Opinion
11-14-1870
GRIFFIN'S ex'or v. CUNNINGHAM. WASHINGTON, ALEXANDRIA & GEORGETOWN R. R. CO. v. ALEXANDRIA & WASHINGTON R. R. CO. & als.
The case was argued for the motion by Lyons and Marshall, and against it by Gilmer, Howison, Geo. Wm. Brent and Merrick.
1. The judges of the Court of Appeals who were in office under military appointment when the State was restored to the Union, holding over and continuing to exercise their office, their judgments and decrees are valid and binding.
2. The proviso to §2 of the act of March 5, 1870, called the enabling act, which authorized the Court of Appeals organized under the present constitution to rehear and affirm or reverse the decrees made by the military judges at its term, commencing the 11th of January, 1870, the term having ended before the passage of the act, is unconstitutional; and the present court has no authority to rehear such cases.
3. A case decided by the Supreme Court of Appeals at one term of the court, at which no motion is made to rehear it, cannot be reheard at a subsequent term of the court.
The January term 1870 of the military Court of Appeals of Virginia commenced on the 11th of that month, and was terminated on the 25th of February following. On the 31st of January the court decided the case of Griffin's ex'or v. Cunningham, reported 19 Grattan 571, and on the 14th of February the court decided the case of The Washington, Alexandria and Georgetown R. R. Co. v. The Alexandria and Washington R. R. Co., reported in the same volume, p. 592.
After the final adjournment of that court, an act was passed called the enabling act, approved March 5, 1870, by which all officers who had been appointed to office on or before the 26th of January, 1870, the day when the representatives of the State were admitted into congress, and who were qualified to hold office under the present constitution, were authorized to continue in office until their successors should be appointed or elected and duly qualified; with certain provisos which need not be stated. By the second section of that act all official acts theretofore done and otherwise lawful, were declared as legal and binding as if they had been done by officers duly elected and qualified under the Constitution of the State; " provided that any judgment, decree or order, rendered or made by the Court of Appeals at the term thereof commencing on the 11th day of January, 1870, shall be subject to the supervision and control of the Supreme Court of Appeals to be organized under the Constitution, upon the motion or petition of any party to the cause for a rehearing; and such judgment, decree or order may be set aside, or annulled or affirmed, as to said Supreme Court may seem right and proper." The motion or petition to be made on twenty days notice, and within six months after the organization of the court.
After the passage of this act, Griffin's ex'ors, and the Washington, Alexandria and Georgetown R. R. Co., moved the court for a rehearing of the cases of Griffin's ex'ors v. Cunningham, and the Washington, Alexandria and Georgetown R. R. Co. v. The Alexandria and Washington R. R. Co., and the other parties to these causes appeared and opposed the motions.
The case was argued for the motion by Lyons and Marshall, and against it by Gilmer, Howison, Geo. Wm. Brent and Merrick.
CHRISTIAN, J.
These two causes were decided by the late Court of Appeals, which was constituted, and organized, under the laws of Congress known as the " " " " Reconstruction Acts."
The decisions were pronounced, and the decrees entered in each case, after the admission of senators and representatives from the State of Virginia into the Congress of the United States.
They are now before this court, upon a motion submitted under the second section of the act of the General Assembly, approved March 5th, 1870, commonly called the " Enabling Act," which is in the following words: " §2. All official acts heretofore done by any such officers, and otherwise lawful, are hereby declared as legal and binding as if they had been done by officers duly elected and qualified under the Constitution of this State: Provided, That any judgment, decree or order rendered or made by the Court of Appeals at the term thereof, commencing on the 11th day of January, 1870, shall be subject to the supervision and control of the Supreme Court of Appeals, to be organized under the Constitution, upon the motion or petition of any party to the cause for a rehearing; and such judgment, decree or order may be set aside and annulled, or affirmed, as to said Supreme court may seem right and proper; but twenty days notice of the time of making said motion or filing said petition shall be given to the opposite party," & c.
The sole question now presented for our consideration, is whether the Legislature has the constitutional authority to confer upon this court the power to set aside, annul or affirm, " as to this court may seem proper," the decisions of the Court of Appeals established by the military authorities under the reconstruction laws of Congress.
The question thus presented, is one of the gravest import, because it directly involves the validity and constitutionality of a legislative act. It resolves itself into this simple enquiry, Is the act of the General Assembly, as expressed in the proviso contained in the second section above referred to, constitutional?
I premise by saying that prima facie, every act of the Legislature is constitutional; and, in a doubtful case, the question ought always to be solved in favor of the validity of the act. The power to declare a legislative enactment void, is one which the judge, conscious of the fallibility of human judgment, will always shrink from exercising in any case where he can conscientiously, and with due regard to duty and official oath, decline the responsibility. The legislative and judicial are coö rdinate departments of the government, of equal dignity. Each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or supervision of the other. The courts may, in a proper case, and must, when the question is free from doubt, declare legislative enactments unconstitutional and void. It is not, however, because the judicial power is superior in degree and dignity to the legislative; but, being required to declare what the law is, in cases which come before them, the courts must enforce the constitution, as the paramount law, whenever a legislative enactment comes in conflict with it. 18 Wend. R. 53; 7 Ind. R. 334.
In exercising this high authority, the courts claim no supremacy over the Legislature. They are only the administrators of the public will. If an act of the Legislature is held void, it is not because the courts have any control over legislative power, but because the act is forbidden by the constitution, and because the will of the people, therein declared, is paramount to that of their representatives, expressed in any law. The power, however, is a delicate one, and is always exercised with reluctance and hesitation. But it is a duty which the courts, in a proper case, are not at liberty to decline, but must firmly and conscientiously perform.
Fully recognizing the force of these general principles, and distrusting my own judgment (because I differ with some of my brethren), I proceed to state the reasons which force me to the conclusion, that the proviso contained in the second section of the act approved March 5th, 1870, is unconstitutional, and, therefore, inoperative and void.
Now, if it can be shown that the decisions of the late Court of Appeals, which we are called upon to review, were, in law, valid, judicial acts, it will be easy to demonstrate that any attempt on the part of the Legislature to reö pen these decisions, by conferring authority upon this court to re-hear and review them, is an exercise of judicial power which is forbidden by the spirit and letter of the constitution.
Let us consider, then, first, were these decisions valid as judicial acts? or, in other words, were they rendered by a tribunal having the authority to make them? It is undoubtedly true, that the laws of Congress, known as the reconstruction acts, subjected this State to the military authority of the United States. The constitution under which we now live, and under which the legislative, executive and judicial departments of the government were organized, was inoperative, by the express terms of the reconstruction laws, until approved by the Congress of the United States. Under these laws, whose authority is recognized by every department of the State government, because all are organized and acting under them, the late judges of the Court of Appeals were appointed and installed in office. They were not mere usurpers, and did not intrude themselves into the office and attempt to exercise its high functions without color of authority. Their authority, whether valid or not, was derived from the laws of Congress. Their official acts as a Court of Appeals have been acquiesced in, recognized and made valid, if legislative action was necessary to make them valid, by the act of the Legislature now under consideration; for, by that act, they are declared to be " as legal and binding as if they had been done by officers duly elected and qualified under the constitution of their State," except only such decisions as were rendered at the " term commencing on the 11th day of January, 1870."
The counsel for the petitioners do not assail the decisions of this tribunal, upon the ground that they acted without authority, as judges of the Court of Appeals, except to this extent, that they had no authority to act after the restoration of the civil government, which was accomplished on the 26th day of January, 1870, by the admission of senators and representatives from this State into the Congress of the United States. But the position is taken, and the argument is pressed with great earnestness and much plausibility, that on that day the reconstruction acts, by their own terms, became inoperative, and that there was a complete restoration of the civil, and instant termination of the military government under which these judges had received their appointments; that they were but the creatures of the military government, and when that government expired by the restoration of the civil, every office at once became vacant; and those persons who were then exercising their respective functions had no authority to perform any official act; consequently, it was competent for the Legislature to submit to the court appointed under its own authority, the causes decided by the court which preceded it, rendered after the 26th day of January, 1870. These are the grounds succinctly but fairly stated, upon which it is insisted that this court must now assume the right to rehear and review the causes finally disposed of by its immediate predecessors, " and annul, set aside, or affirm the same, as to this court may seem proper.
If the right to rehear and review these decisions can be maintained at all, it can only be done on these grounds, for if it be admitted that these decisions are valid judicial acts, rendered by a tribunal having competent authority to make them; then, as I shall presently show, there is neither judicial nor legislative power which can ever disturb them; but they must stand irreversible and final. Let us then give these positions a careful and candid consideration.
Is it true that immediately upon the reë stablishment of the civil authority and termination of the military, on the 26th day of January, 1870, every office filled by military appointment became vacant instanter? Is this true, in fact and in law? It will aid the solution of this question, to recur for a moment to the peculiar circumstances under which the civil rule was restored and the military government was terminated. It is a part of the current, public history, of which this court may judicially take notice. It will be remembered that while this State was subjected to the military authority of the United States, all the executive and judicial officers of the State were removed, and their places filled by the appointees of the military governor. These military appointees were filling all these offices, and exercising their respective duties and functions, on the day when the civil government was restored and the military government terminated, to wit, on the 26th day of January, 1870. On that day there was a Governor, Lieutenant-Governor, and Attorney-General, who had been elected under the present constitution. A Legislature had been elected. But no judicial officers had been appointed under the new government, nor could be, because the constitution provided for their election by the Legislature, or by the people. The organization of the State government was not then perfected. The legislative department was alone complete. The executive department had its chief officers but none of its subordinates. The judicial department was wholly unorganized. On that day there was not a single judge, or sheriff, or justice of the peace, or Commonwealth's attorney, constable, commissioner of revenue, notary public, or clerk of court, appointed under the new civil government; and all the various and important functions of these offices, affecting all the multiform interests of society, had either to be performed by the persons then filling them, or were not to be performed at all. In point of fact, the incumbents remained in their respective offices until their successors were appointed and qualified. If they had not so remained, there would have been a period of many months, when there was no judge to award a writ of habeas corpus, no clerk to issue a marriage license or record a deed, no justice of the peace to issue a warrant of arrest, no sheriff or constable to arrest a felon, no jailor to secure a prisoner, no superintendent of a penitentiary to receive a convict. Instead of the restoration of civil government, there would have been the annihilation of all government, with anarchy reigning supreme. Now, what was the duty (to say nothing now of the right; of that I shall speak presently) of these officers, thus circumstanced? Was the judge (before his successor under the new government was appointed) to leave his high place, refuse to discharge its functions, so vital to the interests and peace of society, to the protection of the liberties and security of the property of the citizen? Was the clerk to close his office, and leave the records of courts and all the muniments of title to be destroyed? Were sheriffs to stop enforcing executions and collecting the public revenues? Were jailors and keepers of penitentiaries to leave their posts, and let prisoners starve or escape? Were public archives and public libraries to be abandoned and left to destruction because there was no auditor or secretary of the Commonwealth to preserve them? Was marriage to be inhibited, or made a crime, because there was no clerk to issue a marriage license? Was an innocent man to be hung because there was no appellate judge to award a writ of error? All these, and a thousand other appalling consequences, would have inevitably resulted from the sudden and absolute vacation of all the executive and judicial offices of the government. And, if the question had been free from doubt, if it had been certain that the restoration of the civil rule, by the approval of the constitution and the admission of senators and representatives by the Congress of the United States, had the unquestioned effect to remove from office, instanter, every appointee of the military government, they might even then have hesitated, in the face of these inevitable and appalling consequences, to retire before their successors were appointed and qualified to take their places. But the question as to their power to hold over was not free from doubt. It was a question about which there was much discussion in the community, and an honest difference of opinion among the most enlightened citizens of the State. It was the subject of excited and embittered litigation and earnest discussion in this court; and the Legislature itself, in assigning its reasons for the passage of the " Enabling Act," sets forth in its preamble the " grave doubts" which had arisen as to the validity of the acts of these officers, " performed since the admission of the State," and as to their right to continue in office. The schedule appended to the constitution of the restored civil government, which schedule, in its own language, was adopted " in order that no inconvenience may arise," prescribed that " The several courts, except as herein otherwise provided, shall continue with like power and jurisdiction, both in law and in equity, as if this constitution had not been adopted, and until the organization of the judicial department under the constitution." These judges might have referred, and no doubt did refer, to this schedule, as their authority to continue to hold their offices until their successors were appointed. The Court of Appeals is certainly one of the courts referred to, as one that " shall continue with like power and jurisdiction," until the organization of the judicial department. What the true construction of this provision is, was then, and is still, an open question. It was not passed upon in the late cases of Dyer v. Ellyson, and Bell v. Chahoon. It was not necessary in those cases. The decision there was, that this provision of the schedule did not apply to the Mayor's court. Judge Moncure, delivering the opinion of the court, says: " The courts referred to are courts of record, which the Mayor's court is not. They are the courts whose organization is provided for by the sixth 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, and Hustings courts. These courts were to continue, except, & c., with like power and jurisdiction, in law and in equity, as if this constitution had not been adopted, and until the organization of the judicial department under this constitution."
This provision of the schedule has not yet received a judicial construction. What is its real scope, meaning and authority, is still an open question. And it is not necessary to the purposes of my conclusions that it shall be solved now. I refer to these things for the purpose of showing that the judges of the late Court of Appeals were not naked usurpers, acting without color of authority, who continued to discharge the functions of an office from which they had been absolutely removed by the termination of the military authority. This unquestionably was not the case. They were, at least, in office under color of authority. If they had no express authority to continue in office after the restoration of the civil government, until their successors were appointed and qualified, if the schedule referred to conferred no such authority, they had the right to hold these offices, and continue to discharge their functions, until their successors were appointed, upon the principle of public necessity and convenience. In every organic change of government, whenever one government succeeds another, the incumbents in office, in the absence of constitutional or legislative provision, must, ex necessitate rei, continue to hold and discharge the duties of their respective offices until their successors are installed. It is true they hold by sufferance only, the established government having the right and the power at any time to put an end to their authority by appointing others to take their places, in the mode prescribed by law. But until this is done, their official acts are as binding and valid as those of their successors. This is true and must be true, from the very necessity of the case, and upon the first of all principles of government, the great principle of " salus populi. " For otherwise, as I have already shown, the sudden vacation of every office, leaving no person to perform their various functions, would produce such a state of anarchy as would destroy every vestige of civil government and uproot the very foundations of society. And it is fortunate for the peace of society and the security of private rights, in these Southern States, that the highest tribunal in this land, while it repudiates, as null and void, all acts of the Confederate government and State governments which were aimed at the overthrow of the authority of the United States, yet recognizes and holds to be valid and binding all the judicial acts, otherwise lawful, of courts established and organized under the authority of the Confederate government, or of the States composing that government. See opinion Ch. J. Chase in Texas v. White, 7 Wall, U. S. R. 700.
This court ought to be the last tribunal to repudiate this salutary principle. The peace of society, the security of private rights, the confirmation of title to real estate, the validity of deeds, wills and contracts, the acts of guardians, executors, administrators, trustees, and other fiduciaries, the sanctity of marriage in this State, all depend upon the recognition of this principle, that the official acts of the actual incumbents in office are to be recognized as valid. This principle has always been recognized by this court to a certain extent. In the cases of Dyer v. Ellyson, and Bell v. Chahoon, already referred to, Judge Moncure, delivering the opinion of the court, says: " 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 government giving them such authority), hold by sufferance only, and upon a principle of public necessity and convenience," & c. Now, it would be idle to say that such incumbents hold over upon the high principle of public necessity and convenience, and yet that all their official acts are void; that they are entitled to remain in the office, but are not permitted to discharge any of its functions. This is a solecism in law and reason which cannot be entertained for a moment. It seems to me that the soundness of these views cannot be questioned upon candid enquiry.
