
    *In re Broadus. In re Walsh.
    January Term, 1880,
    Richmond.
    Absent, Staples and Burks, J’s.
    
    1. Judges — Tern of Office — Constitutional Provision. — Under the constitution of Virginia it is provided that the terms of the judges of the county courts shall commence on the 1st of January, and they shall hold their office for six years,- and until a successor is elected and qualified. The term of a judge having ended on the 31st of December, 1879, his successor was elected on the 12th> of January, 1880 — Held: His term commenced on: the 1st of January, 1880; and he is the judge of the county from the time of his qualification, and' authorized at once to exercise the authority and discharge the duties of the office.
    Edward C. Minor was elected in 1873 as judge of the county court of Henrico. He went into office on the 1st of January, 1874, and his term of office ended under the constitution and law on the 1st January, 3880. On the 12th of January, 1880, Edmund Wad-dill, Jr., was elected judge of the county court of Henrico, and was duly commissioned and qualified. And the question having been raised as to the time when the said Waddill’s term of office commenced, and there being many other cases of the same kind in the state, it was agreed by the said Minor and Waddill, to make a case which might be at once brought before the court of appeals, by which the question might *be judicially settled. Accordingly at the February term of the county court, Judge Minor opened the court, and made an order committing ’the deputy sheriff. William Walsh, for a contempt in disobeying an order of the court. Judge Minor then adjourned the court. Judge Waddill then opened the court, and made a like order, committing John E. Broadus, and he then adjourned the court. Walsh and Broadus then applied by petition to this court for a writ of habeas corpus, each insisting that he was illegally in custody, because the judge who committed him had no legal authority to act as judge at the time.
    John S. Wise and W. W. Gordon, for the petitioner Walsh.
    William E. Royall and A. H. Sands, for the petitioner Broadus.
    
      
       Judge Staples’ brother was interested in the question, and Judge Burks was personally interested in a kindred question.
    
    
      
       judges — Term of Office — Constitutional Provision. — In Jameson v. Hudson, 82 Va. 281, the court, referring to the holding of the principal case, said: “The correctness of this construction, it is true, was denied by a majority of the court in the cases of ex parte Meredith, Bland & Giles Co. Judge Case, and Estes v. Edmondson, reported in 33 Grattan; but these cases must be regarded as overruled, and as not containing the correct doctrine upon these points.
      In Burks v. Hinton, 77 Va. R. 1, these same provisions of the constitution came again under review, when this court, upon great consideration, deliberately adopted the construction which had been previously put upon them by Judges Moncure and Anderson, and in that case, Judges Eacy and Richardson, in opinions, evidencing both research and ability, demonstrate in the most convincing manner the perfect soundness of that construction. That case has been followed by other cases in this court, and in all of them the same interpretation is put upon these provisions of the constitution. Howison v. Weedon, 77 Va. R. 708; Watlington v. Edmondson, 10 Va. J. J. 286. And by these repeated decisions this construction has been so firmly established as the proper one, that we car not allow it to be again questioned.’’
    
   MONCURE, P.

The constitution of Virginia which is published in the Code of 1873, pp. 60-101, contains the following provisions which seem to be material to be considered in the decision of the question now before the supreme court of appeals, in regard to county court judges.

Code, p. 84, article VI, § 1. “There shall be a supreme court of appeals, circuit courts and county courts.”

P. 85, § 5. "The judges shall be chosen by the joint votes of the two houses of the general assembly, and shall hold their office for a term of twelve years.”

P. 86. § 11. “For each circuit (of the sixteenth judicial circuits into which, by § 9 of the same article, the state was directed to be divided), a judge shall be chosen by the joint vote of the two houses of the general assembly. who shall hold his office for a term of eight years, unless sooner removed in the manner prescribed by this constitution.’’

*P. 87, § 13, (headed “county courts”). “In each county of this commonwealth there shall be a court called the 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: provided, that counties containing less than eight thousand inhabitants shall be attached to adjoining counties for the formation of districts for county judges. County court judges shall be chosen in the same manner as judges of the circuit courts. They shall hold, their office for a term of six years, except the first term under this constitution, which shall be three years, and during their continuance in office they shall reside in their respective counties or districts. The jurisdiction of said courts shall be the. same as that of the existing county courts, except so far as it is modified by this constitution, or may be changed by law.”

