State v. Martin

• Decision Date: 16 March 1895
• Citation: 30 S.W. 421
• Parties: STATE ex rel. ATTORNEY GENERAL v. MARTIN, Circuit Judge.
• Court: Arkansas Supreme Court

30 S.W. 421

STATE ex rel. ATTORNEY GENERAL v. MARTIN, Circuit Judge.

Supreme Court of Arkansas.

March 16, 1895.

Petition for writ of quo warranto on the relation of the attorney general against Joseph W. Martin as judge of the circuit court. Writ discharged.

On the 8th day of February, 1895, the legislature passed an act entitled "An act to provide for an additional circuit judge for the Sixth judicial circuit, and to regulate the practice in the circuit court of Pulaski county." The act, commencing with the preamble, is as follows: "Whereas, the increase of population and of judicial business in the Sixth judicial circuit of which Pulaski county is a part, is so great that the courts provided by law can not protect the people in their constitutional right to obtain justice promptly and without delay, and in criminal prosecutions cannot afford the accused a speedy trial as guaranteed by the constitution; therefore, be it enacted by the general assembly of the state of Arkansas, that: Section 1. Hereafter there shall be an additional judge of the circuit court for the Sixth judicial circuit. Sec. 2. The circuit court of Pulaski county shall be divided into two divisions, to be known as the First and Second divisions. Sec. 3. The circuit judge now in office shall hold the court for the First division, the judge provided for by this act shall hold the court for the Second division, and their successors shall severally do the like, and said judges shall be elected and appointed for each division separately. Where the dispatch of the business of the court shall render it expedient, either judge may hold the court of the other division." The remaining sections provide for the method of procedure in the respective divisions, the holding of court in Perry county by either judge, payment of salary, etc. It is unnecessary, for the purposes of this decision, to set them out. On the 12th day of February, 1895, the governor appointed Joseph W. Martin, Esq., "as judge of the circuit court for the Second division of the Sixth judicial district." On the same day he received his commission from the governor, and qualified as the law provides, and entered upon the discharge of the duties of the office. The state, through her attorney general, filed an information with the clerk of this court, and applied for a writ of quo warranto. The respondent waived the writ, entered his appearance, and filed his response setting up his authority to hold the office by virtue of the act above recited, and his appointment and commission by the governor. The state demurs to the response, and the question arises on the demurrer.

E. B. Kinsworthy, Atty. Gen., John M. Rose, and Williams & Bradshaw, for petitioner. Rose, Hemingway & Rose, S. R. Cockrill, J. M. Moore, Ratcliffe & Fletcher, Blackwood & Williams, Jones & McCain, and Morris M. Cohn, for respondent.

WOOD, J. (after stating the facts).

