Page:State v. Johnson.pdf/18

298   Rh   of the new government. This schedule was no part of the fundamental law of that government, as was insisted in argument. Instead of being a part of those "fundamental maxims and unvarying fixed rules by which all departments of the State government should at all times shape their course," it was a most fleeting and temporary enactment; instead of being declared a principle to regulate law-makers as well as individuals, it fixed its own hasty dissolution. That fundamental law, like a will of the schedule, could not go into full force and effect until all the functions of the schedule had been performed. The termination of its existence was the recognized beginning of the Constitution's authority and power over the people, and the departments of the State; therefore, instead of th;is being of the ground work, or fundamental principles of government, it did not even claim the stability of an ordinary statute; it pretended only a temporary existence, for a temporary purpose, and in all of its offices it was most peculiarly advisory—directing the manner of forming an organization which was to carry out the laws enacted. And the taking the oath of office was a preliminary step to the object intended.

If the person elected, failed or refused to qualify as directed, the proper authorities might have taken measures to declare the office vacant; but if no such steps were taken, and no vacancy declared until he came forward and qualified, and entered upon the duties of the office, no forfeiture could be declared; and all penalties for non-compliance with statute law, should be fixed by law, and a court cannot say forfeiture of the office shall be the penalty, when the law-making department have not so declared.

In the case of Glidden v. Towle, 11 Foster, 166-7, the Supreme Court of New Hampshire, held, upon a statute requiring town officers to appear and take an oath within six days after their election, that, "These are general provisions in regard to town officers, but they apply to fence viewers in the same manner as though specifically enacted in regard to them. Were it