But if I am wrong in this view of the subject, certainly and beyond all controversy, the Judges of the late Court of Appeals must, at least, be considered judges de facto, after the 26th of January, 1870; and if they were officers de facto, then, upon the unquestioned and uniform authority of the decisions of the English and American courts, their official acts must be held to be as valid and binding, so far as the public and the rights of third parties are concerned, as if their title to the office had been unquestioned and perfect. Were they, then, officers de facto? The distinction between an officer de jure, one who is de facto such, and a mere usurper, is well known and clearly settled; and these distinctions are important to be borne in mind. An officer de jure has the legal title to, and is clothed with all the power and authority of, the office. He has a title against the world to exercise the functions of the office, and receive the fees and emoluments appertaining to it. He is responsible to the government and injured parties, when he abuses his trust or transcends his authority. But his acts, within the scope of that authority, cannot be questioned by the citizen or any department of the government. Black. Tax Titles 92; 14 Verm. R. 428.
An officer de facto is one who comes in by the power of an election or appointment, but in consequence of some informality or omission, or want of qualification, or by reason of the expiration of his term of service, cannot maintain his position when called upon by the government to show by what title he claims to hold his office. He is one who exercises the duties of an office under claim and color of title, being distinguished, on the one hand, from a mere usurper, and on the other, from an officer de jure. Ib.; 5 Eng. C. L. R. 278; 5 Wend. R. 234.
A mere usurper is one who intrudes himself into an office which is vacant, or ousts the incumbent without any color of title whatever. Black. Tax Titles 93; 7 New Hamp. R. 140.
Lord Ellenborough gave the following description of an officer de facto, which has been adopted by the courts and by text writers as " accurate and expressive:" " An officer de facto is one who has the reputation of being the officer he assumes to be, and is yet not a good officer in point of law." 6 East. 368. According to this definition, and to the distinctions referred to, the judges of the late Court of Appeals, holding over after the restoration of the civil government (upon the assumption that it was without authority), were certainly judges de facto. They were not usurpers, who intruded themselves without color of title into offices which were vacant. They unquestionably, in the language of Lord Ellenborough, " had the reputation of being the officers they assumed to be." Being in office under the authority of the laws of Congress, and continuing to hold over after these laws became inoperative, and claiming the right to exercise, and actually exercising the functions of their office, they are, within the very definitions of the authorities, officers de facto, acting colore officii. I conclude, therefore, that upon principle and authority, the decisions which we are called upon to review are at least the judicial acts of judges de facto. And I understand the rule of law (established by a uniform course of decision from a very early period to the present time), to be, that the official acts of an officer de facto, when they concern the public or the rights of third parties, are as valid and effectual as though he was an officer de jure. Says a modern text writer on this subject: " The interests of the community imperatively require the adoption of such a rule. The affairs of society could not be conducted upon any other principle; without it, there would be an entire failure of justice. To deny validity to the acts of such officers, would lead to insecurity in public as well as private affairs, and thus oppose the true policy of every well-regulated State." Black. Tax Titles.
This doctrine of the validity of the acts of officers de facto has been established from the earliest period, and repeatedly confirmed by an unbroken current of decisions down to the present time. In Sir Randolph Crew's case, Cro. Car. 97, a commission to take testimony executed by judges after the demise of James I., when their terms of office had expired, was held good, the court saying that " no inconvenience could arise on such proceedings; but, otherwise, it would draw in question many trials at nisi prius, and trials and attainders, upon jail delivery, whereupon divers have been arraigned and executed since the king's demise."
In Harris v. Jays, Cro. Eliz. 699, it was conceded by the court, that if one being created bishop, the former bishop not being deprived or removed, admits one to a benefice upon a presentation; this is good, and not avoidable; for that the law favors one in reputed authority. In Knight v. The Corporation of Wells, Lutwyche 508, it was held that, " if one elected as mayor of a corporation, without being legally qualified to be chosen to that office, after such election, puts the seal of the corporation to a bond, this obligation is good; because, by coming into the office by color of an election, he was thereby mayor de facto, and all judicial and ministerial acts done by him are good." See also Leak v. Howel, Cro. Eliz. 533; King v. Lisle, Andrew's R. 163; 2 Strange R. 1090. The same principle has been uniformly adopted in modern English cases. It was distinctly acted upon in The King v. the Corporation of Bedford Level, 6 East. R. 356, 366; and in the more recent case of Margate Pier v. Hannam, 5 Eng. C. L. R. 278, where a statute providing for the appointment of justices of the peace declared that no person should be authorized to act as a justice unless he had taken certain oaths, it was decided that the acts of a justice, appointed under that law, were valid, although he had not taken the oaths required by the statute. Indeed, the doctrine in these cases is universally applied in England to officers de facto, from the lowest officer up to the king. 1 Black. Com. 204, 371; 1 Hale's P. C. 60.
The same principles have been repeatedly adopted by the courts of this country; and there is not a single decision to the contrary. In the People v. Collins, 7 John. R. 549, Chancellor Kent observes that the point, " that the official acts of officers de facto are valid," was too well settled to be discussed. In Wilcox v. Smith, 5 Wend. R. 231, the court says: " The principle is well settled, that the acts of officers de facto are as valid and effectual, when they concern the public, or the rights of third parties, as though they were officers de jure. "
In Smith v. The State, 19 Conn. R. 493, the court uses this language: " No principle of law is better settled, than that public officers de facto, acting colore officii, are held to be as well qualified to act, while they remain in office, as if legally appointed and duly qualified."
In Plymouth v. Painter, 17 Conn. R. 585, where the whole subject was most elaborately examined, it is said " The acts of a de facto officer, whether ministerial or judicial, are valid, so far as the public or third parties having an interest in such acts are concerned; and neither the title of such officer nor the validity of such acts can be indirectly called in question in a proceeding to which he is no party."
In South Carolina and in Illinois it has been held that where a law, under which a judge was appointed, was unconstitutional, and therefore his appointment was void; yet acts done by such judge were valid and binding. 2 So. Car. R. 696; 24 Illi. R. 184. In State v. Bloom, 17 Wisc. R. 521, where a judge had been actually ousted on a quo warranto, and a party sentenced to the penitentiary by him, while illegally in office, had been discharged on habeas corpus after the judgment of ouster on quo warranto, the Supreme court reversed the decision of the court below, (discharging the prisoner) and remanded him to the penitentiary, on the ground that the acts of the judge de facto were good against all the world, although he had been afterwards regularly pronounced not to be legally in office.
Cases illustrating the principle contended for might be multiplied to almost any extent. I refer only to the following, in further illustration of this well settled rule of law; 66 Eng. C. L. R. 686; 5 Eng. L. & Eq. R. 60; 3 House Lds. R. 418; Tucker v. Aiken, 7 N. Hamp. R. 113; Jones v. Gibson, 1 New Hamp. R. 266; McInstry v. Tanner, 9 John. R. 135; Fowler v. Bebee, 9 Mass. 231; Burke v. Elliott, 4 Ired. R. 355; Gilmore v. Holt, 5 Pick. R. 258; 4 Zab. R. 409; 2 Metc. Ky. R. 493; 48 Maine R. 79.
This court has adopted the principles of these cases, some of which are cited in the opinion of the court, approvingly, in Monteith's case, 15 Gratt. 172, in which it was decided that the acts of a sheriff de facto are valid, and cannot be enquired into in a collateral proceeding to which he is not a party; and the Legislature of this State recognized the same principle of law when they enacted the 7th section of ch. 12, Code 1860, p. 101, concerning disabilities to hold office. § 7, " All judgments given, and all acts done, by any person by authority or color of any office or post, or the deputation thereof before his removal therefrom, shall be as valid as they would be if this chapter had not been enacted." In a late case decided in this city, " In re Griffin, " where a prisoner had been discharged upon habeas corpus, upon the ground that he had been tried and sentenced to the penitentiary by a judge who was disqualified from holding office under the 14th amendment Constitution United States; upon appeal to the Circuit court held by the Chief Justice of the United States, he was remanded to prison. In that case the Chief Justice, after citing approvingly the cases of Taylor v. Skrine, 2 Brev. R. 696; State v. Bloom, 17 Wisc. R. 521, and Ballou v. Bangs, 24 Illi. R. 184, already referred to above, and which he says cover the whole ground, both of principle and authority, then proceeds to observe, " This subject received the consideration of the judges of the Supreme court at the last term, with reference to this and kindred cases, in this district, and I am authorized to say, that they unanimously concur in the opinion, that a person convicted by a jury and sentenced in a court held by a judge de facto, acting under color of office, though not de jure, and detained in custody in pursuance of his sentence, cannot be properly discharged upon a writ of habeas corpus. " Law Times (U. S. Cts.), p. 100.
In a still more recent case, decided by the Circuit court of the United States in this district, Chief Justice Chase presiding and delivering the opinion of the court, the same general doctrine was recognized, and in such form that it has peculiar application to the cases before us. A suit for malicious prosecution, brought by Woodson against two members of the common council and sergeant of the town of Harrisonburg, had been removed from the Circuit court of Rockingham to the Circuit court of the United States. The only question was, whether the last-named court had jurisdiction to hear and determine the case? and that depended upon the further question, whether the arrest complained of was made by virtue of a military order, or by the common council and sergeant, under their authority as corporation officers? The Chief Justice, delivering the opinion, says: " It is to be borne in mind that the members of the common council of Harrisonburg had been elected to that office while the insurgent government of Virginia was in entire control of that portion of the State. When that government was dispersed by the superior force of the United States, the civil authorities did not necessarily cease, at once, to exist. They continued in being, de facto, charged with the duty of maintaining order, until superseded by the regular government. Thus, the common council of Harrisonburg remained charged with the government of the town, notwithstanding the temporary occupation of the place by the United States forces. Doubtless it might be superseded; but it was not superseded." And so, it may be remarked in passing, before leaving this branch of the subject, that the judges whose decisions we are now called upon to review, remained charged with the duties of their office until superseded by the regular government. Doubtless they might have been superseded at any time by the Legislature, but they were not; and though they were sitting every day as a court of Appeals, from the 11th day of January till the 25th day of February-- sitting, indeed, in the same building with the Legislature--no action was taken to put an end to their authority; but, on the contrary, there was an express recognition by the Legislature of their existence as a court, in the fact that a resolution was adopted by that body removing one of their number upon the ground that he held an office under the government of the United States. I barely allude to this as a matter worthy of notice, without taking time to comment upon it.
I have thus traced the decisions of the English and American courts, from a very early period down to the present time, and there is one unbroken current of authority establishing the principle that public officers de facto, acting colore officii, are held to be as well qualified to act while they remain in office as if legally appointed and duly qualified. This being firmly established, both upon principle and authority, it follows that the decisions of the late Court of Appeals are valid, judicial acts. Being thus valid, has this court any power to review them? If not, has the Legislature the constitutional authority to confer that power upon this court?
In the cases before us, motions had been made in the court which pronounced the decisions for a rehearing, which motions were overruled and the final decrees entered; the mandate of the court was issued, the controversy was closed, and the rights of the parties had rested under these decisions. Has this court, independent of the act of assembly, any power to reopen them?
It is now the well-settled law of this State, that the Court of Appeals cannot review the decisions rendered at a former term. After its term has closed, its adjudications, right or wrong, must stand irreversible and final, and the controversies between the parties whose rights have been adjudicated are closed forever. This doctrine has been firmly established by this court, in the case of " Reid adm'r v. Strider, " 7 Gratt. 76. Judge Baldwin, delivering the unanimous opinion of the court in that case, says: " This court is the appellate forum, in the last resort, for the revisal of the judgments and decrees of subordinate tribunals, which it may affirm or reverse, with power, in case of reversal, to render such adjudication as the inferior court ought to have rendered. During the same term its decisions, like those of other courts of record, are within its own breast, and may be modified or rescinded as a more matured consideration may dictate; but after the end of the term, the merits of its adjudications have passed beyond its control. This finality and irreversibility of the judgments and decrees of this court is inherent in the very nature and constitution of the tribunal, and cannot be disturbed without deranging the administration of justice and the introduction of intolerable evils in practice. Ib. 81.
In accordance, then, with the principle of this decision, this court has no inherent power to review the decisions of the court that preceded it. Has the Legislature the authority to clothe it with any such power? I think not. It is clear to my mind that such an attempt, upon the part of the Legislature, would be the exercise of judicial power, and therefore void. It is now too well settled to admit of serious dispute, that the legislative department can no more exercise judicial power than the judicial department can exercise legislative power. Each is supreme in the exercise of its own proper functions, when acting within the limits of its authority. The boundary line between these powers is plainly defined in every well-ordered government; and in this country it is now a well-established principle of public law, that the three great powers of government--the legislative, the executive, and the judicial--should be preserved as distinct from, and independent of, each other, as the nature of society and the imperfection of human institutions will permit. That system which best preserves the independence of each department approaches nearest to the perfection of civil government and the security of civil liberty.
I believe there is not a single State constitution in this country that does not adopt, as a part of its basis, this principle of separation and independence of the three great departments of government. The constitution of this State, copied in this respect from those which were framed by the wisest expounders of the science of government, and which is the paramount law to all the departments, plainly limits and defines the powers of each. Article II. of that constitution is in these words: " The legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to either of the others."
No particular definition of judicial power is given in the constitution; and, considering the general nature of the instrument, none was to be expected. But the terms used are still sufficient to designate, with clearness, that department which should interpret and administer laws, from that department which should make laws. The former decide upon the legality of claims and conduct; the latter make rules upon which those decisions should be founded. The law is applied by the one, and is made by the other. Cooly's Const. Limitations 92: " To declare what the law is, or has been, is judicial power; to declare what the law shall be, is legislative." 7 John. R. 498. On general principles those enquiries, deliberations, decrees or orders, which are peculiar to the judicial department, must in their nature be judicial acts. It may be difficult in some cases to point out the precise boundary line between legislative and judicial duties, and define what is judicial power, and what legislative. But it is well settled, that an act of the Legislature, directing a court to rehear a cause or to grant a new trial, or any legislative action which retroacts upon past controversies, is an invasion of judicial power, which is arbitrary and unconstitutional. In Merrill v. Sherburne, 1 N. Hamp. R. 199, it was held that " an act of the Legislature, awarding a new trial, in an action which has been decided in a court of law, is an exercise of judicial power, and therefore unconstitutional." In Burch v. Newberry, 10 New York R. 374, it was held that the Legislature had no power to grant to parties the right to appeal after it was gone under the general law. In Lewis v. Webb, 3 Greenl. R. 326, it was held that the Legislature had no authority to pass any act or resolve, granting an appeal or new trial in any cause between private citizens. Ch. J. Mellen, delivering the opinion of the court in that case, says (and I quote his opinion because it has peculiar application in this case): " Can the Legislature set aside a judgment or decree of a judicial court, and render it null and void? This is an exercise of power common in courts of law; a power not questioned; but it is one purely judicial in its nature and its consequences. But it is urged that the resolve is not liable to objection on constitutional grounds; that it goes no further than to authorize a reë xamination of the cause " (precisely what was urged in the cases before us), " to empower one judicial court to review the proceedings of another judicial court, and thus to do complete and final justice to all concerned. It is true, the act does not, in terms, purport to transfer property directly from one man to another by mere legislative authority; but it professes to grant to one party in a cause which has been, according to existing laws, finally decided, special authority to compel the other party, contrary to the general law of the land, to submit his cause to another court for trial, the consequence of which may be a total loss of all those rights and all that property which the judgment complained of had entitled him, and all those claiming under him, to hold and enjoy; that is, it proposes to accomplish, in an indirect and circuitous manner, that which the existing laws forbid, and which, by a direct and legal course, cannot be attained." In Hill v. Town of Sunderland, 3 Verm. R. 507, it was held " That a statute which allows an appeal from road commissioners, made before the passage of said statute, is unconstitutional and void." The court in that case says: " The truth is, there must be an end of strife somewhere; and where will it be, if not when a judgment is recovered, which is final by the laws then existing? Ib. 514. Professor Cooley, in his admirable work on " Constitutional Limitations," p. 94, says: " Legislative action cannot be made to retroact on past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form; since the Legislature would, in effect, sit as a court of review, to which parties might appeal when dissatisfied with the rulings of the courts." Cooley's Const. Limit. 94-96 and note.
