Morning journal and courier., 1892-04-08

4
respondents demurrer was filed. Judge
Hall held that the grounds of the demur-
rer are substantially like those in the case
of Morris vs. Buckley, excepting the Sec
ond and eighth paragraphs, which read:
Paragraph a-''That the facts therein alleged,
from pages "a to SO inclusive. are allegations of
original information, and therefore can have no
bearing or effect upon the question whether the
when the original information was fled"
Paragraph S-"Because the information does |
not allege that the general assembly has ad.
journed sine die, and thus become incapable of
finding and declaring or choosing a successor to
this defendant"
demurrer is strictly technical, and adds that
this ground of demurrer may as well be swept
aside at the outset it dwarfs and obscures the
main question at issue and is not founded in
law:
cept paragraph 8, involve constitutional ques-
tions and may be considered together They all |
challenge the jurisdiction of the court and deny
the judgment asked for in the information. In |
other words, the respondent claims that the gen.
eral assembly is the sole, exclusive tribunal
which can take cognizance of the election OF
secretary.
can these jurisdictional objections were re-
Gently made and fully agreed before the s. preme |
The decision of the court in that case whatever
else it left uncertain or undecided most clearly
court in o certain contingency to take jursdic-
ton of such case as that set forth in the in
Judge Han held that in accordance with the
supreme court decision the election of state Off
GERS was incomplete until the requisite de.
complied with and that the Legislature having
failed to act in the case and lost its power to act
in the the superior court has power to recti
fy the omission.
The court further held that it had full consti-
this character Now ths court asked, has such
an emergency arisen that this court should
in at length a1a hsa
that since the adoption OF the amendment to the
Of s relating to and dhe
| the constitutional requirements concerning the
ehocs and ~ Of in
Secretary Now conceive there az two ways
| in which the general assembly might be cons1d-
cred to have lost its power to make the declara-
ton Of election required by the constitution
First by express constitutional Limitation. Sec
ond, by such disagreeing action of the two
houses and such consequent refusal or neglect as
that the ERA a Is G'i b1
/ the constitution.
The court found no escape from deciding upon
this question, ,such as had the supreme court in
stances and past history the case i hang .S.
| the trainers of the constitution intended precise
! ly what they said when they declared that the
second day Of the session, the claims Of the
counsel for the respondents to the contrary not
withstanding.
ground when they venture to apply the rules
| which distinguish directory and mandatory
Tss q sp so
| be done and they must then be regarded in the
light Of limitations upon the power to be exer.
| cised. 1t is the province OF an instrument Of
this solemn and permanent character to estab-
lish these fundamental maxims and fix those
unvarying rules by which all departments OF the
| duct. We are not therefore to expect to find In
the constitution provisions which the PEG
earded as of high im portsnce and worthy to be
In an @ 45 WHICH rer nd e h at
government and to form standard by which is
to be measured the power which can be exer-
people themselves. If directions. are given re-
specting the times or modes Of proceeding in
st Rower that the people de-
signed it should be SO exercised in that time and
due eny 81 the purpose proper pro-
| vince Of such an instrument and when we infer
"Cooley's Constitutional Limitations 9Th edi-
| tor, pages % and "a, and cases cited.
"Endifch's Interpretation Of Statutes" section
Our supreme court recently said in discussing
| this question:
the general assembly to proceed to elect q gov
ernor on the second day of its session if, not.
Gbersy to proceed S to elect any other dayss #
the command to proceed to elect on the second
yhs sesson them t"e onG has
| and the instrument which was intended to be q
particulars fails to be a limitation at all. When
! the constitution commands q certain course to
be pursued, that course must be pursued strictly
any other deemed equally. eligible. except by
disregarding the constitution itself, and when
| the constitution directs the general assembly to
proceed to choose governor on the second day
Of its session it, in effect, forbids any choice
| Of the session.
LEGISLATION TOO LONG NEGLECTED.
The only logical conclusion that can be de-
Quoted from the entire reasoning of the court in
the declaration required of the general assem-
bly, by the constitution cannot be made later
the constitution 1a sanctions and epforses this
SS s Of 9ss
too long AH npssected @euid naturally H
or alleged fraud or irresaiarity affecting the
election Of state officers might be finally settled
aad
complications arising from the last general cleo
ton be rendered impossible: have said this
pressed upon my attention upon this point and
leave the question here trusting that the court,
/ question, will be speedily called upon to finally
BEYOND PARTISAN STRIFE.
case that the general assembly did rot lose its
| power to make the requisite joint declaration by
o its
strated the fact that it is now without the power
delicate question of the greatest importance in
which every citizen has the deepest concern. 1t
praeticaf iurspr1dence teaching far beyond the
l ambitions OF men or the strife OF partisans. 1t
II Of n