Morning journal and courier., 1892-01-06

votes, proceed to elect governor. Here
the time is fixed by affirmative words-the
second day. Il
Affirmative words are often in their
operation negative of other things than
those affirmed. Thus statute which pro-
vides that thing shall be done in GER
tain way carries with it an implied prohi-
bition against doing that thing in any
other way An enumeration of powers in
q statute is uniformly held to forbid the
things not enumerated. When congress
gave the supreme court of the United
States appellate jurisdiction in certain
specific cases it was held to forbid that |
court from exercising appellate powers IN
all other cases than those specified.
When national banks were empowered |
to make loans on personal security, it was |
holden that such bank could not make |
loans on the security of a mortgage on |
real estate. In an instrument which is |
limitation of power, this rule of interpre- |
tation applies with more force than in |
statute that confers power. To what end
did the constitution command the general
assembly to proceed to elect a governor on |
the second day of it's session if notwith- |
standing such command the assembly is at
liberty to proceed to elect any other day?
If the command to proceed to elect on the
second day ID not prohibition to elect on
any other day of the session, then the
command has no force, and the instrument
which was intended to be limitation of
power, in one of it's most important partic-
ulars, fails to be a limitation at all. When
the constitution commands certain course
to be pursued, that course must be pursued
strictly.
Il is not proceeding which may be
varied for another deemed to be equally
| eligible except by disregarding the consti-
| tution itself, And when the constitution
directs the general assembly to proceed to
| choose a governor on the second day OF
| it's session It in effect forbids any choice Of
a governor by the assembly at any later
day of the session. But the assembly can
never proceed to the choice of governor
unless there has been previous determin-
alton that no person has majority of all
the votes. The power Of the assembly to
choose governor depends upon previous
examination, finding and declaration that
no person has received such majority. And
| as this finding and declaration must pre-
cede the right of the assembly to choose
the governor it cannot be later than the
second day of the session.
The constitution provides that the fair
list made by the treasurer, secretary and
comptroller, and the returns from the
presiding officers shall be laid before the
general assembly on the first day of It's
session, and that said assembly shall after
an examination of the same, find and de-
clare. When examined And when de-
clare? It would seem that it must be done
| at once and that the direction SO to do
is included in the very words used. 1t is
obvious that the declaration of the re-
suit cannot be delayed so long as to
prevent the assembly, in case no
the second day to choose gov
| ernor, The power to declare that no one
is elected governor implies necessarily
: the power to declare that some one is
elected. If the former is cut off by the
, words of the constitution after the second
day of the session, the latter is also cut off
l after that day. This opinion is not now
for the first time advanced. In 1881 there
was no choice by the people of lieutenant
s governor; the two houses of the general
r assembly were unable to unite in a joint
, ballot on the second day of the session,
i and there was no lieutenant governor
9 chosen that year. 1t seems to have been
q taken for granted that any choice Of a later
n day would be invalid. In 1871 the general
r assembly, both houses concurring, upon in
4 | formation that fraud had been committed
in one of the cities of the state sufficient to
g change the result in the choice for gov
ernor, as it appeared by the returns of the
), presiding officers, by its committee inves.
. tigated the matter and found that great
e fraud had been committed and thereupon
e declared that person to be elected who
L was found to be rightfully elected, al
d though it was contrary to the result
II | which appeared by the returns of the pre-
le siding officers. The assembly that veal
n contained many members who were law
s. | yers of distinction and ability. 1t il
known that the opinion of almost every
n other eminent lawyer in the state was OBJ
IF tanned, and while there was great differ
ence in their opinions as to the power O
AZ the general assembly to make the investi
D. CATION, there was no difference in thei
10 opinions as to the time when the result O.
70 the investigation, if one was made, mus
,e be declared, and the result in she case wa
" declared on the second day of the session
r, In 1883 somewhat similar case happened
10 in the general assembly. In each of thes
" cases the opinion prevailed that the decla
30 ration in respect to the election of cover
r nor could not be made 30 late in the session
8. as to prevent the assembly, in case Their
a. was no choice, from proceeding on tn
K second day to choose governor. So ia
re as usage can be relied upon to afford col
I'd rect Interpretation of the constitution il
j. this particular, it is uniform in one dire1
es ton.
IN 1t may be urged that the necessity rest
ing upon the general assembly to examin
h. the fair list and the returns of the presid
as ing officer is inconsistent with the duty t
IN | make the declaration early in the ses
80 sion. The words of the constitution upo
at | which this argument rests are found in tn
at | section already quoted, as follows: ''An
pt said assembly shall, after examination {
the same, declare the person whom the
be shall declare to be legally chosen, and Civ
him notice accordingly. An examinatio
nv may be very general or it may be yer
, ry particular. Whether it is to be the or
he or the other in a given instance must
he largely determined by the purpo,
,ea for which the examination is mad
The examination which the assembl
is directed to make is for the pu
No No pose of finding who, if anyone,
Y chosen governor; and not only that b,
70 who is legally chosen. To find, in tt
" meaning of the law is to ascertain by j
10 dicial inquiry. And the command to fir
~. and declare who is legally chosen meal
~ that the examination shall be sufficient
ou full and careful to determine the title,
a. that the person declared to be chosen sha
'a+ have an unimpeachable title to the ofic
, 20" 1t is doubtless highly desirable that the
I;s should be governor at the very beginnir
- of the session of the assembly. But it
still more desirable that there shall be
~ question about the title of the governo
10 To induct a person into the Office of go
10 ernor whose title was open to dispute al
~ | VINO mlSQG COO 10 uuScu LOU 10 Ia
~ been elected would be to invite disco,
~. and delay.
re- Those who are dissatisfied with his tit
Iae would refuse to go on with legislation, a
-; no imosities might be provoked, the publ
~. business would be neglected, and conc
~ ton of things alike discreditable to Il
Pr participants and the state would be like
oae to bs produced. Such course won
~ bring about the very evils which the @
~ animation by the general assembly is c
~, rected to make was intended to proven
" The time and manner of the perforr
w ances by the general assembly of the du
10 to examine and find must be construed
~ connection with the means provided,
' nrs which may be provided, for its perfor1
o " ance and as applicable to that condition
~ things which will exist when the gener
w assembly shall have prescribed suitab
10y laws for it's performance. Th
~ condition of things which nc
,o- exists solely because Of the neglect of Il
n pI general assembly to prescribe suitable la,
~ in this respect, cannot properly be urg
~, as a reason for holding that the general q
~ sembly should have wider authority or
ID longer time for the examination, fndil
nar and declaration. The concluding senten
IL" of that section of the constitution abo,
~ quoted is that 1.-THE general assemb
III shall by law prescribe the manner in whit
oar all questions concerning the election
1er governor and lieutenant-governor shall
~ determined" By this direction the wisdo