In further support of this doctrine, see, also, Atkinson v. Dunlap, 50 Maine R. 111; Miller v. The State, 8 Gill R. 145; Beebe v. The State, 6 Ind. R. 501; Lanier v. Gallatas, 13 La. An. R. 175; Stanisford v. Barry, 1 Aik. R. 321; and Inh. Durham v. Inh. Lewiston, 4 Greenl. R. 140.
These adjudications assert no new doctrine, but are founded on the broad, primary principles of constitutional government, recognized as elementary principles by all writers upon constitutional law. By Sir William Blackstone, when he asserts, that " in the distinct and separate existence of judicial power, consists one main preservative of the public liberty." By Montesquieu, when he exclaims, " there is no liberty, if the power of judging be not separated from the legislative and executive power. The union of these two powers is tyranny." By Mr. Madison and Mr. Jefferson, when the one pronounced such a union " the precise definition of tyranny," and the other " precisely the definition of despotic government."
Nor is the case of Caulder v. Bull, 3 Dall. R. 386, decided by the Supreme court U.S. and so much relied upon by the counsel of the petitioners, at all in contravention of these well-settled doctrines. " The decision in that case was placed upon the ground that it was the usage in the State of Connecticut so to legislate, which was taken as evidence of the fundamental law; it, at that time, having no written constitution. Mr. Justice Patterson, in his opinion, puts the case on that distinct ground. He held, the constitution of Connecticut was made up of usage, and it appeared that the Legislature had, from the beginning, exercised the power of granting new trials." Smith's Com. 529.
But the same court, the Supreme court of the U.S. has expressly recognized the doctrine contended for in this opinion, when it declared, in a more recent case, that Congress has no power to interfere with, or set aside, a judgment of that court. See Wheeling Bridge case, 18 How. U. S. R. 421.
I have already extended this opinion beyond its proper limits, and have only to add that the principles adopted, in the cases cited, have become settled constitutional law, and are universally recognized and acted upon as such, by all judicial tribunals in this country. They are found in the doctrines of learned civilians, and the decisions of able judges, without a single decision, or even dictum, to the contrary. They not only grow out of the letter and spirit of the constitution, but are founded in the very nature of a free government, and are absolutely essential to the preservation of civil liberty, and permanent security of rights. I conclude, therefore, that upon reason and authority: 1st. That the decisions of the late Court of Appeals were valid, judicial acts; and, 2d. That, being valid, the act of the Legislature, authorizing this court to rehear and review them, " to affirm, set aside and annul the same, as to this court shall seem proper," is plainly an invasion of judicial authority, which is unconstitutional and void.
ANDERSON, J.
These causes are, by consent, brought up together, upon a preliminary question which arises in both, as to the power of this court to supervise and control decrees pronounced by H. B. Burnham, W. Willoughby and O. M. Dorman, claiming to be judges of the Court of Appeals of Virginia, after the military provisional government had ceased to exist and the constitutional civil government had been inaugurated.
Many important and interesting questions have been raised by counsel in argument, and numerous authorities adduced, which I do not deem it necessary to consider in deciding the question which has been submitted. In stating the reason, therefore, for my opinion, I shall confine myself to the single question, Has this court power to supervise those decrees?
The act of assembly of 5th of March, 1870, expressly clothes the court with that power. It is essentially a healing and remedial act; healing, so far as it gives validity to the acts which have been done; and remedial, so far as it gives to parties who may have been aggrieved the means and method of redress.
But it is contended that section 2, which confers the power claimed for this court, is contrary to the constitution of the State, and therefore null and void. The questions, whether it was wise. or in accordance with sound policy? Whether it was better, as a matter of expediency, to have submitted for a short space to an usurpation, and to allow an unlawful tribunal, consisting of three judges, claiming to be the Supreme court of Virginia, when the constitution then in force required that said court should consist of five judges, to make a final adjudication upon the rights of citizens? Or whether sound policy, and a proper sense of legislative duty and fidelity, might not require intervention, for the protection of the citizen? These were questions for the Legislature, and not for this court. And that assembly has, in its wisdom, considered and decided them in the act under consideration, which is a declaration, by the supreme legislative power of the State, how far those acts shall be valid and binding, and to what extent they shall not be. I come, then, at once, to the consideration of the main question, Is section 2 of the enabling act unconstitutional and void.
It is argued that it is, because it is a judicial act, and therefore contrary to article II of the constitution, which provides " that the legislative, executive and judiciary departments shall be separate and distinct, so that neither exercise powers properly belonging to either of the others." Is this a judicial act? So far as it is involved in this motion, it appears to be purely remedial, and not judicial, because it does not decide upon the rights of parties. It only authorizes the Court of Appeals to decide upon them. If the legislation which is necessary for organizing the judiciary, defining its jurisdiction and confering upon it the necessary powers for the exercise of the judicial function, is not judicial, then this act is not judicial, unless its retrospective character makes it so. It is well settled that a law is not unconstitutional because it is retrospective in its terms. Sedgw. on Stat. and Const'l Law p. 192. The obligation of contracts does not include the remedy. Ib.
Sedgwick says: " There are a large number of cases in which it would be very injurious to assert that the Legislature is incompetent to pass laws having a retroactive effect. Such are laws declaring valid, acts of official persons irregularly elected, altering and amending judicial procedure, & c. In these and many other cases, it is difficult to avoid giving the act a retroactive effect. Every such effect must, or may, influence injuriously some individual case. But the interests of the community are paramount." Sedgw. p. 198.
But it is contended that it divests vested rights. If it is true, that an act which divests vested rights is unconstitutional necessarily, and void, no rights vested by the decrees in question, if they emanated from a tribunal which was not a court, either de jure or de facto. If this should be held to be the case, it is a conclusive answer to both objections; and there is no occasion to review the authorities which were cited, to show that it is a judicial act.
We will now consider the question, were those decrees pronounced by a then lawful court of Appeals of Virginia? Were the persons who pronounced them, then lawful judges, clothed with authority to pronounce them?
I purposely confine this enquiry to the time when those decrees were pronounced, which was subsequent to the 26th of January, 1870, when the acts of Congress, known as the reconstruction acts, had ceased to operate, by an express limitation contained in the acts themselves; when the provisional government was at an end, and all authority under it; and the constitutional government, which superseded it, had been inaugurated, and was then the existing lawful government of the State, and recognized as such by Congress and the Federal authorities.
If they had this power, whence did they derive it? Not from the provisional government, for that did not exist. Not from the commanding general, for he could not continue his own life. His authority was at an end, and their authority ceased with his. And so was it solemnly ruled by this court in the recent cases of Dyer v. Ellyson, and Bell v. Chahoon.
Judge Moncure, the president, in announcing the unanimous opinion of the court, uses this language: " 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 authority." They, then, derived no authority from this source. Whence did they derive it?
It is contended that the last clause of section 2 of the schedule to the constitution, continued them in office. If this be so, it is clear that their authority cannot be questioned. Let us examine and discover, if we can, what was the intention of the convention which ordained it.
In the construction of this schedule, it is our duty, fairly and faithfully, to carry out the intention of the Convention. It is a well-established maxim, that the object, and only object of judicial investigation in regard to doubtful provisions of statute law, is to ascertain the intention of the Legislature which framed the law. Sedgw. on St. and Const. Law 230-'31; 1 Kent Com. p. 468. With this as our guiding star, we will pursue our researches. The language of the clause is: " The several courts, except as herein otherwise provided, shall continue with the like power and jurisdiction, both in law and equity, as if this constitution had not been adopted, and until the organization of the judicial department of this constitution." Did the framers of the constitution, by that language, intend to continue the judges in office? Such would not be the literal interpretation of the language. " The several courts." Does that mean the several judges? If that was meant, it would have been more appropriate to have said, the judges, or all the judges, shall continue in office. But it does not say " in office." The language is, " shall continue with the like powers and jurisdiction, both in law and in equity." That language is more appropriate to courts than judges. If it meant judges, it would have continued them, not " with like powers," & c., but in office, until their successors were appointed and qualified. But this it does not do. It continues the courts with like powers, & c., " and until the organization of the judicial department under this constitution." As much as to say, notwithstanding the important changes that have been made by this constitution, in the judicial system, the same courts which are now in existence shall continue, with the powers and jurisdiction they now have, until the judicial system prescribed by this constitution shall be organized.
But if it meant that the judges should continue in office until the judicial department, under the constitution, was organized, there was likely to have been two sets of judges at the same time, for the same court both invested with authority, the military appointees, by section 2 of the schedule, and the constitutional judges, by section 22 of Article VI. of the constitution, which authorizes them to discharge the duties of their office from their first appointment and qualification. Now, it is obvious, upon the construction contended for, that if their appointment and qualification were prior to the organization of the judicial department, which might have been, there might be two sets of judges, at the same time, to fill the same offices.
But, if they did not use the term " courts" as synonymous with judges, did they mean to include judges in it? That the several courts, and judges thereof, shall continue? That would be very proper language, and it shows that there is a difference between the terms courts and judges--that they convey substantive and distinct ideas. But they did not say the courts and the judges thereof, which they should and would have said, I think, if they meant to have continued the judges in office. To construe the language as including the judges, would also be equally repugnant to the 22d section of Article VI. of the constitution.
But I think we cannot be at a loss to know what they did mean, by the language they have employed. It has an exact meaning. Substantially the same language is used in the constitution of 1830, and in the constitution of 1851, with the same meaning in both: and in neither of them was it understood or intended to continue the judges in office. The language in the constitution of 1830, last clause of article VII, Code of 1849, pp. 44-5, is: " 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." It is evident that this clause was not understood nor intended, by the eminent men who framed that constitution, to continue the judges in office, because they had previously, in article V, sec. 2, expressly provided that the judges should remain in office until the termination of the session of the first Legislature, elected under this constitution, and no longer. It is clear, then, that the framers of that constitution did not understand the clause, that continued the courts, as continuing the judges. The framers of the constitution of 1851 understood it as they did. Sec. 15 of the schedule, Code of 1860, page 58, has this clause: " 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 otherwise organized." This seems to be an exact copy of the clause contained in the constitution of 1830. Did the framers of the constitution of 1851 understand it as continuing the judges in office, or so intend it? They evidently did not; for, in a previous section, the 13th, they had already provided for continuing the judges, and they continued them in office until such time as the law may prescribe for the commencement of the official terms of the judges, under the amended constitution, and no longer. I think we have in these two constitutions, which were framed by the representative men of Virginia, in successive generations, the sense in which the language in the clause under consideration has been understood and accepted in Virginia; and that it was not understood to continue the judges in office. And I think that the framers of the present constitution must be understood to have used it in the same sense, and that they did not intend by it to continue the judges in office.
There is another inference to be drawn from the action of the conventions of 1830 and 1851, to wit: that, in their opinion, a change of the organic law vacated all the offices which were held under it; and that, without express provision for continuing the incumbents in office after the new constitution went into operation, they could not continue to exercise the functions of their respective offices. This is clearly inferrable, from their carefulness to insert provisions in the constitutions they were forming, or in the schedule, for continuing all officers in office until their successors were appointed under the new constitution. Code of 1849, p. 44, art. VII; Code of 1860, p. 58, sec. 14 of schedule. And the framers of the constitution of 1864 recognized the rule, by providing in section 4 of the schedule for continuing " All executive, judicial and other officers" then in office, after that constitution went into operation.
Now, can it be conceived that the framers of the present constitution, with the three preceding constitutions in their hands, if they intended and desired to continue the officers, would not have expressly provided for it in the constitution and schedule they were framing. I can come to no other conclusion than that they did not intend it, nor desire it.
And this conclusion is well supported by the historical fact, that, at the time the constitution was framed, the incumbents of the offices of the State were most obnoxious to the dominant power of the convention; and that the 4th clause of section 1 of article III, and the 3d and 7th sections thereof, which they had inserted, but which were rejected by those to whom they were submitted for rejection or approval, would have rendered almost every incumbent of office in the State ineligible to office under the constitution which they had prepared. They also provided, by the election ordinance, for the speedy inauguration of the new government, and for filling the offices with new men immediately on the adoption of the constitution, thus making it not only unnecessary, but incongruous, that they should retain the provisions of the preceding constitutions for continuing the incumbents in office. But it is unnecessary to continue the argument further. I am convinced that the clause in question did not continue in office the judges of the Court of Appeals, appointed by Gen. Canby, after their authority ceased as his appointees. I am of opinion, for the foregoing reasons, that the military appointees were not judges de jure when the decrees in question were pronounced.
But it is contended that they were officers de facto, and that as such their acts were valid and binding, so that even the sovereign power of the State could not avoid or invalidate them. I deny that the acts of those men, having no authority either from the State or the United States, are of such supreme and uncontrolable authority that they cannot be questioned or invalidated by the sovereign power of the State, no matter how greatly and flagrantly the rights of the citizen, in his person or property, might have been invaded by them, or the public interests sacrificed, because they were, by technical rules, officers de facto. The great principle of salus populi would justify the State to interpose, by its sovereign power, to prevent their enforcement.
But an attempt has been made to show (I think unsuccessfully), that the Legislature has given the assent of the State to this assumption of authority. The only mode by which the Legislature can speak, is by resolution or bill. It has spoken by the enabling act, in the very clause which is sought to be annulled. Is there any evidence to be found, in any part of its proceedings, that this assumption of the judicial function by Mr. Burnham and his associates was with the assent or the approbation of the Legislature. I think not. On the contrary, its journals show that from the first assembling and organization of the two bodies, their authority was questioned.
The assembly met on the 8th of February, and on the 10th, the House of Delegates instructed their committee for courts of justice to enquire whether Mr. Burnham and his associates, who were then exercising the functions of judges of the Court of Appeals, were lawfully exercising that function. This would seem to have been a sufficient intimation to those gentlemen to suspend their proceedings until the question as to their right could be enquired into. This does not look like acquiescence on the part of the Legislature.
But it is said that the committee recommended that Mr. Burnham's seat should at once be declared vacant on account of his ineligibility to office in Virginia under the constitution; which was done by the vote of both houses of the Legislature. And from this they draw the inference, that the committee and the Legislature acquiesced in the exercise of the judicial function. This argument might be plausible if the record did not show that the committee, when they reported the foregoing recommendation, as to Mr. Burnham, expressly reserved the privilege of reporting thereafter as to the authority of his associates to exercise the judicial function. And if it did not further show that, as the result of all these proceedings, the enabling act was passed, and became the law of the State. It passed the House on the 26th of February, the day the decrees in question were pronounced, and received the approval of the Governor on the 8th of March. We claim that this act, which is the final result and consummation of the proceeding instituted by the House only two days after the Legislature assembled, repels the idea of any acquiescence, by the Legislature, beyond the terms of the act itself. We claim that the assent of the sovereign power of the State was necessary to bind it, which could only be given by the legislative department; that the act in question is the only valid expression which has been given to the legislative will on that subject; and that only so far as the assent of the State has been given by that act, are the decrees in question binding. To hold otherwise, it seems to me, would be to wrest from the State one of its most important attributes of sovreignty, and would abrogate the 4th clause of article 1 of the constitution, which declares " that all power is vested in, and consequently derived from, the people, and that magistrates are their trustees and servants, and at all times amenable to them."
But I think, even upon the narrow view which has been taken of this great question of State sovereignty, it cannot be shown that Mr. Burnham and his associates were even technically officers de facto.
