Opinion. treasurer of the city of Petersburg is vacant; that the restored incumbent is holding, and can only hold until his successor is appointed and qualified; and that the appointing power is the hustings court. But it is most earnestly insisted by counsel for the petitioner, that there is no vacancy; that the incumbent is rightfully in and entitled to hold until his successor is chosen at the next regular election for the city of Petersburg. And in support of this contention, the language of the constitution and numerous authorities are invoked. Let us examine them, for the importance and gravity of the subject demand the most rigid scrutiny. The provision of the constitution mainly, if not solely, relied on by counsel for the petitioner, is the twenty-fifth section of the sixth article. It simply provides for the holding over by the incumbent after the expiration of his term, until his successor shall qualify. The plain unequivocal import of this section of the constitution is, that when the regular term expires, the office becomes, in the eye of the consitution, vacant, but with authority to the incumbent, already qualified, to continue by virtue of such previous qualification, made effective for the purpose by the constitution, to discharge the functions of the office until he is succeeded in the way preferred by the people, as pointed out in the constitution made by them, and in the laws made in pursuance of that instrument. The petitioner filled out his regular term; and under the constitutional provision being considered is, to prevent the evils which would flow from either an accidental or designed failure to qualify on the part of the person elected to succeed him, enabled to go on in the discharge of the duties appertaining to the office, not his office, so far into the succeeding regular term, as the time when his successor, legally selected, shall be fully equipped as an officer to take charge of the office and perform its functions. That this is the correct view, the peculiar character of our constitution in classifying its officers and prescribing regular terms for each class sufficiently attests. And this view is abun Opinion. dantly borne out by Judge Staples in his opinion. He says: "The constitutional provision empowering the incumbent to hold on until his successor qualifies, is intended for exceptional cases, and does not at all affect a general rule which requires that upon the close of one regular official term the other shall immediately commence." The petitioner has filled out his full regular term, and is simply holding on in this, the succeeding regular term, until his successor shall come, duly qualified, to demand and have the office; and that successor, ex necessitate rei, can only hold for the residue of the present regular term. So much for the argument attempted to be drawn from the constitution. Let us next look to the authorities urged by counsel for the petitioner as sustaining their view. The first and main one relied on is that of the Commonwealth v. Hanley, 9 Penn. State R. 513. That is a very strong case for the petitioner, especially if we permit ourselves to look only to the syllabus and certain very strong expressions of the judge delivering the opinion-expressions not warranted, we think, by the language there and then being construed; and more especially if we forget that we are construing not the constitution of Pennsylvania but of Virginia. The syllabus of that case is: "The death of the person elected to fill the office of clerk of the orphan's court, before he has qualified himself according to law, does not create a vacancy, but the incumbent who is authorized to hold the office, until his successor shall be qualified, holds over." The language of the judge deciding that case, most relied on by counsel for the petitioner, is this: "It will be observed that the terms on which alone the governor can appoint, are a vacancy in the office, and that there can be a vacancy in an office when there is a person in possession, whom all acknowledge to be rightfully in possession, having a perfect right to exercise all the powers and duties of the office, and to receive and enjoy all its emoluments, is a position difficult to comprehend. It is an abuse of terms to say that at the time the gov Opinion. ernor issued his commission to the relator the office was vacant, for no person can plausibly deny that the respondent was the rightful possessor of the office at that time." Strong as this language is to show that no vacancy exists. where there is a person rightfully in possession, and entitled to hold on until his successor is duly qualified (for such is, or was, the language in part of the Pennsylvania constitution), it in no particular meets the demands of the petitioner's case under the constitution and law of Virginia as will presently be shown. Let us next look to the language of the Pennsylvania constitution, which was construed in the case of the Commonwealth v. Hanley, and then to the case thereunder made by the relator, and then we will be able justly to discriminate between that case and this. The Pennsylvania constitution says: "They (certain officers, including the one then in question) shall hold their offices for three years, if they shall so long behave themselves well, and until their successor shall be duly qualified." The obvious meaning of this provision is, that such officers cannot hold for less than three years, if they so long behave well and choose not to resign, although on the happening of certain contingencies, they may hold for a longer period. Let us now look to two brief paragraphs in the same opinion which adhere to the spirit and letter of the constitutional clause the judge was construing. They are: 1. "The fundamental error which lies at the root of the whole case of the relator, consists in the assumption that, according to the spirit of the constitution, the tenure of county offices is strictly limited as to time, viz., three years, and that any extension of the time arises only from the exigency of the case, and must be strictly construed. 