Telegram-herald., 1891-01-24
The act MAS VALID


eat for ths courts - &C eehsnd the
authenticated sct and ~ exskni1ss tie
journals u TIE Legislature 70 2~>SrtAla
whether or not the sAule wss conststa-
t,onally passed. bat where thss . psr-
Matted, the whole current Of authority
3 one way - 70 shs presumption being
Ia favor Of the validity Of the scf.
luis presumption IA favor of the
Legality Of legislative action IN the pas
sage Ut bill. 10 - stroAg thai il has
always been held that the evidence
found In the journals Riust b Of "a
Affirmative character, and - clear and
satisfactory as 10 be conclusive IN
order 70 ovefthrou the prlma fscie COR
rectness Of Legislative action. which AZ
taenes 10 every act which has been duly
authenticated by tho proper authority.
Hart w. MeHroy ~ Mich. 40 and
cases there cited.
And the record 90 il appears upon
the face OF the journals taken ~
whole without the "Errata" 10 one ct
all acquainted with legislative practice
shows clearly enough that the entry
upon page sll II . mistake aud that the
"ErratA" 10 correct. The proper motion
To have been made At that stage Of the
proceedings was, as appears ia the
aerrata," 10 reconsider the vote by
which the Senate had concurTed Ia the
House amendments. Then il could
have been properly sent back 70. the
House as Il was, and all the subsequent
proceedings as shown by the journal
would have been regular and usual.
But If the vote on the passage of the
bill had been reconsldered, being Sem
ate bill originally it could not have
properly been returned to the House.
There is no doubt in our minds from
an examination OF the whole record,
that the correction by the Secretary of
the Senate sets out the action of the
Senate as it was taken 1t the time and
that the mistake 10 upon the face of
the journal. IL follows that the bill
was properly passed.
Second-It is further contended that
the respondent was appointed before
the act took effect. 1t Is shown by the
| journals that the Senate, when concur
ing in the House amendments, made
no separate order that such concur
renee or the bill as amended should
take immediate effect. This was not
necessary. When the bill was origil,-
ally passed by the Senate, il was or.
dered to take immediate effect. The
bill, as amended by the House, Was by
that body also TO take Immediate effect.
This being originally Senate bill. it
was not necessary, after it had been
once given immediate effect, and the
action of the Senate thereafter was
confined to tho concurrence In the
House amendments which had by that
branch of the Legislature been ordered
| to take immediate effect, for the Sem
ate again TO order. by q separate vote,
| that the bill, as amended, should take
immediate effect. Concurrence in the
action of the House as to the amend
ments, must be considered as q concur
renee in the order that such amend
ments take immediate effect. And
this has been, we think, the uniform
practice of the Legislature in such
| cases.
| Third-It is further contended that
the Constitution does not authorize the
the Legislature to provide for the ap-
pointment of circuit judge created
under this amendment to the Consti-
tuition. The Constitution, Art. 6, Sec.
6, as amended in 1889, provides that
"the Legislature may provide for the
election of more than one circuit Judge
in the judicial circuit in which
the county of Kent is situated" It is
argued that this clause standing alone
does not authorize the appointment of
a circuit judge, and this may be con-
coded. But this section does not stand
alone. 1t is now q part of the Constr
| tuition, and must be construed with the
whole of that instrument. 1t is evil
dent that the plain intent of this amend
ment was to put the additional Judge
| of the Kent circuit, authorized 10 be
created, under the Constitution and the
| laws of the State applicable to the cir
| cult judges then In existence, and that
| his term of office should be limited and
governed by the Constitution, and his
successor be chosen at the same time
and in thesame manner rs other cir
| cult Judges. Art. 6, Sec. 20, of the
Constitution, provides that 1.-THE first
election of circuit judges shall be held
on the first Monday In April, 1851, and
every six years thereafter. Whenever
an additional circuit is to be created pro-
| vision shall be made to hold the subse-
quent election of such additional Judge
| ct the regular election herein provided"
The manifest intent of the constitu-
ton is that the judiciary shall be elected
harmony with the spirit of the consti-
tuition, if not with its letter. if the
Legislature in creating this Office had
provided for the choice of such circui,
| Judge by q special election. In such
case the person chosen would have
held the Office without question until
December 81, 1898, and his successor
would not have been chosen until the
1 sDr.,,n al nf ~ voov
We are of the opinion, however, that
a special election is not absolutely
necessary, and the Legislature may
authorize the Governor to make . pro-
| vislonal appointment. Such has been
the practice, and there is authority
sustaining it, to which we will refer
hereafter. 1t was competent for the
Legislature, at once upon the adoption
of this amendment, TO create the Office
of such additional judge and to pres
cribe his duties. As soon as the Office
was created a vacancy existed whether
Smith Va. Asker, 4S Ark 81, and case,
cited.
The constitution provides that "ths
Legislature may declare the cases II
which any Office shall be deemed
vacant. and also the manner of filling
the vacancy when no provision for tha'
purpose IL made in this constitution.
Art 4, section 81. Also that "wben 4
vacancy occurs in the Office of Judge ot
the Supreme, circuit or probate court
il shalt be filed by appointment Of ths
Governor, which shall continue until Z
successor is elected and qualified
When elected such successor snail hoie
ms Office the residue of the unexpiree
term Art s, section il.
In this case we find a VACANCY exist