
    *The Richmond Mayoralty Case.
    
    April Term, 1870, Richmond.
    1. Statute—Enabling Act—Constitutional.—So much of the act passed the 5th of March 1870. styled the enabling act, as provides for the appointment of councilmen or trustees and mayors and other officers of cities and towns, is constitutional.
    2. Reconstruction Act—When Authority of flilitary Commanders Ceased.—The authority of the military commanders appointed under the reconstruction acts of congress, ceased npon the admission of the State’s representatives into congress ; and when his authority ceased that of his appointees ceased.
    3. Act of Congress—Authority of Military Appointees to Hold Office Over.—The act of congress of January 26th, 1870, admitting the representatives of the State into congress, does not entitle military appointees to office to hold over until their successors are appointed and qualify.
    4. Constitution—Art. 6,§25"-ToWhatItAppIles4—25 of Art. 6, of the constitution, applies only to officers elected or appointed under the constitution, and for whose election or appointment it provides.
    5. Same—Art. 6, §20—To Whatlt Applies.—§20, of Art. 6, of the constitution, which provides among other things, that there shall be chosen by the electors of every city a mayor, applies only to a mayor to be chosen under the constitution, at and after the time therein prescribed for the purpose ; and not to one appointed to perform the duties of mayor before one could be chosen to enter upon the duties of the office under the constitution.
    
