State v. Scott, 4 Ark. 270 (1849)

State vs. Scott.

Watkins, Attorney General,

Cummins, contra.

Johnson, C. J.

The writ issued in this case commanded the defen­dant to appear before this court on the 15th of Jan., A. D. 1849, and to show by what warrant he exercises and claims to hold, use, exercise, and enjoy the office and franchise of judge of the third judicial circuit in the State of Arkansas. The writ then avers that, by an amendment to the constitution of the State, the said office is made elective by the people of said circuit, and that thereby the election of the defendant thereto has been vaca­ted, and set aside. The defendant, on the return of the writ, appeared and filed his response, in which he sets forth that, on the 9th day of December, A. D. 1846, he was elected to the office of judge of the third judicial circuit of Arkansas, by the General Assembly of said State, for the term of four years, and that, on the 11th day of the same month, he was commissioned and sworn into office by the governor of said State, and that under that commission he now exercises the said office of judge of the third judicial circuit. To this response the attorney general filed his demurrer, thereby admitting the truth of all the facts stated therein, and denying their sufficiency in law.

The Legislature of this State, at its last session, adopted an amendment to the constitution, which, under the authority of that instrument, immediately became a part and parcel of it. The amendment is in the. following words, to wit: “The quali­fied voters of each judicial circuit in tills State shall elect their circuit judge.” It is contended, on the part of the State, that this amendment the instant it was ratified and engrafted upon the Constitution, ipso fado, ousted all the incumbents of the cir­cuit bench, and worked a vacancy in each to be filled by the people of; the several circuits so soon as the Legislature should pass an act fixing the time and prescribing the manner of the election..- Iii order to deduce the legal effect and operation of the amendment, it will become necessary to have recourse to the constitution, and to examine it with the view of seeing how it stood before that amendment was engrafted upon it. The 7th section of the 6th article of that instrument, after declaring that “the General Assembly, by joint vote of both houses, shall elect the judges of the supreme and circuit courts, and that a ma­jority of the whole number in joint vote shall be necessary to a choice,” further declares “the judges of the circuit court shall be at Fast twenty-five years of age, and shall be elected for the term of four years from the date of their commissions.” The first clause of the 8th section of. the sainé article also provides that “the judges of the supreme and circuit courts shall, at stated times, receive a compensation for their services to be ascertained by law, which shall not, be diminished during .the time for which they are elected.”

Before I proceed to consider the effect of the amendment in question, I Will lay down what I conceive to be the proper rules by which to test the true sense and meaning of the constitution: 1st.. The constitution, like all other deeds or charters, is to be construed according to the sense of the terms used, and the in­tention of its authors. 2d. It is to be construed, says Judge Story, “as a frame of laws established by the people according to their own free pleasure and sovereign will.” 3d. It should receive a fair and liberal interpretation, so that the true objects of the grant may be promoted, and the government left in the fall and free exercise and enjoyment of all its rights, priviliges, and immunities, which are not expressed out of its ordinary and general powers, and declared by the sovereign will to be invio­late and supreme.

If the .amendment so operated as to occasion a vacancy im­mediately upon its adoption, there being no express declaration to that effect, it can result alone from the fact that, in the trans­fer of the power of filling the office to the people of the several circuits, the entire foundation upon which the incumbent stood was overturned and utterly destroyed. How would such a con­struction comport with the obvious sense of the terms used and the manifest intention of the framers of the instrument: or, in other words, would it be a fair and liberal interpretation, and such an one as would be calculated to promote the true objects of the grant? If the amendment will bear such a construction as to allow other provisions of the constitution to stand without doing violence to any, it is then clearly permissible to put such a construction upon it. If the intention was to create vacancies, is it not fair and reasonable to suppose that words would have been employed directly and emphatically declarative of that pur­pose, and that no room would have been left for doubt or con­struction? I apprehend that such would have been the case. It would have been as easy to have declared that the offices should be vacated upon a particular day as to have framed the amend­ment. It cannot be presumed that language of a doubtful character would have been adopted had the intention been to remove any of the judges from office, as it must have been foreseen that in that event a contest would arise, and that the courts of the country would be called upon to settle the question. Judge Story says (1 Story's Com. on Con. U. S.) that “every word employed in the constitution is to be expounded in its plain, obvious, and com­mon sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions arc not designed for meta­physical or logical subtleties, for niceties of expression, for criti­cal propriety, for established shades of meaning, or for the exer­cise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common busi­ness of human life, adapted to common wants, designed for com­mon use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them with the help of common sense, and cannot be pre­sumed to admit in them any recondite meaning or any extraor­dinary gloss.” If I should adopt this construction, and admit its applicability to the case before the court, what is the necessary and inevitable result? Is it possible to read the amendment, and at the same time direct the eye to the provisions fixing the constitutional term of the office without being irresistibly drawn to the conclusion that the former was not intended to have im­mediate effect, but that its action was designed to be postponed until a vacancy, or vacancies, should occur in some one of the modes indicated in the constitution, or by the actual expiration of the constitutional term ? The mere amendment itself cannot be said, in any possible view of the case, to produce a vacancy in the office; for all that could be claimed under it would be a mere naked power to be called into life and action when it should please the Legislature to pass a law fixing the time and prescribing the manner of putting it in operation. This is the strongest view that could be taken against the defendant, and this most clearly shows that it could not go into immediate operation. The dis­tinction then that lies at the bottom of the whole matter is, that the amendment was not designed to act either upon the office or the incumbent during his constitutional term, but that the only end and object of it was to change the mode of exercising the power of filling the offices. It is argued that, inasmuch as the power to elect the circuit judges has been taken away from the Legislature and transferred to the qualified voters of the several circuits, therefore the people have resumed one of the sovereign powers of the government, and that by the mere act of resumption, or withdrawal, of the power, the office that had previously been filled by its exercise, was immediately vacated. To the correctness of this proposition, I cannot yield my assent. The power to fill the office of circuit judge is equally sovereign whether exercised by the people’s representatives, or by the peo­ple themselves, and, as a matter of course, the rights that attach themselves -to the officer upon the election, in either mode, must be identically the same.

