The senior councillor shall be lieutenant governor, and in case of the death, resignation, inability or absence of the governor from the seat of government, shall act as governor.(14) 6. The manner of appointing militia officers shall be provided for by law; but no officer below the rank of a brigadier general shall be appointed by the general assembly.(15) 7. Commissions and grants shall run in the name of the COMMONWEALTH OF VIRGINIA, and bear teste by the governor, with the seal of the commonwealth annexed. tecum, commanding him to bring with him that paper to be read in evidence in a suit between two individuals. Morris v. Creel et al. 2 Virg. Cas. 49. By the act of March 15, 1832, the executive was authorized to appoint a clerk, to be called the Secretary of the commonwealth, who is also ex officio librarian of the state, and keeper of the seals of the commonwealth. He is strictly the governor's clerk, the council having a clerk of their own. The secretary is authorized to appoint an assistant clerk, and a copyist, to aid him in his office. See Sup. R. C. p. 91. By act of Feb. 5, 1834, the appointment of the secretary was taken from the governor and the election required to be made annually by joint vote of the senate and house of delegates. Acts 1833-4, c. 13, p. 25. (14) By act of Feb. 8, 1831, in the event of the death or resignation of the governor, the lieutenant governor shall receive the pay allowed the governor and shall enjoy all the privileges, exercise all the powers and perform all the duties conferred on or required by the governor. Sup. R. C. c. 84, § 3, p. 90. If the governor and president of the privy council shall die, or otherwise become unable to perform his duty, in the recess of the general assembly, the privy councillor, whose name stands next in the list of their appointments, shall officiate as lieutenant governor, until the vacancy be supplied, or the disability cease. Oct. 1776, c. 19, 9 St. Larg. 212; 1785, c. 56, 12 S. L. 129; 1792, c. 46, R. C. And in the absence of the governor, such intended absence having been previously notified to them by him, and entered on their journals, or in the like absence of the president, and upon the like notification if any business to be transacted at the council board necessarily require dispatch before he can attend it, the council may proceed without him; and in either case the act shall be as valid as if he had been present. The governor and council shall have power to appoint from time to time as they shall be wanting, a drawing clerk, a copying clerk, and a clerk of foreign correspondence, who shall each of them take an oath, to be administered by any member of the board, to keep secret all such matters as they shall direct them to keep secret; which clerks shall be removed at their will. 1785, c. 56, and c. 58; 1792, c. 46, R. C. The act of Feb. 8, 1831, above referred to, repeals all acts coming within its purview. or The (15) By act of April 11, 1831, provision was made for the election of militia officers. Sup. R. C. c. 64, p. 69. But by act of 11th April 1834, the militia system of the state was revised and reorganized, and it is provided that the field officers of regiments shall be elected by the company officers of such regiment and those attached thereto,and the company officers shall be elected by the non-commissioned officers, musicians and privates composing such companies respectively; every election to be decided by a majority of the officers of the regiment men composing the company. elections of field officers are required to be superintended by the three officers of highest grade in the regiment who may be present and not candidates; and all other elections of officers to be superintended by the commandant of the regiment, or by such officer as he may designate for that service. The superintending officers are required to certify the elections to the governor, who is to commission the person elected. Major generals, brigadier generals and colonels are empowered to appoint their own staff, and each commandant of companies their non-commissioned officers. See Acts 1833-4, p. 29, 30, 31. By act of Mar. 11, 1835, in elections of company officers, the officers superintending elections are to decide the elections in case of equality of votes; and in elections of field officers, the officer present highest in rank is to decide in a similar case. See Acts 1834-5, p. 22, § 8. Where regiments are so far dissolved as to have no officer to superintend the election of officers, the county courts are authorized to recommend to the governor a suitable person as captain of each company, and he shall be commissioned as if elected by the company. Acts 1838, c. 28, §2, p. 38. A limited fine, to be assessed at the discretion of the regimental courts of inquiry, is imposed on every person who shall become a candidate for, and shall be elected and commissioned an officer of militia and shall fail or refuse to accept the same and qualify to his commission, without good cause. Acts 1839, c. 21, p. 19. ARTICLE V. 1. The judicial power shall be vested in a supreme court of appeals, in such superior courts as the legislature may from time to time ordain and establish, and the judges thereof, in the county courts and in justices of the peace. The legislature may also vest such jurisdiction as shall be deemed necessary in corporation courts, and in the magistrates who may belong to the corporate body. The jurisdiction of these tribunals, and of the judges thereof, shall be regulated by law. The judges of the supreme court of appeals and of the superior courts, shall hold their offices during good behaviour, or until removed in the manner prescribed in this constitution; and shall, at the same time, hold no other office, appointment, or public trust; and the acceptance thereof by either of them shall vacate his judicial office.