P. 89. “General provisions.”

“Sec. 22. All the judges shall be commissioned by the governor, and shall receive such salaries and allowances as may be determined by law, the amount of which shall not be diminished during their term 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.

“Sec. 23. Judges may be 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. The judge against whom the general assembly may be about to proceed shall have notice thereof, accompanied by a copy of the cause alleged for his removal, at least twenty days before the day on which either house of the general assembly shall act thereon.”

*“Sec. 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.”

The foregoing are all the provisions of the constitution which seem to have a material bearing on the subject under consideration.

The last term of six years of the county court judges of the state commenced on the first day of January, 1874, and ended on the last day of December, 1879. The succeeding term of six years of the said judges commenced on the first day of January, 1880, and will end on the last day of December, 1885. The judges elected for the last term ceased to be judges at the end of that term, except that, under § 25 aforesaid, they are to “continue to discharge the duties of their offices, after their terms of service have expired, until their successors have qualified.”

As soon as their successors have qualified, then, of pourse, they will instantly cease to discharge those duties.

The election of judges of the county courts for the term of six years, which commenced on the first day of January, 1880, devolved on the present legislature; which certainly entered upon the discharge of that duty in due time. Some, and perhaps many, of those judges were elected and qualified before the first day of January last, and no question has been raised, nor, I presume, can be raised, as to the legality or regularity of their appointment.

But all of the appointments were not made before that day. Why, not does not ajipear. Doubtless different reasons existed in different cases. Some of those reasons may have concerned the old incumbents of the office nd the question of their reappointment. Some of them may have concerned the question as to a propriety of choice between competitors for the office in various cases. At all events, the legislature, for some cause or other, deemed it proper to delay the completion of the election for a few days after *the first day of last January; after the lapse of which few days they completed the election, and the persons so elected qualified according to law, and proceeded to enter upon the execution of the duties of their office. But in some of the cases, at least, the old incumbents denied their right to do so, and claimed a right for themselves to hold on to the offices, and perform all their duties, and receive all their emoluments, until the first day of January, 1881. notwithstanding the election and qualification of their successors, and the offer of the same to enter upon and perform immediately and henceforth the duties of their offices. The said old incumbents placed their claim alone upon the ground of the appointment and qualification of their successors after, instead of on or before, the 1st day of January. If such appointment and qualification had been on or before that day, they would have made no difficulty and raised no question on the subject.

Now, can it be that this accidental delay for a few days in the appointment of the successors in these offices is to have such an important effect as would be produced by sustaining the views of the old incumbents who are competing in this case?

Could the framers of the constitution have intended that a circumstance so apparently slight and immaterial as a few days difference in the time of the appointment of a judge of the county court who might be appointed on the 31st day of December, 1879, or on the 1st day of January, 1880, should have such an important effect as that on the former case, he would go into office and become entitled to receive his salary immediately from and after the former day; whereas in the latter he would not, until about twelve months thereafter — as that, in the former case, the old encumbent would be entitled to nothing; whereas in the latter he would be entitled to continue to hold the office and receive the salary for twelve months after the expiration of the term for which he was elected, *while his successor would be entitled to receive nothing on account of his office until after the expiration of about twelve months from the time of his election and qualification as such? I think that such could not have been the intention of the framers of the constitution. They could not have intended anything so unreasonable; and to warrant the court in deciding that they did, the evidence of such an intention should plainly appear in the constitution. Does such an intention so appear in the constitution? I think not.

The only provision in the constitution which can create any doubt or difficulty on the question is that it contained in section 22 of article 6. page 89, of the Code. The language of that section is: “All the judges shall be commissioned by the governor, and shall receive such salaries and allowances as may be determined by law, the amount of which shall not be diminished during their term of office. Their terms of office shall commence on the first day of January next following their appointments; and they shall discharge the duties of their respective offices from their first appointment and qualification under this constitution until their terms begin.”

Now, the framers of the constitution evidently designed that the terms of office of all the judges should commence on the first day of January next following their appointment; and such is the express language of the constitution. This provision was made with a view to the organization of the machine of government and setting it in motion. They determined to fix upon a certain day for the commencement of the terms of office of all the judges, and they fixed on the first day of January for that purpose. But before the arrival of that day next after the adoption of the constitution, it was necessary that the duties of their respective offices should be discharged by some person. By whom were they to be discharged? The constitution expressly declares._ After providing in regard to all the *iudges, that “their terms of office shall commence on the first day of January next following their appointment,” it thus proceeds: “And they shall discharge the duties of their respective offices from their first appointment and qualification under this constitution until their terms begin.”