I regret to say that, after a most patient and laborious exami­nation of the books, I have not been able to find a solitary ad­judication that sheds the least glimmering of light upon the question before the court. This great and extraordinary dearth of authority is doubtless attributable to the circumstance that but few constitutions in the Union contain a similar provision to our own in respect to the mode by which it may be amended. The constitution of the State of Missouri contains a provision that is a perfect counterpart of ours, and the only question which has, as yet, arisen out of its exercise, relates to the power of the Legislature, sitting in their constitutional capacity, to make such an amendment as to oust a circuit judge by an express declara­tion that the office shall be vacant from a particular day ex­pressed in the amendment. To this question the supreme court of that State responded in the affirmative, and declared the office vacant from- the day specified. The principle enunciated in that case cannot be said to have any analogy to the one invol­ved here, as in that case there was an express declaration that the office should be vacated upon a particular day, whereas in this there is no similar expression, and in its absence the pre­sumption irresistibly arises that such could not have been the intention of the framers of the constitution. It may be insisted that an amendment to the constitution, like a legislative act, in the absence of any declaration as to the time when it shall go into operation, is presumed to have been intended to have im­mediate effect. To this my answer is, that such a result does not, by any means, follow, because the act of the Legislature is perfect and complete in itself: whereas, the amendment merely confers the power to do an act, but that power cannot, by pos­sibility, be exerted until it shall have received shape and mould by an exercise of legislative authority. It is contended that this construction is predicated upon the doctrine of vested rights and that under our form of government no man can acquire a vested right to a public office. I presume that no one would be less disposed to countenance the idea that a public office could be­come the subject of vested rights in the legal and technical sense of that term than myself; yet I respectfully submit that the con­clusions to which I have arrived do not depend, in the remotest degree, upon such rights. If the amendment had, either by ex­press words or by necessary implication, declared the office of the circuit judges vacated from a fixed period, the question would then have been directly presented, and would have been as promptly met and decided.

If this view of the question be correct, it is clear that the re­spondent has shown sufficient authority to enable him to hold and exercise the office of circuit judge of the third judicial cir­cuit of Arkansas for the term of four years from the date of his commission, and that therefore he ought to be discharged and go hence without day. I am, therefore, of opinion that William C. Scott, the defendant herein, be discharged and go hence, and recover his costs against the State of Arkansas.

Walker,, J.

The defendant has been called upon, by the State, to show by what warrant of authority he exercises the office of judge of the third judicial circuit in this State, and has answered that, on the 9th day of December, 1846, he was elected by the General Assembly for the term of four years, and, on the 11th of said month, he was duly commissioned and qualified, and entered upon the duties of his office. To this response the State demurred, and the defendant joined issue. The law arising upon this issue is presented for the consideration of the court.

The solution of the whole question thus presented depends upon the construction and effect of the following amendment of the constitution: “ The qualified voters of each judicial circuit in the State of Arkansas shall elect their circuit judge.” The writ of quo warranto was issued by the State upon the sugges­tion that this amendment to the constitution vacated the office of judge of the circuit courts. For the defendant, it is conten­ded that the effect of the amendment is to divest the Legislature of, and confer upon the voters of the several judicial circuits, the power to elect their judge.