(16) (16) The legislature, at the session of 1830-31, passed three acts for re-organizing, or rather new modelling, the judicial system of the commonwealth. By one of those acts it was provided, that the court of appeals, from and after the termination of that session of assembly, should consist of a president and four other judges, and the office of president should be so far distinct from that of the other judges, that vacancies occurring in the office of president should be filled by particular election, or appointment and commission thereto : and that the court should hold a session annual ly at Lewisburg in the county of Greenbrier, to commence on the first Monday of July, and to continue ninety days unless the business should be sooner dispatched, and to be divided into such terms as the court should from time to time direct and appoint, for the hearing and determining all causes brought to the court by appeal, &c., from the courts of the counties lying on the western side of the Blue Ridge of mountains, with the exception of certain counties particularly mentioned; and another session at Richmond, to continue one hundred and sixty days, unless the business should be sooner dispatched, and to commence at such times, and be divided into such terms, as the court should from time to time direct and appoint, for the hearing and determining all causes brought to the court by appeal, &c., from the courts of the counties and corporations on the eastern side of the mountains, and from those counties on the other side excepted out of the western district; provided, that the parties to causes arising in either district, might by consent carry the same to the court at its session in the other. See Acts 1830-31, c. 4, p. 37. It was provided by another act that the general court should consist of twenty judges, and should hold its terms in July and December, with the same jurisdiction it before had, except such as had been taken away by the amended constitution, (the jurisdiction, namely, to try impeachments, now vested in the senate, amended const. art. 3, § 13,) and except also the jurisdiction to hear and determine questions of law in civil causes thereto adjourned, which it was provided, it should no longer have and exercise. Id. c. 7, p. 39. The third act abolished the former superior courts of chancery and circuit courts of law, and established a circuit superior court of law and chancery in each and every county of the commonwealth, and in certain corporations therein mentioned, with very general jurisdiction, civil and criminal, at common law and in equity; combining, indeed, the jurisdiction of the former superior courts of chancery, and that of the former circuit courts of law, and vesting both in these new tribunals, though the equitable and common law jurisdictions were still to be exercised each separately and distinctly from the other. The counties and corporations were divided into ten districts, each district into two circuits two of the judges of the general court were assigned to each of the ten districts, and of the two so assigned to each district, one was assigned to each circuit of the district; and thus twenty judges of the general court were assigned respectively, to twenty circuits, and the judge assigned to each of the twenty circuits was required to hold the circuit superior courts of law and chancery two terms each year, in each of the counties and corporations of his circuit. Id. c. 11, p. 42. All the twenty judges were required to attend the session of the general court at July term, 1831-but it was provided, that thenceforth they should attend the sessions of the general court alternately, so that but one of the judges assigned to each of the ten districts should attend at the same term; and that five judges should constitute a quorum. Id. c. 7, § 1. In consequence of this provision, ten of the judges, (that is, one from each of the ten districts,) were by an arrangement of the court at July term, 1831, assigned to attend the summer term, and the other ten, (one from each district,) to attend the winter term, of the general court. The judges of the court of appeals, and of the general court, under the new organization, were elected, and appointed by joint vote of the two houses of assembly during the session of 1830-31. For this account of the judicial system, see the preface to 3 Leigh. See also post. tit. Judiciary. 