Upon what principle is it that the acts of de facto officers are binding? According to the old American idea, the right of government is founded in the consent of the governed. And the acts of the officers of government are binding, because they are the authorized agents of the people. From this it follows, that the only obligation of the people to submit to the authority of one man more than another, is, that he is the agent of the government or people.
Upon what ground, then, am I bound to recognize the authority of one who assumes to act officially, but who has no lawful authority from the people or their government? There must be some ground for it, other than that he has possession of the office; some ground upon which the de facto officer can be distinguished from the mere usurper. The only ground that I know of is, that he exercises the office under " a claim and color of title," by election or appointment--the only modes, where hereditary right does not exist, by which public offices can be conferred. It is not sufficient that he acts under a claim of right: for the usurper may do the same. There must also be color of right, by election or appointment.
In this view I find that I am well sustained by the books. Some authorities go farther, and require that he shall also have the reputation of being the officer he assumes to be--which implies that he is regarded and accepted by the public as a valid officer. In the case of Tucker v. Aikin & al., 7 N. Hamp. R. 113, 140, Judge Parker defines an officer de facto to be " one who, under color of an election or appointment, has the reputation of being the officer he assumes to be, but is not a good officer in point of law." This agrees with Chief Justice Ellenborough's definition, in Rex v. The Corporation of Bedford Level, 6 East. R. 356, except that he, living in a country where offices were acquired by hereditary right, does not restrict the claim and color of title to election or appointment.
The claim of title may not be valid, but that cannot be known until it is ascertained in the mode prescribed by law. And as he is in possession, under a claim and color of title, by election or appointment, accepted by the public as valid, it is the duty of all to recognize his official character, and to submit to his authority until it is legally determined that he is not a lawful officer. And this the good order of society, and security to person and property, require. Blackwell, in his work on Tax Titles (p. 92), speaking of an officer de facto, says: " He is one who exercises the duties of an office under claim and color of right, being distinguished, on the one hand, from a mere usurper, and on the other, from an officer de jure. The mere claim to be a public officer, or the performance of a single, or even a number of acts, in that character, will not constitute an officer de facto. There must be some color of a claim, under an election or appointment, or an exercise of official functions, and an acquiescence, on the part of the public, for a length of time, which would afford a strong presumption of a colorable right." That is of an election or appointment. All the books, so far as I have had opportunity to examine them, agree in this, that the " claim and color of title" must be predicated of an election or appointment. The King v. Lisle, Andrews R. 172. Now, what are we to understand by " claim and color of title?" Cases involving questions of adverse possession of land, " which is nothing more nor less than a possession under a claim and color of title," may throw light upon it. Blackwell on Tax Titles (p. 566), says, " to repel the presumption of holding under, or in privity with the title of the true owner, it is essentially necessary that the tenant of the freehold should show a possession under a claim and color of title--under an apparent right." Again, on next page, " anything which clearly defines the extent of the claim which professes to pass the land, and is not obviously defective, will constitute the basis of an adverse possession." In Moore v. Brown, 11 How. U. S. R. 414, one of the grounds upon which it was held that the defendant was not entitled to the benefit of the limitation law was, that the deed under which he claimed to have held the adverse possession was void upon its face. It was a deed for a tax title, and recited a sale of the land on December 9th, 1823; when, under the law, it could not have been made before December 15th. Judge Wayne, delivering the opinion of a majority of the court, said: " Being a void deed, possession under it cannot be said to be under color of title."
In the case of Irving v. Brownell, 11 Illi. R. 402, the court goes still farther. It is held that, by the words " claim and color of title, made in good faith" (which are the words of the statute,) " must be understood such a title as, tested by itself, would appear to be good. Not a paramount title, capable of resisting all others, but such a one as would authorize the recovery of the land when unattacked; as if no better title was shown--that is, a prima facie title." Let us apply these principles.
We have seen that these gentlemen, when they undertook to decide these causes as judges of the Court of Appeals of Virginia, were not invested with the office by the constitution or schedule, and their office, under the military government, had expired. Could they claim, by color of title, under either? Could they have maintained their right under the constitution or schedule, if no better title was shown? Would their title, as tested by itself, appear to be good? Does the second section, continuing the courts, give them a prima facie, or apparent right or title, to the office? I think not. Those questions have already been fully answered. I think any claim which may be set up for them under section 2 of the schedule, is " obviously defective." The " deed is void upon its face, and possession under it cannot be said to be under color of title." Indeed, if it is not void upon its face, to support a claim and color of title, it would be good to vest perfect title in them upon a quo warranto, because the said section presents the whole case. This conclusion, I think, will be confirmed by the further examination of the subject.
Had they a color of right under the appointment by Gen'l Canby? We have seen that by the very terms of the reconstruction acts, the authority of General Canby, and of all his subordinates, ceased the instant that the State was admitted under the new constitution. If they performed any official acts after the act of Congress admitting the representatives of the State was passed and became a law, they could only have been valid if performed before they had notice of that act. By authority of the case of Dyer v. Ellyson and Bell v. Chahoon, before quoted, 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 ceased also. " It would be strange (said judge Moncure, speaking for the whole court) if, after the principal ceased to have any authority, his subordinate agents should continue to have authority." I regard that decision of the highest authority to us. But if it were not, having united in the opinion ex animo, and seeing no error in it, I shall now adhere to it. They were military appointments and designed only to be temporary: To continue only while the military held the sword over the civil power of the State. When the military supremacy over the civil terminated, as it was to terminate by the express terms of the warrant which called it into existence, the offices of these judges terminated necessarily, by the inherent principle of its tenure, and the terms of its creation. How, then, can it be held that their appointment could give them claim and color of title to the office after their term had expired, and the power which had breathed into them the breath of official life had itself expired? When the original induction into office is rightful, but the office has terminated, as the termination of the office of deputy, by the death of his principal, he is not a de facto officer, if he holds over. Rex v. The Corporation of Bedford Level, 6 East. R. 356. These military appointees were, to every intent and purpose, as effectually functi officio, after the expiration of the military power which had given them official life and being, as a deputy officer is by the death of his principal. Neither can reä ppoint or revive the office. The incapacity in the one case is as absolute as in the other.
I think the practice in England has been to ratify the acts performed by illegal officers, where public necessity required it, by acts of Parliament operating retrospectively. Hence the healing acts of Parliament. As an instance of such legislation, I will mention the act of Parliament, after the restoration, ratifying and making valid all marriages solemnized during the Protectorate of Cromwell, which, by the laws of England, were illegal and void. 1 Bl. Com. pp. 439-40. The convention or assembly which restored Charles II. was not lawfully constituted, yet it sat for seven months, and legislated for the kingdom, and its acts were ratified and made valid by a subsequent Parliament. The act of ratification doubtless gave legality, quiet and security to all rights and titles, and to all the various interests and relations, in all the ramifications of society, which were affected by the legislation of the previous illegal Parliament. Doubtless that Parliament provided for filling most or all of the public offices of the kingdom, and the appointees had been invested, and had performed various official acts, executive, judicial and ministerial, by virtue of those acts of an unlawfully convened Parliament, before the acts of ratification of 13 Car. II. ch. 7 and ch. 14, by which, operating retrospectively, they were all made valid. 1 Bl. Com. p. 151. No one seemed to have taken ground that the acts of the first Parliament, and of the officers who derived their authority mediately or immediately from it, could be sustained, because they were de facto. The concurrent opinion seemed to be that an act of ratification was necessary. After the revolution of 1688, the settlement of the government was made by an unlawfully-constituted assembly. But its acts were afterwards ratified and confirmed by a lawful Parliament, and have ever since been regarded as valid. 1 Bl. Com. p. 152. In neither of these memorable epochs in the history of Great Britain did the nation rely upon the authority of de facto officers for security to the government and people.
In our own State, as we have seen, when a change in the organic law was made, though made without any change of the body politic, and made peacefully, according to the forms of law, the invariable practice has been to insert a clause in the constitution, or schedule, expressly continuing the officers of the old government, under the new, until their successors were appointed by the new government. As to what has been the practice of the other American States, I am not informed.
But, whether there is any uniform or established rule on this subject, when a change of government is made, without any change of the State or body politic, and the officers of the old and the new governments are the official agents of the same body politic, or whatever that rule should be in such case, I think the case before us differs materially and radically from any that existed in the changes of government referred to. This was not simply a change of the organic law, or government of the body politic, in which the officers under the old, and the officers under the new, are the official agents or trustees of the same State or body politic. But it is the deliverance of the State from a government which was no part of the State or of the body politic: a government which was not Virginian, but which was outside of Virginia: a government which had been put over us, not by the body politic, but forced upon us by bayonets, by an outside power, and which was withdrawn when our civil government--the government of the body politic--was restored.
Now, if it were true that, when a State changes its government--its organic law--the officers under the former government have a right to continue in office under the new until their successors are appointed, there are reasons for it which do not apply in this case. It may be said that whilst the government has been changed, the body is the same; and that the officers of the government which has been abrogated are the official agents of the same body politic which has adopted the new government, and therefore may be regarded as officers de facto. This principle is recognized, and in fact asserted, by our bill of rights, which is now a part of the constitution, and as such binding upon us, in the declaration " that all power is vested in the people (that is, the body politic), and that magistrates are their trustees and servants, and amenable to them." Constitution of Virginia, Art. I., clause 2. Can it be said that the military appointees were the agents or servants of the people of Virginia, and amenable to them? To the contrary, they were the agents or servants of the military power which appointed them to office, and amenable only to it; a power which was independent of us and had no sympathy with us, and which, in its constitution and nature, was adverse to civil government. To say that Mr. Burnham and his associates continued in the judicial office, under the civil government of the State, by virtue of their military appointment, or by color of their military appointment (which amounts to the same), is to extend the operation of the reconstruction acts beyond their own express limitation; for they expressly declare that they shall be inoperative after the representatives of the State are admitted to congress. If even I should feel obliged to recognize those acts of congress as binding, I would not supplement them, if I had the right to do so as a legislator, to continue the military government a day or an hour after the civil government was restored. Especially would I not do so by judicial construction. If they claimed to continue in the judicial office, under the restored civil government, under color of their military appointments, they claim under a deed " which is void upon its face, " and are not, therefore, de facto officers. I conclude, therefore, that the military appointments could not give these gentlemen a claim and color of title to continue in the judicial office, under the restored civil government, and that, therefore, they were not de facto officers. To this conclusion my mind is brought irrefragibly.
Neither the Cæ sar Griffin case, nor the case of John C. Woodson v. The Mayor and Council of Harrisonburg, is in conflict with a single position I have taken. In the former case, Cæ sar Griffin had been tried, convicted, and sentenced to the penitentiary, by a court over which Judge Sheffey presided. An application to the Circuit court of the United States was made to release him, upon the ground that Judge Sheffey, at the time of the trial, was disqualified to hold the office by the 14th amendment. It was shown that Sheffey had been elected to the office by the Legislature of the restored government of Virginia, which had been recognized as the lawful government of Virginia, both by congress and the President; that he had held the office, and discharged the duties of the office, for two years or more; and that he never had been removed from the office. And Chief Justice Chase held that he must be regarded as an officer de facto until he was removed; and that, as such, his acts were valid. In my opinion, he was clearly an officer de facto, if not de jure, until ousted. And the reasoning of the Chief Justice is very conclusive. He was an official agent of the body politic, which Mr. Burnham and his associates were not; and he was in by regular election, by competent authority, for a term which had not expired, and, in the opinion of the Chief Justice, he was not ousted by the constitutional amendment until removed by proceedings, which were necessary to carry it into effect. I think there is no analogy between Judge Sheffey's case and that of Mr. Burnham and his associates.
The other case was a suit by Woodson v. the mayor and some of the councilmen, and sergeant of Harrisonburg, in the Circuit court of Rockingham, and by an order of that court was removed to the Federal court. The question was, in that case, was it one of that class of cases which could be removed, under the act of congress, from the State to the Federal court? The Chief Justice decided that it was not, and remanded it to the State court. In the course of his opinion he says: " When that government (the government of Virginia, which he calls insurgent,) was dispersed by the superior force of the United States, the civil authorities did not necessarily cease at once to exist. They continued in being de facto, charged with the duty of maintaining order, until superseded by the regular government." I think the Chief Justice was well warranted in giving to these officers the character of de facto officers. I do not think that he would have erred if he had characterized them as officers de jure. They had been regularly inducted into office, and their terms were unexpired; and the United States recognized them as such, though claiming the right to remove them. A little lower down the Chief Justice says, " the government of the United States was not bound to recognize any authority which originated under the rebel government. But it was not superseded. On the contrary, an order was issued, addressed to the citizens of Harrisonburg, Va., June 16th, 1865, by which the citizens were notified that the mayor and council of the corporation last in office, upon the resumption of their duties, will be sustained in all their acts, consistent with existing laws and proclamations of the government." And the Chief Justice might have shown that, at a later date, the status of the public officers of the State was recognized by the government of the United States. The act of March 2d, 1867, section 3--the first of the series of the reconstruction acts--and the act of July 19th following, section 2--the third of that series--recognize the official character of our State officers, and consents to their continuing to discharge the duties of their offices, but subject to the authority of the military commander to remove them. At a later day they were all removed. A clean sweep was made; and in many counties important offices were made vacant and not filled. But until they were removed, they were in by their first appointment, and, in my opinion, were not merely officers de facto, but were lawful officers, though it was in the power of the military to remove them at any moment. They were characterized by Chief Justice Chase as officers de facto, and I am free to admit that, if Mr. Burnham and his associates had any such foundation for their claim to the office which they assumed, it would be conceded. But I think I have shown they had not.
The desolation and ruin to public and private interests which have been so graphically portrayed in argument; the uprooting of society from its foundations, and " the reign of anarchy supreme," by the failure of the military judges, clerks, sheriffs, superintendent of the penitentiary, and other officers to continue in office, may be true if those offices could not have been filled by others. But I do not admit that there was not power in the executive to have provided for any such emergency. And I feel sure that he would have provided for the public safety, and for the protection of the citizen, in his person and property, until the Legislature could have assembled. But admitting that there was a public necessity for any of these military appointees to continue to discharge the duties of the office, that would not make him an officer de facto. Public necessity may be and is a reason why validity should be given to the necessary acts of de facto officers. But necessity cannot make one a de facto officer who is not. There must be a claim and color of title by election or appointment; which implies by some body authorized, or presumed at least, to be authorized, to elect or appoint.
Nor can the holding that they would be de facto officers, meet the necessity; because they were not bound to serve as de facto officers. They could not have been compelled to serve. Suppose that they had refused to be de facto officers, the holding that they would be de facto officers if they served, would not remedy the evil. But since they have acted, the public necessity which required it, though it cannot make them officers de facto, strongly appealed to the legislative power of the State to pass a retrospective act ratifying, as far as was proper, what they had done.
The Legislature has responded to this necessity, by passing what is called the Enabling act, by which it has ratified their acts, as far as in its wisdom it deemed it proper to do, with a just regard to the protection of private right. And, properly regarding the holding over of the military appointees, as being generally prompted by a feeling of public necessity, commendable in itself, it authorizes them to receive the fees of the office conferred by law, which otherwise they could not have received, even if they had been officers de facto. By holding that they are not officers de facto, no injury is done to the public interest, or to anybody: but a power of discrimination is given to the Legislature, when they pass upon their acts, to prevent wrong, and to protect the right. That power they have not abused. But, regarding the act which they have passed to this end as eminently wise and beneficent in its operation, I think we ought to sustain it, unless it is palpably unconstitutional.