As the decision of this question depends upon the legal effect of the amendment and its propcr'construction,it becomes neces­sary to refer to the rules by which constitutions are interpreted. Judge Story says: “ 1st. The first fundamental rule in the con­struction of till instruments is, to construe them according- to the sense of the terms and the intention of the parties. 2d. Where its words are plain, clear and determinate, they require no in­terpretation, and it should therefore be admitted, if at all, with great caution, and only from necessity, either to escape from absurd consequences, or to guard against some fatal error. 3d. It is to be construed as a frame or fundamental law of govern­ment established by the people according to their own free plea­sure and sovereign will.” Story's Com. on Con., 135, 136. These rules of construction are of high authority, have been adopted and approved by this court; (State vs. Ashley, 1 Ark. Rep., 279,) and, w'hen applied to the amendment under consideration, seem to my mind to leave but little room for doubt. The terms used in the amendment are surely too plain and unambiguous to ad­mit of but one construction. Like most other constitutions, ouis deals in general language, and, in view of the changes con­stantly taking place, particularly in the south-western territory into which a tide of emigration has been pouring, could not an­ticipate the wants and necessities of the community for whose government it was formed, and, from necessity, its powers are expressed in general terms, vesting in the legislative depart­ment, as occasion may require, power to pass such laws as may be found necessary to give efficacy to the general grant. Such is decidedly the case in regard to this amendment; it depends directly upon the legislative enactment for its development,— was designed to confer upon the qualified voter’s of each judi­cial circuit the power to elect their judge, and has reference to no other subject. Can it be true then, as contended for, that this amendment vacates the office of judge ? The amendment is clear and explicit, and therefore needs no interpretation. The rule in such cases is, that you must look alone to the terms used to explain their meaning. Judge Story says that “ where the words are plain, clear, and determinate, interpretation, if at all, should be allowed with great caution, and only from necessity, either to escape some absurd consequence, or guard against some fatal evil.” Com. on Con., 136. Why the necessity for an interpretation of this amendment ? There is certainly no ab­surd consequence to escape, unless it be contended that it is an absurd consequence to allow the voters of the circuits to elect their judge: no fatal evil to guard against unless that be one, for the whole purpose of the amendment is to do this and noth­ing more. But, on the other hand, il this plain, unambiguous amendment is to be construed so as to vacate the office of cir­cuit judge, let us see what absurd consequences and fatal evils will follow. It will, in effect, be to repeal that clause in the con­stitution which ordains that the circuit judges shall hold their offices for four years, and until their successors are elected and qualified, and by vacating the office will suspend the whole cir­cuit court system for an indefinite period. Therefore, so far from resorting to interpretation to escape absurd consequences and fatal evils, it must be resorted to in order to produce them. Without either admitting the necessity or the propriety of resort­ing to interpretation to ascertain the meaning of an instrument so clear and definite as this is, for the purpose of further illus­tration, we will test it by the established rules in such cases. Story says all instruments are to be construed according to the sense of the terms and the intention of the parties. We have seen that nothing can be deduced from the sense of the terms relating even remotely to the office of circuit judge or to the in­cumbent, only so far as relates to the power to elect. In deter­mining the intentions of the framers of the amendment, we must keep in view the constitution as it stood at the time the amend­ment was made, the evil to be remedied by the amendment, and the amendment proposed, by which the evil is to be remedied. No interpretation should be allowed which would conflict with any other provision of the constitution, or which is not abso­lutely necessary in order to give effect to the proposed amend­ment. On the contrary, such construction should be given as will, if possible, leave all the other provisions in the constitution unimpaired and in full force. Here the evil to be remedied was power conferred on the Legislature to elect judges: the remedy, to confer that power on the voters of the several circuits. These ends may be accomplished without violating any other portion of the constitution, and therefore no such construction should be tolerated.

It has been contended with much earnestness that the power to elect circuit judges was a delegated power emanating from the people through their constituted agent, the convention: and that the same power, being vested in the Legislature sitting in convention on the amendment, has withdrawn this power from the Legislature and conferred it on the voters of the judicial cir­cuits ; and inasmuch as the sovereign power which elected the judges was withdrawn from this agent who elected them, their power as judges necessarily ceased: in other words, that be­cause the Legislature ceased to have power to elect judges, those which had heretofore been elected by that body must go out of office also. Plausible as this argument appears at first glance, upon closer examination it will be found, if logical in its structure, wholly incorrect in its premises. It is true that if the power which created the office had withdrawn it the office would have fallen, and, as a consequence, the incumbent would have ceased officially to exist, because, in that event, there would have been no office to fill. And it is likewise true that when the constitution transferred its power to elect judges from the Legislature to the voters of the circuits, it vacated their office as agents: but it by no means follows that because the power given an agent is revoked, his acts done in the fullness of that power are affected. True his power ceased, he could act no longer; all subsequent acts would be void. But no principle is better settled than that the acts of the agent, done in pursu­ance of his delegated authority before his power is revoked, are valid. The validity of a deed once executed in accordance with the power given, is not affected because the principal choose to change his agent; and it is equally clear that an election held by the Legislature before their power was revoked or transferred to other agents, (the voters of the’circuits,) remains just as valid as if no change had been made. The error in the premises con­sists in this: that, in laying the basis for an argument, the agent is made to assume the position which the office should. If the office had been withdrawn then truly the official power of the judge would cease; but neither the office nor the incumbent are affected by the change of agents to make future elections.

As regards the time when this amendment is to take effect : As a general rule it is true that legislative acts, and perhaps some of the provisions of the constitution, take effect (in the ab­sence of any stipulated time in the act) from their passage; and if this position be qualified so as to make the amendment take effect at the time which may be prescribed by law authorizing the voters of the circuits to hold elections, I shall not dissent from it. But if it is to be understood that a power is conferred upon the voters, instantly to be exercised by them, independent of legis­lative authority, whilst we recognize the existence of an or­ganized civil government, I am at a loss to conceive how it is possible for these voters to exercise the powers thus conferred. Is it not much more reasonable to suppose that this amendment was made in direct reference to such legislation as might be made to give it effect. There are many provisions in the con­stitution like this: for instance, it is provided by the constitution that the qualified voters of each township shall elect a consta­ble, yet surely no one would seriously contend that the voters of a township (portion of an organized State government) could, in the absence of all law for that purpose, under this constitu­tional grant, hold a valid election.

It has been argued that, as the third judicial circuit, in which the defendant presides, has been re-organized, and its territorial limits now consist of a portion of several districts, the circuit is, for that reason, abolished. This question is not fully presented upon the issue now before this court; but, as the ground has been assumed and is so intimately connected with the question before the court, it may be well to examine it. The constitution confided the judicial power of this State to a supreme court, to circuit and county courts, and to justices of the peace. After ordaining that the judicial power should be thus distributed, it confided to the Legislature the power to lay off and establish circuits and elect the judges of the circuit courts; (Art. 6, Secs. 4, 7;) from which it will appear that the judicial power is con­fided to certain courts to be brought into existence by legislative will. The effect of this ordination is, that in the exercise of the power to establish courts, that body is limited to these as the courts to which judicial power shall be given, and by other pro­visions of the constitution each court is assigned its appropriate jurisdiction, leaving the Legislature unlimited in the exercise of its power either in respect to the district or the qualifications of the judge, only (since our late amendment to the constitution) that district is to be composed of contiguous counties, and that the judge elected to fill the office so created should be at least twenty-five years of age.