      6. flilitary Appointees—No Authority from Constitution of United States or of the State.—Whatever power these military appointees to office may have had to discharge the duties of their offices until otherwise provided by law, they derived none from the constitution of the United States ♦or of the State, and it was competent for the legislature to terminate their power derived from any other source.
    7. Constitution—§ 2 of Schedule—To What It Refers.—* The § 2, of the schedule to the constitution, in speaking of courts refers only to courts of record, and not to mayors’ courts; which are not courts of record.
    8. Same—Effect of Its Adoption on Officers.—The constitution did not continue any officers in office after its adoption; but intended to vacate all of them immediately.
    These cases were prepared by agreement of the parties to bring before the court the question, whether *Henry K. E)llyson or George Chahoon was the mayor of the city of Richmond. Chahoon was appointed in *1868 by General Schofield, military commandant of District No. 1, created by the reconstruction acts of congress, and held the position, when, on the 26th of January 1870, the senators and representatives of the State of Virginia were admitted into the congress of the United States; and he held an office under the United States government. Ellyson was appointed mayor of the city on the 16th of March 1870, by the council of the city, under the authority of the act of the general assembly or Virginia, passed the 5th of March 1870, called the enabling act. Under this act the governor appointed members of the council, who took the place of those who had been appointed by the military commander; and the new council appointed Ellyson.
    After the appointment of Ellyson, both he and Chahoon continued to act as mayor; Chahoon as mayor, committed John Henry Bell to prison; and Ellyson as mayor, required Archibald Dyer to give bail for his appearance to answer, &c., which was given; and then, by agreement of the parties, writs of habeas corpus were applied for to this court by Dyer and Bell; regular returns were made; and the facts agreed.
    Daniel, Neeson and Meredith, for Bell.
    The question before the court arises on two petitions for writs of habeas corpus. Writs have issued and proper returns been made on them, and an agreed statement*of facts filed. There is no disputed fact. The only question is a legal one, and involves the enquiry, which of these two officers is the rightful mayor of this city? The question arises, because the facts agreed show that two persons are exercising the functions of mayor at the same time in this city. This then presents the question, which of these two judgments of commitment is lawful. The answer depends upon the decision of the question, who is the rightful mayor? The rightful mayor had jurisdiction of the case, and could commit. The other having no legal title to the office he has assumed to fill, lias no jurisdiction whatever, and his commitment is unlawful, a mere nullity, and the prisoner must be discharged.
    1st. Rob. R. 731; 2 Rob. R. 842 ; 9 Gratt. 102; 10 Gratt. 641; 3 Peters 202; and cases therein cited.
    2d. We insist that Mr. Chahoon has no title to the office because his appointment in the first instance conferred no title to the office. He was appointed by the military commander under the reconstruction laws. By the second section of the act of 19th July 1867, the general is authorized to remove all State officers, and then he “shall have power to provide from time to time, for the performance of the said duties of such officer or person so removed or superseded, by the detail of some competent officer or soldier of the army, or by the appointment of some other person to perform the same. ’ ’ Such an appointment conferred no title to the office. He was appointed “to perform the duties of the officer removed.” He was a mere locum tenens, holding at the will or by the sufferance of the commanding general. This is not a legal title, certainly not a title that vested such a right to the office that the legislature could not interfere and provide for filling it.
    But by the order of the general appointing him, he was to hold until his “successor was elected and qualified.” This has occurred, and therefore his tenure has *ceased, for Mr. Ellyson has been duly elected and qualified. Nor can the terms of the order calling him mayor, change the nature of his tenure, or enlarge his powers if it exceeds the reconstruction laws.
    3d. If it conferred a title, the title terminated when the operation of the reconstruction laws ceased. Their operation ceased by their own terms, on the admission of the State to representation. The 5th section of the act of the 2d March 1867, provides that the preceding sections (those which declared the State governments provisional, and instituted the military authority, and to which the succeeding acts are merely supplementary), should, in that event, become “inoperative in the State.” The act expired, and those who held under it expired with it. This would be true in all cases where the law under which the officer holds ceases to operate. But this principle applies with peculiar force where the appointee is merely appointed to perform the duties of an officer removed or suspended. He has no legal title to the office, no civil right in it, no fixed term, but is a mere locum tenens performing its duties, if the military commander pleases, until the law ceases to operate.
    4-th. Upon the admission of the State, the new constitution came into operation, and vacated every office theretofore existing, unless preserved by the new. A total interregnum intervened in the absence of any provision to prevent it. This construction is authorized by the sanction and practice of the illustrious convention of 1829-30; Debates, p. 869; and see the provisions of the instrument adopted by them, continuing the old offices and officers, except the legislature, which was directed by the act under which the convention was elected, to assemble as soon as a constitution should be adopted. All the old officers and offices were continued by the constitution of 1851 and the Alexandria constitution. Such a provision was omitted by the convention of 1868, and as will be seen, for a purpose. *The 1st section of the schedule preserves the statute law until repealed by the legislature; and this has the effect to preserve the charter of the city, which is merely a statute, and the office of mayor with it.
    5th. It was decided by the Supreme court of the United States in the case of Permoli v. Municipality No. 1 of New Orleans, 3 How. U. S. R. 589, that all laws of congress enacted for the government of the territory previous to its admission as a State, were superseded by the adoption and approval by congress of the constitution of the State, and became void and inoperative.
    6th. That Chahoon was not continued in office by the order of General Canby. That order was issued on the 27th day of January 1870, the day after the State was admitted, and after the reconstruction laws had expired, and his own power had ceased to exist. The order was a mere brutum fulmen. But if it did continue him in office, it continued him by its own terms only until his successor was duly qualified. The subsequent appointment and qualification of Ellyson, under the enabling bill, terminated Chahoon’s authority under that order. Was not the order of that day superseded by the order of the next day, the 28th, whereby he remitted, if he had any thing to remit, the whole civil power to the authorities of the State?
    7th. It is alleged that he was continued in office by the enabling bill. That only continued those who were eligible under the laws of the State, and none others. Chahoon is not eligible. He is a Federal officer, and thereby disqualified from holding any State office. And this holding of a Federal office vacates his office of mayor, if he had title to it. Code, ch. 12, $ 2, p. 100; 1 Va. Cases 317; 4 Leigh 643. And this act only continued him until Ellyson was appointed by its own terms.
    But he would be displaced by the appointment and qualification of Ellyson under the same enabling bill *that authorized the appointment and qualification of Ellyson, and consequently Chahoon’s continuance in office under that law terminated with Ellyson’s qualification under the same law.
    But it is said he holds over by virtue of an imperative social necessity to prevent anarchy. But the necessity, if it existed, terminated with Ellyson’s appointment.
    It is further insisted that he is a de facto officer, holding by virtue of his original appointment. His original appointment had ceased, and his title expired by the operation of the new constitution ; and if he continued thereafter to hold, he held without any title, legal or colorable; all title had been taken away, and without a colorable title he could not be a de facto officer. Again, there must be an acquiescence on the part of the government to make him a de facto officer. So far from an acquiescence the government dissented, as shown by the passage of the enabling bill by the proper authorities.
    But if he was a de facto officer, it conferred no benefit on him. His being a de facto officer gives him no immunities, confers no rights, and shields him from no responsibilities. He cannot recover the office, nor the salary, nor vindicate his acts in any legal proceeding by virtue of his being a de facto officer. He can only do this by showing that he is the de jure officer he claims to be. Blackwell on Tax Titles, ch. iv., p. 95, 2d edi. His acts as to third persons are valid, except only in cases of direct injuries to his fellow-citizens. Black. Tax Titles 96; People v. Tieman, 30 Barb. N. Y. R. 193; Venable v. Curd, 2 Head’s R. 582; Prescott v. Hayes, 42 N. Hamp. R. 56.
    But if he was a de facto officer, he holds by no such title as would prevent the legislature from interfering. The legislature could provide for filling the office, whether it was absolutely' vacant, or occupied by a de facto *officer. A lawful office, and a lawful officer of unquestioned title to the office, are subject to legislative control. No title to office, inferior to a constitutional title or protection, is beyond the legislature. In the absence of constitutional restriction, the creation, continuance, duties and emoluments of an office, are matters of political expediency, and to be judged of solely by the legislature. Hoke v. Henderson, 4 Dev. Haw R. 1; Butler v. The Commonwealth of Pennsylvania, 10 How. U. S. R. 402; Coffin v. State, 7 Porter’s R. (Ind.) 157.
    And the question now arises, could the legislature provide for filling this office? It did so by the passage of the enabling bill. Had it the right to pass this law?
    The legislature has ample power. The fifth article of the constitution confers all legislative power on the general assembly; and this imports a general grant of all that legislative power which resides in the people as a sovereign community, subject only to exceptions expressed in the constitution itself, and to the restrictions and grant of legislative power contained in the Federal constitution; and the judiciary can only pronounce a statute unconstitutional by declaring it to be inconsistent with some provision in the Federal or State constitution. The wisdom, policy and necessity of laws must be left to the discretion of the legislature. With such enquiries 'the' judiciary have nothing to do. It is beyond their province. Butler v. The Commonwealth of Pennsylvania, 10 How. U. S. R. 402; 3 Kern. R. 391, 411, 430, 452, 476 ; 21 Penn. R. 160; 16 Geo. R. 113; 24 Barb. R. 480; 1 Smith’s R. (15 New York) 549 ; 8 Leigh 154; 5 Gratt. 622 ; 7 Gratt. 68; 13 Gratt. 577; 15 Gratt. 1; 18 Gratt. 85.
    There is no provision in the constitution which prohibits the legislature from passing a law to fill an office that is vacant, or held by an incumbent without a legal title, or by any title less than a constitutional title, in the interval before an election can be held at the time *and in the manner prescribed by the constitution ; and hence the enabling bill is constitutional, and Mr. Fllyson’s election under it is valid.
    The power to fill this vacancy may be found in the twenty-second section of the fifth article of the constitution. If so, it is an express grant, and removes all doubt. There is no force in the objection that the enabling act does not declare the offices vacant. The constitution had made them vacant, not only by omitting to continue the offices in existence, but in its original form by express disqualification of all the then incumbents, and there was therefore no necessity to declare them vacant.
    The constitutional prescriptions, article 6th, section 20, for city elections on the fourth Thursday in May, and installation on the first day of July 1870, by the terms of the constitution itself are incapable of execution, and therefore inoperative until the dates specified. In the interim legislative power over city organization and government is unlimited. The Enabling Act, under discussion, is temporary, and operative only during this interim, and as preparatory for the regular • inauguration of these constitutional requirements. See section 9. By proceeding to fill the vacancies, the legislature in effect declared the vacancies to exist. It is said these offices are elective under the new constitution, and therefore appointments could not be made to them. But the constitution makes no provision for filling offices bettveen the admission of the State on the 26th of January 1870, and the 1st of July following, when officers elected for cities under the new constitution will come into office. During this interval there is an interregnum for which the enabling act provided; and further, the offices created by the new constitution, or to be created under it and made elective, are not the same with those to which officers were appointed under the enabling act; and thus the argument fails. The ^former offices were left vacant by design, and to answer a partizan purpose, as is shown by the sweeping proscription of all the then incumbents. The military appointments were not in their view, because not then made, and besides, were not within the scope of the authority of the convention. The constitution passed on the 17th April, and a vote on its adoption, and an election of a legislature under it, was ordered to be had on the 2d of June following, and the legislature was to have met on the 24th of the same month. Congress was in session, and was expected to ratify the instrument. The officers then in office, and ninety-nine hundredths of the people were disqualified by it to vote or hold office; and then the legislature would have filled the offices thus designedly kept vacant, who would have held office until officers to be elected under the new constitution had entered on their duties. But this legislature has performed the same work in a different manner.
    Chandler, Wells and Wise, for Dyer.
    We propose first to discuss the question of the constitutionality of the act referred to; and assume at the out-set, as a self-evident proposition, that any attempt on the part of the legislative authority to fill an office created by the constitution in any other way than that pointed out by the constitution is illegal and absolutely void.
    Sec. 20, Art. 6, of the constitution declares the manner in which the mayor shall be chosen. The language is “There shall be chosen by the electors of every city a mayor.’’ By the same section it is also provided, “All city, town and village officers whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns or villages, or by some division thereof, or appointed by such authorities thereof, as the general assembly shall designate.’’
    *The simple reading of this section establishes the following propositions:
    1st. The mayor and certain other enumerated officers are required to be chosen by the voters at a general election.
    2nd. All city officers whose election is not specially provided for, shall be elected by the voters of such city, or some division thereof, or be appointed.
    3rd. The general assembly has no power to delegate the authority to appoint to a city office any person except some authorities of such city.
    The 5th section of the act approved March 5, 1870, is unconstitutional because it undertakes to authorize the governor to appoint councilmen and trustees for cities and towns, when, as before said, the constitution only authorizes appointments of officers for cities and towns to be made by such “authorities of said cities as the general assembly shall designate. ’ ’ The 7th section of the same act is unconstitutional and void, because it undertakes to authorize and require councilmen so appointed by the governor to appoint all municipal officers except judges and officers of courts, including the mayor, who is specially required bj- the constitution to be elected by the qualified voters. The 21st section of the same article is as follows: “All regular elections for city or town officers under this article shall be held on the fourth Thursday in May, and the officers elect shall enter upon their duties on the first day of July succeeding.”
    It will be observed that this section is confined to regular elections; special elections to fill vacancies are left to the control of the general assembly. The settled purpose of the framers of the constitution to substitute immediately, the new elective system for the old method of choosing officers, is clearly manifested by the concluding words of the 20th section of the same article: “All laws or city ordinances in conflict *with the provisions of the preceding section, shall be void from and after the adoption of this constitution.”
    We have, then, in the constitution itself, an explicit provision making the mayor an elective officer, fixing the time at which the election shall be held, and declaring that municipal officers may be appointed only by such authorities of the city as the general assembly shall designate. If these were the only provisions of the constitution applicable to the subject, it would seem impossible to maintain, for a moment, the constitutionality of that portion of the act of March 5, 1870, which undertakes to authorize the appointment of councilmen by the governor, and the appointment of mayor and other officers by such councilmen. There are other provisions in the constitution to which reference will be made.
    The constitutionality of the portions of the act of March 5, 1870, above referred to, as applied to this case, can be affirmed only upon the hypothesis,
    Hirst. That the offices of councilmen and of mayor were both vacant, having no incumbent; or, second, that the general assembly had the power to create a vacancy.
    That there was no vacancy, in fact, is admitted. Mr. Kent and his associates were councilmen, regularly inducted and duly performing all the duties of their offices under color of law, with full acquiescence up to the 16th of March. Mr. Chahoon was the mayor, in fact, duly appointed, holding the office, discharging its duties not only without objection, but with full acquiescence, and both councilmen and mayor claim to be still in the exercise of the functions of their offices.
    That there was no vacancy in fact is also shown by the language of the 6th and 8th sections of the act itself. The former provides that “The councilmen and trustees now exercising the functions of said offices, may continue in such offices till the councilmen and trustees ^appointed, as provided in the foregoing sections, shall qualify. ’ ’ And the latter declares that “All officers now exercising the functions of the aforesaid municipal offices, may continue in such offices until their successors are appointed and qualified.”
    If then there was no vacancy, in fact, was there a vacancy created by operation of some law other than the act of March 5? There can be but two sources to which we must look for the creation of such a legal vacancy, to wit:
    The language of the constitution itself, or the consequences resulting necessarily from the substitution of the new for the old organic law.
    The new constitution not only does not create a vacancy, but we think it clearly provides that the old incumbents shall hold over. Sec. 25, Art. 6, under the head of “General Provisions,” declares, “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.” Substantially the same language was contained in the constitution of 1864, and received a judicial construction by this court in the case of Lawhorne ex parte, 18 Gratt. 85. His honor, Judge Moncure, delivering the opinion, uses the following language: “If this section stood alone, unaffected by the context, there could not be two opinions as to its meaning; it uses the plainest language to embrace all officers, except that it does not mention them all by name; * * * in regard to the performance of the duties of all officers after their terms of service have expired, and until their successors have qualified, ample provision is made by the 22d section of Art. 6. This was a natural and proper provision for the, case. It is important that there should be some person always present to perform the duties of every office; and when an incumbent has served out the term for which he was elected or appointed, *who can be more suitable than he, as a general rule, to continue to discharge the duties of his office until his successor has qualified.”
    This opinion, it will be remembered, was delivered while the convention which framed the constitution of 1868 was in session, and it is but reasonable to suppose that when they re-enacted this provision, they did it with especial reference to the broad and comprehensive construction thus given to it by the unanimous opinion of the distinguished judges then composing this court, and two of whom are now upon this bench.
    The language of this section must be entirely conclusive, and fully establishes the proposition that the incumbents found in Office continue to hold their offices until their successors are duly elected and qualified, unless by a most narrow and constrained construction the language used is held to relate only to officers elected or appointed under this constitution.
    That such a construction cannot be sustained is apparent when we reflect that the same provision was in the prior constitution, so that there was no interval during which it did not exist in the organic law of the State from 1864 to the present time. It follows, therefore, inevitably, that there was at all times a condition inherent in the tenure of office that the officer elected or appointed shall continue to discharge the duties of his office until his successor had qualified; and the only method by which this conclusion can be avoided, is to assume the utterly untenable position that the Reconstruction Acts, by their own force, abrogated or suspended the laws and constitution of the State; which are in .fact not repugnant to the Reconstruction Acts. That such was not the case will appear by even the most cursory examination of the statutes themselves. The true theory was, that no legal- State governments existed. That though the laws remained in force, there was no adequate protection for persons and property. *By section 3d of the act of March 7th, 1867, it was made the duty of the general commanding to protect persons and property, to suppress disorder and to cause criminals and disturbers of the public peace to be punished; and to that end he might “allow local civil tribunals to take jurisdiction.” What tribunals? Clearly the tribunals created under the State constitution. What laws were they to enforce? Certainly the constitution and laws of the State. It is a notorious fact, and part of the public history which the court will take notice of, that the laws of the State, constitutional and statutory, were not suspended or annulled except in so far as they were in conflict with the laws of the United States. This very court existed under the laws and constitution of the State, and enforced the same laws and constitution. It is a remarkable fact that the provisions of the Reconstruction Acts were aimed, not against the laws, but against the State governments. The language of the 6th section is, “any civil government which may exist therein shall be deemed provisional only.” It was the government and not the laws which were to be subject to the paramount authority of the United States. Governor Pierpoint was the provisional governor from the 2d of March 1867, the day of the passage of the first Reconstruction Act, until the 7th of April 1868; and by the judgment of this court, above referred to in Cawhorne, ex parte, it was on January 15th, 1868, decided, “that although Governor Pierpoint’s term of office has expired, it devolves on him under the said provision of the constitution to continue to discharge the duties of his office until his successor is qualified.”
    The Reconstruction Act of July 19th, 1867, among other things declared, that the government of Virginia should not only be deemed provisional, but while it continued, subject in all respects to the military commander and to the paramount authority of congress. By *the 2d section, the military commander had the right to suspend, remove and appoint to office, and this extended to every office in the State, and that power continued until representatives in congress had been admitted and sworn in. When this occurred, and on the 27th of January, the general commanding, by his order No. 9, paragraph 10, fixed the time at which the term of office of ' all the officers of the provisional government would terminate. It is as follows: “The term of office of all officers of the provisional government of the State of Virginia, whether holding by original election or appointment under the laws of the State, or by appointment or detail under the laws of the United States, will expire, when their successors, elected or appointed under the new constitution shall have duly qualified; and it is a remarkable fact, that the last sub-division of the same order is a reprint of the schedule to the new constitution.
    There is another provision of the constitution which goes far to determine this question. The schedule is as follows: “That no inconvenience may arise from the change in the constitution of this State, and in order to carry the same into complete operation, it is hereby declared, that all rights of individuals, and of bodies corporate and of the State, shall continue, the several courts shall continue, with the like powers and jurisdiction, both in law and equity, as if this constitution had not been adopted.” The Mayor’s court of the city of Richmond was certainly one of the courts whose continuance ivas provided for; and it will not do to say that the court was continued without any incumbent, for there is no principle of construction better settled than that statutes shall be so construed as to correct, if possible, the evil sought to be remedied. What was the evil? It was the inconvenience which would necessarily result, if the offices of the State were vacated; the continuance of the office without an incumbent would *not relieve the inconvenience. What protection is given to any right by retaining the court without the judge to hold it, or the office of sheriff without a sheriff to execute its process? It seems, therefore, very clear, that the words of the constitution do not create a vacancy.
    Nor does the substitution of the new constitution for the old one have the legal effect of vacating these offices. To give such effect to it would be to leave the State without judges, magistrates, sheriffs, municipal or other officers. In the language of the opinion of the attorney general, furnished by that officer to the executive on March 10, 1870, it “would be to hold that we have been remitted to a state of nature, -with no means of suppressing vice or controlling the lawless; it would be to encourage vice, and to offer a reward to those who, from evil inclinations, might wish to prey, like wild beasts, upon their innocent victims.”
    This question has, however, received the consideration of the Supreme court of the United States in the case of Leitensdorfer et al. v. Webb, 20 How. U. S. R. 176.
    Territory was conquered by the United States, a provisional government was established, which ordained laws, and instituted a judicial system, “all of which,” it was decided by the court, “continued in force after the termination of the war, and until modified by the direct legislation of congress, or by the territorial government established by its authority. ” This, .it will be observed, is the precise condition of Virginia. She had a provisional government, which continued until the re-induction of the State by the authority of congress. Even the constitution, formed under that authority, is a Federal law, because, by the terms of the inducting act, certain fundamental and continuing conditions are attached to admission, conditions which are not only in restraint of the legislative power, but of the sovereign power of the people. Among those conditions was one which provided that every person who ^'should neglect, for thirty days after the passage of the act, to take the required oath, should be deemed to have vacated his office. Here is a plain congressional recognition of the fact, that these officers hold over, and if the legality of the inducting act is admitted, it follows, as an inevitable consequence, that the Federal government has the power to enforce the performance of those conditions. Under the authority of the above decision, every civil officer appointed by the general commanding, continues to hold his office until his successor is elected, or appointed and qualified in the manner pointed out by the constitution.
    Another case, not unlike the present, arose under the anomalous condition of things existing in Kansas territory. Kansas was organized as a territory May 30, 1854; a constitution was adopted July 29, 1859; admitted as a State January 29, 1861. The constitution ordained two provisions on the subject of officers, one in the schedule, like, if not in the same terms, to that in the schedule of the Virginia constitution, beginning wfith, “That no inconvenience may arise from the change from a territorial to a State government,” and another providing that “certain officers should continue in the exercise of their duties until superseded under the authority of the constitution.” The court held, not only that the persons continued in office, but that “all officers of the old government, on the admission of the State, became ad interim State officers. State v. Hitchcock, 1 Kansas R. 178. In People ex rel. Stratton v. Oulton, 28 Calif. R. 41, 44, it was held, that an officer holds his office “after the expiration of his term, and until the election and qualification of his successor by title, notwithstanding the law creating the office contains no provision authorizing him so to do.”
    The following cases illustrate the same principle: “A town clerk to be elected annually, would continue town clerk until the election of his successor.” Queen v. Corporation of Dunham, 10 Mod. R. 146. “A constable is not discharged until his successor is sworn in.” Anonymous case, 12 Mod. R. 256. It is a well settled principle, that annual officers continue until successors are appointed.” McCall v. Byram Man. Co., 6 Conn. R. 427. An annual officer, there being no restrictive provision in his appointment, holds until others are appointed in his place. ’ ’ Spencer v. Champion, 9 Conn. R. 536. See also Trustees of Vernon Society v. Hills, 6 Cow. R. 23; Picket v. Allen, 10 Conn. R. 146. In which the court say, “In the absence of any restrictive provision, officers hold over until their successors are appointed; and that this rule applies equally to public and private corporations.
    If then there was no vacancy in fact, nor any created by operation of law, it remains only to consider whether the general assembly had the power to create a vacancy; for, however startling the assertion of such a power in the assembly may be, it is in fact the only ground upon which the constitutionality of the act under consideration can be sustained.
    The 22d section of the 5th article, is the provision relied upon as granting this authority to the general assembly ; and it is as follows : “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, when no provision is made for the purpose in this constitution.”
    We have shown that there is no vacancy, and need therefore only consider the last clause of the section. “The general assembly may declare the cases in which any office shall be deemed vacant when no provision is made for the purpose in this constitution.” This, it will be observed, relates only to declaring vacancies, not to '^filling them. There are, strictly speaking, but two cases in which the constitution declares when an office shall be deemed vacant. The first is in the 30th section of article 5. “Senators first elected under this constitution, in districts having odd numbers, shall vacate their offices at the end of two years, and those elected in districts having even numbers, at the end of four years. ’ ’ The second is in section 5th of article 5, where it is provided, that “the removal of any person elected to either branch of the general assembly from the city, county, town or district, for which he was elected, shall vacate his office.”
    Trial by impeachment is provided for, and mayors have power to suspend and remove councilmen and other municipal officers ; but- none of these cases fall within the spirit'or intent of the language, “declare the cases in which an office shall be deemed vacant.” It therefore follows, that if the legislature has the power to declare the cases in which any and all other offices created under the constitution and laws of the State shall be deemed vacant, and if “to declare the cases in which an office shall be deemed vacant, ’ ’ signifies or embraces the power to create a vacancy in office, then the legislative power is imperial!
    There is no necessity for trial by impeachment; for the legislature can remove the incumbent. There is no necessity for the method provided in the constitution for removal of judges, because the legislature can vacate the office. The security against inconsiderate action and personal animosity, afforded by the provision of the constitution, requiring the vote of two-thirds of all the senate to convict in an impeachment trial, and the protection given to the judicial officer by the provision requiring for his removal, the concurrent vote of a majority of all the members elected to each house, becomes entirely valueless, for the legislature, by a simple majority vote, can create a vacancy, and thereby remove from office.
    * Although under our constitution the governmental power is vested in a legislative, executive and judicial department, each separate, distinct and necessarily co-ordinate, their equality is at once destroyed, the judiciary and the executive become the subjects of the legislative department, by admitting that the latter has the power to declare executive and judiciary offices vacant. This court will hesitate long before it pronounces in favor of a proposition so subversive of all republican government, and so suggestive of anarchy and usurpation.
    We respectfully submit that such is not the legitimate construction of the 22d section of the 5th Art. ; that it is prospective in its operation, referring chiefly to the new offices to be created by the legislature; that it does not, in fact, authorize the general assembly to remove any person from office, or to declare any office vacant. Its language is: “May declare the cases when an office shall be deemed vacant;” in other words may declare certain proper facts and circumstances which will render an office vacant; for instance, it may declare that a bonded officer, failing to give proper security, his office shall be deemed vacant; or may declare that an officer failing to take a required oath for a certain length of time, his office shall be deemed vacant; as was done by the act of congress passed January 26, 1870, re-admitting Virginia, and as was done by the act of the general assembly of March 5th; or it may declare that in case of removal from the district, county or city from which an officer was elected, his office shall be deemed vacant, as is done by the provision of the constitution in relation to members of the general assembly. These and a great number of the like cases, are the cases referred to in the 22d section.
    The first and second sections of the Enabling Act do not undertake to create vacancies, but they furnish the strongest possible argument in support of the propositions ^contended for by us. They show that no vacancy, in fact, exists, and that none ought to exist, because great confusion and embarrassment throughout the State would be caused thereby. And the first section, therefore, expressly authorizes the incumbents to “continue to hold their said offices. ” In this respect it may be well considered as a declarator act, passed not for the purpose of creating a new law, but to declare what the old law was, or what the Roman law called an Act of “authentic interpretation.” The proviso to that section is a legislative exercise of the power intended to be granted by the 22d sec. of the 5th .Art. ; it declares the case in which an office shall be deemed vacant, to wit: When the incumbent fails to give a new bond. It is in this particular constitutional; but neither the 5th or 7th sections are of that character; they undertake to make offices appointive, which the constitution makes elective.
    The power of the legislature over the subject is restrained in a remarkable degree, by the 20th section of the 6th article. After providing for the choice of municipal officers, by the electors, the legislature is required at its first session to pass such laws as may be necessary to “give effect to the provisions of this section.” If the power to declare cases in which vacancies shall be deemed to exist, gave authority to create vacanies, where no provision is made for that purpose, it would clearly be restrained by the clause last referred to; for it is a well settled proposition, that such grants in derogation of constitutional rights, are to be strictly construed; for instance, where power was conferred upon the governor to fill vacanies, it was held that this “gave him no power to make a vacancy by declaring that one exists.” Page v. Hardin, 8 B. Mon. R. 648.
    Where the constitution provided for the appointment of an officer in a particular way, it was held that the legislature had no power to create a new office, for *the performance of the same duties, and direct the appointment to be made in another manner. Warner v. People, 2 Denio R. 272.
    It would be monstrous to allow a constitutional provision to be violated by such indirection when it could not be done directly. We respectfully submit that the portions of the Enabling Act referred to, undertake to do precisely this. They first illegally appoint municipal officers, where there are no vacancies, and then assume that such appointments create vacancies, and that the appointments are legal because of the vacancies.
    Again, it is a well settled proposition of law, that one who enters into office under color of authority by appointment or election, as Mr. Chahoon did in this case, is an officer de facto, who cannot be removed or ejected by force, nor can his title to office be tried in any collateral proceeding. It can only be done by an appropriate remedy, quo warranto, and sometimes by mandamus. In short, it is a judicial and not a legislative question; an act to be performed by the courts and not by the general assembly.
    
