than it there received.

I apprehend it is our duty to adhere to them, unless well satisfied they are erroneous. In this connection the language of Judge Cooley is eminently worthy of reproduction. He says: “ A cardinal rule in dealing with written instruments is, that they are to receive an unvarying interpretation, and that their practical construction is to he uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time, when circumstances may have so changed as to make a different rule in the case desirable. A principal share of the benefit expected from written constitutions would he lost, if the rules they established were so flexible as to bend to circumstances, or he modified by public opinion. It is with special reference to the varying moods of public opinion, and with a view of putting the fundamentals of government beyond their *51control, that these instruments are framed * * * *; and the necessity for- hills of rights in our fundamental laws lies mainly in the danger that the legislature will he influenced by temporary excitements and passions among the people to adopt oppressive enactments. What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require." Cooley’s Const. Lim. 54.

For these reasons I am of opinion that the Honorable Edward C. Burks, when elected a judge of this court by the legislature in 1876 to fill the vacancy occasioned by the death of Judge Bouldin, was chosen “for a term of twelve yearsthat he is now a judge of this court, and is entitled to he recognized as such.

A majority of my brethren, however, differently construing the constitution, have decided otherwise, and to that decision all must how.

From the beginning of the controversy, the people of Virginia have been fortunate in the assurance, that which ever way it might he decided, the result would he to secure the services in this court of an accomplished, fearless and upright judge.

ORDER,

The petition of Edward C. Burks to he allowed to occupy the seat in this court, now occupied by Judge Drury A. Hinton, is denied/ The court being of opinion that the term of said Edward G. Burks, as judge of this court, expired on the 31st day of December, 1882, and that the term of office of Judge Drury A. Hinton began on the 1st. day of January, 1883, and that he is of right entitled to his seat as a judge upon this bench.