Page:The Green Bag (1889–1914), Volume 07.pdf/141

 116

in force without an express provision to that effect, and that all inconsistent laws fell simply because they were inconsistent, or all repugnant laws were repealed by im plication. It was essential, however, that the repugnancy causing a law to fall should be necessary and obvious; if by any fair course of reasoning the law and the Consti tution could be reconciled, the law stood.' It stipulated that the Supreme Court should, until otherwise provided by law, consist of five judges, a majority of whom, competent to sit, should be necessary to form a quorum or to pronounce a decision, excepting in the event of an increase of the number, when all of the judges of a division hearing a case did not concur as to the judgment to be rendered, or whenever a case involved the constitutionality of an act of the General Assembly or of an act of Congress, it should then be reserved to the whole court for adjudication.5 The General Assembly was authorized to increase or diminish the number of judges of the Supreme Court, and to establish other courts,3 whenever two-thirds of the mem bers elected to each house concurred there in; but no such change, addition, or dim inution can vacate the office of any judge;* and such concurrence will be presumed, as every reasonable intendment is made in favor of the correctness of legislative pro ceedings.5 In case of the creation of any additional court, the judge must be elected, as the Constitution 6 requires that all judges other than those provided in the Constitu tion shall be elected, as it is not within the power of the Legislature to clothe with judicial power any officer or person not elected as a judge.7 Provision may, how■ Cass v. Dillon, 2 O. S. 607. ' Art. 4, Sec. 2 Const. 5 Art. 4, Sees. I and 15. 4 Art. 4, Sec. 15. (a) Logan Branch Hank ex-parte, I O. S. 432. (b) State v. Comers, 35 O. S. 458; Peters v. McWilliams, 36, O. S. 155. (c) Campbell v. Corney, 5 W. L. B. 516, 76 O. L. 256. 5 Miller v. State, 3 0. S. 475. ' 6 Art. 4, Sec. 10. 7 Logan Branch Bank ex-parte, I O. S. 432.

ever, be made for the election of a successor to any such additional judge, but in the absence of words clearly indicating such purpose, no such election is authorized." This relates to the office of any judge created by the Constitution because it has not limited the power of the General Assem bly to abolish courts created by the Legisla ture, nor its power to vacate the office of judges of such courts.2 The Constitution required the judges of the Supreme Court to be elected by the elec tors of the state at large, for such term, not less than five years, as the General Assembly may prescribe, to be elected and their offi cial term to begin at such time as may be fixed by law. In case the General Assembly increases the number of such judges, the first term of such additional judges must be such, that in each year after their first elec tion an equal number of judges of the Supreme Court shall be elected, except in elections to fill vacancies; and whenever the number of such judges shall be in creased, the General Assembly may author ize such court to organize divisions not ex ceeding three, each division to aonsist of an equal number of judges : for the ad judication of cases, a majority of each divi sion constituting a quorum, and such an assignment of the cases to each division may be made as such court may deem expedient. In case the office of any judge becomes vacant" before the expiration of the regular term for which he was elected, the vacancy is filled by appointment by the governor, until a successor is elected and qualified; and such successor must be elected for the unexpired term at the first general election after the vacancy occurs. (Art. 4, sec. 13, Const. ) The court was required to hold at least one term in each year at the seat of govern ment, and such other terms, there or else where, as may be provided by law. 1 State v. Brow n, 38 O. S. 344.
 * * State v. Wright, 7 O. S. 333.