Part 23
Like the Constitution of the United States, the Virginia Constitution is divided into major areas called articles and into subdivisions called sections. There are seventeen articles and two hundred and one sections. The following topics found in the articles indicate the broad range of subjects included: the Bill of Rights, Elective Franchise and Qualifications for Office, Division of Powers, Legislative Department, Executive Department, Judiciary Department, Organization and Government of Counties, Organization and Government of Cities and Towns, Education and Public Instruction, Agriculture and Immigration, Public Welfare and Penal Institutions, Corporations, Taxation and Finance, Miscellaneous Provisions--Homestead and Other Exemptions, Future Changes in the Constitution, Rules of Construction, and Voting Qualification of Armed Forces.
_The Virginia Bill of Rights_
Article I is the Bill of Rights. Such rights are prefaced by an introductory paragraph in the article which states that this series of rights form the backbone of the governmental structure in Virginia: "A declaration of rights made by the good people of Virginia in the exercise of their sovereign powers, which rights do pertain to them and to their posterity, as the basis and foundation of government." The famous Declaration of Rights which follows the introductory paragraph was written by George Mason and introduced at the Williamsburg Convention by Archibald Cary. It was unanimously adopted by the convention members on June 12, 1776, and its principles were considered so significant that they were later used as the basis for the Bill of Rights in the Constitution of the United States as well as for many other state bills of rights. The importance attached to these provisions has resulted in the Virginia Bill of Rights often being called the "Magna Charta of Virginia."
In seventeen different sections, the Virginia Bill of Rights guarantees various underlying principles of government:
(1) "That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety"--Thus, freedom and equality of every individual is recognized, and one's rights of life, of liberty, of owning property and of achieving happiness and safety are guaranteed.
(2) "That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them"--Thus, a principle of democracy is expressed that the right to rule comes from the people themselves and that office-holders are representatives of the people and are responsible to the people.
(3) "That the government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal"--Thus, the objective of a government is to benefit, protect and preserve security for the people. The best type of government is that which results in the greatest happiness and safety of all those whom it governs. Whenever a majority of those being governed consider such government as not attaining such an objective, they have a right to change it, reform it, or, if deemed wise, to abolish it as long as it is done in a legal manner considered for the good of all involved.
(4) "That no man, or set of men, is entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator or judge to be hereditary"--Thus, the amount of financial profit or gain received by an office-holder in any community is to be based solely upon his rendering public service to the community. Consideration of birth, influence or wealth is to be ignored, and office-holding itself cannot be automatically inherited or handed down from father to son.
(5) "That the legislative, executive and judicial departments of the State should be separate and distinct; and that the members thereof may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by regular elections, in which all or any part of the former members shall be again eligible, or ineligible, as the laws may direct"--Thus, the principle of the separation of powers is set forth, that is, the legislative, executive and judicial departments are organized as three separate, independent departments. Officials should have specific terms of office and should be elected for designated periods of time at the end of which time they should return to their former private status and be eligible for re-election if the law provides for such an opportunity.
(6) "That all elections ought to be free; and that all men having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed, or deprived of, or damaged in, their property for public uses, without their own consent, or that of their representatives duly elected, or bound by any law to which they have not, in like manner, assented for the public good"--Thus, all elections should be free and open, and all men who have become regular residents of a community should be allowed to vote. Property cannot be taxed, disposed of or damaged for public use without the consent of the people involved or that of their representatives. Neither can the people be forced to abide by any law unless it has been voted upon by them or by their elected representatives.
(7) "That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised"--Thus, no office-holder should have the authority to suspend a law or to carry out a law, independent of the legal representatives of the citizenry.
(8) "That in criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty. He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers; nor be compelled in any criminal proceeding to give evidence against himself, nor be put twice in jeopardy for the same offense...."--Thus, any man accused of a crime is entitled to certain rights: to be informed of the charges placed against him, to meet face to face with the witnesses and accusers, to defend himself in a fair and speedy trial with an impartial or unprejudiced jury. He cannot be deprived of life or liberty except by legal judicial action; he cannot be made to testify against himself; and he is ineligible to be tried twice for the same crime.
(9) "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"--Thus, bails, fines and punishments must be reasonable.
(10) "That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted"--Thus, a search warrant should state specifically the exact place to be searched or the exact individual to be seized and the offense should be specified.
(11) "That no person shall be deprived of his property without due process of law; and in controversies respecting property, and in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred. The General Assembly may limit the number of jurors for civil cases in courts of record to not less than five in cases cognizable by justices of the peace, or to not less than seven in cases not so cognizable"--Thus, since man has a right to own property, he cannot be deprived of it without due course of law. In certain types of lawsuits, trial by jury is believed the best legal procedure.
(12) "That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments; and any citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right"--Thus, the right of the freedom of press and of the freedom of speech is advocated as long as an individual assumes the responsibility for same.