2. "The relator assumes that the respondent was elected and commissioned only for three years, but this is a mistaken view of the constitution, and is only made plausible by obliterating several important words from the constitution." The case made by the relator in Pennsylvania can be readily apVOL. LXXVII-35 Opinion. prehended from the two paragraphs of the judge's opinion, above given. But, what were the important words obliterated, as the judge says, from the Pennsylvania constitution in order to give plausibility to the relator's case? They were, "and until their successor shall be duly qualified," so as to limit the term strictly to three years and no more; whilst the constitution expressly extended the term until the successor should be duly qualified. The fact is, the relator in the Pennsylvania case was unconsciously invoking both the spirit and letter of our Virginia constitution, whilst, unfortunately for him, both the letter and spirit of his own Pennsylvania constitution stood square in his path, by reason of which he rightfully failed of getting the office he coveted. The case made by the relator here is just the converse of the Pennsylvania case. Here the petitioner says he is entitled to hold for the full succeeding regular term, although the statute says that by reason of Couch's failure to qualify in time he forfeited his right, which created a vacancy; and although our constitution expressly says the incumbent, after his term has expired, shall hold over, that is in the succeeding regular term, until his successor shall qualify. Surely, after a careful comparison of the two constitutions of Virginia and Pennsylvania, the unbiased mind must necessarily reach the conclusion that the two are widely dissimilar; and that the contention of the petitioner, failing by the test of his own constitution, can receive no adequate support from the Pennsylvania case of the Com'th v. Hanley. The other cases relied upon by counsel for the petitioner are: State v. Lusk, 18 Mo. 334; State v. Jenkins, 43 Mo. 261; People v. Lord, 9 Mich. 229; State v. Seay, 64 Mo. 89; and People v. Tilton, 37 Cal. 614. Other authorities from sister states are referred to, but these are the ones given prominence to in the argument. Besides these, two Virginia decisions are also relied on; they are Com'th v. Drewry, 15th Gratt. 1; and ex parte Lawhorne, 18 Gratt. 85. For reasons now briefly to be stated, these cases will not require any extended notice. The first one named, the State v. Lusk, was Opinion. this: Lusk was elected public printer by the general assembly of the state of Missouri at the session of 1850, and at the session of 1852 there was a failure to elect a successor by the general assembly. In May, 1853, the governor appointed and commissioned Treadway to fill the office. The proceeding in the case was to remove Lusk. The office of public printer had been established by an act of the general assembly of that state, passed in March, 1845. The second section of the act directed that a public printer should be elected at the then present session of said general assembly, and at every regular session thereafter, by the joint vote of the two houses. The third section directs that the president of the senate and speaker of the house of representatives shall furnish the person elected with a certificate of his election, and he shall within ten days after receiving the same give bond, take the oath of office, and shall at the time provided in the act enter upon the discharge of the duties of the office, and if he fail to do So, his office shall become vacant. The fifth section provides that the public printer, to be elected at each session of the general assembly, shall hold his office for two years, commencing on the 1st day of May next thereafter, and until his successor shall be elected and qualified; and the public printers thereafter elected shall hold office for two years, and until their successors shall be elected and qualified. The sixth section provides, that if the public printer should die or resign, or if from any other cause the office should become vacant, the governor shall appoint a public printer, who shall give bond and qualify, and shall hold his office for the same time that the printer in whose stead he shall be appointed would have held. Such was the case of The State v. Lusk, as stated by the judge who decided it. In all essential particulars it is the Pennsylvania case of the Commonwealth v. Hanley over again. It is plain that, like the latter, the peculiar language under construction controlled and even forced the decision as made. It was idle to say that the office of public printer was vacant, because |