Griffin's Ex'r v. Cunningham

• Decision Date: 14 November 1870
• Citation: 61 Va. 31
• Court: Virginia Supreme Court
• Parties: GRIFFIN'S ex'or v. CUNNINGHAM. WASHINGTON, ALEXANDRIA & GEORGETOWN R. R. CO. v. ALEXANDRIA & WASHINGTON R. R. CO. & als.

61 Va. 31

GRIFFIN'S ex'or v. CUNNINGHAM.

WASHINGTON, ALEXANDRIA & GEORGETOWN R. R. CO. v. ALEXANDRIA & WASHINGTON R. R. CO. & als.

Supreme Court of Appeals of Virginia.

November 14, 1870

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...