dissenting.
The majority’s logic is flawed. I cannot agree with the proposition espoused for the Court that simply because Virginia has a bicameral legislature, selection of SCC commissioners must be accomplished by a separate election in each house, under a general constitutional mandate that provides: “Members of the Commission shall be elected by the General Assembly . . . .” The conclusion drawn does not flow reasonably from the basic premise.
Furthermore, I disagree with the idea that the foregoing broad and expansive constitutional provision operates as a limitation upon the authority of the General Assembly.
“It is the settled law of this State that, outside of the powers ceded to the Federal government, the power of the General Assembly to enact statutes is without limit, except as restrained by the Constitution of the State. The Constitution of the State is a restraining instrument, and not a grant of power. If there be any restraints by implication, the restraint must be so necessary and so plainly manifest as to require the implication in order to enforce the restraints expressly imposed.” Breckenbridge v. County School Board, 146 Va. 1, 5-6, 135 S.E. 693, 695 (1926).
Here, there is no express restraint on the power of the legislature to enact Code § 12.1-6, providing for selecting SCC commissioners by the joint vote of the two houses, and no such restraint is necessarily implied. This conclusion is buttressed by the fact that the framers demonstrated the ability, and found it necessary, to limit expressly the power of the legislature with regard to the election of the judiciary by providing in article VI, section 7, of the Constitution that judges “shall be chosen by the vote of a majority of the members elected to each house of the General Assembly.” If the majority is correct, why is the limiting language in the judicial article necessary?
I would issue a writ of mandamus.
STEPHENSON and RUSSELL, JJ., join in dissent.