On the other hand, if we undertake to disregard this act of the supreme legislative power of the State, we deny to our citizens the right to be heard, who complain that they have been grievously wronged by the decisions of self-appointed judges, who had no warrant or authority from the State, or the United States, to exercise the judicial function, but who presumed to do so, against their protestations, and, by decisions which the law gave them no authority to make, have divested them of valuable rights of property. We forever close against them the door of relief, and compel them to submit to this wrong. The consequences of our decision may be much wider and farther reaching. We forever deny to the Legislature a power which, in the progress of events, may be essential to personal security and public liberty. I cannot regard a case unimportant which involves such consequences as these. But this court has the undoubted right to declare an act of the Legislature unconstitutional, and, must do so, when it is plainly contrary to the constitution, so that both cannot stand together. But it is a delicate power, and should never be exercised in a doubtful case. And so has it been repeatedly held by the courts.
But one other point remains to be considered.
If the Legislature could have been convened in time, it would have been competent (by authority of the cases recently decided by this court above referred to,) to have filled all these offices temporarily, until they could be filled in the mode prescribed by the constitution. And it might, I apprehend, have authorized them to be filled by the military appointees, whose authority had expired, if it had chosen to do so. But the Legislature could not be convened in time for this purpose. And there was a necessity that many offices should be performed. The good order and safety of society required it.
In this I cannot include the offices performed by the gentlemen who assumed to be judges of the Court of Appeals; for, it has been disclosed in the argument of this motion, that, in one of these cases at least, there was a formal protest made to their assuming jurisdiction or authority to try it; and, furthermore, that, before these causes were heard and determined, the authority which clothed them with the judicial ermine had virtually disrobed them, by plainly intimating that their authority had expired.
But there were other offices which could not be dispensed with, as we have seen, even for the short period which elapsed between the expiration of the military provisional government and the date of the Enabling act, which offices were performed by the military appointees. Now, it seems to me, that if it were competent for the Legislature to have given authority to perform the acts before they were done, it would have power to ratify them after they were done. In the case of Thompson v. Lee County, 3 Wall. U. S. R. 327, it was held by the Supreme court, that if the Legislature possessed the power to authorize the act to be done, it could by a retrospective act cure the evils which existed, because the powers thus conferred had been irregularly executed. And subsequently, in the case of Beloit v. Morgan, 7 Id. 619; (see, also, Sedgw. on Stat. and Const. Law 192, 198,) the same court held that ratification by the Legislature, in the case of bonds issued by a corporation, is in all respects equivalent to original authority, and cures all defects of power, if such defects existed, and all irregularities in its execution. See, also, Sedgw. before cited.
I have cited instances where this power has been exercised by the British Parliament. Other instances might be mentioned; but these are sufficient.
It is true that Parliament is invested with powers which do not belong to the General Assembly of Virginia; but, whilst that is true, it does not, I think, impair the force of the illustration: for it is assumed that the Legislature was fully invested with power to have authorized the acts to be done, and, not having done so, the question is, can an after act of ratification make them valid? If ratification by Parliament gives validity, it seems to me that the same is true as to an act of ratification by the Virginia Legislature; because, in both cases, it depends upon the power of either assembly to have first authorized the act, and not upon the extraordinary powers of Parliament which a State Legislature has not. Parliament has no more power to pass a retroactive law than the Legislature of Virginia has, though it has many other powers which the Legislature has not.
But, if it was competent for the Legislature to ratify the acts which had not been previously authorized, and make them valid, by a retroactive law, which I am strongly inclined to believe, though not necessary to be decided in this case, it cannot help the appellees, inasmuch as the decrees in question have not been ratified by the act of the Legislature. The act in question, in effect, only allows them to stand, provided neither party applies to this court, within a limited time, and upon the notice prescribed, to review them; and upon such application they are reversed. The Enabling act does not make valid the decrees in these causes; and, consequently, the question as to the power of the Legislature to ratify them is not involved.
From the best reflection I have been able to give to this motion, and for the reasons given, I am of opinion that it is competent for this court to review the decrees in question, and that, therefore, the appellees' objection ought to be overruled.
STAPLES, J.
I fully concur in the opinion of my brother Christian. It would be an unprofitable consumption of time for me to attempt a repetition of his admirable and exhaustive argument. I shall content myself with presenting some views merely supplementary to what has been so well said by him.
It has been my earnest wish to affirm the constitutionality of the act now under consideration; to find some way, if possible, consistent with sound and well established principles of constitutional law, by which the decisions of the Court of Appeals mentioned in that act might be reviewed by this court; not because I have any reason to find fault with those decisions, or to distrust the judges who rendered them; but it seemed to me to be due to all parties concerned, they should have an opportunity of bringing their cases before a court of the last resort, constituted and appointed according to the forms and requirements of the constitution of Virginia. Although the right and the duty of the judiciary to expound legislative enactments and to apply to them constitutional restrictions cannot now be questioned, all concede that the task is a delicate one; and only to be performed upon the clearest and most convincing grounds.
The consequence of declaring this act unconstitutional may be serious injury to the rights of suitors in two causes before this court. That is the extent of the evil suggested. The effect, however, of a contrary decision will be felt in all classes of society, in unsettling the right of a vast number of persons, and in producing endless litigation and confusion throughout the State.
If we are to hold that the military appointees of the federal government occupying this bench after the admission of Virginia into the Union, were neither judges de jure nor de facto, but mere usurpers without color of right or title, we must so hold with regard to the incumbents of the Circuit and County courts, and indeed, every other person performing the duties of a public office in the State subsequent to the period mentioned.
Where there is a plain usurpation of an office without any show of title, the acts of the intruder will be undoubtedly void, both in relation to individuals and the public. We must therefore pronounce every decree of judges so appointed for the sale of property, null and void; every judgment for the recovery of money, a nullity; every sale made by a sheriff, a trespass; every relinquishment of dower ineffectual; and the imprisonment of every criminal by the sentence of such courts, an illegal confinement. It is undoubtedly true, that this court, in expounding the constitution and laws, cannot yield to the consideration of expediency nor look to the consequences which may flow from its decisions. But it is equally true, as was said by judge Chase, in ex parte Griffin, in the examination of questions of this sort, great attention is properly paid to the argument from inconvenience. A construction which must necessarily occasion great public and private mischief, must never be preferred to a construction which will occasion neither in so great a degree, unless the terms of the instrument absolutely require such preference."
It is insisted, however, that the Legislature has removed the difficulties apprehended, by passing that clause of the Enabling Act which ratifies and confirms the proceedings of all the courts, after the admission of the State, with the single exception of the Court of Appeals.
But if the incumbents of the various judicial offices throughout the State were mere intruders, without color of title, can the Legislature, by subsequent enactment, make them judicial officers? Can it confer authority over persons and things where none existed under the laws then in force? Can it impart to the unauthorized act of a mere private person the force and sanction of a judicial sentence or decree? If an individual, without color of right, should undertake to hold a court, empanel a jury, put upon his trial a citizen, and condemn and execute him, such an act would be murder; and no legislative authority, in this or any other country, could be justly invoked to clothe the proceeding with the sanctity of a judicial decision. The Legislature may prescribe rules for the exercise of judicial power. It may dispense with formalities which do not constitute a part of the jurisdiction of the court even after the proceedings have been taken; but it cannot, by retrospective laws, make valid proceedings had in court, which were originally void for the want of jurisdiction over the parties.
If the judgments and decrees of these military tribunals derive their validity from the Enabling Act alone, they are binding on the parties, not because they are judicial sentences, but because they are legislative sentences, under the form and semblance of legislative enactments. The parties hold, not under the decree, but under the statute. If one Legislature may affirm, another may disaffirm. The next Legislature elected under different auspices, animated by wholly different views of public policy, may repeal the Enabling Act, and reopen controversies which the best interests of society require should be considered forever settled. It is impossible to escape these conclusions and these results, when once we establish the proposition that the military appointees in question were mere usurpers--without color of right--and that their official acts have no validity other than that imparted to them by statute.
Statutes of the British Parliament have been cited and relied on. The British Parliament is omnipotent in the scale of political and judicial existence, and can mould the constitution at pleasure. " The power and jurisdiction of Parliament (says Sir Edward Coke) is so transcendent and absolute that it cannot be confined, either for persons or causes, within any bounds." But in this State the Legislature is restrained by a written constitution, with clear and well-defined boundaries, separating the coö rdinate departments, and fixing their respective powers and jurisdictions. I am satisfied, however, that British history does not furnish an instance in which the Parliament has attempted an act of the kind, or, if attempted, in which it has been sustained by the courts.
It is clear, upon authority and reason, that the military appointees of the Federal government, discharging judicial functions in this State after its admission, were neither judges de jure nor mere intruders; but that they were judges de facto; and their acts and decisions, as such, are as valid and binding upon third persons, and upon the parties, as if made by courts of constitutional authority. These decisions may not be considered authoritative as judicial precedents, but they settle and finally adjudicate the matters in controversy between the parties. Under them vested rights have been acquired; they cannot be impeached in any other court upon grounds that will not equally apply to the decrees and judgments of judges de jure; and for all the ordinary purposes of society these appointees are to be regarded, while in the discharge of their respective functions, as rightful and constitutional officers. The authorities in support of this proposition are abundant and decisive. It is unnecessary for me to cite them; that has been fully done by Judge Christian.
If, immediately upon the admission of the State, the Legislature had passed an act or resolution declaring a vacancy in the offices of the judges of the Supreme court, or that the decisions they might make should not be respected and obeyed; or, indeed, if, before the final adjournment of the court, it had authorized this court to rehear any case decided during that term, such an enactment would not, in my opinion, be obnoxious to any constitutional objections. But it happens that, although the court was in session when the State was admitted, and continued in session during the month of February, it does not appear that any action was had on the subject until the 14th February, when a resolution was introduced into the House of Delegates by Mr. Marshall, instructing the Committee for Courts of Justice to ascertain and report by what tenure the then incumbents of the State held their offices. Three days thereafter, the committee, construing the resolution as referring to the judges of the Supreme court alone, reported that they had had the matter under consideration; that, in their opinion, the Hon. H. B. Burnham, one of the judges of said court, was not lawfully exercising the functions of a judge of the Court of Appeals, but was disqualified, if for no other reason, by holding a military office under the Federal government; that they deemed it inexpedient to express any opinion as to whether or not judges Willoughby and Dorman are lawfully exercising the functions of judges of the Court of Appeals, reserving the right to respond further at some future time, if deemed proper, to so much of the resolution of enquiry as refers to judges Willoughby and Dorman. And the committee recommended the adoption of a resolution declaring the office of H. B. Burnham vacant. Whether this resolution was adopted does not distinctly appear: it is probable it was not, as judge Burnham immediately thereafter retired from the bench. It does appear, however, that the committee never made any other report, and that neither branch of the Legislature took any further action in regard to judges Willoughby and Dorman; and these gentlemen continued in the discharge of their judicial duties until the close of the term, which occurred on the 25th day of February, 1870. It will thus be seen that the Legislature, though fully apprized that these military appointees were holding over and claiming rightfully to act as judges of the Supreme court, declined to take any action, except as to one of them, or even to intimate an opinion that the others were illegally and improperly assuming the functions of Virginia judges. A stronger tacit permission to the two remaining judges, to continue in the exercise of their judicial functions, could not be given by the General Assembly of Virginia. It was so understood by the judges themselves, by parties having cases before the court, and by the public generally. This was true, not merely with reference to the judges of the Supreme court, but with reference to all the military appointees throughout the State. The salus populi, the peace and good order of society, the protection of public and private interests, required their continuance in office until proper successors could be legally appointed or elected and qualified. The public voice generally approved the policy, and in most of the counties, judges and justices held their respective courts, rendered decrees and judgments, ordered sales of property, issued executions, convicted and imprisoned offenders, and did all such acts and exercised such functions as rightful courts may perform. Every consideration of a sound and enlightened public policy requires that we should attach to the acts and judicial decisions of these officers, the faith and verity due to all courts of record, until reviewed and reversed in the mode prescribed by the general laws applying to such cases.
The same rules and principles of construction must apply to the judges of the Supreme Court of Appeals. That court, having adjourned without action by the Legislature, and there being no general laws prescribed for rehearing or renewing the decrees and judgments of such court after the term is ended, the parties interested in them acquired thereby vested rights, of which they cannot be divested by special enactments of a retrospective character. That it is not constitutionally competent for the legislative department, by retroactive laws, to authorize courts to rehear adjudicated cases, is well settled by numerous decisions. To use the language of an eminent writer, " If the Legislature cannot indirectly control the acts of the courts by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry." Cooley's Constitutional Limitations, p. 95.
In this State there are limitations upon the powers of the Legislature, in addition to those contained in positive restrictive clauses of the constitution. These limitations result from the division of powers among the several departments--legislative, executive and judicial. It was never intended that either should perform an act within the constitutional province of the other. As the judiciary cannot legislate, so neither can the legislative department do any act of a judicial nature. Such an act is as clearly a violation of the spirit of the constitution as though that instrument had declared, in express terms, that the legislature shall not, in any case, exercise judicial powers. And so it is well settled, that a statute empowering a court to review the decisions of another court, in cases not provided for by the general laws on the subject, is legislation of a judicial character, and directly infringes upon the peculiar and appropriate functions of the judiciary. The reason is obvious. A judicial act is a determination of the existing law in regard to something already done. A legislative act is a rule presented for the regulation of future controversies controlled by its provisions. It has been decided, in numerous cases, that a statute granting or authorizing courts to grant a new trial, is in the nature of a judicial sentence or decree, retrospective in its operation, taking away vested rights, and therefore null and void. And so an act granting a right of appeal where it had been lost by lapse of time, is, for the same reason, unconstitutional and void.
In Burch v. Newberry, 10 N.York R. 374, the Court of Appeals, in discussing a statute of the kind says, " Thus situated, the Legislature interfered, not to prescribe a rule for all future cases, but to provide a new remedy for the benefit of a class of persons to obtain a rehearing by appeal, in suits in which decrees had been made and become final against them, where the right to a rehearing at the time not only existed, but had been previously and intentionally abandoned, and thereby not only to impose upon the party in whose favor the decree was made, the expense and inconvenience of another hearing, but to subject all his rights and claims in the matters in controversy, which had been determined and become vested and absolutely fixed by the law then in force, to the uncertainty of future litigation, to be lost or saved, as accident and opinion might afterwards happen to injure or befriend him. Chancellor Kent, in 1 Kent Com. page 455, declares that a retrospective statute affecting and changing vested rights, is very generally considered in this country as founded on unconstitutional principles, and consequently inoperative and void." It is useless to multiply authorities upon this point. They are well known to the profession and to the courts, and almost universally recognized and approved in every country under the direction and control of an enlightened jurisprudence.
The principles settled by all the cases, apply with as much reason to the decisions of de facto judges, as to judges holding by unquestioned title under legal and valid appointments. The reasons apply as strongly in the one case as in the other. There can be, in the nature of things, no substantial distinction. In either case the statute is retroactive in its operation; and takes away vested rights; and vacates decrees and judgments which, but for such enactment, could never be impeached. In the examination of decrees and judgments of courts, where the tribunal has jurisdiction over the parties and the subject matter, no enquiry into the title of the judge is ever permitted, further than to ascertain that he is not a mere intruder, but acting under color of a legal appointment. That being ascertained, the validity of the decree or judgment in question is vested and settled by the rules and principles applicable to the sentences of any other judicial tribunal. In Blackwell on Tax Titles, it is said that neither the title of an officer de facto, nor the validity of his acts as such, can be indirectly called in question in a proceeding in which he is not a party. The effect of this rule is to render the acts of an officer de facto as valid and effectual as though he was an officer de jure. The interests of the community imperatively require the adoption of such a rule." The only appropriate mode of testing his title is by an information in the nature of a writ of quo warrauto, in which, after notice and an impartial hearing, he will be ousted from the office, if it turn out that he has been exercising official functions without the warrant of law. Until then he holds the office by the sufferance of the State; and the silence of the government is construed by the courts as a ratification of his acts; which is equivalent to a precedent authority." At the time of the enactment of the proviso now under consideration, the court having adjourned and the term ended, the parties in whose favor the decisions were rendered had obtained decrees or judgments which were final in their character--a complete adjudication of the matters in controversy. Their title to the property or money adjudged them was indefeasible, and could not be impeached by any laws then in force. The effect of the proviso is to vacate those decrees or judgments; to reopen them for a reconsideration and adjudication, upon the merits, by this court; and " to subject all their rights and claims in the matters in controversy to the uncertainty of future litigation, to be lost or saved as accident and opinion might afterwards happen to injure or befriend them."