2. No law abolishing any court shall be construed to deprive a judge thereof of his office, unless two thirds of the members of each house present concur in the passing thereof; but the legislature may assign other judicial duties to the judges of courts abolished by any law enacted by less than two thirds of the members of each house present. 3. The present judges of the supreme court of appeals, of the general court, and of the superior courts of chancery, shall remain in office until the termination of the session of the first legislature elected under this constitution, and no longer. 4. The judges of the supreme court of appeals and of the superior courts shall be elected by the joint vote of both houses of the general assembly. 5. The judges of the supreme court of appeals and of the superior courts shall receive fixed and adequate salaries, which shall not be diminished during their continuance in office.(17) 6. Judges may be removed from office by a concurrent vote of both houses of the general assembly; but two thirds of the members present must concur in such vote, and the cause of removal shall be entered on the journals of each. The judge against whom the legislature may be about to proceed, shall receive notice thereof, accompanied with a copy of the causes alleged for his removal, at least twenty days before the day on which either house of the general assembly shall act thereupon.(18) 7. On the creation of any new county, justices of the peace shall be appointed, in the first instance, in such manner as may be prescribed by law.(19) When vacancies shall occur in any county, or it shall, for any cause, be deemed necessary to increase the number, appointments shall be made by the governor, on the recommendation of the respective county courts. 8. The attorney general shall be appointed by joint vote of the two houses of the general assembly, and commissioned by the governor, and shall hold his office during the pleasure of the general assembly. The clerks of the several courts, when vacancies shall occur, shall be appointed by their respective courts, and the tenure of office, as well of those now in office, as those who may be hereafter appointed, shall be prescribed by law.(20) The sheriffs and (17) A judge of the general court, elected for and assigned to the 7th judicial circuit, has an additional salary allowed him in consequence of the great mass of judicial business in one of the courts of his circuit; that court is afterwards severed from the 7th circuit and formed into a new circuit, and a new judge appointed for the same the former judge yet remaining judge of the seventh circuit. Held, 1, That as the act establishing the new circuit makes no mention of the additional salary allowed to the former judge, and does not, in terms or by necessary implication, take it away, it was not the intention of the legislature to take it away: and 2, That if the legislature had intended to take the additional salary away, and had so enacted, such enactment would have been unconstitutional. Commonwealth v. Clopton, 9 Leigh, 109. (18) See resolutions adopted in 1834, "for inquiring what proceedings ought to be instituted for the removal of judge Green from office;" also," prescribing what proceedings are proper to be had by the legislature against John W. Green, a judge of the supreme court of appeals," and "prescribing the mode of proceeding in the case of judge John W. Green." Acts 1833-4, Res. 2, 3, 4, p. 320, 321. (19) In the several acts creating new counties, since the adoption of the amended constitution, provisions are inserted authorizing the governor to appoint and commission a specified number of justices for each county. And the justices residing in those parts of the county which were taken from adjoining counties in many cases are required to be of the number. See Acts 1830-31, p. 134 to 142; 1831-2, p. 48; 1835-6, p. 18, 20 ; 1836-7, p. 32; 1838, p. 52, 54. (20) The tenure of the office of clerks is limited to seven years, but they may be reappointed. The office of the clerks of the court of appeals, and of the county and corporation courts, commenced on the 1st Monday in July, 1831. See Sup. R. C. p. 180, 181. The judges of the circuit courts were required to hold special terms to appoint their clerks, who were to enter upon the duties of their offices on the 15th of June, 1831. Ibid. p. 166, § 82. The clerk of the general court was required to be appointed at the July term in 1831. Ibid. p. 135, § 3. The act of March, 1838, authorizes the circuit courts and the county and corporation courts to appoint their clerks either when their term of office expires, or at the preceding term of the court, or as soon thereafter as may be, the appointment to take effect from coroners shall be nominated by the respective county courts, and when approved by the governor, shall be commissioned by him. The justices shall appoint constables. And all fees of the aforesaid officers shall be regulated by law.