(13) "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free State; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power"--Thus, a militia promotes the safety of the people. There are dangers of a standing army of professional men in peacetime, and, even in wartime, the military group should be subject to civilian authority.
(14) "That the people have a right to uniform government; and, therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof"--Thus, the people in the State should be governed by the same rules and regulations. No other separate or independent government within Virginia other than the one established by the State Constitution can be organized.
(15) "That no free government, or the blessings of liberty can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles"--Thus, government, like men, must be guided by moral principles: namely, justice, moderation, temperance, frugality and virtue. Without repeated adherence to these moral precepts, free government cannot survive.
(16) "That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love and charity toward each other"--Thus, the right of the freedom of religion is advocated and guaranteed.
(17) "The rights enumerated in this bill of rights shall not be construed to limit other rights of the people not therein expressed"--Thus, since there are other rights not included in this Bill of Rights, this last section reminds the people that there are additional rights not specifically included in this article.
An understanding of the natural fundamental rights of a people as individuals, as guaranteed by the Virginia Bill of Rights, causes one to appreciate deeply the guarantees of liberty and freedom provided for the people of the State.
_Election Requirements, Offices and Procedures_
The extreme importance which the early Virginians attached to suffrage is recognizable by the location of the voting qualifications in the Virginia Constitution. Such qualifications directly follow the Bill of Rights as Article II and include the following requirements:
(1) a citizen of the United States
(2) at least twenty-one years of age
(3) a resident of Virginia at least one year
(4) a resident of the county, city or town at least six months
(5) a resident of the voting precinct at least thirty days prior to the election
(6) the payment of an annual state capitation or poll tax of one dollar and fifty cents to the county or city treasurer at least six months prior to the election; the receipt of such payment is necessary for registration before voting. A resident who, although eligible to vote at the age of twenty-one, has refrained from doing so must pay a poll tax assessable against him for a maximum three years before being able to vote. A new resident must pay only for each year or part of a year spent in Virginia.
(7) the passing of a literacy test to prove one's ability to read and write in English and to understand the functions of government
(8) proper registration at least 30 days before the election at the office of the local Registrar of Elections which includes the presentation of one's poll tax receipt, the filling in of certain required forms pertaining to personal history and the swearing under oath of the truth of one's statements. Registration in Virginia is now permanent so that after a resident citizen has properly registered, he does not have to repeat this process unless he moves. A noteworthy provision of the Constitution allows any person who is an active member of the United States Armed Forces to be exempt from paying a poll tax and from registering as a prerequisite to voting. Likewise, his poll taxes are cancelled and annulled for the three years next preceding if he has an honorable discharge.
Certain persons are excluded by Article II from registering and voting: idiots, insane persons, paupers, persons disqualified by crime or specific disabilities which have not been removed, persons convicted of treason, felony, bribery, petit larceny, obtaining money or property under false pretenses, embezzlement, forgery or perjury. The General Assembly has the power, by a two-thirds vote, to remove such disabilities.
Qualified citizens of Virginia have the opportunity to elect three types of officials:
(1) national officials--the President and the Vice-President of the United States (every four years), two United States Senators (normally, every six years) and ten United States Representatives (normally, every two years).
(2) state officials--the Governor, Lieutenant-Governor, Attorney-General (every four years), forty State Senators (every four years) and one hundred House of Delegates members (every two years).
(3) local officials--County: Treasurer, Sheriff, Commonwealth Attorney, Commissioner of the Revenue (every four years), County Clerk (every eight years) and Assembly members or members of the Board of Supervisors; City: Treasurer, Sergeant, Mayor, Councilmen, City Attorney for the Commonwealth, City Commissioner of the Revenue (every four years) and Clerk of the City Courts (every eight years).
All elections by the people are by secret ballot. Generally, election officials are sworn in office the day of the election; one of the judges opens the ballot box publicly, turns it upside down to prove its emptiness, locks it and keeps it locked until the voting polls are closed. At the beginning of the election day, the election judges receive the registration books and the list of those citizens whose past three years poll tax has been paid. The election clerk receives a poll book, a blank book to be used for the official listing of the voters who come to the polls. After all election officials have received their necessary clerical supplies and their instructions, the polls are opened for voting. Thus, a citizen is immediately checked for his proper registration and poll tax payments when he comes to vote. He then receives a ballot which he alone marks secretly in a voting booth. Voting must be performed carefully because a defaced, improperly marked ballot may be challenged and thrown out. He folds his ballot to maintain secrecy and hands it to an election judge who places it immediately in the ballot box. It is illegal for a voter to be approached concerning a possible candidate any nearer than 100 feet from the polling place. Fifteen minutes before closing time for the polling place, one of the election judges will loudly proclaim this fact in front of the polling place. Exactly fifteen minutes later, the voting officially ends and only ballot holders at this time are allowed to cast their vote.