Whatever may be said of the decisions sought to be reviewed, it is far better they should be considered and treated as final adjudications of the matters in controversy, than that they should be opened by the exercise of doubtful, if not dangerous powers. It is better for us all; better for the repose of society, the protection of property and the happiness of the people, that all the vast and varied controversies growing out of the bloody struggle in which we were involved, shall be adjusted as speedily as possible, and pass forever from the arena of political and judicial discussion.
MONCURE, P.
I concur in the result of the opinion of Judge Anderson, and in most, if not all, of the views presented by him; but as other judges have delivered opinions in these cases differing from that of Judge Anderson, it may be proper for me to say something more in explanation of my views of the question involved.
I concur in most of the principles laid down in the opinions of Judges Christian and Staples, which are no doubt fully sustained by the many authorities they have adduced in support of them. I differ from them, only or mainly, in the application they have made of those principles to these cases.
The question in these cases is, not as to the effect of an official act of a judge or other officer de facto in the course of a peaceful administration of a government de jure; or of a judge or other officer, de jure or de facto, in the course of administration of a government de facto --such officer claiming authority to act under color of an appointment by such government. In such a case there may be, and I think are, good reasons for giving to the official act of such a person, so far as the public is concerned, all the effect of an official act of an officer de jure of a government de jure.
But the question here is, as to the effect of an official act of a judge or other officer appointed by the military commander of Virginia, while the State was under the military power of congress, such act being done after such military power had ceased to exist, and after the new constitution had taken full effect, but before the government was fully organized under the constitution--that is, before there was in existence any agency of the new government authorized to perform such act.
Had the Legislature, convened to organize the government under the new constitution, the right to say what should be the legal effect of such an act of such an officer under such circumstances, and therefore to say that the judgments of the acting Supreme Court of Appeals, during the period aforesaid, should be so far subject to the supervision and control of the Supreme Court of Appeals organized under the new constitution, as that the latter may grant a rehearing of any of the cases in which such judgments were rendered, provided application should be made therefor within six months after the organization of the said court, and upon twenty days' notice to the adverse party? In other words: Is that part of the Enabling Act which provides for that object constitutional or not?
That so much of the act as declares all such acts of such officers valid and binding, with that exception, is not only constitutional, but wise and proper, is admitted on all hands. To that extent, all admit that it is a wholesome and a healing act.
That so much, also, of that act as provides other agents than those officers to perform, in future, the duties of office until agents could be elected or appointed under the constitution to do so, is constitutional, was decided by this court in the late cases of Dyer v. Ellyson, and Bell v. Chahoon, and is, therefore, res adjudicata.
And it only remains to enquire, Whether so much of that act as contains the exception aforesaid is constitutional?
It is argued that that portion of the act is unconstitutional, because the judges whose judgments are sought to be reheard were, when they rendered them, at least de facto judges; that the judgments of a de facto judge, like the acts of any other de facto officer, are as valid and binding as the judgments or acts of a judge or other officer de jure; that, to grant a new trial of a case in which a judgment has been rendered, is a judicial act, which the Legislature has no constitutional power to perform; and that, therefore, the Legislature had no constitutional power to authorize the Supreme Court of Appeals, as now organized, to grant a new trial of a case decided by the Military Court of Appeals after the new constitution took effect, and before the present court was organized.
A great deal has been said--and very forcibly and justly said--about the convenience and necessity of there being always some person to perform the duties of every office necessary to the due administration of the government; and therefore, it is argued, that it was the duty of the incumbents in office, when the new constitution took effect, to continue to perform the duties of their offices until other persons were duly appointed and qualified to take their places.
I admit that it was proper for these incumbents to continue to perform all such duties of office as the public good required to be performed before the appointment and induction of officers under the new constitution; and that it was the duty of the Legislature to confirm their acts if they required confirmation, as was done by the Enabling Act.
But had not the Legislature constitutional power, according to their discretion, to confirm or to disaffirm those acts, or to confirm them sub modo only?
I think they had; whether these officers be regarded as de jure or de facto officers, or as mere usurpers; which I think is perfectly immaterial; unless they were constitutional officers--a question which I will presently notice.
The Legislature, with the exception aforesaid, confirmed those acts, and nobody doubts the propriety of such confirmation.
A power to confirm, seems to involve, necessarily, a power to disaffirm; or to confirm sub modo only.
So far as the question involved in these cases is concerned, there was a confirmation sub modo. That is, the judgments of these military appointees, rendered after the cessation of the power which appointed them, were confirmed; subject only to a power, given to the Supreme Court of Appeals organized under the new constitution, to grant a rehearing by that court, on motion or petition made upon twenty days' notice to the adverse party, and within six months after the organization of said court.
Is not this part of the act constitutional? is the only question we now have to decide.
Whether it be wise or not, whether it would not have been better to have confirmed, unconditionally, all the judgments aforesaid, is not the question we have before us. We may well conceive the motive which induced the Legislature to confirm these judgments as they did, subject to a restricted right of rehearing, as aforesaid. So limited was the sphere of selection of persons to fill the civil offices under the military government, especially during the latter period of its existence, that it was impossible to find persons competent in all cases for that purpose. And the consequence was, that in many cases, probably without the fault of the military commander, civil offices were filled with incumbents wholly unfit and unworthy to fill them. This inconvenience and mischief was seriously felt, especially in regard to judicial offices, which ought to be filled, if possible, with men of the greatest learning and virtue. That some unfit appointments to these offices should have been made, under the circumstances before stated, was naturally to have been expected, and was no doubt unavoidable. Among the offices filled by appointments of the military commander, were the offices of the three judges of which the Supreme Court of Appeals then consisted. The three judges, thus appointed, entered upon the performance of their offices, and continued to perform them after the military government ceased to exist, down to the period of the organization of the court under the new constitution, except that, at the July term of the court preceding such organization, the court declined further to act, in view of the fact that the new constitution had been adopted by the voters, and was expected soon to be approved by Congress and put into operation, when there would be a Supreme Court of Appeals organized under it; and except, also, that the office of the president of the court was declared by the Legislature to be vacant, in consequence of the fact that the late incumbent of the office, under military appointment, at the same time held an office under the government of the United States. Why this court, after having declined in July further to act as such, because it was probable that the new constitution would soon be approved by Congress and put into operation, yet consented to act, and did act, six months thereafter, when the new constitution had been so approved and was in operation, and even after the Legislature had been convened, and was actually in session, engaged in organizing the government under that constitution, is a question which I cannot answer, but which, however, is not material to the one we have to decide.
I do not mean to say or insinuate that either of the three judges of this court, appointed by the military, was not a competent judge or worthy man, or was influenced by unworthy motives in continuing to act as aforesaid, or that their doing so was an act of impropriety. I will say this much at least, in justice to their capacity, that I have had occasion to examine their opinions in at least one important case, and those opinions seemed to me to be marked by much learning and ability. I have no reason to believe that they were not gentlemen of integrity also, and they may have been well qualified and fitted in every respect for the judicial office. At all events, I doubt not, they were as well qualified and fitted for that office as any persons who could have been obtained to fill it, under the circumstances.
I state these facts as part of the surrounding circumstances under which the Enabling act was passed. The doubts and difficulties which induced the passage of that act, and which were intended thereby to be settled, are fully and strongly set forth in its preamble. It confirms all the official acts, otherwise valid, of the incumbents of office when the constitution took effect, which were thereafter performed, except that in regard to judgments of the court of last resort, it gives to the Supreme Court of Appeals, organized under the new constitution, a right of supervision and control as aforesaid. I think this was not an unreasonable precaution and safeguard against injustice, looking to all the circumstances of the case, supposing the Legislature had power to enact it. Suppose the judges had been incompetent or corrupt, as they might have been for aught the Legislature knew, having been appointed under such unfavorable circumstances. Suppose they had been bribed to render an unjust and illegal judgment. Was the Legislature to permit that judgment to stand irreversible, as the judgment of a court of last resort, or was it not proper to provide the means of preventing such injustice?
The Legislature thought it best to adopt the provisos contained in the second section of the act; and I cannot say that they acted unwisely in so doing. But whether they did or not, cannot affect the validity of their act if they had the constitutional power to enact it; and the only question, therefore, is, Had they such power?
The Legislature represents the sovereignty of the State, except so far as they are limited by the constitution. A law enacted by them is presumed to be constitutional until the contrary is plainly made to appear. So much has been said in this case by other judges on this subject, that it is needless to say more. The question, then, is, are the provisos of the second section plainly unconstitutional? If it be a question of doubt merely, we all agree that such doubt must be solved in favor of the validity of the law.
I am of opinion that they are not, plainly, unconstitutional.
It is contended that they are: 1st, because the judges in office when the military government ceased to exist, continued in office, under the second section of the schedule of the constitution, until the organization of the judicial department of that constitution. And 2ndly, that the second section of the enabling act, so far as it confers power on the Supreme Court of Appeals to be organized under the constitution, to supervise and control the judgments of the Court of Appeals at the term thereof commencing on the 11th day of January, 1870, is a judicial act which the Legislature is prohibited by the constitution to perform.
First. Did the judges in office when the military government ceased to exist, continue in office by virtue of the second section of the schedule, until the organization of the judicial department of the constitution? If they did, then the judgments rendered during that period by courts constituted of such judges, have the same efficacy with judgments rendered by any other constitutional court; and the question would arise, whether the Legislature had power to subject the judgment of a coustitutional Court of Appeals, organized or continued under the schedule, to the supervision and control of the Supreme Court of Appeals organized under the constitution, both courts being, in that view, constitutional courts. So far as it may be necessary to notice that question, it will be noticed when I come to consider the second ground of objection above stated.
That the powers of all the officers of the military government of Virginia ceased to exist when that government ceased, may be considered, I suppose, as res adjudicata. Dyer v. Ellyson, and Bell v. Chahoon, ubi supra. After that period, they could only be officers of the State, if officers at all, and to the extent to which they may be such officers. And they must have derived all the powers they possessed from the laws of the State, written or unwritten; that is, from the constitution or statutes of the State, or the common law still remaining in force therein.
It is not pretended that they derived any powers from any statute law as contradistinguished from the constitution. Did they derive any and what powers from the constitution of the State or the common law thereof?
If they derived any from the constitution, it was only under the second section of the schedule before mentioned; and whether they did or not derive any from that source, is a question I will presently consider I will now consider whether they derived any and what powers from the common law.
I think it very clearly appears, as was shown and held in the cases before cited, and is also fully shown in the opinion of judge Anderson in this case, that the framers of the constitution not only did not provide that the then incumbents of office should continue to perform the duties of their offices until their successors should be appointed and qualified; but, on the contrary, intended to vacate all the offices, leaving them to be filled by the Legislature, or as the Legislature might provide. If this be so, it may be difficult to maintain that the incumbents of office could continue to perform any of the duties of office in virtue of the principles of the common law; which, so far as would be applicable to this question, might seem in that view to be abrogated.
Supposing those principles, in their application to this question, not to have been abrogated, I presume that the utmost extent to which they can go is, to make valid all official acts performed by the military appointees, after the cessation of the military power, which public necessity or convenience required; subject to such modification as the Legislature might choose to prescribe.
Certainly there were some offices, the duties of which were required by public necessity or convenience to be performed, down to the period of their being filled by persons appointed and qualified under the constitution; and in such cases it was undoubtedly proper for the old incumbents to continue to perform these duties till that period. Whether such necessity or convenience required the three military judges of the Court of Appeals to continue to hold that court and hear and decide causes, after the State had been fully restored to her sovereignty, and when her Legislature was in session, and expected soon to appoint the five judges of that court under the constitution, is at least a very doubtful question, though I do not at all doubt the bona fides of their action in this respect.
But, however that may be, it seems to me most obvious, upon principle, that the official acts of persons thus holding over and acting, after their powers, derived from their original appointments, had ceased, were subject to the will of the sovereignty of the State, and to the supervision and control of the Legislature, which is the representative of that sovereignty, save only to the extent to which it may be restricted by the constitution. These persons were certainly not express agents of the State, even if they could be agents at all, in the face of a manifest intention of the convention that their offices should be vacated. They could at most be but implied agents, from the necessity of the case, and, to the extent of that necessity, subject, of course, to the supervision and control of the Legislature, as before stated, which could, as it did, declare the extent to which their past acts should be effectual, and prescribed the terms on which they, or some of them, might continue to act, until their successors should be appointed and qualified. The period during which any such implied agency could exist, was very brief, being between the time when the constitution took effect and the time when the offices might be filled under the constitution, or the time when they might be temporarily filled earlier by provision of the Legislature.
Now, it is not necessary to decide in this case, whether the official acts of these implied agents required express confirmation by the Legislature to make them valid. Perhaps they would have become valid, ab initio, by acquiescence of the State afterwards, and the failure of the Legislature to repudiate them, might have been considered as conclusive evidence of such acquiescence. Or, perhaps, they were valid, ab initio, unless and until expressly disaffirmed by the Legislature at its first session under the constitution.
However this may be, I think the Legislature had power to declare whether it would accept for the State the agency of these military incumbents in performing the duties of their offices after the military power had ceased, and to what extent, and on what terms such acts should be valid; and, therefore, that it had power to pass the Enabling act, including the provisos of the second section, subjecting the judgments of the military Court of Appeals, after the constitution took effect, to the supervision and control of the Supreme Court of Appeals to be organized under the constitution, unless the military judges were continued in office by the second section of the schedule to the constitution, a question to which I will presently have occasion again to advert, assuming, for the purpose of this branch of my enquiry, that there was no such continuance. The Legislature had power to declare, as it did, in regard to these judgments, that they shall stand, unreversed and irreversible, unless, within six months after the organization of the Supreme Court of Appeals, a motion or petition for a rehearing should be made by any party, upon twenty days' notice to the opposite party, in which case a rehearing may be granted, and such judgment set aside, and annulled or affirmed, as to said Supreme court may seem right and proper.
And now I resume the enquiry, whether, by the second section of the schedule, the three military judges of the Court of Appeals, in office when the constitution took effect, were continued in office until the organization of the judicial department of the constitution.
If they were so continued, it can only be because the court was continued, and because the continuance of the court necessarily operated a continuance of the judges in office--I say necessarily, because, if such necessity does not exist, the argument is irresistible to show that the framers of the constitution intended to vacate all judicial, as well as other offices of the State, when that instrument took effect. The same argument which applies to other offices, applies with at least equal, if not greater force, to judicial offices. So much has already been said in this opinion, and better said in the opinion of judge Anderson, on this subject, that I will say no more, but will proceed to consider whether the necessary effect of the second section of the schedule was to continue these judges in office.