The constitution was adopted and put in operation some eight or nine months before the 1st day of January, 1871. Infixing on a day for the commencement of the terms of office of the judges, the first day of January next following their appointment was selected for that purpose. There was a long interval between that day and the day of the appointment and qualification of the judges under the _ constitution; and it was necessary that provision should be made in the constitution for the discharge of such judicial duties as might be necessary in the state during that long interval. Therefore it was provided, in section 32 as aforesaid, that the judges “shall discharge the duties of their respective office's from their first appointment and qualification under this constitution until their terms begin.” This sentence is separated by a semi-colon, only, from the one which immediately precedes it, in these words: “their terms of office shall commence on the first day of January next following their appointment;” thus showing that the whole section has relation to the time when the constitution was adopted, which was very shortly before the time of the first appointment and qualification of judges under the same. If we read the section in this view of the facts, we can have no doubt or difficulty about its meaning or the priority of construing it in reference to the first day of January next succeeding the first appointment and qualification of the judges.

On or before the said first day of January a judge was no doubt elected by the general assembly for each county of the state, for the term of three years from the 1st day of January, 1871; and on or before the 1st day of January, 1874, *a judge was probably elected by the general assembly for each county of the state, for the term of six years from the last named day. On or about the 1st day of January, 1880, the time came for making another election of county judges, some of whom were elected before the first day of January; as to the validity of whose election no question is raised. Others of whom were elected a few days after the 1st day of January. But it is contended by some of the old incumbents of a county judgeship that an election made after the first day of January last cannot take effect until the 1st day of January, 1881; twelve months after it would have taken effect if it had been made a few days before it actually was made; that is, on or before the first day of January last.

Now, here is a case in which all the county judgeships of the state became vacant on the 1st day of January, 1880, and the duty of filling the vacancies by new elections on or about that day devolved on the general assembly which was then in session. Some of the vacancies were accordingly filled by elections so made on or before that day; while the filling of the others was delayed for a few days for the sake of convenience, and under a bona fide belief on the part of the electors th' t such delay could make no difference. But is now contended by some of the judges, whose terms of six years expired on the first day of January last, that they are entitled to hold on to their offices till the first day of January next, because the appointment and qualification of their successors took place a day or two after, instead of on or before the first day of January last.

I think the constitution ought to receive not a strict and narrow, but a liberal and reasonable construction. The legislature is invested by the constitution with the elective franchise in this case, for the benefit, of course, of the state. It is intrusted with the duty of filling the county judgeships, all of which have become vacant. Its right to perform *this duty is disputed because not performed on or before _ certain day, though performed a day or two thereafter. A judge whose term of service has expired claims to be entitled to hold his judgeship a year longer, because his successor was not appointed and did not qualify on or before the first day of January last, though he was and did a day or two thereafter. Now, this delay of a day or two could not have injured, but may have benefited the state, for which latter purpose it was doubtless incurred.

The first day of January was regarded both by the convention that framed the constitution and the legislatures convened under it, as the proper day for the commencement of a term of a judgeship. The 1st day of January, 1871, being the first after the adoption of the constitution, some nine or ten months before, was therefore fixed as the day for the commencement of thefirst terms of thejudgeships under the constitution; and provision was made therein for the immediate appointment and qualification of the judges whose judicial terms were to commence on the first day of the next succeeding January, but who were to discharge the duties of their respective officers from their first appointment and qualification as aforesaid until the commencement of their terms.

Now, a term of six years of the county court judgeships of the state commenced on the' 1st day of January, 1880; a like term of .the same judgeships having ended on the preceding day — to wit: the 31st day of December, 1879. No doubt it was expected and intended that all the judges who were to act as such on and after the 1st day of January, 1880, would be appointed and would qualify on or before - that day. But as we have seen, only a portion of the said judges then was appointed and qualified, while the rest of them, for different reasons, were not aopointed and did not qualify for several days thereafter. Still, whether they were appointed and qualified on, before or after that day, the term of the office to which they were appointed *respectively commenced on the same day — to wit: the 1st 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 1st 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.