      
      This case will be associated in the memory of the present generation of Virginia people with the calamity which occurred in the capítol on the 27th day of April 1870.
      From the 16th of March, there were two persons claiming to be mayor of the city of Richmond, each of them acting as mayor, with their respective police force. Such a condition of things of necessity produced much excitement in the city, and this was the greater, that these contesting mayors were associated with different political parties. To put an ena to this state of things as speedily as possible, it was agreed by them to prepare a case and submit the questions at issue between them to the decision of the Supreme Court of Appeals ; and in accordance with that agreement this case was prepared. It was argued with great zeal and ability byR. T. Daniel, James Neesonand JohnA. Meredith, for Ellyson, and by L. H. Chandler, H. H. Wells and Henry A. Wise, for Chahoon. The whole city awaited the decision with great anxiety ; and a large number of persons were present in the court room on Monday the 26th, in expectation that the decision would then be made : but the president of the court announced that the court was not then ready to make its decision ; bnt that it would be made on the next day ; and for that purpose the court would be opened at 11 o’clock.
      On Tuesday the 27th, before the hour of 11 o’clock had arrived, a large crowd of persons were assembled. Within the enclosure of the tables which formed the bar, the officers of the court, members of the bar, and the parties were seated ; outside of these tables, and on the sides of the judges’ seats, the room was full of persons standing ; every seat in the gallery was occupied, and there were several in the clerk's office. At 11 o'clock Judges Joynes and Anderson took their seats upon the bench, and the other judges were just about to enter from the conference room : and the whole assembly were waiting in silent and earnest expectation, when there was heard first a crack; and then immediately a crash ; and the floor of the court room to within four feet of the judges’ seat, and that of the clerk’s office, sunk down, carrying with them hundreds of persons upon them. The gallery followed on the instant with its living load ; and then immediately fell the false ceiling, which had been put over the room, with its plaster and timbers ; floors and gallery and ceiling piled up upon the bleeding and suffocating mass, which had been carried down into the room below.
      It would be a vain attempt to describe the horror of the scene, as the floor, the gallery and the ceiling went down in succession, carrying with them the men upon them, and covering them in the ruins ; or the cries and groans ascending through a cloud of dust formed by the plastering, so dense, that no eye from above could penetrate it.
      As is always the case on the happening of such a calamity, the escapes and the casualties were alike striking. .Judges Joynes and Anderson escaped unhurt into the conference room, by the promptness with which they acted. They must otherwise have been killed; as a mass of timber fell from the ceiling immediately upon their seats, so heavy, that
      