After the polls are closed, all the unused ballots are placed in a special envelope marked accordingly. The used ballots are tipped out of the ballot box onto the table. All the election officials present check the complete emptiness of the box. Representatives of each of the political parties are allowed to watch the correct counting of the votes. The election clerks make two sets of tally sheets which include the names of all the candidates which appeared on the ballot and each clerk keeps personal tally as the ballots are counted and the names of the candidates voted for are called off by the election judges. The usual tally method is used, and the word "tally" is spoken by each clerk as the diagonal fifth line is drawn so that any mistakes in the count made by either clerk can be caught quickly. Any time there is disagreement between the tally scores of the two clerks, a complete recounting of the ballots for the candidate whose score disagrees must take place. In case of a tie vote for a Congressman, Assemblyman, or county or city official, the outcome is determined by the Election Board, often by the flip of a coin. When all the votes have been tallied, an official written report is prepared on the back of each poll book: it includes the number of votes cast individually and totally for each candidate. This report is signed by the election judges and the election clerks. These poll books plus the used ballots and the unused ballots are submitted to the county or city clerk and later reviewed by the Board of Elections. The successful candidates then receive a certificate of election which makes them officially elected to their respective offices.
Every person qualified to vote is eligible to any office of the State, county, city or other subdivision of the State wherein he resides except as stated otherwise in the State Constitution. Persons eighteen years of age are eligible to the office of notary public. The terms of all officers elected begin on the first day of February after their election unless otherwise stated. The members of the General Assembly and all officers, executive and judicial, elected or appointed, take the following oath or affirmation: "I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the State of Virginia, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as ----, according to the best of my ability, so help me God."
Any person who is registered and qualified to vote at the next succeeding regular election is eligible to vote at any legalized primary election held for the nomination of any candidate for office.
_Legislative, Executive and Judicial Departments_
The separation of powers theory in government is considered so important that Article III of the Virginia State Constitution concerns solely this underlying principle: namely, that the legislative, executive and judicial departments are to be separate and distinct. To emphasize this idea, the Constitution further states that neither department shall "exercise the powers properly belonging to either of the others nor may any person exercise the power of more than one of them at the same time."
The Legislative Department--Since one of the chief functions of a government is to make laws, it is logical for Article IV of the Constitution to consist of a detailed description of the Legislative Department: its composition, membership, qualifications, powers and limitations.
The State legislature or legislative branch is called the General Assembly. It is a bicameral legislature composed of an upper house, the Senate, and a lower house, the House of Delegates. This legislative body has been in continuous existence since 1619 and is believed to be the oldest one in the Anglo-Saxon world and the second oldest Parliament in the entire world.
The Constitution requires that the Senate consist of not more than forty and not less than thirty-three members, elected quadrennially (once every four years). There are forty members in the present State Senate, and their term of office is four years. They are elected to office by the qualified voters of the State Senatorial Districts on the first Tuesday following the first Monday in November of every other odd-numbered year in which the Governor is not elected. Therefore, they are elected during the mid-term of the Governor. The State Constitution requires that the House of Delegates consist of not more than one hundred and not less than ninety members. In the present House of Delegates, there are one hundred members, and their term of office is two years. Members of the House are elected to office by the qualified voters of the State House districts on the Tuesday following the first Monday in November of every odd-numbered year. Both the Senatorial and House of Delegates Districts are set up by the General Assembly in that a special commission is appointed by the governor to do the districting: this commission membership must be approved by the General Assembly. The Constitution requires that reapportionment or redistricting take place every ten years to offset population changes. The last reapportionment was made in 1952; therefore, the next reapportionment or redistricting is due in 1962. There are now thirty-six State Senatorial Districts, thirty-three of which are entitled to one Senator each and seventy-six House of Delegates' districts, sixty-two of which are entitled to one Delegate each.
Any qualified voter living in a Senatorial or in a House district is eligible for election from that district to the General Assembly. However, no General Assembly member can hold any other public office at the same time or be elected by this assembly to any civil office of profit in the state during his term of office. Likewise, an individual who holds a federal government or state government salaried office or employment or the position of court judge, Commonwealth attorney, sheriff, sergeant, treasurer, assessor of taxes, commissioner of revenue, collector of taxes, or court clerk cannot be a member of either house of the General Assembly during his continuance in office. If such an individual is elected to either house of the General Assembly, his former office must be vacated. Two Constitutional requirements are necessary: the individual must be a qualified voter and must live in the district he represents.
The salaries of the members of the General Assembly are fixed by law and are paid from the public treasury. Any act passed which provides for an increase of legislative salary cannot take effect until the end of the term for which the members voting thereon were elected. The present salary is $1080 per regular sixty-day biennial session (plus $720 for expenses) for the House of Delegates members and for the State Senators and $1,260 for the Speaker of the House of Delegates and the President of the Senate.