The Manchester journal. [volume] (Manchester, Vt.) 1861-current, 1914-07-30
"oR oFTENER IF NEED BE"

lluH Win Nilt tlStucNioi ~ ~ H"S a. -
/ en- over the retention Of the paren
thetical phrase, cor oftenor if noec
be-" embodied in Section 43 Of the
state constitution as revised. He points
out that the commission TO prepare
amendments named by Governor
/ Prouty under legislative authority, af-
ter painstaking research and due de.
| liberation of all points likely TO be
involved, reported early in 1910, out
lining various suggestions Of changes
in Chapter II, and proposing section
that contained the following:
"They may in conjunction with the
senate in JOINT assembly biennial'y on
their first session after their election
Cor oftener if need be) elect judges
of the Supreme and several county
courts, except assistant judges Of the
county court, and also from tine to
time, as often as there shall be occa-
sion, elect major-generals and briga-
dier-generals.
The correspondent calls attention to
the fact that this provision is almost
identical in form with Section 43 Of
the revised chapter, and that it also
preserves the cor oftener If need be" "
He points out that it is fair to assume
that each body of men, after careful
study arrived pendently at tho
same conclusion. He further mentions
that the board which framed the pro-
posals of amendments, including this
one, for the later adoption Of which
the justices of the supreme court have
been publicly censured, included in its
membership of five the Hon. Allen NJ.
Fletcher, at present governor, who
seems now disposed to question the
very thing that in 1910 he recommend
ed the Legislature to do.
The Free Press contributor might
have gone farther than he did along
the trail he struck. He might have
quoted reasons given by the learned
commission for recommending the re-
tention of the much h-discussed phrase.
1t is found on page % Of their report,
following the tentative draft of See
tion 10, and is as follows:
Although Article 26 (of the amend
ments to the constitution) provides
that judges Of the supreme court shall
be elected biennially for two years,
the words cor oftener if need be" are
here retained because in some contin-
gencies they might have force in the
case of judges of the supreme court,
and they apply equally to judges OF
the county courts"
Remember that this statement an
tedated by nearly three years the
revised draft and that it was prepar-
ed by men Of conspicuous ability not
one of whom was personally interest
ed in the tenure or personnel Of tie
judges.
Concerning the Contingencies"
above alluded to, something was said
in this column last week. "Or oftener
if need be" was apparently retained,
first, because there was no direct war
rant for throwing it out, in the alb
sence of which the justices could not
dispense with it; and, second, because
there was ample warrant for keeping
it in. We instanced last week that
Legislature in session might be con-
fronted with vacancy in the bench,
yet if it could only elect "biennially"
and not "or oftener if need be- it
must sit idly by while the governor
filled the place by appointment. In
fact, this very case has arisen two or
three times since Article 26 was
adopted in 1870 Judges Of the sup
rene court were elected by the legis-
lature in 1850 (after a protracted
ending in the choice Of Rus
sell S. Taft and in 1909, when George
NJ. Powers was elevated to the su-
preme bench and Zed S. Stanton TO
the superior bench, the vacancies
curing during session of the assem-
bly,. Some question arose in 1880
over the legality Of the proceeding
and the legislature Of that year pass
ed an act that is now Section 254 of
the Public Statutes as follows:
"The general assembly shall fiji
all vacancies in Office existing or oc-
,urring while it is in session, where
The incumbents are by law elected by
The general ASSEMBLY,; and such officers
20 elected shall hold their respective
)ffices during the pnexpired term"
In 1909, so clear was the public
mind on the point that nobody ques-
toned the right Of the Legislature to
elect oftener than biennially If need
De-"
In preserving this clause the JUS
ices have done only what plain com
non sense dictated, and what their
understanding OF the law must have
compelled.
II any Of the newspaper critics are
u the opinion that Article 26 super
'eded this provision when it prescrib-
ID that the judges should be elected
,iennially for a term Of two years,
ct them consider that this article