        it crushed the strong railing which enclosed the judges’ bench. The officers of the court also escaped with little or no injury. Messrs. Ellyson and Chahoon were slightly hurt. Messrs. Chandler and Wells did not go down with the floor; and yet they were both badly hurt by the timbers falling from the ceiling; whilst Messrs. Neeson and Meredith went down, and were covered by the ruins, but escaped without serious injury; Messrs. Daniel and Wise were not present.
      But the dreadful feature of the calamity was the loss of life. There were taken from the ruins fifty-eight dead bodies. Some of these had obviously been killed by a blow from some heavy and hard substance; others had been suffocated by the persons lying upon them, or by the dust arising from the plaster; they were dead, with not a bruise upon their persons. The bar lost heavily, not only in the number, but in the quality of the victims. Patrick Henry Aylett, brilliant, versatile and eloquent; a worthy descendant of the ancestor after whom he was named. Nathaniel Pope Howard, of extensive and varied learning, which he as anxiously concealed as others seek to make theirs known; accurate in all things to a proverb; and with the unswerving integrity, and the purity of life which secured to him the confidence and regard of all who knew him; and Powhatan Roberts, whose untiring labor and energy was fast raising him high in his profession.
      There were others in that stricken throng whose names we would gladly record If we bad the space; men of business in every department of life; men whom the city will long miss; men of Intelligence, activity, integrity; men who sustained large Interests in the world, and who were the support, the' pride, and the joy of their families.
      Of the number of the wounded who escaped from that wreck we are not accurately informed. They were almost as numerous as the survivors. A number of them have since died from their wounds; and some are still suffering. And of those who seemed to have been but little hurt, it is a remarkable fact they were unable to resume their employments for sometime; and those who attempted it have suffered severely for it.
      It was a mercy that the room below (the hall of the House of Delegates), was nearly empty. A caucus which had met in it that morning, had adjourned, and the hour for the meeting of the house had not arrived. The only persons in that room who suffered, were John M. Turner, son of Major F. P. Turner, one of the pages of the House of Delegates, J. W. D. Bland the senator from Prince Edward, a man of color, who was marked for his good sense, and who had acquired the respect of all who knew him; and the Rev’d John Robertson, a colored minister.
      Under such a calamity silence and submission is our proper attitude; for who shall dare to say unto God, what doest Thou?
    
