The Fargo forum and daily republican., 1916-12-11

| luIeu, 6aCH IllInS HIS ESkuEA w lhS
writ and claiming, in substance, that
his term Of office does not expire until
the first Monday in January, 1917.
Upon the other hand. counsel for the
judges elect, appearing specially,
moved that the order to show cause be
discharged, for the reason that the
court as now constituted, was not
court and had no jurisdiction in the
matter whatsoever. At this junCture
the court was compelled to pass upon
the question of jurisdiction. Being of
the opinion that there Is no question
whatsoever but that this court, as now
constituted, is q regularly organized
and existing court under the conStitu-
ton, sitting as the\supreme tribunal
thereof, we conclude and so hold, that
the motion must be denied. This, we
do independently of the decision here
! tofore rendered in this same proceed
ing and to which reference has been
made State eX rel v Robinson, supra.
We however, wish it to be understood
that we have carefully considered that
decision and unanimC usly concur
therein, save and except as to the rea-
soning upon which Judge Hanley bases
his concurrence. Reference to that
opinion will fully answer the jurisdic-
tional questions involved herein, with
out the necessity OF embodying the
| same in these conclusions. 1t may be
appropriate, however, for us to add
THAT we cannot agree with the conten-
ton of the judges-elect that there is
no tribunal in this state which can
settle the questions here in dispute.
Carried to it's logical conclusion, their
Icontention would bring us into that
singularly unfortunate state of confu-
| sion where one body of men in office
claimed the right to sit, and another
not having possession, asserted the
same right. The matter would then
have to be determined by purely the
right OF possession, or a recourse of
physical force, where the members Of
the highest judicial branch Of the gov
ernment must settle the disputed
question by the arbitrament Of arms,
Such G. humiliating spectacle In civil
lied society ought not to exist. Clearly
no such lapse Of power could have
been contemplated by the people of the
state Of North Dakota when they
adopted our constitution containing its
clear provisions with reference to call
ling in judges Of the district court to
sit when the judges Of the supreme
icourt were for any reason dtsquafi-
fed. This court. as now constituted, is
as much the supreme court Of the state
Of North. Dakota, as though the mem-
bers thereof had been elected to that
position by the people themselves, for
the the simple reason that the people
in adopting the constitution said that
the tribunal as now created should be
lorganized in the form In which 1t In,
in cases where the duly elected and
acting supreme court Judges were dis
qualified.
Upon the whole record therefore the
sole and only question remaining for
decision Is whether the term of office
Of the judges-elect commences on the
first Monday In December, 1916, or, the
first Monday In January. 1917. This
calls for an Interpretation OF certain
sections of our constitution and con-
,struction of the whole thereof in con-
nection with appropriate legislation
made prior and subsequent to the Gre
alton of our state, and it's admission
into the Union. Before taking up, q
discussion of the several sections Of
the constitution, it may be appropriate
to refer to certain canons of construc-
ton, which are so thoroughly settled
as q part Of the law Of the land that
their simple statement will be suffi-
cient to show the elementary character
they possess. THE object of construc-
ton, as applied to a written constitu-
tion, Is to give effect to the intent of
the people in adopting it. In the case
of all written laws it is the intent of
the lawgiver that Is to be enforced, but
this intent is to be found in the instru-
ment itself. The whole instrument is
to be examined" Every such instru-
ment is adopted as whole. and a
clause which, standing by itself. might
seem of doubtful import, may yet be
made plain by comparison with other
clauses or portions of the same law
1t is, therefore, very proper rule OF
construction that the whole is to be
examined with view to arriving al
the true intention OF each part" "Thc
rule is that effect is to be given, IL pos
sibIe, to the whole instrument, and to
every section and clause If different
portions seem to conflict, the courts
must harmonize them. if practicable
and must lean In favor of construc-
ton which will render every word op.
eratiye, rather than one which MAY
make some words idle and nugatory.'
The purpose to be accomplished by the
constitution or any part Of Its seyera
parts should be. considered and that
will shed great light In constituting sucl
1 constitution. 1T is possible" however
that after we have made use of all oi
the lights which the instrument itself
affords, there may still be doubts t.
cleaer UP and antiquities to explain
Among these aids is a contemplation
clear UP and antiquities to explain
4 mischief designed to be remedied OF
4 guarded against by the clause In which
Il the ambiguity Is met with. When we
A once know the reason. which alone de.
termines the win Of the lawmakers, we
ought to interpret and amply the words
used in q manner suitable and conso
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