Jump v. Spence

Alvey, J., delivered the opinion of this Court. Without discussing all the several grounds assigned by the appellant why the mandamus should not issue in this ease, we shall state briefly some of the reasons that lead us to the conclusion that the writ was erroneously ordered by the Court below. There is no doubt but that the judgment of the House of Delegates, in the contest between the appellee and Mr. Franklin, conclusively established the right of the former to the office of Judge of the twelfth Judicial Circuit, by virtue of the election held on the 7th of November, 1865. But while this is conceded, it does not follow that the appellee is entitled to the salary of the office for the time intervening between the 29th of November, 1865, the day on which Mr. Franklin qualified under the commission issued to him by the Governor, upon the returns of the election, and the 14th of February, 1866, the day of the appellee’s qualification under the commission issued to him by the Governor, after the determination of the contest by the House of Delegates.

The provisions of the Constitution of 1864, under which the election took place, having immediate reference to the question under consideration, are found in sec. 7 of Art. 1, and sec. 28 of Art. 4. By the last mentioned section, it was provided that the annual salary of the Circuit Judge should be $2500, payable quarterly, and should “ not be increased or diminished during Ms continuance in office.” By the first mentioned section, it was declared that, “ Every person elected or appointed to any office of trust or profit under this Constitution, or under the laws made pursuant thereto, before he shall enter upon the duties of such office, shall take and subscribe ” the oath or affirmation, the form of which was prescribed. "We think it clear from the section just cited, notwithstanding the language employed in sec. 3 of Art. 4, in regard to ¹⁰ the term for which the party should hold, that the appellee could not he considered as in office, though elected in November, 1865, until he qualified, after receiving a commission, by taking the oath prescribed by this 7th section of the 1st Art. of the Constitution. The whole instrument must be taken together, and so construed as to render its different parts consistent.

In our theory of government the office is not supposed to be created for the benefit of the individual who may be elected to fill it, but for the good of the people, to be derived from the actual and faithful exercise of its functions; and hence it has been well said that, by a common sense interpretation of the Constitution, we could not do otherwise than conclude it to be the purpose of its framers “ to make no gratuities, but to pay