Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1883-03-08
DYNAMITE E DMENT
Judge Brannon Puts Some Power.
tul Persuasive Into II.
The October Election Blown Sky-Aigh-
An Argument that Will Hold
Water.
To ire Editor of the RegiSter.

GolONN AhaACh o.-Aue QueSsLOu
which you suggest, and on which you
invite discussion, springing from tine
constitutional amendment proposed by
the late Legislature changing the State
election from the second Tuesday in
October TO the Tuesday after the first
Monday in November, is not free from
difficulty, and may be attended with
grave and serious complications from
the claims of two competing sets OF
State officers and two Legislatures; and
the question you ask, "What are we 60
ing to do about it?" is well-timed and
mol so readily answered.
1.-THE amendment be adopted on the
second Tuesday of October, 1884, will
the election of officers OIL that day stand
valid, and all State and other officers
and members of the Legislature hold
their offices? Or will the amendment
nullify that election deprive them of
their offices and call for another elec-
ton?
The act submitting the amendment,
following the section of the constitution
touching amendments, provides that ii
ratified 1t shall be in forcefrom the time
Of It's ratification. The word thine"
here used / construe as equivalent to
'day"-the day of ratification. Where
the computation of time is to be made
from an act; much controversy has ex-
listed as to whether the first day that on
which the act is done, that on OF from
which the time is to begin to runs to
be included; but the law as now settled
excludes it. (Sedgwick, 1856; l Rob.
Practice, 4l6.) Therefore, the amend
ment starts with the first moment ofthe
next day after the election in October,
and of course is in full life and opera
tiun when the Tuesday after the first
Monday in November comes; and as 1t
saws the general election shall be held
Oh the Tuesday after the first Monday
in November, how can 1t De
disregarded and no election held?
Such is its letter. True, it does
not say it applies to the year
1854, but it is in full force when that
day in November 1854 comes, and why
shall it not apply to 1854 rs we'll as to
1886? Its adoption amends so much of
the constitution as it now Is a provides
for an election on second Tuesday in
October by substituting Tuesday after
first Monday in November, as etfectual-
~ as if you were TO erase with q pen the
former day and, insert the latter, be-
cause it is the latest expression Of the
peoples will, and in fixing a specific
day for the election renders it impoSsi-
bic that another day should be used for
the same purpose. When the Legisla-
ture eHacts that o certain section shall
be amended and re-enacted so as to read
as follows" it certainly repeats the old
section so far as il differs from the new,
and the new stands in its place. The
people in adopting the amendment will
virtually say: "Be it ordained thai sec
ton 7 article 4 of the Constitution be
amended and re-enacted so a to read
hereafter as follows: The general cleo
ton for State and county Officers and OF
members of the Legislature shall be
held on the Tuesday after the first
Monday in Novom6er," etc. Who
will saw that in the face of this amend
ment the old section, so far as it fixes
the second Tuesday in October, Is yet in
force? But it is said the election statute
fixes the second Tuesday in October,
and it has not been amended and re-
enacted or expressly repealed. But it
has beco me contrary as to this day TO
the constitution; the later and higher
law has appointed q different day both
DAYS cannot be used for one and the
same purpose; but n must cease to be
the day, and certainly the October day
ceases both because the constitution IS
higher law, and because it Is later law
on the same identical point; 1t cover
the whole ground of the same subject
matter, that of fixing an election day.
1t Is an amendment of both the section
of the constitution and the election stat
ute as regards the day OF election; IL
operates to strike from both the day in
October and insert the day In Noyem-
Der.
But il said this view Is erroneous be-
cause the amendment does not operate
Of itself, of its force, or In technicai
law Latin, per Sc proprlo Wgore, out
must wait fora new election act by the
Legislature to put 1t in force:
Some constitutional provisions operate
of themselves, needing no act 70 put
them into effect; others are inert ana
torpid until the Legislature extends It's
| helping hand to call their powers into
active life and vigor. Whether a pro-
vision belongs to the one class or q
other depends OIL its nature, It's OBJECT
u intent. IIA cOnSIllullOual PiO'S
lon eonfers an absolute right, II COM
mends or forbids a definite act or thing,
if it is q distinct, isolated provision
needing no details ofregulation, itneeds
no enabling act; for the constitution Is
law in and of itself, the highest law,
and the inaction Of the Legislature, or
action repugnant to it, will not defeat
its force. But when the provision ex-
pressly calls for, or plainly eontemPlates
legislation under il, or it is OF such nj
tare that it cannot execute itself Tor
want Of details OF regulation, IL Is
different. In the case OF supervisors
of Doddridge VS. Stout, 8 w. Va, IL
was held by our Supreme Court tnat
the clause Of the constitution giving
a landowner right to q jury to hA CON-
penSstion for land taken for q o was
in operation2 Why? Because there
was no statute providing how a Jury
should be summoned, empaneled ana
ACT, and the new constitution was not
in force when the commissioners report
was confirmed. Details and processes
were wanting. And in the karlsruhe
case, 9 w. Va, 1852, it was held that the
1 nlanSa G.fha Il ac,olafupa NAV nv law.