In view of all the constitutional, as well as the legislative,, powers in giving existence to the circuit court system and estab­lishing the courts, it is a matter not altogether clear whether they should be considered as having been established by the constitution or by the Legislature. I am of opinion, however, when the district is laid off, an office is thereby created, and pro­vision at once is made to have it filled. When once filled the constitution, by vai’ious provisions, interposes its protection to the court with a view to render it, as far as practicable, inde­pendent of the popular branch of the go.vernment, so that whilst the office exists the judge is protected from legislative encroach­ment. But, so far as regards the office, the very nature of the trust reposed in the Legislature, as well as the necessity which induced the framers of the constitution to confide such power to the Legislature, strongly indicates that the power to create, to alter, or abolish, must, of necessity, be vested in that body. The circuits are laid off for public convenience, and may be enlarged, diminished, or abolished, when the public interest requires it. This point has been decided by the court of appeals of Ken­tucky. The decision is found in 4 Dana’s Rep. 522, Tesh vs. The Commonwealth. “ The constitution of Kentucky ordains that the judicial power of the commonwealth is vested in a supreme court established by the constitution and in such inferior courts as the general assembly may from time to time erect and estab­lish.” In the exercise of the power conferred by their constitu­tion, the Legislature of Kentucky established the city court of Louisville. Chief Justice Robinsoií, in delivering the opinion of the court in that case, said “there can be no objection to the constitutiohality of the city court of Louisville, which can, in any degree, be plausible, unless it be that which has been urged in this case, that the Legislature had no power to limit the du­ration of the court. But that objection cannot prevail. A court established by the Legislature may be abolished by legislation. The court of appeals being ordained and established by the con­stitution cannot be abolished by any other power than that of the people in convention; but all inferior courts, being created by the Legislature, must depend for the continuance of their existence on legislative will.” The principal difference between the constitution of Kentucky and ours is, that whilst our consti­tution limits the Legislature in the distribution of power to cer­tain courts, the constitution of Kentucky gives an unlimited power to their Legislature. This decision settles the question that where the Legislature creates it can alter or abolish, and, from the striking analogy between that constitution and ours, has a strong bearing on the question whether the court is to be considered as having been established by' the constitution or by the Legislature.

A different construction would be wholly inconsistent with the intention of the framers of the constitution. The power was evidently conferred upon that body because, being frequently assembled, it would be enabled, from time to time, as necessity required, not only to lay off and establish new districts, but alter or abolish such as had been established, so as to suit pub-­ILc convenience and facilitate the due administration of the law. To assume that when a circuit was once established it could not be filtered, would be wholly at variance with the spirit and in­tention of the other provisions of the constitution, and would throw the circuit court system into confusion. Suppose all the cir­cuits to be laid off at this time. If they become permanent, what is the effect of establishing a new county ? (This the Legisla­ture may do.) The result must be that for each new county a circuit must be established, and under the constitution, before the late amendment, counties would have necessarily remained without circuit courts until five contiguous were established. This power then, of establishing, altering, and abolishing, must, of necessity, exist in the Legislature.

Under our system of government office is derived, directly or indirectly, from the sovereign power of the State (the people), is held for the public good, and, whilst the incumbent is protected in his rightful exercise of it during the term for which he was commissioned, yet it is with this implied reservation that, when the public interest no longer requires the continuance of the office, it is not to be kept in existence to subserve his private interests. The doctrine of vested rights in office as against the State is not recognized as applicable to office here.

But whilst I have said that the Legislature have the power to alter or abolish the circuits, and that when the office is abolished it is necessarily vacated, I am not to be understood as deciding that a mere alteration, or change, or re-modeling a district, necessarily vacates the office whilst its identity exists in fact. Such is not the effect of a change, however it may be attempted, whether by enlargement or diminution. As well might it be contended that, because one of the members was taken off, the body could not exist, or that to add an additional field destroys the identity and existence of the farm. It may become a matter of much doubt and perplexity to determine to what extent alte­rations may be made without destroying the identity of the cir­cuit. Each case must be determined according to its own pecu­liar circumstances: no general rule can be made to apply. ,/\nd whilst the discretionary power is vested in ■ the Legislature, the constitution has thrown around the circuit courts such pro­tection as will prevent this power from being so used as to encroach upon the judicial department by using this as a means of reaching an officer who may incur the displeasure of that body.

I am, therefore, of opinion that the office of circuit judge was in no respect affected by the amendment: that the effect of the amendment of the constitution was simply to confer upon the qualified voters of the several judicial circuits the power to elect their judge at such time and in such manner as might be prescribed by law: that such election can only legally take place from time to time in districts where the office may become vacant by death or resignation, or where the term has expired for which the incumbent was elected: and, consequently,- that no valid election can be held in any district in which there is no vacancy.

The defendant has shown sufficient authority to entitle him to exercise the office of judge of the third judicial circuit. The de­murrer must be overruled, and the defendant recover costs.

• Scott, J., dissenting.

