Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1825-03-11


pointed ana that nninbcr shall be fixed By law
he number IN Office, when the government
went INTO operation, was very small compared, IN
the present incumbcn,s All the increase has
been made since by legislative acts. Numerous
counties have been added since and the uu,p
Der o.lusiices i'm each has been fixed by lcrisla
tive acts Can the legislature re peal these acts
and thereby PROSTATE every county court and
thrust every Justice from office. lftl,ey cannot.
then, IN vain have they tried 10 abolish the Couri
oi Appeals. Ii they can thus abolish the Court
OF Appeals, so cantbc, likewise destroy Ike conn
~ courts at once, and depose every Justice con-
trary to the known understanding of the whole
number OF members who compose the county
courts of the country.
II this reasoning, drawn from the fair consruc
tion, as well as express words of the consti;u-
ton, needed any aid IL conld be easily brouoht
from The coternporanenus exposition of tho le-
gisiatWe practice under IT, from The commence
mcnt ot the government to the late session of
the legislature. The first constitution of Ken
lucky on the subject of the judiciary uses Ian
gnagc the same IN substance with the present
constitution, and the material difference IS in
the jurisdiction Of the court-thc first piyinr
appellate Jurisdiction, with that of original cha
racter, the latter subject to be curtailei b. the
legislature while the present constitution cave
appellate jurisdiction only. Tie same pr,yisions
erecting the supreme court therefore have exis-
ted without any interval ever since the govern
ment existed Tho first legislature which sal i'm
henincky IN June 1892 when acting upon this
subject passed law, the first section OF which,
Is a follows: ''The Court of Appeals shall con-
slst oil tiree Judges, any two of whom shall be
sufficient to constitute a court One OF them
shall be called Chief Justice of Kentucky-ar-
other The second nudge of the Court of Appeals
and another the third iudge of the Court OF An
peais' and shall he commissioned and have pre-
etence accordingly" In the year f196. ano
Their act was passed on the subject, the first sec
ton of which is precisely in the same words
with that Just quoted. The language of this
act implicitly, but plainly acknowledge that the
pc ';'io themselves had created the court by the
con'utution Tor 1t suppo32S the court to exis, nj
ready 1t Commences 1.-The court of appeals
shall consist, &c.o We ask, what court of ~.
sgeal': The answer is obviuus-thc court of an
peais created by the constitution; nor was il
supposed that any legislative act c.,ild .screct
aud : ;ablish" such court. No legislature ever
herr' ofure made the ATTEMPT If an act csiab
'I5hng tite court WIS necessary in the language
o! til; present act, tien il IS evident that there
has been no court of ori,, rre,,, u.+,
oil our government till now. For there is no
aci establishing such court. An former lesisa.
tors must have abored under the mistaken be-
lie! that the people themselves had created the
court, and the error was never detected till the
legislature of 1894.
Different from the acts inst cited is the Ian
gn1ge of the legislature on former occasions when
establishing .-surh inferior courts as they might
from time to time erect aud establish" Wehad
cours oi quarter sessions and district courts
winch have been abolished. and circuit courts |
now exist in their stead. In erecting all thsee,
the legislature employed different languages, |
sensible they were snch courts as were within
their power. There shall be in every county |
wilma tins state court ri quarter sessions which
sIaI! be 50 called T.itt SOP.
"ihsrc Shall be six iidses appointed, whose |
dat, itshall be 20 attend the district con, IS
after creating q court of each district, Lit |
600. Circuit courts shall be-, and they are here
BY established aul shall be held in the circuits
hereafter mentioned" ! Dig. 367, Such was |
Che language efnplos ed by tue Legislature with /
rcggrd TO those courts completely within their |
power and control. They created the court
gave ii liatne then provided for the appoint
mcnt Of the judges and regulated their duties; |
bui they recognized the court of appeals as al
ready existing and created BIZ the hand of the
people, and only fixed tpc number-and laid
down rule AMI regulations with regard 10 the
mode of doing business, and of bringing suits
therein.
The government Of the nation also furnishes
precedent in point or this subject The Con
stiuIinu ofthe United States uses the same lam
guage with ours on the subject of the Judiciary.
There is created by tine instrument one supreme
court, and ''such inferior courts as Congress
from time 10 time may ofdain and establish. y
When Congress FIRST attempted to egislatc on
The subject of the supreme court, they employ
this language:
''TTe supreme court oftlle United States shall
consist Of chief justice and five associate JUS
tees, any tour Of whom slial be a quoruIn.n-
Thus they acknowledge this court as already in
existence and created by the people; but when
they were about TO create district courts, which
were not named IN the constitution afterdIviding
the nation into districts, they say:
"Fherc shall be a court called district court
! in each Of tic aforementioned district, TO con-
sisi Of one Judge" called district Judge. Thus
| they clearly slew by the language employed III
each case. that the supreme court existed by the
creation Of paramount power, and that they
bfo't into existence such inferior courts, they
might ''from time to time ordain and establishn
We arc aware that precedents have been
| sought to Justify this high handed measure. II
! has been said that the court ofappeas once con-
sisted Of three Judges was afterwards increased
| to four, and again reduced 10 three. This is
| true It is competent for the Legislature TO add
! TO the number, or to diminish it, provided that
! in the exercise of this power they neither re-
! duce the number to less than plurality, nor le-
| gislate out of office any one Of the incumbents.
! The reduction of the number from four TO three