The spirit of democracy. [volume] (Woodsfield, Ohio) 1844-1994, 1858-12-01
was intended to be psrma-

lnent-only TO change with the constitu-
ton itself; and that the provision is un-
,csangeable as to the number of subdi-
visions, l shall endeavor to prove; yet
possibly the legislature may have control
over the matter as to the size of the sub
divisions and the number of judges, to be
elected in each; at least that is the
construction which has prevailed ever
since the adoption of the constitution,
and ther efore the Supreme Court would
be very slow to disturb it. But every
man knows that the population of some
districts and subdivisions must increase
much faster than others, so that while
three judges would be ample judicial
force in some districts. four or FIVE
would scarcely be sufficient in others. -
And looking to that section alone,
without regard to Art 4, sec. Is, it
might be argued with great force that
sec. 3 of that Article was intended as
mere regulation as to the manner in
which the new judicial force should be
chosen in the first instance, leaving that
matter subjec; thereafter, in great meas
ure, to Legislative control; for necessity
yonId drive us to that construction. Bnt
Art 4, sec. Is, removes all doubt, and
CLEARLY defines how far Sec 8 may be
changed or modified by the legislature;
and it will be found that it does not
give any power to interfere with the
election Of the three Judges, who, while
the constitution remains ia force are TO
be chosen in each district by the three
Subdivisions. That section provides:-
The General Assembly may increase or
diminish the number Of the judges of the
supreme court. the number of the dis
trlcts of the court of common pleas, the
number of judges in any districts, change
the district or the subdivisions thereof,
or establish other courts"
The principal argument of those object
ing 10 the validity of Mr.. Evans election
(and an answer to it settles this whole
question: is upon the power of the legs-
lature over the Subdivisions 1t is claim
ed that their number may be increased or
diminished. This | deny The language
of section Is was carefully considered by
the convention, and it seems to me that
it contains all the power that the legisla-
ture has over the subject. 1t provides that
. the number of districts may be increased
or diminished, snd also that the districts
or subdivisions my he changed; but there
is no provision allowing the number of the
, subdivisions to be increased ~ diminished
and as .here is an express provision allow.
ing the number of districts to be increased
, or diminished, followed by a clause thai
the districts orsubdivisionS may be chang
e ed, it irresistibly follows, by the spplca
= tion of the plainest rules of construction
! that the power to increase or diminish tn,
u number of subdivisions, which is differ
ent thing from the power to change a sub
e division, does not exist. To increase tn
n districts is plainly to add to their number
: To change the districts is to alter thei
3 boundaries and not to add to their mum
. ber The same remarks of course are tru
d when applied to subdivisions, and applyin,
T. them, we find there is no power to increas
5; or diminish the number of subdivisions =
is But the section provides that the NUN
o Der Of Judges in any district may be in
l. creased or diminished. When and no,
ID may the number be diminished? l thin
1t the number cannot be diminished belo,
'e three, becanse Art. 4, sec. 8, requires thre
e subdivisions, in each of which one Judg
l. must be elected, and gives no power t
le diminish the number of subdivisions; ant
A ~ A ssn - III
n, Courts shall be composed of the Judges
n the Court of Common Pleas of t re-
of pective districts, and one of the Judges
1T the Supreme Court, any three of who
,e shall be quorum" And it appears t
e, me, therefore, that the number of Judge
Id in district can only be diminished in ca
II; es where the number has been increase,
a. and the additional Judge for any caus
e. becomes unnecessary
~ The next inquiry is, how shall the Judg,
. in a district be increased? We have see
" that it canot be done by increasing the sui
:, divisions, for there is no power to increa.
:. them. Can it be done bv making OF
- - subdivision as large as the other two, an
electing two Judges in the large subdiv
;. " sion? Perhaps it rests in Legislative di
erection to do this, and yet sec. provide
. that the subdivisions shall he las nearl
=, equal in population as practicable, in eac
-. of which, one Judge of the Court of Con
. o. mon Pleas for said district aud residin
~ " therein, shall be elected" Can the le,
~ -, islature, while the subdivisions are "equ
~ -, in population" authorize the election
- an additional Judge in either subdivision
!" = 1t has been done, and probably the legi
10 lature has discretionary power to do thi
~ but we have seen that in making the ele
tion districts the convention had some r.
% gard to population, and that only o,
!: Judge is to be elected in q subdivision
g e 1t seems to me, therefore, the plan of ele
VI VI ting additional Judges by subdivision
81 ~ only equal in population with the other
~ as although, perhaps. within legislative di
" cretion, and therefore constitutional, do
" VI not commend itself to US by reason of
W ;uctico or fairuess mr. nropriatv. ond