Montague's Adm'r v. Massey

• Decision Date: 23 March 1882
• Citation: 76 Va. 307
• Court: Virginia Supreme Court
• Parties: MONTAGUE'S ADM'R v. MASSEY, AUDITOR, & C.

76 Va. 307

MONTAGUE'S ADM'R v. MASSEY, AUDITOR, & C.

Supreme Court of Appeals of Virginia.

March 23, 1882

Absent, Moncure, P., sick, and Burks, J interested in result.

The facts are fully set forth in the opinion.

H R. Pollard, J. A. Jones, for the appellant.

J G. Field, attorney-general, for the appellee.

OPINION

CHRISTIAN, J.

This is a writ of error to a judgment of the circuit court of the city of Richmond. The facts upon which our decision must turn may be briefly stated as follows:

The Hon. Robert L. Montague, the late distinguished judge of the eighth judicial circuit, was first elected and duly commissioned as judge of said circuit on the 25th day of March, 1875. He qualified on the 1st day of April, 1875, and took the oaths of office required by law before the Hon. Richard C. L. Moncure, then and now the president of this court.

He entered at once upon the duties of his office as judge of the eighth judicial circuit, and continued to discharge the same until about the 4th of March, 1880, when he departed this life.

In December, 1872, the general assembly passed an act which provided that the terms of office of all judges elected to fill vacancies shall be for the unexpired terms of their predecessors.

Judge Montague's election, made on the 25th of March, 1875, was made, of course, after the passage of that act, and it is to be presumed was made by the legislature under the provisions of that act, to fill the unexpired term of Judge Garrison, who had resigned his office as judge of the eighth judicial circuit to accept another position, and whose unexpired term would have ended December 31st, 1878.

All this is evident from the fact that in December, 1878, the general assembly re-elected Judge Montague as judge of the eighth judicial circuit, and that he was again commissioned to that office.

In both commissions--that which he received by virtue of his election in 1875, and that which he received by virtue of his election in 1878--the one issued by Governor Kemper and the other by Governor Holliday--he was commissioned as judge of the eighth judicial circuit " to exercise the functions and discharge the duties of his office according to law. "

In the first commission issued by Governor Kemper, he was commissioned as " judge of the eighth judicial circuit for the term of office prescribed by law. "

In that issued by Governor Holliday, he was commissioned for " the term of eight years, beginning on the 1st of January, 1879," to exercise " the functions and discharge the duties of his office according to law. "

It further appears that by the act of the general assembly, approved March 12th, 1878, the salaries of the circuit judges were reduced to the sum of $1,600 per annum, and the mileage to ten cents for each mile of necessary travel, from and after January 1st, 1879.

At the time of Judge Montague's first election--to wit, on the 25th of March, 1875--the salary of a circuit judge was the sum of $2,000 per annum, and the mileage four dollars for every twenty miles of travel.

During his life, after his second commission under his last election, Judge Montague received regularly his monthly pay and mileage in accordance with the act above referred to, reducing the salary and mileage of circuit judges; and he made no claim, as far as the record shows, of any further or different compensation than that provided for by the act approved March 12th, 1878, fixing the salaries of circuit judges at $1,600 per annum, and the mileage at ten cents per mile for each mile of necessary travel.

After the death of Judge Montague his administrator filed his petition in the circuit court of the city of Richmond, presenting the claim of his decedent against the State for the sum of $899.48, it being the difference between the sum which the decedent was entitled to receive under the laws and constitution of this State, as fixed at the time of his first election, and the amount actually received by him during his term of service after his second election.

The object of the petition in the circuit court of Richmond was to recover the difference between his salary and mileage, as fixed by law at the time of his first election, and that which he drew under the act of March 12th, 1878, from the 1st of January, 1879, until the time of his death, which difference amounts to the sum of $899.48.

The petition filed in the circuit court was for the purpose of asking a judgment in favor of the administrator against the Commonwealth for the aforesaid sum of $899.48.

This petition was answered by the Hon. John E. Massey, late auditor of public accounts, and was filed by the Hon. James G. Field, late attorney-general.

The answer admits the facts set forth in the petition, which have already been detailed, and relies for defence against this claim upon two points--to wit: first, that Montague, as judge aforesaid, never during his lifetime claimed or asserted any right whatever to the additional pay now demanded by his personal representative.

It insists that the action of the general assembly in re-electing the said Montague in December, 1878, was a regular and valid act made in accordance with the act of assembly, and that if said re-election was irregular at the time that it was made, that irregularity was cured by the subsequent acceptance of and qualification under the commission issued to said Montague in pursuance of said election, and the discharge of the duties of his office under the said election and commission.

It is insisted that upon the acceptance of the last commission, and his discharge of official functions under it, and his receipt of the diminished salary and mileage, he must be held to have waived, resigned and surrendered any rights or functions he had under the preceding commission.

With this answer was filed receipts of Montague for salary and mileage from the 1st of January, 1879, the date of his last commission, until the day of his death, all of which had been paid by the auditor of public accounts.

The case was submitted, upon this petition and answer and exhibits filed, to the judge of the circuit court, upon the whole matter of law and fact, and that court dismissed the petition and gave a judgment for costs against the petitioner.

It is from this judgment that a writ of error was allowed by one of the judges of this court.

I am of opinion that this judgment is plainly erroneous.

According to the repeated decisions of this court, reported in 33d Grattan, the election of a judge is always an election for the full term. When, therefore, Judge Montague was elected in 1875 as judge of the eighth judicial circuit, he was elected for the full term of eight years.

In the case of ex-parte Meredith, 33d Grattan, p. 119, this court held that a judge of the county court, who has been elected to fill a vacancy occasioned by the death of a former judge, is elected for a full term of six years and not for the unexpired term of the former judge.

And this is equally true of the judges of the court of appeals and of the circuit judges.

In that case, now so familiar to the profession and to the public, Judge Staples, in the most elaborate and exhaustive opinion, in which he referred to the constitutions of other States, and to numerous authorities, conclusively and logically demonstrated that under our constitution a judge could only be elected to fill the full term prescribed by that instrument. It would be a work of supererogation in this case to repeat his arguments and the authorities referred to by him.

His conclusions, both upon reason and authority, are so cogent and convincing to show that under our constitution a judge can only be elected to a full term, that I do not think it necessary to do more than to refer to that opinion and others which follow...