The result of my opinion is, that the petitioner, John E. Broadus, is legally; detained in custody under a commitment issued by Edmund Waddill, jr., as judge of the county court of Henrico, on the 9th day of February. 1880, and that the said Waddill, jr., was, at the time of issuing said commitment, the judge of the said court, duly appointed and qualified as such under the constitution and laws of the state; and therefore the petition of said Broadus to be discharged from said custody must be denied. And that the petitioner, William Walsh, is illegally detained in custody under a commitment issued by Edward C. Minor, styling himself judge of the county court of Henrico, on the — -day of February, 1880, and that the said Minor was not, at the time of issuing the said last mentioned commitment, the judge of the said court, duly appointed and qualified as such under the constitution and laws of the state; and therefore the petition of said Walsh to be discharged from said custody must be granted.

CHRISTIAN, J.,

I concur in the results of the opinion just delivered by the President of "the court. But I do not concur in some of the views expressed by him or in some of the reasons which lead him to the conclusions he has reached. I will, therefore, very briefly state the grounds upon which, in my opinion, the question before us should be determined. They are purely legal questions arising out of the true construction to *be given to two clauses of the constitution, which two clauses are in these words. Art. VI, § 22, reads as follows: “All the judges shall be commissioned by the governor, and shall receive such salaries and allowances as may be determined by law, the amount of which shall not be diminished during their term 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 25 of this Art. reads as follows: “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 only remaining provision of the constitution necessary in my opinion to be noticed is the 13th section of the same article, which limits the term of office of the county judges (except the first term) to the .period of six years.

The Hon. Edward C. Minor commenced his second term of office as county judge of the county of Henrico on the first day of January, 1874, which expired on the first day of Tanuary, 1880. By the express terms of the constitution his term ended on that day. But under the provision of the 25th section, although his term of service had expired, he was authorized to hold over until (and only until) his successor had qualified.

But it appears from the admitted facts that "n the 12th of January. 1880, Edmund Wad-dill, Jr., was elected by the legislature as judge of said county, and received his commission from the governor and duly qualified under the same before the expiration of thirty days, as required by the statute. So that it is plain that under the 25th section, Minor, whose term of office was limited by the constitution to the 1st day of January. 1880, could only hold over until his successor had qualified. Now it is true*that the 22d section prescribes “that the term of office of judges shall commence on the 1st day of January next following their appointment,” and if this was all of the 22d section it would be plain that Waddill could not enter upon the duties of the office until the 1st day of January, 1881. But immediately following this provision are these words, “and they shall discharge the duties of their respective offices from their first appointment and qualification under this constitution until their terms begin.”

We cannot ignore these words, nor detach them from their connection in this section. Upon the most familiar rules of construction, we must give to each clause of the instrument to be interpreted (upon the subject under investigation) its full meaning and effect in order to carry out the intention of the framers of the instrument.

It has been argued, and with much force, that this clause applied solely to the judges first elected under this constitution. But I think this is too narrow a view of the question. If that had been the design, it would more properly be affixed to the schedule, and not have had a permanent place in the constitution.

Of course all constitutional provisions -must be regarded as permanent in their character upon general principles. And I think it cannot be maintained, either from the grammatical construction of the language or the plain meaning of the words in the connection in which they are used, that it was the intention to limit this provision so as to apply it alone to the judges first elected after the adoption of the constitution.

I think, on the contrary, it was designed to meet contingencies which might arise, and of which this case is a striking illustration.

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 of office all expired on the 1st day of January, each one would hold over one year longer than the term fixed by the constitution.

I think it is plain that Judge Minor could only hold until his successor qualified, and not until the regular term of office of such successor commenced, which was postponed by the accidental circumstance that he was elected after the 1st day of January, instead of before that day.

Waddill was certainly Minor’s successor; for he had been appointed by the legislature, which was by the constitution invested with the power of appointment. He has received his commission under this appointment, and has duly qualified; and by the express terms of the 25th section, Minor could only hold until his successor was qualified, and not afterwards. And Waddill, under the last clause of the 22d section, must discharge the duties of the office until his term begins, and then enter upon it for the period of six years from the 1st day of January, 1881.

ANDERSON, J., concurred in the opinion of Moncure, P.

Judgment in favor of Walsh and against Broadus.  