A court may exist without the existence of a judge of such court. A court does not cease to exist when and because the office of judge of such court is vacated by death, resignation, amotion from office, removal from the State, or otherwise. It was certainly competent for the convention to continue in existence the court, as organized under the old constitution, until the organization of the judicial department under the new constitution, without, at the same time, continuing in office during that period, the judges who were in office when the new constitution took effect. Suppose, for instance, the convention, after saying, as they did, in the 2d section of the schedule: " 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," had added these words: " but the offices of judges of the said courts shall be deemed vacant until filled in the mode prescribed by law," or " by the old constitution." Could there be any doubt as to the propriety of these words, and their perfect consistency with the language used before; or as to the power of the convention so to continue the existence of the court? I think not. The Court of Appeals as organized under the old constitution--I mean that of Alexandria--consisted of three judges, any two of whom might hold a court. The Court of Appeals to be organized under the new constitution was to consist of five judges, any three of whom might hold a court. The convention may well have intended, by the language used in the 2d section of the schedule, to continue the organization of the court under the old constitution until the organization of the court under the new constitution, without, at the same time, continuing the existing judges of the court in office, but leaving the vacant offices to be filled, if necessary or deemed proper, in the mode prescribed by the old constitution, or such other mode as the Legislature might provide. That such was their intention, I think results conclusively from what has already been said. If they had intended to continue the then present judges in office, they would have expressly said so, as did the convention of 1851; notwithstanding that convention expressly continued the existing courts, as did the convention which formed the present constitution. With that and other like examples before their eyes, the latter convention would not have omitted this express provision of former constitutions for the continuance of the judges in office, if they had intended such continuance; especially, when there were so many other reasons for believing the contrary. But they did not intend it, as is clearly shown, not only by the view just presented, but all the surrounding circumstances.
2dly. The only remaining question is, Whether that part of the Enabling Act I am now considering is a judicial act, which the Legislature is prohibited by the constitution to perform.
I admit that the Legislature cannot perform a judicial act; and the only enquiry is, Whether that part of the act in question is a judicial act?
If the act had authorized a constitutional court of appeals to grant a rehearing or not, in its discretion, of a case decided by such court at a term which had ended before the passage of the act, it might have been a doubtful question whether it would have been, in that respect, a judicial act.
But it is unnecessary to decide that question, as it does not arise in this case. The court whose decisions were thus subjected to the supervision and control of the present Court of Appeals, is the court which was composed of the three military appointees who were in office when the new constitution took effect, and those decisions were rendered after the military power had ceased. I am of opinion that it was not a judicial act to subject those decisions to the supervision and control of the Supreme Court of Appeals organized under the new constitution, as was done by the Enabling Act.
Now, the only ground on which it can be contended that the Enabling Act, in that respect, was a judicial act, is, that those decisions were, proprio vigore, valid decisions of a court of last resort, which, therefore, could not be set aside or drawn in question after the end of the term at which they were rendered. Were they such decisions, is then the only question; and that question has already been fully answered. They were decisions of persons who had no authority whatever to make them, except what may be derived by implication from the subsequent acts or acquiescence of the State. The only way in which the State ordinarily acts, is by her Legislature, whose power to act for her, in all cases whatsoever, is restricted only by the constitution. It was in the power of that Legislature to say whether those decisions should be wholly valid or wholly void; or valid only on certain conditions, and on what conditions. Accordingly, in a very short time after those decisions were rendered--not longer than a month or two--the Legislature passed the Enabling Act, whereby it was declared that they should be valid, unless, within six months after the organization of the judicial department of the new constitution, a rehearing were allowed by the Supreme Court of Appeals, on petition or motion of any party, on twenty days' notice to the opposite party. The Legislature justly thought that if those decisions, though rendered under such extraordinary circumstances, were right, they ought to stand; but if wrong, they ought not to stand, if objected to in due time and in a proper manner; and referred the question of right or wrong to the decision of the Supreme Court of Appeals, requiring the objection to be made by petition or motion, upon notice, and within the period aforesaid. In all this there was surely nothing of which the parties in whose favor those decisions were rendered can have any reason to complain, unless it clearly appears that some constitutional right was thereby violated. With all deference for the opinions of my brethren who differ with me, I think the contrary appears, and has been shown, if not by me, at least in the full and able opinion of my brother Anderson.
I have said nothing, in terms, about the objection made to the part of the act in question on the ground that it interferes with private property or vested rights; because that objection is embraced in the general one I have just been considering, that the part of the act in question is a judicial act. The only ground on which it can be argued that such part of the act interferes with private property or vested rights is, that the decisions in question are final decisions of the Supreme Appellate Court, which cannot be interfered with after the end of the term at which they were rendered, even by an act of the Legislature. But I think it has been demonstrated that they were not, in themselves, such final decisions.
In conclusion, I am of opinion that the part of the enabling act in question is constitutional. But as a majority of the court think otherwise, it must be declared to be unconstitutional, and the petitions for rehearings in these cases must be denied.
JOYNES, J. expressed the opinion orally, that the proviso in § 2 of the enabling act, is unconstitutional.
Motion to rehear refused by a majority of the court.
After the motion to rehear the cases had been overruled, a motion was made to reconsider that motion, and the order overruling the motion was suspended, and time was taken to consider the latter motion. The question was argued in behalf of the motion to rehear the decree, upon printed notes, by Conway Robinson and Lyons.
March 13.
JOYNES, J.
The order of this court, upon the petitions for a rehearing of these causes under the second section of the " enabling act," passed March 5, 1870, by which the rehearing was refused, having been suspended on the application of the petitioners, the petitions come on now to be finally disposed of. I did not file an opinion when the petitions were disposed of in November, and I propose, therefore, to state briefly the grounds of my opinion. Upon a question of such novelty and gravity, I should at any time speak with diffidence, in opposition to the opinion of two of my honored brethren, especially when the result of my opinion is to overrule a provision of an act of assembly. It is a trite observation, but a perfectly just one, that while it is undoubtedly within the competency of the courts to overrule an act of assembly which exceeds the power of the Legislature, under the constitution, it is a power to be exercised with great caution, in deference to the opinion of the Legislature, and only when the excess of authority, on the part of the Legislature, seems to be beyond question. At the same time, it must be conceded that such an authority in the judiciary is essential to maintain the paramount control of the constitution, and that whatever deference is due to the opinion of the Legislature, still higher deference is due to the constitution. In the exercise of this power, we do not set ourselves against the Legislature; we do not arrogate superiority over that department of the government, to which we are only co-ordinate; we do no more than perform our ordinary function of deciding what is the law of the case before us. It is the plain duty of the court to consider and determine such questions with firmness and according to their best judgment, always remembering that nothing is more essential to the public welfare than a strict adherence to the constitution. The Legislature performs its duty according to its own sense of what the constitution allows or requires; and so we must perform ours.
The term of the Court of Appeals at which the decrees we are asked to review were rendered, closed on the 25th day of February, 1870. Whatever doubts existed at a former period, it has long been the settled doctrine of this court, that it cannot set aside a final judgment or decree after the expiration of the term at which it is rendered. Reid's Adm'r v. Strider's Adm'r, 7 Gratt. 76; Robinson v. Allen, March, 5, 1855; Edmunds v. Hicks, January 20, 1860.
This principle is recognized by the provision of the Enabling act which I am now to consider, which undertakes to give to this court authority to review and set aside judgments and decrees rendered at the term which ended on the 25th day of February. The Enabling act was not passed until the 5th day of March, 1870. If the decrees and judgments rendered at that term were valid in themselves, and without the support of the Enabling act, it was not competent for the Legislature, by an act passed after the expiration of the term, to set them aside, or to confer authority upon us to do so. This proposition rests upon the soundest principles, and is sustained by the amplest authority, as is fully shown in the opinions of my brethren Christian and Staples, delivered at the hearing in November. As far as I remember, this position was not seriously controverted, if controverted at all, in the argument.
It was contended, on behalf of the petitioners, that the judgments and decrees rendered by the Court of Appeals after the 26th day of January, 1870, when the State was admitted to representation in Congress, were wholly void in themselves, for want of any authority in the gentlemen who acted as judges; that the Legislature had power to confirm such void judgments and decrees, either absolutely or sub modo; that, by the Enabling act, it did confirm absolutely the judgments and decrees of all the inferior courts, while it only confirmed, sub modo, the judgments and decrees of the Court of Appeals, rendered at the term commencing on the 11th day of January, 1870; and that the rehearing now asked from this court is authorized by the proviso annexed to the confirmation of these latter judgments and decrees.
It does not seem to me to be altogether certain, from a critical reading of the act, whether such was the view of the Legislature; but it is not important to go into that question. The important question is, whether, supposing that the decrees in question were null and void when rendered, it was competent for the Legislature, by the Enabling act, to confirm them and make them lawful and valid, either absolutely or sub modo. If they could be confirmed and made valid absolutely, then I presume they might be confirmed sub modo, with a right to a rehearing in this court. If they could not be confirmed or made valid at all, then there is nothing for us to rehear, no decree to be " set aside or annulled or affirmed," in the language of the statute. Then is every judgment or decree of the Court of Appeals, rendered after the 26th January, 1870, and every judicial act of any inferior court, after the 26th January, 1870, and prior to the 5th day of March, 1870, null and void.
To render a judgment or decree is a judicial act. It is one which the Legislature cannot perform. The province of the courts is to decide what the law is, or has been, and to determine its application to particular facts, in the decision of causes. The province of the Legislature is to declare what the law shall be in the future. And neither of these departments can lawfully invade the province of the other. This not only results from the nature of our institutions, but it is enjoined by an express provision of the constitution, which declares that " the legislative, executive and judiciary departments shall be separate and distinct, so that neither exercise the power belonging to either of the others." Article 2.
We have the case, then, as contended, of decrees rendered by persons pretending to be judges, but having no authority, or color of authority, and which are, for that reason, absolutely null and void. The Legislature subsequently declares that these pretended decrees, which have no legal validity, shall be deemed valid and binding decrees. If they were thereafter to be deemed valid, is it not plain that they owe their validity to the statute alone? It is not a case in which the Legislature cures an irregularity in proceedings in a court having jurisdiction of the case, and held by judges having lawful authority, or color of authority. It is a case in which the Legislature undertakes to supply a total want of authority, or of color of authority, in those who pretended to act as judges. Such persons assembled together could not form a court. They could have no jurisdiction to try and decide a case judicially; so that the Legislature has undertaken to make a decree when there was no jurisdiction in the persons who undertook to decide the case; when, in short, there was no court that could lawfully decide any case. If the Legislature could confirm the void act of these pretended judges, as they are called, why may it not confirm the void act of any other person who undertakes to hold a court and decide a case? Why might not a legislature, if one could be found corrupt enough or lawless enough, confirm the act of a mob which resolved itself into a court, with a grand jury and petit jury, and convicted a man of murder? What could be said against the power to confirm such a judgment, that cannot be said against the power to confirm the decrees now before us, on the hypothesis that the judges who rendered them had no authority or color of authority, and that their acts were null and void as judicial acts?
There are many cases in which statutes have been sustained which undertook to give validity to legal proceedings, notwithstanding irregularities apparent in them. The subject is fully discussed, and the cases collected, in Cooley on Constitutional Limitations, chap. V. and XI. On p. 107 the author says: " These statutes may as properly be made applicable to judicial as to ministerial proceedings, and although, when they refer to such proceedings, they may at first seem like an interference with judicial authority, yet, if they are only in aid of judicial proceedings, and tend to their support by precluding parties from taking advantage of errors which do not affect their substantial rights, they cannot be obnoxious to the charge of usurping judicial power. The Legislature does or may prescribe the rules under which the judicial power is exercised by the courts, and in doing so it may dispense with any of those formalities which are not essential to the jurisdiction of the court; and whatever it may dispense with by statute anterior to the proceedings, we believe it may also dispense with by statute after the proceedings have been taken, if the court has failed to observe any of those formalities. But it would not be competent for the Legislature to authorize a court to proceed and adjudicate upon the rights of parties, without giving them an opportunity to be heard before it; and for the same reason it would be incompetent for it, by retrospective legislation, to make valid proceedings which had been had in the courts, but which were void for want of jurisdiction over the parties. Such a legislative enactment would be doubly objectionable-- first, as an exercise of judicial power, since the proceedings in court being void, it would be the statute alone which would constitute an adjudication upon the rights of the parties; and, second, because in all judicial proceedings notice to parties and an opportunity to be heard are essential; both of which they would be deprived of in such a case. And for like reason a statute validating proceedings had before an intruder into a judicial office, before whom no one is authorized or required to appear, and who could have jurisdiction neither of the parties nor of the subject matter, would also be void."
In McDaniel v. Correll, 19 Illi. R. 226, cited by Cooley, a statute had been passed to render valid certain legal proceedings against non-residents, over whom the court had not obtained jurisdiction, whereby an alleged will was adjudged to be void. The court said, among other things: " If it was competent for the Legislature to make a void proceeding valid, then it has been done in this case. Upon this question we cannot for a moment doubt or hesitate. They can no more impart a binding efficacy to a void proceeding than they can take one man's property from him and give it to another. Indeed, to do one is to accomplish the other." What difference, I ask, can it make, that the proceedings are void, for the reason that the persons who undertook to act as judges had no jurisdiction, or power to acquire jurisdiction, over anybody? The principle is, that if the proceeding is null and void, and not merely defective or irregular, it cannot be confirmed, and it can make no difference on what ground it is thus null and void. If such pretended judges adjudge the property of one man to another, nothing passes by force of the judgment. When the Legislature undertakes to render this judgment valid, does it not undertake " to take one man's property from him and give it to another" as fully as in the case cited? This general subject is elaborately discussed, and the same doctrine laid down, in Denny v. Mattoon, 2 Allen R. 361, also cited by Cooley.
It has been said, in support of the power of the Legislature to confirm the void decrees in these cases, that subsequent ratification is equivalent to original authority; and that, therefore, the Legislature may ratify, by subsequent confirmation, the exercise of a jurisdiction which it might have authorized beforehand; and the case of Thomson v. Lee County, 3 Wall. U. S. R. 327, was cited to support the proposition. I have not access to Thomson v. Lee County as I write, but I have before me the case of Beloit v. Morgan, 7 Wall. U. S. R. 619, which is a case of the same character, and was decided upon the authority, in part, of Thomson v. Lee County. In Beloit v. Morgan the Legislature had authorized the town of Beloit to subscribe to the capital stock of a railroad company, and to pay for the subscription in the bonds of the town, payable at the expiration of a term named, and at a rate of interest specified. Bonds were issued by the supervisors, professing to execute the authority conferred by this act. It became a question whether the bonds were issued in conformity with the act. The town insisted that they were not so issued, but were issued in violation of the act, and without legal authority, and constituted a corrupt and usurious contract, and refused to pay them. Subsequently the Legislature passed an act providing that the whole principal and interest of those bonds should be paid. In Beloit v. Morgan, the question arose as to the effect of this provision. The Supreme court said: " This is not an open question in this court. Whenever it has been presented, the ruling has been, that in cases of bonds issued by municipal corporations under a statute upon the subject, ratification by the Legislature is, in all respects, equivalent to original authority, and cures all defects of power, if such defects existed, and all irregularities in its execution. [Citing Gelpcke v. Dubuque, 1 Wall. U. S. R. 175, 220, and Thomson v. Lee County, 3 Id. 327.] The same principle has been applied in the courts of the States. [Citing 1 Maryland ch. 56; 5 Gray 180.] This court has repeatedly recognized the validity of private and curative statutes, and given them full effect where the interests of private individuals were alone concerned, and were largely involved and affected." [Citing Satterlee v. Matthewson, 2 Peters 380; Wilkinson v. Leland, Id. 627, and other cases in the Supreme court.]
Beloit v. Morgan, and Thomson v. Lee County, were cases of contracts deliberately entered into, and professedly under authority of a statute, though not in conformity with its terms; of which the obligors had received the benefit, and which justice and good conscience required them to fulfil. The effect of the statute, in such case, was to support the intention of the parties and the equity of the contract. Cases of this kind are numerous. The principles on which such statutes are sustained, and the extent to which such legislation may go, are fully discussed and explained in the 5th and eleventh chapters of Cooley, already referred to. These principles, I submit with deference, have no application to such cases as are now before us. Here is no case of contract improperly or irregularly entered into; no case of judicial proceedings conducted irregularly. It is, according to the view I am considering, the case of decrees which were not merely irregular, but null and void, when they were rendered, and in which it is claimed that the Legislature has power to give them validity, by a statute subsequently passed. The question is, whether a statute designed to give validity to such void decrees, is not the exercise of judicial power, and, therefore, unconstitutional and void. Nothing, it seems to me, can be clearer than this.