Having been unable to coincide with my brother judges in some of their views touching the questions decided in this case, and, especially, disagreeing with them in their conclusions on the main question, the duty of reducing my reasons, for dissenting, to writing, has been devolved upon me by the statute; and, as I shall go at large into the whole subject as it presents itself to my mind, and may be therefore unneces­sarily diffuse, my present purpose is to avail myself of the vaca­tion to re-write these views in a more condensed form for the lleporter.

I shall first take a rapid glance at our judicial system, as that will enable me, with some brevity, to present my views as to the effect of the recent amendments to the constitution, and will serve to elucidate the few remarks that I intend to make in that connexion.

While this system, which the people of this State in their so­vereign capacity “ instituted for their peace, safety, and happi­ness,” amply attests their wisdom and love of civil liberty, it contemplates duties by those functionaries entrusted with its motive power, at once difficult, arduous and responsible. Al­though a beautiful fabrick, constructed with infinite skill, and, in many of its minutest parts altogether finished, necessarily, from the nature and state of things, it was incomplete as a whole when it passed from their hands. And the duty of giving to it its finishing strokes wras entrusted to agents constituted by the same instrument which presents to us not only this system, but the entire scheme of our State government. So far as this tri­bunal is concerned, not only is it erected by the constitution, but the qualification and number of the judges, who are to consti­tute it, are fixed, the duration of their offices respectively ascer­tained, its powers defined, its territorial jurisdiction made com­mensurate with the geographical limits of the State, and, in fine, little left undone to make this portion of the system complete, except the exercise by the Legislature of delegated powers in the filling of the offices of the three judges, and in fixing the times and places for the holding of its terms.

But, to give effect to those provisions which contemplate the administration of justice in the circuit and county courts, and by justices of the peace, more extensive duties were imposed on the Legislature. Circuits, counties, and townships, were here indis­pensable prerequisites, and these were, for the most part, to be created by the Legislature, either directly or indirectly, and are all placed by the constitution within the range of legislative dis­cretion to establish, abolish, enlarge, or diminish, as the exigen­cies of the public convenience might seem to demand, not be­yond the constitutional coirfincs of this discretion. As there were counties, (recognized by the constitution as the creations of legislative power,) these had to be “divided by the general assembly into convenient circuits, each to consist of not less than live, nor more than seven, counties, contiguous to each other,” before a circuit judge could be elected for each of the circuits. Until these two legislative steps had been taken the office of circuit judge sprung not into being, although provided for by the constitution, and is therefore, necessarily, the direct result of constitutional exercise of legislative functions. But when thus in being it was to be filled by the exercise of the same sovereign delegated powers that filled the office of su­preme judge, an office that results not from legislation direct or indirect; but is created by the constitution itself. But when the office of circuit judge is thus filled, the officer looks directly to the constitution for the measure of the duration of his office, for its powers, its capacities, its duties, its disabilities, its indepen­dence, and its responsibilities. Such also is substantially the result as to the office of judge of the county court and justices of the peace.

Nor are all the energies of this system yet aroused and de­veloped, and that its capacities, already so ample, may be still further expanded, to the end that every reasonable desire ol equity and justice may have full scope for gratification, provis­ion is made by the constitution for appropriate additional instru-­mentalities. Corporation courts may be erected and vested with such jurisdiction as may be deemed necessary, and, whenever deemed expedient, courts of chancery may be erected. But no provision is made in respect of the offices of those who are to administer justice in these tribunals, other than that general one relating to all offices not “directed” by that instrument, but only authorized to be created whenever the exigencies of the public interest shall seem to demand them, which requires that, before such officers shall- enter upon the duties of their respective offices, they shall take “an oath or affirmation to support the constitution of the United States and of this State, and demean themselves faithfully in office;” and thus, although these offices are the direct offspring of legislation, and much of their very elements and attributes are more of legislative than of con­stitutional creation, yet, like others in the judicial department not directly created by the constitution, and perceptibly interwo­ven into-the organic web itself in distinct and well defined colors, those who fill them must, in the same sense that the cir­cuit judge looks to the constitution for his mantle and his chart, also look to that instrument not only for their appropriate place within this system, but also for the confines of their sphere of action as well as for the great features of thoir offices, and for their very soul and life in the aspect of authority.

In view, then, of this judicial system, hnd of that entire scheme of our State government, of which it is one department, co-or­dinate and co-equal with the legislative and executive, and of our federal organization, regarding all as one harmonious whole, the duty is devolved upon me to determine and declare the effect of the two amendments of our State constitution recently adop­ted, so far, at least, as they may affect the judges of the circuit courts of this State, who were then in commission, and whose terms of service had not expired. Did these amendments have the effect to oust those judges from office, or are they still the lawful circuit judges for the residue of their constitutional terms of office ?