    
      
      Statute—Enabling Act—Constitutional.—See footnote to Teel v. Yancey, 23 Gratt. 691.
    
    
      
      Art. 6, § 20 of Constitution—To What It Applies.—In Roche v. Jones. 87 Va. 485, 12 S. E. Rep. 965, the court, in construing this section of the constitution cited the principal case, and said: “The section (§20, Art. 6) is merely enabling, and plainly intended to apply only to oiiicers to be chosen under the Constitution after the municipal government became fully and regularly established, and not to officers appointed by the act itself to perform requisite duties until a regular election could be held.’’
    
   MONCURE, J.,

delivered the opinion of the court:

There are two persons now claiming to be mayor of the city of Richmond and acting as such; George Chahoon and Henry K. Ellyson; and these two cases of habeas corpus, instituted by persons arrested by the warrant of these two claimants respectively, have, by an amicable arrangement between them, been instituted for the purpose of obtaining the opinion of this court upon the question, which of them is lawful mayor of the city?

This is a deeply interesting question, not only to the city of Richmond, but to the State at large; and its importance, and the necessitjr of an early decision of it, has induced the court to take up the cases for hearing *at the earliest possible moment, in order that the question involved may be decided as soon as possible, consistently with a proper examination and consideration of it. We have fully heard the argument of able counsel on both sides of the question, and have given to it all the consideration of which we are capable. The result of our deliberations I will now proceed to announce:

There cannot be two mayors of the city of Richmond at one and the same time. If Chahoon is mayor, Ellyson is not; or if Ellyson is mayor, Chahoon is not.

Chahoon claims to be mayor by virtue of an appointment as such in 1868, by General Schofield, then military commander of the district of Virginia, acting under what are called the Reconstruction Acts. And he also claims that his authority is confirmed by the constitution of the State, and even by what is called the Enabling Act itself, which he admits is to that extent constitutional. But he insists that that act is unconstitutional so far as it essays to authorize and provide for the appointment of another person as mayor. On the other hand, Ellyson claims to be mayor by virtue of an appointment made in pursuance of that act.

The whole question, therefore, resolves itself into this: Is the Enabling Act, or at least that part of it under which Ellyson received his appointment, unconstitutional? We confine ourselves to that part of the act, because it is the only part which necessarily comes under consideration in these cases. There is another part of the act, to wit: The provisos in the 2d section, which subject any judgment, decree or order made by the Court of Appeals at the term thereof, commencing on the 11th day of January 1870, to the supervision and control of the Court of Appeals organized under the constitution ; upon the question, as to the constitutionality of which, we understand this court will soon *be called upon to decide ; and we wish, therefore, not to prejudge that question, even collaterally.

This court, undoubtedly, has power to declare an act of the legislature to be unconstitutional and void; and it is the duty of the court to do so in a proper case. It is, however, a very delicate power, to be exercised very carefully; and before an act of the legislature is annulled as unconstitutional, the court should be well satisfied that it is so. Prima facie, every act of the legislature is constitutional, and the burden of clearly showing the contrary devolves on him who asserts it. If the question be doubtful, it will be solved in favor of the validity of the act. The members of the legislature and the governor are elected by the people, and are presumed to be both intelligent and patriotic. Before entering upon the discharge of their duties, they take an oath to support the constitution of the State and of the United States; and it is not to be presumed that they would unite in passing and approving an act without being well satisfied that it is constitutional.

The preamble of the enabling act, which was approved March 5th, 1870, is in these words: “Whereas, grave doubts have arisen as to the right of the civil officers of the Commonwealth, the governor, attorney general, lieutenant governor, and members of the general assembly excepted, to continue to hold their offices, and to exercise the powers, perform the duties and eiijoy the privileges and emoluments appertaining to the same, and as to the legality of their acts as such officers, since the admission of the State as one of the co-equal States of the American Union; and whereas, the failure to recognize the official acts of such officers as legal, and their removal from office at this time, would cause great confusion and embarrassment throughout the State: Therefore,”

Then follow the 13 sections of the act; the 1st of which, recognizes as legal, all such officers described in *the preamble who are eligible to office under the existing constitution and laws of Virginia, and who qualified on or before the 26th day of January 1870 (the day on which the State was admitted to representation in congress); provided that all officers of whom bonds are required by law for the proper discharge of their respective duties, should give or renew their bonds with good security within the time and in the mode therein prescribed. The 2d section legalizes the acts heretofore done by such officers and otherwise lawful, subject to the proviso in regard to any judgment, decree or order made by the late Court of Appeals as before referred to. The 3d section relates to the filling of vacancies in the office of justice of the peace and constable now existing, or which may hereafter accrue, before an election for such officer shall lie held under the constitution. The 4th section vacates the offices of circuit and county clerks at the first term of their respective courts hereafter held by judges' elected under the present constitution, and authorizes each one of such judges at the first term of his court to appoint a clerk for said court to continue in office until his successor shall be regularly elected and qualified; vacates the offices of attorneys for the Commonwealth and sheriffs at the first term of the County courts hereafter held by judges elected under the present constitution in their respective counties; and authorizes such judges then to "appoint attorneys for the Commonwealth and sheriffs for their respective counties, to continue in office until their successors are elected and qualified under the constitution; and provides for the execution of bond's according to law by the sheriffs and clerks appointed under this section. The remaining sections, except the last, which merely declares the act to be in force from its passage, more immediately concern the question now under consideration; and will, therefore, be set out in full. They are as follows: •

*“5. That for the more efficient government of the cities and towns of the Commonwealth, the governor of this State shall, as soon as practicable, appoint ■_as many councilmen or trustees for each city and town, now entitled to trustees or councilmen, as are now provided by law.

“6. The councilmen and trustees, now exercising the functions of such offices, may continue in such offices till the councilmen and trustees appointed, as provided in the foregoing section, shall qualify, and no longer; and shall fill vacancies in their respective bodies occurring during their continuance in office.

“7. In all cities and towns, the councilmen or trustees appointed by the governor, as hereinbefore prescribed, shall have authority, and are hereby required, to appoint all municipal officers, except judges and officers of the courts hereinafter provided for in their respective cities and towns, who shall have all the powers, and discharge all the duties now conferred and required by law upon such municipal officers.

“8. All persons now exercising the functions of the aforesaid municipal offices may continue in such offices till their successors are appointed and qualified, as herein provided, and no longer.

“9. The officers appointed, in pursuance of this act, shall continue in office until their successors, elected under the constitution of this State, are duly qualified.

“10. Every person appointed, as herein prescribed, shall take the oaths of office required by law; shall give bond in such penalty and with such security as existing laws may provide for officers holding like offices, and shall receive such compensation as existing laws may provide in like cases.

