Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1883-04-03
The DYNAMITE AMENDMENT.
Judge Eerguson's Elaborate Review of
the Situation.
Hiitor Of The Register.

rum o. ttF htylHt'F.
CHARLESTON, March 26, 1883.
In compliance with the request contain
ed in your paper | send you for publica-
ton, my opinion upon the question at is
sue between yourself and those who agree
with you and Gov. Jackson and those who
sgree with him in regard to the legal effect
OF the proposed constitutional amendment
if it should be adopted by the people. have
read and carefully considered about all that
has been said on both sides of the question
in the REGISTEE, and the following are my
conclusions upon the subject:
The Constitution. as it Is, provides The
general election of State and county officers
and OF members Of the Legislature shall be
held on the second Tuesday OF October ua-
~ otherwise Prorid|d By Lar."
II the amendment be adopted it viii! read
The general elections OF State and county
officers and OF members OF the Legislature
snail b, held on Tuesday after the first Mon
day in November, until ohcrwise prorided By
io'c." The italics in both cases are mine.
The first question TO be determined is,
from what time will this amendment, if
adopted, be in force or part and parcel Of
the Constitution?
The Constitution. article II, section 2,
provides that if an amendment proposed
thereto be ratified At the polls sit shall be
in force from the time Of such ratification,
rs part of the constitution of the State.
1t does not take effect on the day of the
ratification, but from or after that day.
This much is conceded by those taking
your view Of the matter. But notwith
standing this concession, ii is claimed that
by some sort of legal necromancy, which |
am utterly unable to understand, the
amendment in question, If adopted, will
reach back of the day on which it takes
effect and vscate and set aside the election
legally and constitutionally held on the
Tuesday after the first Monday in Novem-
Der, lisa; and that, too, without their being
in the amendment itself or the act submit
ting il to the voters for adoption or rejec-
ton a single word or syllable indicating
such TO be its intent. Such construction
of the amendment is against every prin-
! ciple of construction uniformly maintained
! for more than q hundred years by the
| courts and by text writers both in England
/ and America.
Judge Blackstone, in his commentaries,
] lays II down as a fundamental prin-
! ciple that all laws are to COM
menCe ne l1',Uc and operate
| prospectively," aud Judge Cooley, IN his
! constitutional limitation, page 80, lays it
| Down as a sound principal OF construction
THAT "A statute should have prospective
/ operation only unless its terms show
/ clearly a legislative intention that il should
| operate retrUSpeCtively.' And on page 81
| oil the same work he expresses the Opin-
ion that constitution Sh""td opcrGir lr'Eprc'
I tirrig Drig, unless the words employed show
! a clear intention that ii should have a retro
| Spective effect" In the case o. List vs..
/ The CITY OF Wheeling ! West Va, page
aI9, Judge Hymond in delivering the opjn-
| ion of the court refers to and adopts this
| doctrine of Judge Cooley, both as to the
construction ofstatutes and OF constitutions.
Inder the constitution and statutes as
they now exist. general election for State
and other officers and members of the Leg.
islature will, Gqd must Be, held on the seq
ond Tuesday in October, 1854, and at tie
same election the amendment to the constl.
tuition will be adopted or rejected. II
adopted, section :, article I, oil the coastl-
tutien will then read, The general cleo
tions of State and county officers, and Of
members of the Legislature shall be held
on the Tuesday after the first Monday OF
November, until otherwise Dr0rlded by tdw.
Again the italics are mine.
Judge Cooley, on page %, aboys referred
TO, in note /, refers to the case OF Dar0 vs..
Van KleCk, !. Johnson y. \. Il, p. Al.
This case was decided in ISL by the 81:
pleme Court Of the State OF New lorz, OF
which court that great and eminent Jurlst'
Chancellor Kent, was member, anu the
law rs laid down by him and the majority
Of the court in that case is, in all its force,
the law to-day. Judge Thompson in his
opinion in this case says: Constituting
this act dramatically, according. TO the
words, the provision is prospective, that
nothing in the former act shall be construed
TO prevent" etc, and Chancellor Kent con-
curs in this principle Of construction. APP
plyiHg the rule of construction laid down
in this case, to this amendment, II adopted,
il is and will be plainly and necessarily
prospective, only in its operation, anu
with all due respect for those who enter
tain a different opinion, il is, in my view
/ of the matter, q down right absurhty to
| saw that an amendment to the constitution
| operating prospectively, only, can by any
Feasibility relate back to the day OF the
election on which it was adopted and set
| aside the election of State and other officers,
| and members of the Legislature, legally
/ and constitutionally elected on that day.
/ simply because il declares that the
| general elections for State officers,
! etc, shall thereafter be held on
the Tuesday after the first Monday in
| November, until otherwise prOridCd by hi0.
! The Legislature in proposing it knew that
| all these officers and members of the Legis-
| lature would be elected on the Second Tues
] dsy of October, 1854, and the people will
| know while voting on this amendment on
! that day, that they are at the same time
| electing Governor and other State officers
| for the term of four years commencing on
| the 18th day of March following; that they
are electing a Senator for each district for
the term OF four years commencing on the
LIST dsy of November following, and full
set of delegates to the House OF Delegates
for two wears commencing on the lst day OF
November following; and to say that the
Legislature in proposing the amendment
intended, OF that the people in adopting IT,
can be held to have intended to set aside
the elections held in October and require
smother election for tie same offices 10 be
held in November following, without, In
any way providing for, or intimatlng II.
either in the amendment itself or In the
act submitting it to the people for ratlhca'
ton or rejection, is to impart to ooth
a degree Of stupidity and folly utterly
inco1ceiyable. The amendment, like the
orig.usl section, makes no provision as to
The wear in which the elections are to be
held, the matter being regulated entirely
by the statute.
This statute see acts of 1882, Sec. >, page
49O-9l(, provides that at the general cleo
ton in October 1882 and every successive
wear thereafter, there shall be eiecte1 ueie-
yates 10 the Legislature, 8 Senator Tor eve
SSy Senatorial district, anda Commissioner
81 the County Court And at said cleo
ton in the year 1884, and every fourth
wear thereafter, there shall be elected q
Goyernor and other State. county ana dls-
tns election closes on the second Tuesday
ia October, 1854, this statute will have been
DAY and year under it will have been duly
elected and clearly entitled to their re-
snsctiye offices for the term for which
,bey have been elected, and there is not,
nor will there be any law in force for an
cher election of these officers in 1884.
JpSre Brsnou's idea Is that the amend
ment 10 the constitution also amends 'le
- al ~ Nsar