The Rock Island Argus. (Rock Island, Ill.) 1877-1885, 1881-02-04

question a TO whether one of the judges
| had a risht in the court which reviewed
the decision of the court below, q similar
question arose. The case Was tried in
1870. An amendment to the constitution
of New York was proposed, pro
viding that no Judge should sit at q general
term OF any court, in review OF decision
made By him in the court below. The
question arose as to when the amendment
took effect. The court. in deciding the
question. say: when the result was
declared by the state board OF canvassers.
the article was adopted. and under the
rule became operative at once. antess from
the nature of the pror's'ons themsetUes.
II Gppears that IL Dds to take
effect at sonae future period. or unless it
clearly appears that the intention of the
trainers OF the article and of those by
whom it was adopted was. that it should
not take effect until some future time"
| This authority clearly INDICATES that il,
from the nature of the provisions in the
proposed amendment. 1t appears that il
was not to take effect until = future time,
| then it does not become part or the con-
stitution until that time.
In this case the court further says: Those vot =
In for the nroDosed constitution any part of Ii,
az " The lime therein limited for its taking effect
and must have voted fori or any part OF It, In re-
that the Intention OF the trainers of the proposed
amendment has nothing to DO with Its construc-
ton; that in constituting cons.attonal provisions,
thai must be Judged from the usual and ordinary
meaning IF the words used In the provision Itself.
aiven Nv the supreme Court of the State of Mas
sachusstts to the Governor and Legislature upon
. question almost IDENTICAL with the one before us
| IN that state. the Governor or the Legislature
may PROFOUND any question they see fit, and re-
| csive the opinion OF .ns .Sapreme court upon
those questions In 'hi5 -n5'Ance THIS question
was propounded:
/. what is the effect, II any, Of the third article
| of the amendment of the constitution this year
adopted upon the tenue of ONCE of the present
Executive Council? Wll the said article affect the
manner of the election OF the next Executive Csun
ciig Hinder which system must vacancies in the
| Council be filed? II under the old, up TO what
timer Previous TO the adoption of the amer dment
the members OF the Executive Council were ap-
pointed by the Legislature; the amendment pro-
into eight districts and that thereaft the mem
hers of The Executive Council shall be elected by
| the people The court, In answer TO these ques-
| we understand that the six articles OF amend
ment of the constitution proposed and submitted
/ to the people by the resolution OF Nav l. 1855
were ratifed by q maio lily of votes of which
proclamation BY the Governor has been duly
| made so that they now form part OF the constr
tuton; 30 far therefore. as they are Inconsistent
with the previous provisions of the constitution
they vacete and Ganul them, but in ell other re-
spects the former provisions remain in force
In answer TO the first question, we OF opinion
that the third article of these amendments the one
requiring tie members to be eected) will have no
effect whatever upon the tenure OF Office OF the
pres ent mem bers of the executive council Even il
no legislative action were necessary there could
| be no election OF councillors until the Tuesday
next after the first Monday of November, 1885, auo
the councillors then chosen cannot enter upon the
duties OF their offices until the first Wednesday of
January, 1859, at which time, or as soon thereafter
as others are chosen and qualified in Their place,
the Offices of present uEcil will cease.
The present amendment contains no express re-
peal of preexisting provisions OF the constitution
II repeats them by necessary lmpncauson1;; by pro-
offices, but it cannot have that effect until it comes
practically ilto operation.
our opinion is this: Surprising the first regular
session of the legislature to be held in January
next, there can be no division OF toe Com
monweath into districts until law is
passed for that purpose In the course
election suntil November, 1856 (the amendment
being voted for and carried in 1889, for council
Ions for the year 1887 In that OF opin-
ion that councillors for the year 1850 may be right
fully and properly chosen by the two houses of the
Legislature, IN the manner required by the pro-
| when there amendments adopted. This nee
esss-ly results from the reason before stated The
amendment In question contains ne annulling, re-
voknk or repeating clause whatever, and does not,
in terms snnul any provision ni the constitution,
another mode o ng ahe.s o sae G
compatible with such pre- existing provisions
| As: therefore, the amendment superseoes and an
Duls the old provisions of the constitu ion by it's
practical working in filing these Offices in another
mode, 1t follows that it will have that effect when
only, the course OF Its own regular opera ton
that result has been accomplished. II, then in
regular operation of this amendment, the Legisia-
ture, in 1855 being the first session after the adopt
ion OF 1t, shall pass law dividing the State into
districts for the election OF councillors, and the
first opportunity for making such election will be
ip November, 1885, Of opinion shat the TO-
mer provisions for eeeting councillors will remain
houses of the Legislature, at the organization Of
the gove rnment for the year 1885, to elect council
m Wi eff his
| amendment had not been made 3"
have taken this lengthy extract for this opinion
because ii is so applicable to the case before us
and because ofthe high character and repu alton
for leaning of the member Of the court which de-
Shaw, Dewey, Mccall, Bigelow, Thomas and Mer-
rick, and dated July 2, 1855, the only difference
mitted to being, in the fact that the Massachu
sets amendment provided that their officers should
be elected instead OF appointed In ours that they
Ike effect an J0turo. and whether 1t was in the
manner, or in the time Of their election, could
ing upon which it is based.
The law does not favor repeats by implication
and when no intention to repeal is expressed In
the constitution, or law in question, the courts
will not construe it as repeating any other law
directly in conflict; then eject must be given to
the law or provision last passed.
In this case there can be ne conflict until No
vember, 1882, because the amendment proposes TO
do nothing until that time consequently 1t repesls
nothing until the conflict comes, In November.
1000
have found many other decisions of different States
and In England, incidentally holding the same
doctrine. but none of them directly in point as
those cited, and have therefore not referred TO
them. But have not found one holding
contrary doctrine.
lam, therefore, of the opinion that the Consti-
tuition OF 1870 continues in force until 1882 when
there will be an election called for the Tuesday
after the afrst Monday In November OF that year,
and at which election the officers in question will
be elected and will assume the duties Of their Off
ces on the FIRST Monday In December following. and
will hold under the amendment. Then, for
the first time, comes q conflict between the pro
visions of the old constitution and the new, and
the old is repealed by implication. The old con
stitution provited that county judges and county
clerks should be elected and they should bold
their Offices four years, and that county treasufers
should be elected and should hold their Offices two
years. The present officers hold their full terms
of four and two years respectively but the terms
OF The officers in question will expire on the frat
Monday of December, 1881. The new provision
OF the constitution does not conflict with the old
In 1891, consequently these officers be elect
cd usual in 1881 and hold their offices until such
holding docs conflict with the new provision, |
which declares that these officers sh ali be elected
''at the general election be held the Tuesday
after the first Monday in November, A D. 1854 ~
and shall enter upon thetr duties the nrst Mon
day Of December following
Very respectfully, |
JAMES MCCARTNEY, |
Attorney-General.