“11. The judges of the Corporation and Circuit courts, and Courts of probate, hereafter elected for the said towns and cities of the Commonwealth, shall appoint the officers of their respective courts, to continue *in office until their successors are elected and qualified, as provided by law. The sheriffs, clerks and other officers required to give bond, appointed under this section, shall not enter upon the discharge of their respective duties until they shall have given bond according to law; and in case of the failure of any such officer to give such bond, within twenty days after his appointment, the said appointment shall be vacated, and the aforesaid court shall proceed to appoint his successor with like powers, and subject to like limitations, as herein provided.

“12. This act shall not be construed so as to deprive the general assembly of the right to remove any and all officers at present holding offices in this State, or who may be hereafter appointed under the provisions of this act; or to adopt such other measures for filling vacancies in offices which now exist, or may hereafter occur, as to it may seem right and proper.”

Under this act and in strict pursuance of the terms thereof, the governor appointed councilmen for the city of Richmond, who appointed Ellyson as mayor; and he accordingly- took the oaths required by law and proceeded to execute the duties of the office. At the time of his appointment and qualification, Chahoon was acting as mayor, under the appointment of Gen. Schofield, as before stated.

Had the legislature constitutional power to pass this act, so far as it relates to the subject of the present enquirj"?

The act may be unconstitutional, either because it is contrary to the constitution of the United States or the laws made in pursuance thereof, being the paramount and supreme law of the land; or because it is contrary to the constitution of the State of Virginia.

The counsel for Chahoon contend that it is contrary to both—The counsel for Ellyson that it is contrary to neither.

*There is certainly nothing in the constitution itself of the United States to which this act can be opposed. Is there anything in any law of congress made in pursuance of the constitution of the United States to which it is opposed?

If there be any such thing in any such law, it is in-the acts of congress commonly called the Reconstruction Acts, or in the act admitting the State to representation in congress.

The Reconstruction Acts certainly subjected the State to the military authority of the United States. But they were limited in their operation; and it was expressly declared in the first of them, to wit, the act of March 2, 1867, to which the others are merely supplementary, that it should be inoperative in said State when and after the State shall be declared entitled to representation in congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law. The State was declared entitled to representation in congress by an act passed January 26, 1870, and her senators and representatives were thereupon admitted therefrom on their taking the oath prescribed by law. So that, by the very terms of the Reconstruction Acts, they have become inoperative in the State. They were enacted only for a purpose, which has been fully accomplished.

We can see nothing in the Reconstruction Acts which can give to Chahoon, the appointee of the military commander, any right to continue to hold the office of mayor against Ellyson, the appointee under the Enabling Act of the State. The authority of the military commander of Virginia ceased when her representatives were admitted into congress, and when his authority ceased that of his appointees also ceased. It would be strange if, after the principal ceased to have any authority, his subordinate agents should continue to have ai - thority.

*Then as to the act admitting the State to representation in congress. This act provides “that before any member of the legislature of said State shall take or resume his seat, or any officer of said State shall enter upon the duties of his office, he shall take and subscribe,” &c., a certain oath therein set out. And further provides “that every such person who shall neglect for the period of 30 days next after the passage of this act, to take, subscribe and file such oath as aforesaid, shall be deemed and taken, to all intents and purposes, to have vacated his office.”

It is argued that this act recognizes, and in effect declares, the right of persons who had received appointments to office from the military commander, and continued to perform the duties of such office until the passage of the act, to hold over until their successors are appointed and qualified; and that this is one of the fundamental conditions on which the State was admitted to representation in congress.

We do not think so. Congress, in the passage of this act, had not in its mind the question, whether such persons would be entitled to hold over or not, and much less did it intend to give them authority to do so. Its manifest and only object was to require every member of the legislature before taking or resuming his seat, and every other officer of the State before entering upon the duties of his office, to take the oath prescribed by the act. It was properly left to the State to determine who were or should be her officers. It is true, the second proviso declares vacant the office of every such person who shall neglect for the period of 30 days, next after the passage of the act, to take, subscribe and file such oath; but this only imposes a penalty for the failure to comply with the previous provision.

Certainly congress did not intend that any person who might have been appointed by the commander of a military district, to perform the duties of an office *therein, should have any right under the constitution and laws of the United States to continue to perform those duties after the cessation of all military authority in such district, and after it was fully restored to its position as a sovereign State of the Union; did not intend that the legislature, the representative of the sovereignty of the State, subject only to a few constitutional restrictions, should not have power to enact a law appointing another agency than the one which had been used by the military commander to perform the duties of an office during the short interval between the period of the restoration of the State and the day fixed in the constitution for filling the office. These appointees of the military commander received their appointments with full knowledge that their authority might be terminated at any time, not only by the will of such commander, but by the cessation of militarj- power in the State, and her re-admission to all her sovereign rights. Chahoon received his appointment on the 4th of May 1868, and might have had to give it up the next day. He actually held it for nearly two years, during which the state of things existing when he received it continued; and he even continued to perform its duties and receive its emoluments after the state of things had ceased, and until another person was appointed under the authority of the State to take his place. Surely he can have no cause to complain that any right which he has under the constitution or laws of the United States has been violated. If he has a valid claim, it is under the constitution or laws of the State of Virginia. And this brings us to the next question:

Is there any thing in the constitution of the State to which the Enabling Act, or so much of it as we now have under consideration, is opposed?

It is supposed by the counsel of Chahoon to be opposed to the 25th section of the 6th article of the constitution, 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. ’ ’ And it is contended that the persons who were performing the duties of the different offices of the State at the time of her admission to representation in congress, under appointments previously made by the military commander, are “officers,” in the meaning of that section, and entitled as such to hold their offices until their successors have qualified.

We do not think so. We think the section was plainly intended to apply only to officers elected or appointed under the constitution, and for whose election or appointment it provides. It was literally copied, except in the omission of a single word, from a section in the constitution of 1864, commonly called the Alexandria constitution, which section was itself literallj* copied, with a like exception, from the constitution of 1851, in which constitutions it plainly had the same meaning; and it was considered necessary by the framers of those constitutions, notwithstanding the insertion of such a section, to provide expressly, as they did in the schedules thereto annexed, that all persons in office at the time of the adoption of said constitutions, except as therein otherwise expressly directed, should continue in office “until their successors are qualified, ” in the language of the constitution of' 1851, or “until their present terms expire,” in the language of the constitution of 1864. In the constitution of 1830, article 7, after providing for the case of the governor and privy councillors, further provides, that “all other persons in office, when this constitution shall be adopted, except as is herein otherwise expressly directed, shall continue in office till successors shall be appointed, or the law shall otherwise provide.” It was considered necessary by some of the ablest men in the distinguished body, which ^framed that constitution, to adopt such a provision, in order to authorize officers acting-under the old constitution, when it ceased to operate, to continue to act under the new, when its operations commenced; and the provision in the 7th article was accordingly adopted. The conventions which framed the constitutions of 1851 and 1864, followed, in this respect, the precedent of their illustrious predecessor. If the necessity of such a provision, in order to the continuance of the authority of the old officers, was a question of doubt when the constitution of 1831 was framed, and was solved on that occasion, by assuming that there was such a necessity, and acting upon the assumption by adopting the provision, surely after this precedent had been followed by two succeeding conventions, when the framers of the present constitution adopted that instrument, and carefully omitted such a provision, while they copied from the constitutions of 1851 and 1864, the section before referred to in regard to “judges and all other officers,” it may be fairly presumed that they did not intend to include in the word “officers,” used in that section, persons who were performing the duties of office at the time of the adoption of the constitution, especially when these persons were appointees or officers of a military provisional government. At all events, this is not so plain a question as to make an act of the legislature providing other agencies for the performance of these duties until the arrival of the period fixed by the constitution for the election or appointment of these officers, an unconstitutional and void act. The fact is, the section was plainly intended, in its very nature and by its very terms, to have only a prospective operation, and to be confined to officers elected or appointed under the constitutional machine after it had been set in motion. It provides for the case of officers “whose terms of service have expired;” that is, terms of service prescribed by the constitution, and not *for the case of officers acting under a prior government, whose terms of service under their appointments may not have expired, or who may have been appointed to no term of service at all, but during the mere pleasure of a military commander.

