The Barre daily times. (Barre, Vt.) 1897-1959, 1915-01-09
j. w. ROWELL'S OPINION
ON NAMING JUDGES
As Given to the Vermont Bar Association
and Transmitted BY Association
to the Legislature.

The opinion which former Chief jus
tice John w. Rowell gave to the Vernon
Bar association concerning the right o
the governor to appoint judges of thu
supreme court and which was transmit
ted by the association to the legislature
was as follows:
I'm Re.
"The election of justices of the su
preme court:
"Sec. 4 of the constitution requires
that courts of justice shall be maintained
in every county in the state
Sec. A requires that the justices OF
the supreme court shall be elected bien-
nially, and that their term of office shall
be two years.
'lf these sections mean. as they must
that we are to have a supreme court al.
ways equipped for business, then the nee
essary implication is that the terms Of
| office of the justices shall be consecutive,
following one another in unbroken suc
cession, so that when one ends another
begins. Without this, the supreme court
would not be maintained according to
the true intent and meaning of the con-
stituton. And such has always been the
practical construction, and uniformly
acted upon.
"While the object of construction, as
applied to a w:itten constitution, is to
give effect to the intent OF the people in
adopting it, still this intent must be
found in he instrument itself if it can be
without resort TO extrinsic facts.
Now in order for the general assem-
bly, to elect justices for two years at
this biennial session, ii is manifest that
the continuity of judicial terms must be
broken, and warrant for that must be
found in the constitution, for the gen
eral assembly Is powerless to break it
without constitutional authority, and il
has none. So il is necessary to inquire
whether there is such warrant in the con
stitution.
"The constitution still requires the
general assembly 70 meet biennially the
same as before the recent amendments.
but in January instead OF October; and
IL also requires that the justices of the
supreme court shall be elected biennial
~ at the first session after the election
OF the assembly. 50 here a duty TO elect
at every biennial session is imposed. and
il is established as a general rule that
when a constitution enjoins duty, ii |
also gives by implication, every partic-
ular power necessary for the performance |
Of that duty. Therefore we have two
conflicting things TO deal with, namely, |
terms Of Office and a require
ment that breaks the continuity OF those
terms. This presents a case similar to 1
that of two statutes passed at different |
times, between which there is such a
positive and irreconcilable repugnaney
that they cannot stand together; in
which case the last repeals the first by
implication so far. but only as far, as
he repugnancy extends.
Applying this doctrine here, the
amendment postponing the time Of the
biennial meeting Of the general assem-
,ly neoessitates the breaking Of the con-
inuity Of the terms Of Office Of the ius.
ices as far, but only a. far. as necessary
o meet the requirements Of the later
lection, and 20 that extent the amend.
nent, by necessary Implication. suspcnds
he operation 81 the implication Of con-
ec1ltive terms, and makes the current
ERIN end when. but not before. the new
ERIN begins A. il NAV h. fixed by TIA
eneral assembly and then the uneNpired
'Ortion Of the current term will become
merged and swallowed up in the new
ERIN. and thereupon the Implication 81
terms viii become operative q
gain, and thereafter the terms win run y
n in unbroken succession. - before"