Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1900-10-20
A CONSTITUTIONAL AMENDMENT.
,(Com.)

AS to the proposed constitutional
amendment in refernce to the supreme
court, there seems to be the some misap-
prehension this year as existed two,
years ago. There is before the people
this year a proposed constitutional
amendment which is identical with that
voted upon in 1898. The amendment in
1898 was duly carried by the popular
vote. but it was afterwards discovered
that notice of such amendment had not
been duly published, and therefore it was
held by the supreme court that the
al tendment was not operative. For that
reason the legislature of 1899 provided
| for a r~e-submission of the amendment
this year. The amendment now sub
united is as follows:
Section 2. Section 5 of Article VIII
shall be amended as follows:
THE supreme court shall consist of
| three Justices, a majority of whom shall
be necessary to form a quorum or pro-
nounce a decision, but one or more of
said justices may adjourn the court from
tday to day, or to a day certain and the
legislative assembly shall have the power
to increase the number of said justices
to not less nor more than five. In case
any justice or justices of the supreme
court shall be in any way disqualified to
sit in a cause brought before such court,
the remaining justice or justices shall
have power to call on one or more of the
district judges of this state as in the par
~fticular case may be necessary to consti-
ttfte the full number of justices of which
| flo coi6 co,,rf chan than ha cnrnnnSp0t
to sit with them in the hearing of aid
cause. In all cases where a district judge
is invited to sit and does sit as by this
section provided, the decision and the
opinion of such district judge shall have
the same force and effect in any cause
heard before the court as if regularly
participated in by a justice of the SUI
preme { lrt." s" I.
We notice that it seems to be consid-
cred in some quarters that this amend
ment is to provide for the increase OF. the
number of justices to five. But there is
nothing new in this provision. Section 5.
j Article VIII of the Constitution as
# adepted in 1889 contained the same pro-
{vision that the legislature might at any
time increase the number of justices to
lIOl lCoo vi ilO1S IAaAA III SASA
words, the first sentence of the proposed
amendment is in the exact words as. the
4 original Section 5 of the constitution.
That which is new in the amendment is
q the matter following the first sentence.
In other words, the new matter is to the
reflect that in case of the disqualification
1 Of a supreme justice or justices to sit in
] a particular case, a district Judge or
judges may be called in to sit in such
case. In submitting the amendment the
legislature, instead of submitting the
matter alone, has caused to be rewritten
the whole of Section 5, n in SO re-writ-
ing that section it contains both that
which was old and hat which is new.
Therefore the only matter for the people
to pass upon at this time is simply
whether or not the supreme court shall
have power to substitute district. judges
in cases where supreme court justices
are unable to act.
The amendment has the universal APP
prevail of the members of the bar and In
deed the proposed submission was
passed by the legislature upon the sug-
gcstion of the lawyers. 1t is an amend
ment which has always been believed to
be practical and beneficial. During the
whole history of the supreme court many
cases have been heard by two justices
only. When a new justice goes upon the
bench all the appeals in cases where he
J, has been counsel are heard by two JUS
tees only. This was particularly notice
able at the commencement of the life OF
|. the court. At that time two of the JUS
tees went upon the bench directly from
an active practice n the other from
the district bench. Thu reports will show
a vast number OF cases where only two
Z justices sat. In such a case, II the twt
sitting Justices disagree, the case |.
affirmed without ar opinion. This has oc'
. Cured, and is always unsatisfactory. 1
Is quite among the possibilities for {
: case to arise where two of the supreme
court justices would be disqualified. In
E deed this occurred at one time. The cas-
OF Newkirk VS.. The Board OF Count!
e Commissioners was appealed from Silve
8 Bow county. Chief Justice PembertoI
e had been counse for n party and JUS
tice Dewitt for the other party. The re
suit was that the appeal could not b
heard at all as long as these two justice