The case of Gawhorne, ex parte, 18 Gratt. 85, relied on by the counsel of Chahoon in support of their views on this branch of the subject, can give them, we think, no support whatever. Governor Pierpoint was elected to his office under the constitution of 1864, which was received and recognized as the constitution of the State after the war, and thenceforward continued to be our only constitution until it was superseded by the present constitution. While that constitution was in force, Governor Pier-point’s term of service under it expired; and the question arose, whether he was entitled to hold over under the aforesaid provision of the constitution; and that question depended alone upon the question, whether the “governor” was an “officer” in the meaning of that provision. To be sure we were then under a military government, and it may be said by some that during its existence the constitution of the State was suspended, and that Governor Pierpoint became a mere provisional officer. But certainly the counsel for Chahoon do not say that the constitution was suspended ; on the contrary, they maintain that there never has been any such interregnum. However that may be, certain it is, that the question came up in Gawhorne’s case, for decision by this court, whether, according to the true construction of that constitution, Governor Pierpoint was entitled to .hold over as aforesaid. As was then well understood, this question was brought up for the decision of this court with the knowledge and approbation of General Schofield, then military commander of the State, who was willing, in this respect, to conform to the constitution of the State and the construction which might be put upon it by this court.

* Again, it is supposed that the act in question is contrary to the 20th section of the 6th article of the constitution. That section provides, among other things, “that there shall be chosen by the electors of every city a mayor,” &c. ; and it is contended that by reason of this clause, a mayor of a city can only be chosen by the electors of such city, and, therefore, the act in question, providing for such an appointment otherwise, is unconstitutional and void, though the appointment was only for the short interval to elapse before the time prescribed by the constitution for making the regular election under the article, to wit: the 4th Thursday in May next; or rather the time when the officers elected under that article are to enter upon their duties, to wit, the 1st day of July succeeding.

We think that this clause also, was plainly intended to apply only to a mayor to be chosen under the constitution at and after the time therein prescribed for that purpose, and not to one appointed to perform the duties of mayor before one could be chosen and enter upon the duties of the office under the constitution. Certainly an appointee under and by virtue of the Enabling Act, could be no more objectionable on constitutional grounds, than an appointee of a military commander during the provisonal government, holding over after that government had ceased to exist. The provision in the constitution for an election required time for its execution. A day was fixed for that purpose by the constitution with a view to afford such time; and until that day arrived there can be no election under the constitution. Indeed there would scarcely be time to make the necessary preliminary arrangements and make an election earlier. Hence the necessity of either permitting Chahoon to go on to perform the duties of the office until an election can be made, or providing otherwise by law for the case. That provision has been made by the Enabling Act; *and we think the constitutional competency of the legislature to make such a provision clearly existed. They might have pursued the other alternative, but they did think fit to do so.

There are other provisions of the same section to which it is contended the act in question is opposed. But the same answer applies to and concludes the objection, that all these provisions apply to elections or appointments to be made under the constitution, which could have no effect before the 4th Thursday in May or the 1st day of July succeeding, and not to elections or appointments which might be provided for by law to fill up the short interval before that time.

A great deal was said in the argument about the question whether there was a vacancy in the office or not, and the power of the legislature first to create and then to fill a vacancy; and it was contended by the counsel for Chahoon, that “however startling the assertion of such a power in the assembly may be, it is in fact the only ground upon which the constitutionality of the act under consideration can be sustained.” The same counsel say, that “the 22d section of the 5th article is the provision relied upon as granting this authority to the general assembly;” and they set out this section in their brief. But they contend that this section is prospective entirely in its operation, though they deny that the operation of the 25th section of the 6th article is entirely prospective.

Now whatever may be the true construction of the 22d section of the 5th article, which we deem it unnecessary now to decide, we think the power of the legislature to pass the enabling act does not at all depend upon that section; and that all the discussion about, whether there was a vacancy or not in these offices, and whether the legislature has a right first to create and then to fill a vacancy, is wholly beside the question we now have to decide. Whatever power these officers *may have had to continue to discharge the duties of their offices until otherwise provided by law, we are clearly of opinion that it was competent for the legislature to terminate their power, whether it was derived from common law principles, as was argued, or any otherwise, except under the constitution of the United States or of this State, under neither of which do we think they have any power.

The State, upon her re-admission to representation in congress on the 26th of January 1870, came under the control of the legislature, whose duty it then was to complete the organization of the government under the constitution. At that time, the only officers which had been elected under the constitution were the governor, attorney general, lieutenant governor and members of the general assembly. All the other civil offices of the State, which existed prior to the constitution, were filled, if filled at all, only by persons who had previously held them, most of whom were military appointees. These persons continued to perform the duties of their offices after the re-admission of the State. But a very grave doubt arose whether they had any power to do so; and whether all their acts done under such supposed power would not be regarded as null and void. It was considered by some that these officers had no such power, because there was no provision in the constitution, or the schedule annexed thereto, as there had been on former occasions of the like kind, to authorize them to hold over; or because they were mere military appointees, whose power necessarily ceased with the military government, from which they derived their power; or because the framers of the constitution actually intended that their power should cease, and that thejT should not hold over by virtue of the original appointment.

Now, whether these officers had power to hold over or not, all will admit that legislation was proper and ^necessary to clear up all doubt on the subject and place it on such a basis as would conduce to the welfare of the Commonwealth. The legislature so thought, and accordingly enacted the enabling act, the preamble of which, clearly and forcibly sets forth the motives and necessity for the act. The counsel for Chahoon admit, that to a certain extent, the legislature had power to pass this act, and it is wise and expedient, that is, to the extent that it confirms what had been previously done by these officers in the discharge of the duties of their offices, and to the extent that it confirms what might thereafter be done by them in the discharge of those duties during the period prescribed by the act. But the counsel deny that the legislature had power to provide for the appointment of any person to fill an office, the duties of which were at the time' performed by a person holding over, under an appointment of the military commander; and especially had not power to enact the sections of the enabling act herein before recited, in regard to the more efficient government of the cities and towns of the Commonwealth.

An admission that the act is constitutional to the extent to which it is approved by the counsel of Chahoon, goes far to admit that it is constitutional so far as concerns the question we are now considering.

But we clearly think that it is constitutional to that extent also. The legislature had a right to say to those persons who were performing the duties of civil offices under appointments made by military power or otherwise prior to the re-admission of the State: “We will sanction what you have done according to law, and will authorize you to continue to perform the duties of your offices until other persons are appointed and qualified to perform them. But we choose to appoint other persons to perform them until elections and appointments can be made under the constitution, and we therefore pass the enabling act for that purpose. ’ ’

*It is contended that the schedule annexed to the constitution contains provisions, which show that its framers intended that a person who was performing the duties of mayor of a city at the time of the adoption of the constitution, should have authority to continue to perform them until a successor is appointed and qualified, at the time and in the mode prescribed by the constitution. But certainly this argument is founded on a very strained inference, and cannot be sufficient to show that the enabling act is unconstitutional.

The preamble and first section of that schedule show the only purpose for which it was adopted, and that it was not intended to secure to incumbents then in office, any immunity in their offices, or power to continue to hold them for any length of time, against the expressed will of the legislature to the contrary. “That no inconvenience may arise from the changes in the constitution of this State, and in order to carry the same into complete operation, it is hereby declared, that” is the language of the preamble. Thus plainly showing that the convention was looking to public convenience, and not to the private interest of individuals in continuing to hold office; that it was acting in this matter, solely because there might be necessity for some such action before it could be taken by the legislature; and not because they intended to place this matter beyond the reach or control of the legislature. All the safeguards that were deemed necessary for the conservation of private rights were embodied in the constitution itself. The only office of a schedule is to provide for a transition from the old to the new government, and to obviate inconveniences which would otherwise arise from such transition. The convention acts in this matter as an ordinary legislature, and only because there is necessity for such action before a legislature can or will be convened under the constitution. To be sure if a convention, in framing the schedule, should plainly show an intention *to place any of its provisions beyond the control of the legislature, such provisions being the act of the representatives of the sovereignty of the State without any constitutional restrictions, would be as effectual and binding as if they were embodied in the constitution itself. But unless such an intention plainly appears, the presumption is, that the provisions of the schedule are subject to future legislation. The language of the 1st section of the schedule is: “The common law and the statute laws now in force not repugnant to this constitution, shall remain in force until they expire by their own limitation, or are altered or repealed by the legislature. ’ ’ Thus expressly affirming the control of the legislature over the subject (though such an express affirmance was unnecessary). There seem to be two provisions of this schedule which are relied on by the counsel for Chahoon as tending to show, that the convention intended to continue the mayor in office until his successor is elected and qualified under the constitution.

One of these two provisions is that contained in the 2d section, which declares, among other things, that “all rights of bodies corporate, and all charters of incorporation, shall continue.” And it is argued, that this provides for the continuance of the office of mayor and of the officer for the time being himself in the office, as rights of the body corporate, under its charter. But how long was this continuance to last? Always? Certainly not; for that would have been against an express provision of the constitution itself, which declares, that “there shall be chosen by the electors of every city a mayor.” Then the continuance was to be either for some specified period, or until otherwise provided by law. There is no specified period, unless it be the day named in the constitution in regard to the general election. But there is nothing in the schedule which confines the provision to that day, and the presumption *is, for reasons before stated, that the provision is subject to the control of the legislature. There is no conceivable reason why the matter should be placed beyond such control. Municipal corporations in their police, which is in fact a part of the police of the State, are subject to the control of the legislature, like any other part of the civil government.

