Omaha daily bee., 1905-06-23
THREE JUDGES CONCUR IN THE OPINION
Clearly Viola;ei Provisions Of Constitution
Providing for Annual Election.
FECTs ALL CONSTITUTIONAL OFFICES
Those Created by Statute Can Be Chosen
When Legislature Wills
OPINION OF The COURT is LENGTHY
Renders Election this Fau Imperative
for All Except OmciaIs Specially
Exempt Under Courts
Opinion.
(From a stan Correspondent }

CFrom a Stan Correspondent
LINCOLN, June Especial The bi-
ennial elections Law enacted 10y the Late
legislature was declared unconstitutional
this morning by the supreme court in an
opinion written by Chief Justice Holcomb,
which was concurred in by the entire court
While the court does not doubt the author
fly Of the legislature to fix the time Of the
election of county officers not specified in
the constitution, the entire act is declared
invalid and the officers mentioned will not
have their terms extended by the passage
Of the bill -Four other special acts how
ever. were passed by the legislature which
are not affected by this decision and there
will be no election in those cases this fall.
These are II. r. 3l5. providing for the cleo
ton OF registers OF deeds in 1906 II. h. SIG,
providing for the election OF county com
missioners in 1895: H. r. 81. providing for
the election Of county supervisors in 1906;
II. r SlA providing for the election Of
county assessors in 1895
The result of the decision will be the cleo
tion this fall of the following officers: One
supreme judge. two regents Of the State
university, county clerk, county treasurer,
county sheriff, county Judge. county cor
oner. county superintendent and county sur
veyor In fact, elections will be held as
though this particular biennial elections
law had never been conceived and enacted.
syllabus of the Opinion,
The syllabus III the case Is as follows:
When IL IL obvious that portions of an
act Of the legislature where the principal II
not the sole. inCuCement for Iue passage
OF the act ana such parts are held 10 be
unconstitutional because la conflict with the
paramount law, the act will be declared
! The provisions Of section l3. article xviii
Of the constitution, wherein II is provided
The general election OF this state shall be
heIu on tuesday succeeding the first Mon
I day Of November OF each year. e-cept the
/ first general election, which shall be held
/ on the second Tuesday of October, 1915"
/ construed and held that il is not OF itself
an imperative command that general cleo
tions shall be held annually the time
Quired depends upon the Offices created by
the fundamental law and the time, as
! therein provided, at which an election must
] BY the provisions VI the constitutional
1 sections 4, 10, Is. 20 and q of article vi. and
sections Is aud 70 OF article xviii judges OF
the supreme court, district and county
courts and regents of IT, University, whose
/ ofices are created the. o., it is declared
shall be elected at the ms. geenral election
J held in 1875. The terms Of these
several officers are hxed at siA.
and the terms of the Office begin on the
first Thursday after the first Tuesday in
JhuudlN neat succeeding ANeI election.
| shall thereafter be elected at the general
election next preceding the time of the
termination Of their respective terms Of
Office. Held. that these provisions when
construed together tiX the terms of ONCE
ana the time OF the beginning and terrnina-
tion of such terms and the time of
the first election, ana that thereafter r
the general election next preceding
| the time of the termination of each and
every subsequent term Of office, as they
shall follow each other in succession as
several sections provide for regular sue
cession Of, and continuity in, such terms
Of Office, the force Enc effect OF which are
TO make il mandatory hat general elec-
tion shall be held in each OF the odd num-
Ordinarily the word or words, term or
term Of Office when used in reference 10
a tenure of office, means a hxod and def
mite period Of time. Section 10 OF article
vi of the constitution declares: "Al off,
GERS provided for in this article shall hold
their Offices until their successor shall be
qualified" Held, that this provision
mean that the legal terms oi
I Office Of the officers provided for in said ar.
ticle in the sense in which, used in refer.
enCe to the tenure OF once, shall consist
] OF d fixed and definite period therein men
toned and in addition thereto the inde
terminate period which an incumbent may
hold after the expiration Of mis- nxed tern
and until successor shall be qualified.
where LegisInture IL PowerIess.
, Where by the fundamental law, certain
Offices are created, the terms Of ofiCI
which are fixed at certain definite periodI
OF time ana beginning and termination
thereof prescribed, as well as the time 10
: the election OF q EuCCt BsuT, the leglSlat UT
: is without authority 10 postpone the elec
tiOn Of such successors until the succeed
ing general election held IN the next yea
and TO extend the term Of once of the IN
. / CUmbeuIs during the intervening time, an,
10 provide for an election in a difereu
year IN which TO eject such successors an,
a different time for the beginning Of sucl
! I term Of Office.
Provisions found in the schedules Of tn
! constitution are not in all instances 10 b
/ construed as Of temporary character
! The language used should be given its OF
! dinary meaning, and whether II is intende
% 70 be Of a temporary or permanent charac
y . ter must be determined from the purpOs
: I Of the ena Ctmeut and the object sought L
be accomplished thereby The true mean
% ing Of :he law ls discovered by cUnsideIiu
+. the reason and spirit OF II or the caus
!. which moved the law making body 10 ell
:, act il.
|. ! the legislative construction when legisla
, I ton is had regarding subjects Of a pOllticl
p nature but when such construction clearl
/ appears 10 bc unWaTTauted IL viii not b
The provisions Of the biennial electio
law House Roll IS, session laws 1905, II
. act under consideration, are found 70 be /
/. conflict with the paramount law relatv
j 70 the election OF judicial onlcsTs and re
gents OF the university, and the tim
n thereof. and of their terms Of Office, an
;, for such reasons is held 70 be inoperath
p and void
argument that the legislature has rigt
20 interpret the constitution when II bear
Al on subjects Of a political nature and tha
4 the rule contended for seems reasonable
G, but that il cannot be given the weigh
- urged because the provisions Of the cor
b I stitution will not bear a construction pei
mitting the legislature 10 change the tim
, ] Of holding elections Tor judicial of1ces an
:. extending their terms one year.
9. Conflict IL PAIpable.
>. The conflict Is 50 palpable.' he say
"a that the legislative enactment must CIV
way"
" The action Of the legislative branch
the government Is entitled 70 and shoul
a, receive from The judicial department n
greatest Of respect and Difference. tn
~ mas been freely accorded and ever kept
mind in The CDIsldeTa ton and discussion ,
" the case al bar The court should ana DO,
I approach a conclusion resulting In q hol,
m / ing that the law is unconstitutional. Wit
great caution and hesitaEcy. The wisdom
III policy and eNIenleuCy OF the Law haN