State v. Martin

• Decision Date: 16 March 1895
• Citation: 30 S.W. 421,60 Ark. 343
• Parties: STATE v. MARTIN
• Court: Arkansas Supreme Court

30 S.W. 421

60 Ark. 343

STATE v. MARTIN

Supreme Court of Arkansas

March 16, 1895

Petition for Quo Warranto.

STATEMENT BY THE COURT.

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 part, is so great that the courts provided by law cannot 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." Acts 1895, ch. 7, p. 9.

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.

Demurrer overruled and writ discharged.

E. B. Kinsworthy, Attorney-General, John M. Rose and Williams & Bradshaw for petitioner.

The act is unconstitutional. There can be but one judge of a circuit. "A" means one. For examples, see art. 4; art. 5; art. 6, sec. 1; art. 7, sec. 1; Ib., secs. 13 and 21. The same language "a" is used as a Governor, a Secretary of State, etc. There can be but one incumbent in office. See Fitnam's Trial Procedure, sec. 18, p. 21. When words admit of but one meaning, that meaning is to be accepted. The intent must be ascertained by means of the words used. Endl. Int. Stat., secs. 7, 8, 72. Words are presumed to be used in their ordinary acceptation, and that what is said is meant. Ib., sees. 23, 265. "A" judge means one judge. Webster, Dict., Ed. 1852. The bill of rights and the constitution are one instrument, and should be construed together as a whole, and if the constitution differs from the bill of rights, the former must limit and qualify the latter. Endl. Int. Stat., secs. 515, 516. All the cases we find hold that there may be as many districts or circuits as the legislature see proper, but for each district there can be only one judge, unless otherwise specially provided in the organic law. 45 N.W. 598; 19 id. 332; 15 So. 641; 36 P. 218; 34 N.E. 877; 13 S.W. 778; 21 N.E. 274; 20 P. 872; 42 N.W. 1002; 21 N.E. 244.

In construing a constitution no word is to be rejected or disregarded which may have a material meaning or bearing on the rights of citizens, and such construction should be given as will best preserve the interests of citizens, and their private rights, giving every word its meaning. 3 Hans. 240; 34 Am. Dec. 81. The expression of one thing in a constitution is necessarily the exclusion of things not named. 4 Cal. 46; 60 Am. Dec. 582; 49 Ark. 232. Inhibitions by implication are as effective as by expression. 58 Pa.St. 338; 98 Am. Dec. 272. The cases in 75 Tex. 128, and 26 Ind. 98, do not touch the question here, as the constitutions are different. See 73 Iowa 265, which is in point.

It is true, the constitution is not a grant of, but a limitation upon, power, and that all powers not prohibited impliedly exist, but this rule only applies to those general subjects of legislation that affect the welfare of the people. (1) There are no negative inhibitions necessary to protect the people from legislation which infringes the affirmative declarations of the bill of rights. (2) None are necessary to prevent the legislature from touching the machinery of government created by the constitution. In it the existence of the government inheres--it is the beginning and end of legislative power in that respect.

Rose, Hemingway & Rose, S. R. Cockrill, J. M. Moore, Ratcliffe & Fletcher, Blackwood & Williams, Jones & McCain, and Morris M. Cohn, for appellee.

The act is not in contravention of either the spirit or letter of the organic law. If the legislature has power to pass such a bill, they are the sole judges as to whether the emergency which makes such legislation expedient or necessary has arisen. 35 Ark. 73; 48 id. 384. The courts have nothing to do with the policy of legislation. Black, Const. Law, sec. 33. The preamble of the act settles the question of the necessity for the act.

Theoretically, a constitution is supposed to be created for all time. 6 Wheat. 387. But it is left to the legislature to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers as its wisdom and the public interests may require. 1 Wheat. 326.

No court is authorized so to construe any clause of a constitution as to defeat its obvious intent or ends, when another construction will enforce and protect them. 16 Pet. 612. Discretion must be lodged somewhere. 6 Wheat. 226.

In construing a constitution every part of it must be considered. 24 Ark. 288. And no interpretation of any part is allowed that will conflict with any other of its provisions. 9 Ark. 271, 281. The bill of rights provides for speedy trials, and certain, prompt remedies. Secs. 10 and 13. The legislature is clothed with power to furnish the necessary tribunals to dispose promptly of cases pending. 33 N.W. 433. The bill of rights is of paramount importance, everything in it being excepted out of the general powers of the government; it being declared that it "shall forever remain inviolate." It provides for subjects far more important than those referred to in other parts of the constitution, and the latter should be made to bend to the former in all processes of interpretation.

A constitution should receive a fair and liberal interpretation, so that the true objects of the grant may be promoted and the government left in the full and free exercise of all its rights, privileges, etc., which are not excepted out of its ordinary and general powers. 9 Ark. 276. Every presumption is in favor of the constitutionality of an act. All doubts are resolved in its favor. 49 Ark. 232; 39 id. 355; 52 id. 339; 11 id. 481; 27 id. 352. The power of the legislature is not to be restricted by inference. Ib.

"A circuit judge does not imply that there may not be more than one if more are needed. 141 Mass. 257; 8 Man. Gr. & S. 849; 6 Best & S. Q. B. 970; Sand. & H. Dig., 7196; 31 Ark. 271. No technical, strict construction should be given. 12 Ark. 563; 38 Ark. 564; 48 id. 385; 42 id. 161; 26 id. 74; 9 Ark. 287; 20 id. 212; 49 id. 227; 45 id. 400; 49 id. 376; 47 id. 481; 15 id. 664; 35 id. 390; 14 id. 687; 47 id. 323; 49 id. 350; Ib. 519. These cases all depend on the principle that the legislature may do anything not forbidden by the language of the constitution, or by necessary implication from its language. See 15 Ark. 623; 75 Tex. 129; 26 Ind. 98; 12 S.E. 206; 4 Ark. 460.

Except in the case of the Supreme Court (art. 7, sec. 1), no effort is made to limit the number of courts. A circuit judge is not a State officer within the meaning of sec. 19, art. 19. Nor was any new office created by the act. The office is created by the constitution. See, also, 20 P. 872; 41 N.W. 645; Cooley, Const. Lim. 71, 204; 4 Wheat. 407; 16 Ark. 364; 62 Penn. 348; 15 N.Y. 543; 1 Ark. 538; 48 N.W. 819.

OPINION

WOOD, J. (after stating the facts).

The State contends that the act is in conflict with sec. 13, of art. 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,...