The one amendment is in the following words, to wit: “That the qualified voters of each judicial circuit in the State of Ar­kansas shall elect their circuit judges.” The other amendment is in these words, to wit: “ That the general assembly of the State of Arkansas shall not be restricted as to the number of counties that shall compose a judicial circuit in this State.” There can be no doubt of the right of the people of this State, at any time, to alter, reform, or abolish, their government in such manner as they may think proper, in whole or in part, and that this right is unqualified save only by the federal constitution, and may be exercised at any and all times — a principle that lays at the foundation of all American governmental institutions, and is so inseparably connected with the idea of both their form and nature that even had it not been found in the second section of the bill of rights, among those “great and essential principles of liberty and free government,” which it was the declared purpose of that instrument to “recognize and unalterably establish,” its existence could never have been questioned by any one at all versed in our history as a people. And there can be as little doubt that amendments, made to the constitution in this consti­tutional mode, are as much a part of the constitution as if they had been originally incorporated in it, and that they must, neces­sarily, from the nature of a paramount law, overthrow and abrogate whatever state of things in existence, or laws in force, at the time of their adoption, that may be inconsistent with their instantaneous operation, unless, simultaneous with their adop­tion, provision be made to restrain or postpone their operation, or unless there be other provisions in the constitution, of which the amendments become a part only, which, either expressly or by fair intendment, have.a like restraining influence, and even as to such all the presumptions of law are in favor of the in­stantaneous operation of the amendments. To this test I will first subject the amendment which removes from the Legislature all restrictions as to the number of counties to compose a judi­cial circuit. If there be any provision of the constitution that can, by a possibility, have a restraining influence upon this amendment to overturn the presumption of law in favor of its immediate operation, they can only be found in those provisions in respect of the development of the office of circuit judge, or of the incumbency of that office; for, it being manifest that the office of this amendment is not to resume by the people any power that had been before delegated to the Legislature; but, on the contrary, to confer power in removing limits that had been before fixed to the exercise of legislative power relating to the construction, re-organization, and abolition, of the circuits, and thereby allow more enlarged scope for the exercise of powers in reference to these objects, it necessarily follows that obstacles to the instantaneous operation of this amendment can only be found, if found at all, in matters that touch either the officer or the office of circuit judge; both of which, we have seen, are de­veloped alone by legislation. Can either the one or the other of these interpose any obstacle ? Clearly not: for, besides the con­sideration that the instantaneous life of this amendment could not, by possibility, in any way, touch the one or the other, until tlie Legislature should, in their discretion, go beyond the bounds of their oid limits; when they should go beyond those bounds they would effect only the identical same end that they could have, before the adoption of the amendment, eñected in another mode, by the use of means already within their power, as has been seen in the glance which I have taken at the whole judicial system, the office, and indirectly the officer, being al­ready within the range of the constitutional powers of the Le­gislature. For while the constitution, with the one hand, pro­vided the Legislature with the power to create the office, with the other, in a mode as completely within its pale, it gave ample power for its destruction; and, as this amendment does not create, but only allows greater scope for the exertion of these' powers of destruction, which were before complete but restricted to less latitude, there can be nothing found here to overturn the presumption that this amendment must have instantaneous free course; nor will there be found any thing connected with the officer that can have this effect, for if he were even to attempt to set up any proprietary interest or private property in his office as against the public, which I would be slow to regard, he could not pretend to any such beyond the actual existence of his office.

And having disposed of this amendment, I will proceed to sub­ject the other to a like test, and determine, if I can, whether it can be held in abeyance. Hut, before I do so, I will endeavor to develope several apposite principles, and make an effort to apply them all before I arrive at my final conclusion.

I have remarked that the idea of the instantaneous operation and effect of an amendment of the constitution is inseparably connected with the idea of a paramount law, and that the pre­sumption of law must be always in favor of this construction, and that they must necessarily have such effect, unless this pre­sumption of law is repelled by at least one of the two opposing obstacles I have indicated, and it is not pretended that more than one of these obstacles exists as to the amendment which is now to be considered. And I will here take the occasion to re­mark that there is an essential difference between the character of this amendment and that which I have just considered. For while that, in effect, took no power from the Legislature, but gave enlarged scope for the exercise of power before delegated to that body, this, on the contrary, in express language and by inevitable necessity, withdraws sovereign powers that had been before delegated and restores them to the people. No one will, for a moment, doubt the correctness of the proposition which I have assumed: that the presumptions of law are always in favor of the immediate operation and effect of the organic law, when applied to a convention of the people assembled for the purpose of remodeling the entire State government; or, for a moment, doubt that the new constitution adopted by such con­vention would be in force from the moment of its adoption, unless provision should be made in the instrument itself to post­pone its operation and effect to a future day. And I will take the occasion here to remark that, so far as my research has ■extended, with all the facilities afforded by the able and indus­trious counsel, I have found that it has been the uniform course in all the States of this confederacy, not only where the entire State government has been remodelled, but also in cases where mere amendments to the constitution have been adopted, which, like this one, withdraws sovereign powers, or which necessarily disorganizes some part of the existing government, to adopt simultaneously, with such constitution or such new amendment, a schedule, or proviso, to sustain the old state of things, and prevent pro tern, the disrupting influence of the new constitution or amendment. Nor would any one doubt in the case of a con­vention just put, but that the adoption of the new constitution had abrogated the old one, and dissolved, into its original ele­ments, the government that had been constructed and had ex­isted under its authority. Nor would less doubt arise as to any of these results merely from the fact that no new principle had been incorporated into the new constitution, but the changes made consisted simply in a different combination, or a different application in the new, of all the identical same principles that were found in the old constitution.