I submit, therefore, that it is clear, that if the decrees before us were void when rendered, from the want of authority in those who rendered them, to render any decree whatever, they are void now, as they were at first, because it was not in the power of the Legislature to make them valid by confirmation.
It might be suggested, perhaps, that this difficulty might be gotten over, by construing the Enabling act as giving a right of appeal from the decree of the Circuit court. But that will not do. Such is not the provision of the statute. And it might happen that a party, who would desire a rehearing and review of the decree of the Court of Appeals, would not desire an appeal from the decree of the Circuit court. That is always so when the decree of the Circuit court is reversed by the Court of Appeals.
I do not think it necessary to go into the question, whether these decrees were valid or void when they were rendered, if I am right in the views I have been presenting. But, perhaps, I ought not to pass that question by.
I am not of opinion that the gentlemen who sat in this court, under the military government, had any title, on general principles, to retain their positions until judges should be elected and qualified under the constitution. Their title expired on the 26th January. By this I mean that, on general principles, they had no title that they could set up against the power of the Legislature to supply their places. I say nothing now of their right to hold over by sufferance. This is in accordance with our decision in the case of The Mayoralty, 19 Gratt. 673, and the principle is well sustained by authority. 8 Louis. Ann. Rep. 122; 4 English Rep. 283; 24 Ark. R. 78; 44 Maine R. 406; 2 Maryl. R. 341; 9 How. U. S. R. 235; 14 Ib. 227. And this principle has been generally, if not universally, recognized and acted upon in the conventions in which constitutions have been framed for the States. The usage has been to provide for the case by a provision in the body of the constitution, or in a schedule, so that the State may not be without officers in the interval which necessarily elapses between the expiration of the former constitution and the election or appointment of officers under the new one. See 8 Louis. Ann. Rep. 122.
The convention by which our present constitution was framed, commenced its session on the 3d day of December, 1867, and adjourned on the 17th day of April, 1868. The first reconstruction act was passed on the 2d day of March, 1867, and the powers of the military commander had been enlarged to their utmost extent, in respect to the removal and appointment of officers, by the act of July 19, 1867. There had, no doubt, been some removals and appointments before the assembling of the convention, and many more before its adjournment. Gov. Peirpoint was removed, and Gov. Wells appointed in his place during the session of the convention. There was every reason to expect that removals and appointments would become still more numereus. Gen'l Schofield, who was then commanding the district, used his power of removal and appointment with a rather sparing hand. But there was a great clamor in Congress and out of it, and as much in Virginia as elsewhere, among a certain class of citizens, in favor of a general removal of all officers who could not submit to the test oath prescribed by the act of July, 1862, known as the " iron-clad" oath. This agitation culminated, in February, 1869, in a joint resolution of Congress, requiring such a general removal of officers. The convention, of course, knew the power of the commanding general in respect to the removal and appointment of officers, and they must be presumed to have known of the agitation in favor of a general removal.
The convention recognized the necessity of a schedule to bridge over the interval between the termination of the military government and the organization of the government under the constitution, and accordingly one was adopted. Among its provisions was this: " The several courts, except as hereinafter 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." Section 4 of the schedule is in these words: " That all recognizances, bonds, obligations, and all other instruments, entered into or executed before the adoption of this constitution, to the people of the State of Virginia, to any State, county or township, or any public officer or public body, or which may be entered into or executed under existing laws, to ‘ the people of the State of Virginia,’ to any such officer or public body, before the complete organization of the department of government under this constitution, shall remain binding and valid, and rights and liabilities upon the same shall continue, and may be prosecuted as provided by law. All crimes and misdemeanors and penal actions shall be tried, punished and prosecuted, as though no change had taken place, until otherwise provided by law."
In what sense is the word " courts" used in the second section of the schedule? The word " court," as is well known, is often used to describe a legal tribunal, in an abstract sense, without a judge, and it is as often used to describe the tribunal with the judge. So we often speak of the judge, while presiding in the tribunal, as " the court." The sense in which this word is used in the schedule, must be ascertained by construction. The question is, what did the convention intend?
If the word " courts" was used to describe the tribunals in an abstract sense, without the judges, the intention must have been that they should not sit, for they could not sit without judges. What could be the reason for continuing over these naked, abstract tribunals, without any power to act? These would be naked, abstract tribunals, without such a provision. Courts were provided for by the constitution, though they could not act until judges were elected or appointed for them. These tribunals could do no conceivable good as long as they remained thus dead and powerless; what more good could be done by the old tribunals continued over, in the same lifeless and powerless condition? The courts are continued over " with the like powers and jurisdiction." Of what use could it be to continue the " powers and jurisdiction" of the courts, if they could not be exercised? What good could that accomplish to anybody? The courts are to be continued " until the organization of the judicial department of this constitution." The judicial department was established by the constitution; it could not be said to be organized until judges were elected or appointed to carry it on. The " courts" then were to be continued until judges should be elected under the constitution. Does not this indicate that the intention of the convention was to provide judges to administer justice, until other judges could be provided, under the constitution, to take their places? Why continue the courts over, until judges under the constitution should be appointed, except that the object of the provision would then be spent; the means of administering justice would then be provided from another source? The meaning seems to me to be, that the courts, as organized when the constitution shall take effect, shall continue, & c., until the organization of the judicial department under the constitution: that is to say, one organization shall continue, with all its powers and jurisdicdiction, until another is ready to take its place and perform the same duties.
There was an obvious propriety--nay, there was a necessity--to supply judges for this tribunal. It was unavoidable that occasions for their services should frequently occur, to prevent the greatest injustice and oppression, against which there could be no other relief. Writs of habeas corpus, appeals, writs of error, injunctions, must frequently be demanded by the most urgent necessity. Without judges, every man must have taken care of himself: without any power to appeal to the law, he must have resorted to force. To that extent, and a most grave and serious one, society would have been resolved into barbarism. We are not at liberty to suppose that the members of the convention were insensible of these mischievous consequences, or that they could have been willing to bring them upon the people of the State. We must suppose that they intended to guard against inconvenience and mischief, during the interval referred to, by providing the necessary officers for the performance of judicial duties, and the schedule must be construed accordingly, if the language will allow such a construction. The schedule is not to be subjected to a strict and literal construction when that will tend to mischievous consequences; it should be construed liberally, to " suppress the mischief and advance the remedy." Here, as we have seen, there is no occasion to contradict the meaning of the words, or to wrest them out of their ordinary sense; we have only to determine which of two ordinary senses is to be put upon the word " courts" ; a sense which must lead to a construction full of mischief, without any possible good, or a sense that will accomplish a highly convenient and beneficial result.
The schedule must be presumed, in the absence of anything to show the contrary, to have been intended to cover the whole period between the expiration of the former constitution and the organization of the judicial department of the present constitution; to apply to every part of that period. The 4th section of the schedule provides for recognizances, bonds, & c., " which may be entered into or executed under existing laws, to the people of the State of Virginia, to any such officer or public body, before the complete organization of the department of government under this constitution." " All crimes, misdemeanors, and penal actions, shall be tried, punished, and prosecuted, as though no change had taken place, until otherwise provided by law." Does not this section contemplate bonds and recognizances taken in court? The greater part of such bonds and recognizances are taken in court. And how are crimes to be tried, prosecuted and punished, except through the agency of courts? Every man is entitled to a speedy trial. It might well happen, if no courts could be held during the interval I am speaking of, that a party accused of crime would be held in custody, without the possibility of trial, for an unreasonable and oppressive length of time. A man might be ruined for want of an injunction or appeal, or cruelly oppressed for want of a writ of error or habeas corpus; the people would be subjected to all the evils of a suspension of the courts, which are too numerous and various to admit of enumeration.
It has been said, however, that the convention could not have intended to continue the judges over, because those who were then in office were obnoxious to them politically, and were the subjects of disfranchisements inserted in the constitution. Admit that the incumbents, at the time of the adoption of the constitution, were thus obnoxious; I submit it affords no ground for judgment upon the question I am considering. The convention knew that the commanding general had the amplest power of removal and appointment; that he had already exercised his power in relation to the chief executive and other officers; and they no doubt hoped and believed that he would exercise it as to other officers.
The convention could not tell how long the admission of the State to representation might be delayed. They could not possibly know but that most, if not all, of the offices would, at that time, be filled by military appointees. In point of fact, every judgeship, except one or two, was so filled at the time the State was admitted. The convention was desirous that the State government should be organized as soon as practicable, and accordingly passed an ordinance providing for submitting the constitution to the people on the 2nd day of June, 1868, and for an election of State officers and members of the general assembly at the same time. The convention knew, however, that it had no authority to carry this ordinance into effect; and it accordingly requested the commanding general to do so. They may have designed, therefore, that there should be no interval between the inauguration of the constitution and the organization of the government under it; that the officers should all have been elected when the constitution took effect. But they must have known that the commanding general might decline, as he did, to carry this ordinance into effect. And that they contemplated that there might be such an interval, seems to be manifest from the fact that they thought it proper, if not necessary, to adopt a schedule.
Besides, a mere conjecture, founded upon the known or supposed political opinions or prejudices of the majority of the members of the convention, is not a proper guide to the construction of the schedule. Unless the contrary should be made plainly to appear, if not indeed even then, we must give the convention credit for good faith, and an honest desire to provide for the public welfare, and must construe the schedule according to the rules which we apply to other instruments of like character.
When I first heard the opinion of my brother Anderson in November last, I thought that he made good the proposition that the schedule did not apply to the judges, and I consequently laid that subject out of my mind. I have now reconsidered it, however, giving full attention to the views of judge Anderson. The result of my best reflection is, a confident opinion that the schedule does embrace the judges, and authorized the judges of the Court of Appeals to sit at the time those decrees were rendered. I say nothing of the length of time that they were so entitled to sit. Whether they were entitled to act as judges until the regular election and qualification of judges under the constitution, or whether the Legislature might remove them by the appointment of judges ad interim, or by a declaration that their places shall be deemed vacant, need not be considered; because the Legislature had not, before the 25th day of February, undertaken to effect their removal in any form; nor did they do so at any other time, until they made a regular election of judges for the term provided for by the constitution.
In the case of the mayoralty, this court used the following language: " 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 government, 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 appear to exist." This language clearly implies that the mayor, who did not come within the scope of the schedule, had " official authority" while he thus held over by sufferance, so that his acts, otherwise lawful, done during that period, were valid. Chief Justice Chase applied the same principle to the common council of Harrisonburg, in the case of Woodson v. Fleck, 9 Am. L. Reg. N. S. 435. He said: " It is to be borne in mind that the members of the common council of Harrisonburg had been elected to that office while the insurgent government of Virginia was in entire control of that portion of the State. When that government was dispersed by the superior force of the United States, the civil authorities did not necessarily cease at once to exist. They continued in being de facto, charged with the duty of maintaining order, until suspended by the regular government. Thus the common council of Harrisonburg remained charged with the government of the town, notwithstanding the temporary occupation of the place by the United States forces. Doubtless it might be superseded. The government of the United States was not bound to recognize any authority which originated under the rebel government. But it was not superseded." These views were founded upon public necessity; the salus populi; the great inconvenience and mischief resulting from a state of anarchy. A like principle was acted upon by the Supreme court of the United States in Cross v. Harrison, 16 How. U. S. R. 164. California was acquired by conquest in 1846. In 1847 a civil and military government over the conquered country was established by authority of the President, with power to impose duties on imports and tonnage. Duties were imposed accordingly, by a war tariff, under which they were collected until notice was received by the governor of the conclusion of the treaty with Mexico, whereby California had been ceded to the United States. The governor directed that duties should be thereafter collected in conformity with such as were, by the acts of Congress, to be paid in other parts of the United States, though no act had been passed extending the revenue system over California. This was approved by the Executive department of the government of the United States. Mr. Buchanan, Secretary of State, in a despatch, expressed himself as follows: " In the meantime, (that is, until Congress should legislate on the subject of a territorial or other government for California,) the condition of the people of California is anomalous, and will require, on their part, the exercise of great prudence and discretion. By the conclusion of the treaty of peace, the military government, which was established over them by the laws of war, as recognized by the practice of civilized nations, has ceased to derive its authority from this source of power. But is there, for this reason, no government in California? Are life, liberty and property under the protection of no existing authorities? This would be a singular phenomenon in the face of the world, and especially among American citizens, distinguished as they are, above all other people, for their law-abiding character. Fortunately, they are not reduced to this sad condition. The termination of the war left an existing government, or government de facto, in full operation, and this will continue, with the presumed consent of the people, until Congress shall provide for them a territorial government. The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate an existing government, when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest."
A suit was brought against the collector, to recover back the amount of certain duties paid to him, between February 3, 1848, the date of the treaty of peace, and November 13, 1849, the time when the collector, appointed by the President, according to law, entered on his duties, on the ground that they had been illegally collected. The Supreme court held, that the duties were lawfully collected; that the government established during the war, by right of conquest, was lawfully established; that it was the existing government when the conquered territory was ceded to the United States, and did not cease, as a matter of course, or as a consequence of the restoration of peace, and that it was rightfully continued after peace was made, and until Congress legislated otherwise by providing another government.
The continuance of the judges and other officers of the military government in Virginia, to perform their duties after the 26th of January, 1870, was universally acquiesced in by the people. They realized the necessity of practical government, to avoid a state of anarchy, and did not trouble themselves about nice questions.
Their salaries were regularly paid by the State. The governor made no complaint. The Legislature assembled on the 14th day of February, 1870. The governor, in his message, did not call the attention of the Legislature to the continuance of these officers as a usurpation. The Legislature did not remonstrate against their continuance, or undertake to prevent it. The first thing the Legislature did upon the subject, was on the 22d day of February, 1870, when a joint resolution was passed, declaring the office of judge Burnham, of the Court of Appeals, to be vacant. It is well known that this declaration was based on the ground that he held an office under the United States, and was, therefore, disqualified under the constitution and statutes of Virginia. Nothing was said about the other judges. Could there be a stronger implication, that the Legislature regarded judge Burnham as holding the place of a judge of the State of Virginia? Else, why apply to him a test of competency prescribed by the laws of Virginia? And, is it not plainly to be inferred, that they considered the other judges as holding lawfully, when they did not declare their offices vacant likewise? Then came the act of March 5, 1870. That act approved the course of the officers in holding over, declared them to be legal officers, and their acts valid.
Under all these circumstances, it seems to me that these officers must be regarded as de facto officers, whose acts are valid in respect to the public and third persons. A de facto government may exist without any color of authority. Thus the Supreme court treats the governments of the seceded States during the war as unlawful--mere usurpations; and yet they regard them as de facto governments, whose acts are valid and binding as to matters connected with the internal, domestic economy of the States, not inconsistent with the constitution and laws of the United States. Texas v. White, 7 Wall. U. S. R. 700; Thornington v. Smith, 8 Wall. U. S. R. 1.
So the government established over Virginia by the reconstruction acts, did not come into existence by any color of authority from the laws of Virginia. And yet, was it not a de facto government; were not its officers de facto officers, whose acts were valid as to the public and third persons? Is not that construction demanded by the most imperious necessity, whatever may be thought of the constitutional power of Congress to pass the reconstruction acts? Is it possible that the acts of all officers under that government are to be held void? No man can comprehend the full extent of the mischief that would result from such a doctrine. The Legislature did not entertain that opinion, for it did not think it necessary to confirm what was done under that government.
This opinion has extended to such length, that I will not prolong it further. My opinion is, that the motion to review the decrees in these cases ought to be overruled, and the decision made by us on the 14th November, 1870, should be adhered to.
CHRISTIAN and STAPLES, Js., adhered to the opinions they had expressed.
MONCURE, P. and ANDERSON, J., adhered to their opinions.
MOTION TO REHEAR REFUSED.