Democratic Northwest. [volume] (Napoleon, Ohio) 1869-1894, 1883-11-08
The Judiciary.

The mistake made by those pro-
found legal gentlemen who assume
that Judges Follett and Owen will not
take tEeir seats upon the supreme
bench in pursuance of law and their
recent election. consists in the assump-
ton that the juiIcial amendment took
effect concurrent with the closing of
the polls, or at furthest with Governor
Fosters proclamation of Saturday,
October u.
As matter of fact, it has not "tsken
effect" within the legal meaning of
the phraseology, and may never take
effect. That depends entirely upon
the action of the legislature. Not one
Judge can be added to the state judi
ciary, except such las may be provi-
ded oy law" The judiciary amend
ment has simply been adopted. 1t
can not go into effect until the legis-
lature "prescribes by law" the scope,
extent, and character of the judicial
changes to be made in pursuance with
the constitution.
The constitution, as it will stand
with the recently adopted amendment
Incorporated therein, will be presented
to the legislature when it assemblies in
January next, to give the new pro-
vision vitality and put 1t into effect.
The modified constitution, or amend
ed instrument, authorizes and per-
mits the legislature to make certain
prescribed changes in the State judi
ciary. There is no power to compel
that body to make a single change in
the judiciary of the state. The pres
ent judiciary may be continued-and
must be continued until otherwise
prescribed by law"-indefnitely for
not single court has been abolished,
and the legislature may-not must---
'provide by law" for the existence of
another court in addition to those al
ready in existence, prescribe .he mum.
Der of judges thereof, and the terms of
court to be holden by them. But if
the legislature fail to provide by law"
for this court, it can not be compelled
to do so.
Nor are the superior courts abolished
by the mere adoption into the consti-
tuition of this new provision. The
legislature may abolish them under
the first section of the amended fourth
article, but being In existence now
they must continue in existence until
the general assembly disestablishes
them, as will be seen by proper
reading of the first section of the
fourth article as amended. AS mat.
ter Of fact the amended constitution
recognizes and continues them as
''such other courts inferior to the su
preme court, as the general assembly
may from time to time establish" The
power to establish includes the pow
er to "disestablish," and being now in
existence they must necessarily con-
tinue to exist until the general assem-
bly, dlsestabllshes them. Under the
term "other courts" &c, the general
assembly may not only continue the
present superior courts, but provide
for them by law in every county, for
omission of the words zone or mole
counties" from the section as amended.
not only does not abolish the superior
courts Tor "other courts inferior to the
supreme court and independent of
the supreme, circuit common pleas,
probate, and justices of the peace
courts), but leaves the legislature with
out the shadow of restriction TO estab-
lish them in all the counties of the
state.
The second section of the fourth ar
ticle as amended provides that the
I''supreme court shall, until otherwise
provided By zaac, consist of five judges
r. 81 and--the judges of the su-
preme court shall be elected by the
electors of the state at large for such
term, not less than five years, as the
general assembly may prescribe, and
they shall be elected and their official
term shall begin at such time as may
be fixed by law * and-the
judges of the supreme court in office
! when this amendment takes effect
shall continue to hold their Offices un-
} til their successors are elected and
qualified"
The intent and meaning of this is
plain enough. The amended section
recognized the status Of the the court
under the original section, and provi-
, ded that there should be no impair,
, ment or interregnum in the succession
but that all the vacancies, by expira
ton of term or otherwise, should be
l filled in pursuance with the law il
| existence at the time and previous te
the adoption of the amendment, prio1
| to its going into effect by virtue O.
| legislative action and until a chang'
: was prescribed by the general assem-
bly,. There can be no change in th'
manner of electing the judges, thu
length of their term of Office, nor thu
e date of their assumption of official du
e ties, until the legislature makes
!, change in the law The present vital
}, ity of the law as it stood at o'clocl