When this State government was first instituted, certain sove­reign powers were delegated and others were reserved, and cer­tain natural rights were surrendered for the common weal, that civil powers and rights might thereby be exerted, grow up, and be preserved. Now it will bo readily admitted that when all the sovereign power's that were delegated shall be resumed, and all the sovereign authority that was bestowed shall be with­drawn, the entire governmental superstructure reared by those powers upon this authority must instantly be destroyed. Can it be less true that where a given sovereign power that was delegated shall be resumed, that the superstructure that was reared upon that particular authority, and by that particular sovereign power, must also be destroyed? Should the people of this State desire to remodel their entire State government, they would, in the exercise of some of the sovereign powers which they have reserved, resume all the sovereign powers that they had delegated, and these, added to those that they had re­served, would place them in the possession of the entire sove­reign powers and all their natural rights, except such as have been surrendered and delegated to the federal government, and with these they would! rear a new State government, and dele­gate to it such powers as they might elect. Now if, in case in this scheme of government, it should be found expressed in the written constitution adopted, that it was “instituted for the peace, safety and happiness of the people,” and there was found no other expression in it, whatsoever, to indicate the time when it should be put into operation, would not this avowal of the objects for which it was instituted be a ground for a strong pre­sumption that it was designed that it should immediately go into effect? And would any one, for a moment, stop and hesi­tate as to this on the ground that it was a remedial measure, and ought not to be construed to act retrospectively, because there was found “no express words or declaration plain of such intention ?” If any such were found thus to hesitate, and, from this consideration, to argue that it was the intention of the people who adopted this new constitution to postpone its operation until all tbe officers under the government had either died or their terms of office under that old government had expired, it would be necessary, as I think, in order that that objection might be fully answered, to resort to the undoubted principle that the adoption of the new government had, ipso facto, ousted all such officers, because it could be overrode, as I think, by considera­tions of the same level with the objection, because that rule, as to remedial statutes, can have no reference to organic law, inas­much as in every case oí its legitimate application* private rights, either natural or civil, are contemplated, and it is de­signed to guard such from unjust invasion; but, in matters per­taining to organic law, such rights aie not contemplated, other­wise than as altogether subordinate to, if not left entirely out of sight of, the great matter of public and general interest which organic law contemplates. And if the rule could have reference to organic law, and was applied for the purpose of extracting intention, would not all the presumptions that it could raise against the immediate operation of the organic law, be met and overcome by the still stronger presumption in fact that must arise from the expressed great objects of the enactment of the organic law, to wit: the “ peace, safety and happiness of the people;” to which might be added the presumptions that would arise from considering the mischief and the remedy. If then such a presumption of the immediate operation of an entire State government should arise from such an expression found in its constitution, and could not be met and overcome by any presumptions of law, even if applicable, arising from any con­siderations of the remedial nature of the new government, can it be less true of any amendment that might be subsequently made to a constitution (into which the amendment is written in contemplation of law) in which constitution these very words are found in its most conspicuous part ? Nor would any doubt exist as to whether the old government had expired; nor would the presumption of the immediate operation of the new one, which we have shown to exist, be in any wise repelled from the fact that.the new government exhibited no new principle, but only a different combination or application of the same prin­ciples that were exhibited in tbe old one.

Although I heartily concur with the chief justice, concurring, as he does, with Judge Story, in this connexion, that the consti­tution is a practical instrument, designed for the practical pur­poses of life, to be read and understood by the people, and must not be regarded as the depository of occult mysteries only to be developed by the agency either of the wand of eastern legerde­main, or of abstract and recondite philosophical disquisitions, the very description of which would have to be described, I still en­tertain the opinion, in which he doubtless concurs with me, that this instrument is not to be put entirely without the pale of the rules of law, when its meaning is to be interpreted by a court of justice. And regarding the constitution and the question before me in that light, I should find in addition to the presumptions of law in favor of its immediate operation, which, I have shown, are inseparable from the idea of a paramount law and to that other presumption that I have shown must arise from the great object for which the government was instituted, so emphatically ex­pressed in the bill of rights, another still stronger presumption, in fact, inevitably arises from considerations touching the mis­chief and the remedy which never fail to throw some light in a search for intention. If an ordinary statute is to be always so construed as to suppress the mischief and advance the remedy, how much stronger should this general principle be applied to the construction of an organic law, when it is borne in mind that the people can never be considered as having entered upon a work of such vast importance as that of changing their organic law for light and fanciful reasons, but only for those of delibe­rate and grave import. And when this is considered, would it not be most unnatural to presume that the mischief that they designed to suppress was to be, in effect, the work of future years, and was not to avert evils from themselves or to secure their own rights; and, especially, would not such a presumption appear unnatural in case the term of office, instead of being four years, should be of the duration of good behavior or for life? And yet the principle would be the same, as that would place the people in the extraordinary attitude of doing the grave and weighty work of changing their organic law altogether for the benefit of posterity. Nor could the weight of all these presump­tions be, in any manner, overcome by any that could be reared on so slim a basis as any supposed proprietary right or private property in an office, as against the public, or on the rule of law as to the prospective operation of remedial statutes, as I have shown that this rule, contemplating, as it does, private, rights, can have no legitimate application to the construction of or­ganic law; much less any that could be based on any possible distinction between the doing of an act, and at the same time accompanying the act done by a legal exposition of its necessary import, and the doing the same act and leaving the legal exposi­tion of its necessary import to be unerringly spoken by the law: or, in other words, between the doing an act and at the same time performing a work of supererogation in declaring its legal effect and the doing of the same act without doing such work of supe­rerogation. And, therefore, had I no other resource but considera­tions of this character, to light my way to a conclusion satisfactory to my own mind as to the main question, those which I have touched, but not sought either to enlarge upon or to multiply, would carry me to the conclusion that the true construction of the amendment I am now considering, would be that which would vacate the offices of the circuit judges in this State, unless I could be convinced that the object of the amendment, ratified in 1846, was not only designed for the ordinary operation of the government, but also for extraordinary emergencies, such as this would be, and then I could give my sanction only to the idea that that might possibly keep these judges in office until the new judges should be elected, as provided for by (he act of the last session of the Legislature. But I am not left thus to feel my way to a satisfactory conclusion by dubious lights; but have only to appeal to a great principle, which I have already invo­ked, but not yet applied; and, to my mind, the light of meridian day is thrown upon my pathway.

