Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1870-01-28


General Assembly-that being the subject
on hand, this clause should read:
The term of Office of those elected at
the first election held under this COnstitu-
ton shall terminate at the same time as il
they had been elected at the first regular
election of members Of the General Assem-
by, ensuing the adoption of this Constitution.
Filling up the sense in this way, the mean
ing turns on the word ELECTION" An
election is the act of choosing, and taking
the word literally new members are to be
actually elected at the first regular election
ensuing the adoption of the Constitution,
at which very time by a fiction the mem
bers before elected are to be considered
as having been elected. And the effect OF
this election of new members, according to
the first clause of this section, "the terms of
Office of Senators, &C., shall commence at
the time of their election, and the last
clause of the 29th section, "the mem
bers then elected shall hold their seats un-
til their successors are elected at regular
election, will be to put an end to the
term of the first set of members the very
instant they are, by fiction, supposed to
be elected-the fiction having answered
the purpose of adding few months to the
beginning of their terms.
This is clearly the result of literal con-
struction. To meet the difficulty, it is
said the word election" is not to be taken
literally or to imply an actual election of
new members, bat, by fair construction
as having reference only to the regular
| time holding the ensuing election, which,
however, is not actually to be held and it
ought to be read the 'first ensuing cleo
ton ddy." There is nothing whatever to
support this construction The 9th Soc
ton taken by itself, does not sustain an
exception to the general principle, and
looking at other sections the construction
commended for is not only unsup-
portable, but is excluded, for
! [passing by the 2Sth section, which has no
bearing, and is evidently out of place.
| the Goth section provides:
"SEC. 20. The election for members of
the General Assembly shall be held for the
| respective districts and counties at the
places where they are now held, or may be
directed hereafter to be held, in such man
ner as may be prescribed by law, on the
first Thursday in August in the year one
Thousand eight hundred and seventy, and
every two years thereafter. But the General
Assembly may change the time of hold
ing the elections. The FIRST election shall
be held when the vote shall be taken on
the ratification os this Constitution by the
voters of the State, and the General AS
sembIy then elected shall meet on the ff-
teenth day after the approval thereof by
the Congress ofthe United States, if it fall
not on Sunday, but if it shall SO fall, then
on the next day thereafter; and the mem
bers then elected shall hold their seats un-
till their successors are elected at regular
| election
Here it is ordained that an
election for members of the General
Assembly shall be held at the place
and in the manner prescribed by law, on
tie Isl Thursday in august, 1870. The
words are plain and positive-there is no
room for construction. An election for
members of the General Assembly must be
held on that day, or else the Constitution
will be violated. This is a stubborn fact.
1t presents au insurmountable obstacle to
the construction giving double term. A
new set Of members must be elected in
August. 1870. If the present members are
to hold over, there will be two sets OF
members for the same term !! !! =! The only
mode of escape from this absurdity is either
to follow literal construction of the sec
ond clause of the 9th section, by which
the terms of the present members ter
inmate at the time of the election of new
set of members, or else to treat it as sur
plusage-being ambiguous, unnecessary,
| for the last clause of sec, 20 covers the
same ground,) and conflicting with the
29th section, which is expressed in plain
and positive words, is of vital i'm.
|
visions necessary to put in operation the
Legislative branch of the government
and is complete of itself, and needs no aid
from the 9th section. l am of opinion
that by the true construction of the Con
stitution the terms of the present members
of the General Assembly terminate on
the LIST Thursday in August. 1870. Such
would be the construction, if it were
proved, supposing the evidence admissible,
that IL WAS the intantiOn Of tho rnaknrn n
the Constitution to give the members
elected ct the first election terms of four
years. 'ln putting construction upon
an instrument, the question for the Court
is, not what the drafts A0an means, but
what the words of the instrument mean
It sometimes happens, for this reason, thai
the craftsman is less to be relied on thar
almost any other person to construe al
instrument, whether it be Constitution
statute, deed, or will" McAdoo vs. Ben.
bow, Go N. G. Reports, 464.
There is another question, which. al
though not covered by the words of the
resolution, grows out of it, and is 80 init
mately connected with the purpose of tn,
question proposed as to call for the expires
sion Of an opinion, in order to cover the
whole ground
The 10Th section, article I'd, has THU
clause But the General Assembly ma,
cnauBo Ine Ilme OF nOlQ1n& the oloct1OnS.
Does this confer power to change the TIM
in respect only to the day, or the montl
of gears which are fixed by the Constitu
tion-or to confer power, as we'll as t.
change tie gears in which elections TO
members of the General Assembly are t.
be held ?
The former is the true construction:
l. It harmonizes with the clause mex
; preceding, which requires an election t.
| be held on the first Thursday in August
and with sections and 6-Senators AM
members of the House of Representative
''shall be biennially chosen by ballot"
2 It satisfies the words and gives t.
them suitable meaning, i. e., power t.
change the day or the month, should
change in this respect be deemed expedi
ent !; for time, in these particulars, is mer
matter of detail, and is not of the essenc