(21) 9. Writs shall run in the name of the commonwealth of Virginia, and bear teste by the clerks of the several courts. Indictments shall conclude, Against the peace and dignity of the commonwealth. ARTICLE VI. A treasurer shall be appointed annually by joint vote of both houses. ARTICLE VII. The executive department of the government shall remain as at present organized, and the governor and privy councillors shall continue in office, until a governor elected, under this constitution, shall come into office; and all other persons in office, when this constitution shall be adopted, except as is herein otherwise expressly directed, shall continue in office until successors shall be appointed, or the law shall otherwise provide; and all the courts of justice now existing, shall continue with their present jurisdiction, until and except so far as the judicial system may or shall be hereafter otherwise organized by the legislature. Done in convention in the city of Richmond, on the fifteenth day of January, in the year of our Lord one thousand eight hundred and thirty, and in the fifty-fourth year of the Independence of the United States of America. D. BRIGGS, Secretary of the Convention. PHILIP P. BARBOUR, SCHEDULE. Ordered, That the roll containing the draft of the amended constitution adopted by this convention, and by it submitted to the people of this commonwealth for their ratification or rejection, be enclosed by the secretary in a case proper for its preservation, and deposited among the archives of the council of state. Ordered, That the secretary do cause the journal of the proceedings of this convention to be fairly entered in a well bound book, and after the same shall have been signed by the president, and attested by the secretary, that he deposit the same, together with all the original documents in the possession of the convention, and connected with its proceedings, among the archives of the council of state; and further, that he cause ten printed copies of the said journal to be well bound, and deposited in the public library. Ordered, That the president of the convention do certify a true copy of the amended constitution to the general assembly now in session; and that the general assembly be and they are hereby requested to make any additional provisions by law, which may be necessary and proper for submitting the same to the voters thereby qualified to vote for members of the general assembly at the next April elections, and for organizing the government under the amended constitution, in case it shall be approved and ratified by such voters. the expiration of the predecessor's term. Acts 1838, p. 69. (21) See act regulating the fees of clerks of certain courts April 8, and 1st July 1831, c. 23; Acts 1830-31, p. 80; and the act of Mar. 15, and 1st April 1832, c. 68, p. 49; act concerning the collection of clerks, sheriffs and sergeants fees, March 19, 1839, c. 63, p. 40; also Acts 1839-40, c. 52, § 2. 1. § 1. Every act of assembly hereafter to be made, shall commence and be in force, upon and after the first day of April, next succeeding the passage thereof, unless, in the act itself, another day for the commencement thereof, be particularly mentioned;(a) and in every case, the day of passing thereof shall be noted in the publication, next after the title of the act. 2. § 2. Whensoever one law, which shall have repealed another, shall itself be repealed, the former law shall not be revived, without express words to that effect.(b) Nov. 18, 1789, c. 9, 13 Stat. Larg. 9. 3. 3. As often as a question shall arise, whether a law passed during any session changes or repeals a former law passed during the same session, the (a) The act of 1785, c. 55, 12 Stat. Larg. 128-9, provided that laws should operate from the date of their enactment, unless otherwise provided in the laws themselves; changing the old rule, whereby all acts had relation to the first day of the session, which was the English rule, (Latless v. Holmes, 4 T. R. 660; Hall v. Whalley, 4 T. R. 662; (n)) until it was enacted by stat. 33 Geo. 3, c. 13, that the clerk of parliament shall endorse on every act, which shall pass after the 8th of April, 1793, the date of the royal assent, which shall be the date of its commencement, when no other commencement shall be therein provided. The act of 1789, c. 9, fixed the first of March next succeeding the passage, which was changed to April by this act. See 1 Gallison, 62; the case of the brig Ann; and Rex v. Bailey, Russel & Ryan's Cro. Cas. p. 2, it was held, that, where an offence was committed, at so short a period, and under such circumstances, as that the offender could not have known of the act which reached the offence, the party should have a pardon, tho' in strict law, he was guilty; the offence having been committed after the act went into operation. Where the computation of time is to be made from an act done, the day on which the act is done, is to be included-and, therefore, where an act provides that an additional duty shall be levied, &c. on all goods, &c. "which shall, from and after the passage of this act, be imported, &c."-which act passed on the 1st July, 1812, and took effect from its passage, goods imported on the 1st July, 1812, held subject to the additional duty. Arnold et al. v. The U. S. 9 Cranch, 104. If the words used had been "from and after" the 1st of July, the 1st would certainly have been excluded, and the act would not be in force until after that day. Pr. Pitkin, ago. (b) The old rule was, that by repealing of a repeale, the first act is revived. 2 Inst. [686.] |