Ex Parte Bassitt.1

• Decision Date: 29 March 1894
• Citation: 19 S.E. 453,90 Va. 679
• Parties: Ex parte BASSITT.1
• Court: Virginia Supreme Court

19 S.E. 453

90 Va. 679

Ex parte BASSITT.¹

Supreme Court of Appeals of Virginia.

March 29, 1894.

Constitutional Law—Justices of toe Peace-Appointment.

Const, art. 7, §§ 2, 4, provide for three justices of the peace in each magisterial district, and permit the general assembly to provide for other county officers. Code, § 97, allows judges of county courts to appoint other justices than those specified in the constitution, when the public service requires it. Held, that said section of the Code is constitutional.

Petition by John Bassitt, in the original Jurisdiction of the court, for a writ of habeas corpus. Denied.

Beveridge & Brlstow, for petitioner.

R. Taylor Scott, Atty. Gen., for respondent.

LEWIS, P. This is a petition for a writ of habeas corpus. The petitioner, John Bassitt, alleges that he is illegally detained in the jail of Elizabeth City county by virtue of a mittimus issued by S. O. Huchins, a pretended justice of the peace of Chesapeake magisterial district, in said county, on the 2d day of November, 1893; that on that day there were three duly-elected, qualified, and acting justices of the peace in and for said district, viz. W. H. Power, Arthur Boykin, and R. L. Thornton; and that said Huchins was a mere usurper in the office of justice of the peace, whose acts were without any validity whatever. It appears from an exhibit filed with the petition that Huchins was acting as a justice, on the occasion in question, under an appointment of the county court of the said county made on the 16th of October, 1893, of which the following is a copy: "It is ordered to be entered of record that this court is of opinion that the public service requires one justice of the peace in addition to those specified in the constitution in Chesapeake magisterial district, and that notice thereof shall be published as the law requires. And the court doth appoint Saml. O. Huchins a justice of the peace for said district, to serve until such additional officer shall be elected and qualify. And therefore said Saml. O. Huchins appeared in court, and qualified to his office by taking and subscribing the oath required by law." This order and appointment were made under the act of March 27, 1876, now carried into section 97 of the Code, which enacts that "whenever a county court shall be of opinion that the public service requires a greater number of justices or constables in any district than those specified in the constitution and shall so enter of record and designate the number of such additional officers, notice thereof shall be published in such district, and at the next succeeding general election for district officers, such additional officers shall be elected in the mode prescribed for the election of district officers, and continue to be elected at each succeeding general election of district officers until otherwise ordered by the court, " etc. The same section also authorizes the court to appoint officers to serve until such additional officers are elected and qualified. The petitioner's contention is that this enactment is unconstitutional, and that, therefore, Huchins Is not an officer, either de jure or de facto.

If the statute be unconstitutional, then, undoubtedly, no office was created by it, or by anything that was done under it, and Huchins is merely a usurper, to whose acts no validity can be attached; for, as was decided in Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. 1121, there can be no officer, either de jure or de facto, if there be no office to fill. This is not controverted. But is the statute unconstitutional? The secondsection of the seventh article of...