Foster v. Jones
| Decision Date | 04 December 1884 |
| Citation | 79 Va. 642 |
| Parties | FOSTER v. JONES. |
| Court | Virginia Supreme Court |
Upon petition of Hon. John D. Foster for a mandamus to compel J. H. C. Jones to deliver up to him the office of judge of the county court of King & Queen county. Foster was duly commissioned January 31, 1880, judge of the county courts of King & Queen and King William counties for the term prescribed by law, and qualified as such, and continued to discharge the duties until February 7th, 1884, when Jones assumed the office, claiming that by an act approved January 18th, 1884, the general assembly had made the county of King & Queen a separate judicial district, and had on 24th January, 1884, elected, and the governor had since commissioned him to be judge of said district.
George P. Haw, for the petitioner.
H R. Pollard, for the respondent.
This is an application on the part of the Hon. John D. Foster to this court for a writ of peremptory mandamus to compel the restoration to the petitioner of the office of county judge of the county of King & Queen, which he claims is now usurped and withheld from him by the Hon. J. H. C. Jones. The petition sets out, that in January, 1880, the Hon. John D Foster was elected and commissioned as judge of the counties of King & Queen and King William, which then formed what was known as district No. 41, and proceeded to discharge, and was discharging, the duties of his said office on the 7th day of February, 1884, when the said J. H. C. Jones, claiming that he had in January, 1884, been elected judge of the county of King & Queen by the general assembly of Virginia, took possession of the said office of county judge for the county of King & Queen, and refuses to render the same back to the petitioner. It then goes on to allege that the election by the general assembly of the said Jones to the office of county judge of King & Queen was unconstitutional; that his commission is illegal and void, and that he is not entitled to said office. To this the respondent answers: " That the general assembly of Virginia, by virtue of the power vested in it under the constitution, passed an act, which was approved on the 18th day of January, 1884, to district the state for county judges, whereby the county of King William which had been theretofore attached to the county of King & Queen, was separated from it, and designated as district No. 41, and entitled to a county judge, and the county of King & Queen was designated as district No. 84, and entitled also to a county judge." The answer further says that, at the time of the redistricting, the said Foster was a resident of the county of King William, and the county of King & Queen being without a county judge, he, the respondent, was thereupon regularly and properly elected judge of that county.
From this brief statement of the case, as disclosed in the pleadings, it will be readily seen that the real inquiry is whether Judge Foster, notwithstanding the division of the district, and his residence in the county of King William, is still judge of the county of King & Queen, and the answer to be given to this inquiry must depend upon the power of the legislature to curtail the territorial jurisdiction of a county judge after his election. The determination of this question in this case is freed of much of the difficulty which usually attends the decision of cases of this character, by the circumstance, that the legislature has been careful, in making the division, to leave Judge Foster as judge of King William, the county in which he resides. The State ex rel. Ives v. Choate, 11 Ohio 511; State v. Messmore, 14 Wis. 170. We think it may fairly be assumed in the outset to be an undeniable proposition, that the two branches of the legislature, as the direct representatives of the people, have the right, when no restrictions have been imposed upon them, either in express terms or by necessary implication by the constitution, to create and abolish offices accordingly as they may regard them as necessary or superfluous. And that they may also, under like circumstances, deprive the officers of...
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Fugate v. Weston
...or otherwise, to its possessor. In the sense incorporated into the fundamental guaranties, it is property." See also, Foster Jones, 79 Va. 642, 52 Am.Rep. 637; Blair Marye, 80 Va. Neither rights nor property can be confiscated by a legislative act without a judicial hearing after due notice......
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Mial v. Ellington
...before the expiration of the term for which he was appointed." Kenny v. Hudspeth, 59 N. J. Law, 320, 36 Atl. 602. In Foster v. Jones, 79 Va. 642, 52 Am. Rep. 637, the court uses the following language: "We think it may be fairly assumed in the outset to be an undeniable proposition that the......
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Fugate v. Weston
...or otherwise, to its possessor. In the sense incorporated into the fundamental guaranties, it is property." See also, Foster v. Jones, 79 Va. 642, 52 Am. Rep. 637; Blair v. Marye, 80 Va. 485. Neither rights nor property can be confiscated by a legislative act without a judicial hearing afte......
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Chien v. Virginia
...("Like the sheriff, the clerk of court is a constitutional officer"). The county judges are alsoconstitutional officers. Foster v. Jones, 79 Va. 642, 645 (1884) ("Now, it will be observed that the office of county judge is fixed by the constitution, and the term of office is clearly defined......