The other of the two provisions, before referred to, is contained in the same section, and is that which declares, that “the several courts, except as herein otherwise provided, shall continue with the like powers and jurisdiction, both in law and in equity, as if this constitution had not been adopted, and until the organization of the judicial department of this constitution.” It is argued, that the mayor’s court is one of the courts contemplated by this provision, and was therefore intended to be continued; that the word “court” here embraces the judge of the court, who is the mayor; and that therefore it was intended to continue the mayor in office. It may be answered, if a mayor be necessary to hold one of the courts here intended to be continued, it is not necessary that any particular person should be such mayor; but the court may be held by any person whom the legislature may appoint to take the place of him who was the incumbent of the office when the constitution was adopted.

But the true answer is, that while the convention may have intended, in the former part of the section, to continue the then acting mayor in office until otherwise provided by law, it did not intend to include the mayor’s court, much less the mayor himself, in the word “courts,” used in the latter part of the section. They are courts of record, which the mayor’s court is not. They are the courts, whose organization is provided for by the 6th article of the constitution concerning the “judiciary department,” or such of them as existed under the old constitution; that is, the Court of '^Appeals, Circuit courts, County courts, and Hustings courts. These courts were to continue, except, &c., 1 ‘with the like powers and jurisdiction, both in law and in equity, as if this constitution had not been adopted, and until the organization of the judicial department of this constitution.” An immediate organization of that department was contemplated by the constitution, which provided, that the judges should be chosen by the joint vote of the two houses of the general assembly; and though their terms of office -were not to commence until the 1st day of January next following their appointment, yet it was provided that they should “discharge the duties of their respective offices, from their first appointment and qualification, under this constitution, until their terms begin.” This was “the organization of the judicial department,” referred to in the schedule, and plainly it has no reference to a “mayor’s court,” which is nowhere mentioned in the constitution, nor to a mayor, who could not be chosen under the constitution earlier than the 4th Thursday in May, nor enter upon the duties of his office until the 1st day of July.

In construing the constitution, and the schedule and election ordinance annexed, in the light of all the surrounding circumstances under which they were made, we think it obvious that the framers of the constitution, purposely omitted any provision that the persons then performing the duties of office in the State should continue to hold over, until their successors should be elected or appointed and qualified under the constitution; and that they intended that those offices, except where otherwise expressly provided in the constitution, should be immediately, or as soon as convenient, filled by the legislature; either directly, or in a mode to be prescribed by law. Almost all the offices were then held by men who were disqualified to hold office by the very terms of the constitution itself as originally *framed. It was contemplated that there would be a very short interval between the adoption of the constitution and a session of the legislature under it, when all the offices could at once be filled. The convention closed its labors on the 17th day of April 1868; and by an election ordinance then enacted, it was declared that the constitution adopted by the convention, should be submitted for ratification on the 2nd day of June 1868, to the voters of the State; that an election should be held at the same time and places for members of the general assembly and for all State officers to be elected by the people under the constitution; that the officers elected should enter upon the duties of the offices for which they are chosen as soon as elected and qualified in compliance with the provisions of the constitution, and should hold their respective offices for the term of years prescribed by the constitution, counting from the 1st day of January next, and until their successors are elected and qualified. And that the general assembly elected under said ordinance should assemble at the capitol in the city of Richmond on the 24th of June 1868: And the commanding general was requested to enforce the said ordinance. Had all these things been done as contemplated, the legislature, which would doubtless have been composed of many if not most of the persons who composed the convention, would probably have filled at once, by a new election or appointment, all the remaining offices of tlae Commonwealth, and provided that the officers so elected or appointed should discharge the duties of their respective offices, ‘ ‘from their first appointment and qualification,” as provided in the constitution in regard to the judges, or “as soon as elected and qualified,” as provided in the election ordinance, in regard to members of the general assembly and all State officers to be elected by the people under the constitution. And thus the ship of state would have set out on her new voyage with an entirely new crew.

*If we be right in this view, then it follows, that not only is there nothing in that part of the enabling act now under consideration opposed to anything in the constitution, but it is in conformity with the intention of the framers of that instrument.

We are therefore of opinion, that so much of the enabling act as authorizes the appointment of councilmen and mayors of the cities, is constitutional.

As to the argument that the enabling act itself confirms the title of the incumbents in office; a sufficient answer is, that whatever right or title that act may give is expressly limited by its terms, and extends no longer than the period when the legislature might otherwise provide; and they did otherwise provide by the enabling act, in regard to the appointment of councilmen and mayors of the cities.

And as to the argument founded on the supposed general principle of law, “that a change in the organic constitution of government does not vacate the old offices until successors are duly qualified;” the answer is, that even admitting this to be so, “successors are duly qualified,” within the meaning of this proposition, whenever persons appointed to fill the offices by the legislative power of the new government are duly qualified.

The incumbents of office at the time of an organic change of government, continuing to hold over after such change (in the absence of a provision of the new constitution, or of an act of the legislature of the new góvernmént giving them such authority), hold by sufferance only and upon a principle of public necessity or convenience, not in virtue of any individual or private right. They cannot set up any claim against the legislature, which has ample power to put an end to their official authority at any time, and appoint others to take their places, subject only to any constitutional restrictions which may plainly appear to exist.

*We have now, we believe, noticed all the grounds taken in argument by the counsel of this case, unless it be the ground, that by reason of what are called “the fundamental conditions,” on which the State was admitted to representation in congress, we have only advanced from a provisional to a provincial State, and have not yet gotten back to our original position as one of the sovereign States of the Union. What may be the meaning and effect of those conditions, is a question which does not arise in this case, as we have endeavored to show that the right of the old incumbents to continue to hold their offices is not made one of those conditions. It may not, however, be out of place to say, that we regard Virginia as one of the sovereign States of the Union, and as the coequal in every respect of Massachusetts, New York, Pennsylvania, or any. of the Old Thirteen.

We have delivered a very long opinion in these cases, not because we have had any doubt or difficulty in deciding them, but because of the great importance of the question involved, the ability and earnestness with which it has been discussed, and the excitement which it has- produced. If our 'decision shall have the effect of settling the question, and restoring peace and quiet to the city of Richmond, we will rejoice to have had an agency in bringing about so desirable an end.

The result of our opinion is, that on the 17th day of March 1870, under and by virtue of the act of the general assembly, approved March Sth, 1870, commonly called “the Enabling Act,” Henry K. Ellyson became the lawful mayor of the city of Richmond, and has ever since been, and is yet, such mayor; that the petitioner, Archibald Dyer, was lawfully required by said Ellyson, as such mayor, to give bail, as mentioned in the petition of said Dyer, who is therefore lawfully in the custody oJE William E- Martin, as such bail; that George Chahoon has not been mayor of said city since *the said Ellyson became lawful mayor as aforesaid, and had no author^ to issue the warrant of commitment, mentioned in the petition of John Henry Bell, whose imprisonment is therefore unlawful; and that the said petitioner, Dyer, must be remanded to the custody of his said bail, and the said petitioner, Bell, must be discharged from imprisonment.

The judgment is as follows:

This day came again the parties by their counsel, and the court having maturely considered the petitions, writs of habeas corpus, and returns thereon, an agreed statement of facts filed, and the arguments of counsel in these cases, is of opinion, for reasons stated in writing, and filed with the papers, that so much of the act of the general assembly approved March Sth, 1870, commonly called the Enabling Act, as provides for the appointment of councilmen or trustees, and mayors and other officers of cities and towns, is constitutional; that on the 17th day of March 1870, by a due appointment and qualification under the said act, Henry K. Ellyson became the lawful mayor of the city of Richmond, and has ever since been, and is yet, such mayor; that he had authority as such to require the petitioner, Archibald Dyer, to give bail, as mentioned in the petition of" said Dyer, who is therefore lawfully in the custody of William E. Martin as such bail; and that George Chahoon has not been mayor of said city since the said Ellyson became lawful mayor as aforesaid, and had no authority to issue the warrant of commitment mentioned in the petition of John Henry Bell, who is therefore detained without lawful authority. It is therefore ordered that the said Archibald Dyer be remanded to the custody of his said bail, and that the said John Henry Bell be discharged from imprisonment.  