The state contends that the act is in conflict with section 13 of article 7 of the constitution, which is as follows: "The state shall be divided into convenient circuits, each circuit to be made up of contiguous counties, for each of which circuits a judge shall be elected, who, during his continuance in office shall reside in and be a conservator of the peace within the circuit for which he shall have been elected." It is contended that the word or letter "a" before the word "judge" in the above section is a limitation upon the power of the legislature to provide for more than one judge in a judicial circuit. We must keep to the front certain familiar but unvarying rules when we come to interpret the provisions of any section of a constitution. (1) Unambiguous words need no interpretation. (2) Where construction is necessary, words must be given their obvious and natural meaning. (3) The words or provisions under consideration must be construed with reference to every other provision, so as to preserve harmony in the whole instrument. (4) The intent of the framers, gathered from both the letter and spirit of the instrument, is the law. Potter's Dwar. St. 203, note 20; Sedg. St. Const. Law, 195, 413; Beavers v. State, 29 Ark. 144; State v. Scott, 9 Ark. 271; Hawkins v. Filkins, 24 Ark. 288. Then, when we come to pass upon the constitutionality of an act of the legislature, we must remember that a state constitution is not a grant of enumerated powers. Its object is to outline the departments of government, and apportion its various powers among them. Having vested the lawmaking power in the legislature, it possesses that power in an absolute and unlimited degree, unless the restriction is found in the constitution itself. Cooley, Const. Lim. 200, 201, 206. Hence we always look to see, not whether the power is given, but whether, in express terms or by necessary implication, it is forbidden. Cooley, Const. Lim. 204, 206; Neal v. Shinn, 49 Ark. 227, 4 S. W. 771; Scales v. State, 47 Ark. 481, 1 S. W. 769; Sill v. Village of Corning, 15 N. Y. 297; Sears v. Cottrell, 5 Mich. 250. Judicial interposition to avoid an act of the legislature is never justified unless it is clear, beyond rational controversy, that it has passed the bounds set by the fundamental law. Com. v. McCloskey, 2 Rawle, 374; Weister v. Hade, 52 Pa. St. 474; People v. New York Cent. R. Co., 24 N. Y. 504; People v. Supervisors of Orange Co., 27 Barb. 575; Cochran v. Van Surlay, 20 Wend. 365, and other cases cited in Cooley, Const. Lim. 204, 205, 216, 217; Carson v. Levee Dist., 59 Ark. 513, 27 S. W. 590. Now, the adjective "a," commonly called the "indefinite article," and so called, too, because it does not define any particular person or thing, is entirely too indefinite, in the connection used, to define or limit the number of judges which the legislative wisdom may provide for the judicial circuits of the state. And it is perfectly obvious that its office and meaning was well understood by the framers of our constitution, for nowhere in that instrument do we find it used as a numerical limitation. It is insisted that if "a" does not mean "one," and "but one," in the section quoted, then the way is open for a latitudinarian construction in the various other sections where it occurs; and that the number of governors, attorneys general, secretaries of state, auditors, general assemblies, etc., we are to have depends only upon legislative caprice. Let us see. Section 1, art. 6, of the constitution provides: "The executive department of this state shall consist of a governor, secretary of state, treasurer of state, auditor of state, and attorney general." No one would contend that there could be more than one of each of these functionaries, but the limitation is not found in the use of the letter "a." It is in the name of the office and officer created. The idea of two governors, secretaries of state, treasurers, etc., is unknown in the history of the formation of state governments in this republic. It would be utterly incompatible with the duties of these officers to have a divided department, and a head for each. Moreover, other sections may be looked to as defining the number as to the executive. For instance, section 2 provides: "The supreme executive power of this state shall be vested in a chief magistrate who shall be styled `the Governor of the State of Arkansas.'" See, also, section 6. There can be but one chief magistrate, one commander in chief. Take the legislative department. Section 1, art. 5, is as follows: "The legislative power of this state shall be vested in a general assembly which shall consist of the senate and house of representatives." Section 18: "Each house, at the beginning of every regular session of the general assembly and whenever a vacancy may occur shall elect from its members a presiding officer, to be styled respectively the president of the senate and the speaker of the house of representatives." Reference is made in the brief of counsel to these sections, and it is urged that unless "a" is a limitation to one, and but one, in section 13 of article 7, there is nothing to inhibit more than one general assembly, one president of the senate, and one speaker of the house. But again it is patent that the limitation to one general assembly is not in the use of the letter "a," but is referable to the principle that there can be but one supreme legislative power in a state. That sovereign power being delegated by the constitution to a general assembly, it cannot create another general assembly, and delegate to it the same power. So far as the president of the senate and speaker of the house are concerned, they are presiding officers. There can be but one presiding officer. The limitation is in the word "presiding," not in the letter "a." Now, in other sections we find the word "one" used. Section 28, art. 7, provides that "the county court shall be held by one judge except in cases otherwise herein provided." Section 39: "For every two hundred electors there shall be elected one justice of the peace, but every township however small shall have two justices of the peace." Section 46: "The qualified electors of each county shall elect one sheriff, * * * one assessor, one coroner, one treasurer." So the convention, when limiting the number, used the numerical adjective, or other terms which in themselves expressed affirmatively the idea of one, and hence excluded that of any more. This fact, when we consider that constitutions are framed for ages to come, affords the most plausible argument that the framers of our constitution purposely omitted limiting the number of circuit judges, in anticipation of any emergencies in the speedy administration of justice, occasioned by the increase of population and the accumulation of litigation. Especially is this argument strengthened by the fact that judicial circuits were to be composed of contiguous counties, many of which, like Pulaski, were already large, and contained cities that were rapidly increasing in...