This State government, with all its machinery, as it existed before the adoption of this amendment, was a superstructure resting upon the constitution. This constitution was not only the foundation, but also the frame-work of the government. And not only was it the foundation and frame-work of the government, but it was itself even some of its more minute and finished parts. And not only was it all this, but it was also the embodiment of all the capacities for the further construction of an entire government, to be progressed in, from time to time, as the exigencies of the public interest might require, until it should be ultimately completed in all its parts. In this unfinished con­dition, in which it was so partially fashioned by the whole peo­ple of the State in their sovereign capacity, it was rested upon their authority which gave it life; and to it they delegated some of their own sovereign powers, to be held and used in trust for themselves. It was first necessary to use these sovereign powers that had been so delegated, in the further fabrication of the government, to fit it for the end designed to be subserved. To do this, such offices as were contemplated, but had not been in fact fashioned out, had to be constructed by means of these dele­gated powers. Then, by the use of these same powers, these offices had to be filled, for they could be filled by no other powers, as this government had none besides these. So, having been erected by the people, and by the instrumentality of their delegated powers, given life and power by their authority, and armed with their strength, it is their own creation and subject to their sovereign will. By that means it came into being, and by that same will it may be rightfully altered or destroyed. Should it be this sovereign will, at any time, to withdraw this authority, and resume all the powers delegated, the entire gov­ernment would, instantly, rightfully, and necessarily, come to an end. No living vestige would remain, either in morals or physics, of a great corporation, now so full of life and power. So, should it be, at any time, that will to pull down and re-con struct any one of these departments of the government, leaving the other two untouched, they could rightfully do this; and, in­stantly, after the work should be done, nothing would remain of what was once the entire judicial department, for instance: the whole having been dissolved and passed into nonentity. And so of a single office within this department: that, for instance, of the office of judge of the supreme court, leaving all else in this department, and in the entire government, untouched. And so of the constitutional tenure of that office, leaving the office un­touched. For the constitutional tenure of the office is as much a part of the living organization of the judicial system as the office itself, or any other part of its organization. So also, to my mind, is the appointing, or constituting, the officer as palpa­bly a part of the organical structure of this system. This con­stitutive feature .of the system was formed, fashioned, construc­ted, fixed, and authoritively stamped as much as any other fea­»ture in the system. It is an efficient authoritive instrumentality: it is an essential, created, artificial material that is woven into the web of the judicial system, and is necessarily a part of its or­ganization. It is much more than form or manner, as whether as a means for the use of this instrumentality ballot or open vote be adopted, and is therefore substance, as whether the appointing power reside in the governor, in the senate, in the legislature, or in the people. It is not natural or incidental: it is artificial, and itself a principal; and a judge, coming in by any other door, was not a part, and could not bo known or have place in, the system. It follows, then, that the annihilation of this fea­ture of the system necessarily works a substantial disruption and delaceration of the living organism as sensible and in the same sense as the annihilation of an office or its tenure, and cuts the connecting link between the judge and the system.

How is it that this mighty fabric of government, proudly stand­ing forth like some dome of antiquity, an apparently immortal monument of skill, wisdom, and refinement; full of life, power, and benevolence; and second, in our love and affection, only to Deity himself, can suddenly fall into ruins, even while we gaze upon it ? The reason can be found only in an approximation, or assimilation, to a principle which,'the divines teach us, governs the universe, and presents the true distinction between govern­mental and private agencies; that the same quantum of true sovereign will and power that spoke the universe into being,has to be continually exerted to keep it in being. Exert this true sovereign will, and withdraw this continuing stay of true sove­reign power, and instantly, as “ God said let there be light and there was light,” this so much mightier creation is a lifeless ruin.

If the whole governmental organization be subject to this law, can one of its parts claim exemption? Will any one pretendió assert the mathematical absurdity that the part is greater than the whole, or more immortal? Shall the judicial department claim exemption from this law, and stand proudly erect when the executive and legislative departments are in ruins? Shall the judge of the supreme court wear his robes of office and waive the wand of his power, when his office has ceased to exist? Or, shall the judge of the circuit court exercise his func­tions, when, for want of the continuing sovereign will and power of the people, whereby his life’s blood flowed to him, he has been sloughed off from a judicial system of which, in his official char­acter, he was once a part of its organism? In my opinion, as well might the judges of antiquity rise up, shaking the dust of centuries from their robes of office, and claim a place in our present judicial system on the ground of legal identity.

Then, in the light of these views, it is my opinion that all the circuit judges in this State, who were commissioned at the date of the ratification of the amendment to the constitution, that I have been considering, were thereby ousted from office, and that no such official personages, as they claim to be, are now known to the judicial system of this State; and that the judicial sys­tem now existing provides for the administration of justice by no other judges than such as shall be constituted by the people of the several circuits. Judges otherwise constituted have no place in the system, and can exercise no authority.

And I will remark, in conclusion, although it is perhaps un­necessary, as it is an inevitable sequence from the position I occupy, that it is my opinion that the amendment to the consti­tution, ratified in 1846, can no more apply to a vacancy created as these have been, than it could apply to a vacancy occasioned by a removal from office by impeachment.