hubert howe bancroft - Central Pacific Railroad Photographic History ...

SUPREME COURT LAW AND PRACTICE. 221
judges on the supreme bench, and the intent of the
constitution in classifying the first three appointments
so that the election of justices for long terms should
be the more quickly secured, was defeated
Questions of law arose among the judges on the
supreme bench. The temporary absence of one of
the three judges made a decision impossible in the
case of a disagreement between the remaining two.
In February 1852 the legislature granted Heydenfeldt
leave of absence for six months, and in March
passed an act authorizing the governor to fill temporary
vacancies by appointment. The governor offered
the place left by Heydenfeldt to Surnett, who
declined, deeming the act unconstitutional. Wells,
however, accepted. The constitutionality of the act
was tested on an agreed case. Murray decided
against, and Anderson in favor of it. There being
therefore no decision, Wells remained upon the bench
until Heydenfeldt's return, when Murray's opinion
was concurred in, and his occupancy by appointment
during a vacancy occasioned by the voluntary absence
of a judge who had not resigned, was declared
to be unconstitutional. His subsequent election soon
restored him to his place on the supreme bench.
When Murray took his seat in 1856 for the beginning
of a new term, he claimed that by virtue of his appointment
in 1851, and election in 1852, he was the
senior justice in commission. Heydenfeldt, who was
elected in 1851, was entitled to the place, but not
liking to have a quarrel, yielded his right.
Murray dying in September 1857, Burnett, then
serving as associate justice, was appointed to that
vacancy, and Stephen J. Field to the place left vacant
by Burnett's promotion. Field was at that time
associate justice elect, to succeed Heydenfeldt in
January 1858. Murray's successor was Joseph G.
Baldwin, elected to fill the unexpired term, ending in
January 1862. By the expiration of Heydenfeldt's
term, Terry became chief justice. He resigned just