In re Contested Election of Law Judges

Chief Justice Mercur delivered the opinion of the court, These appeals were argued together. They are from the same decree. They present the same question. The contention arises under the Act of 7th August, 1888. It provides for the formation of the judicial districts of the Commonwealth ; how each shall be numbered, composed and designated, and the number of judges each shall have. Section 1, inter alia, declares, “ the seventeenth district ” (shall be composed) “of the county of Butler, to which the county of Lawrence is hereby attached, and shall have two judges learned in the law, and the additional law judge shall reside at New Castle, in Lawrence County.” Section 8 declares “in all cases where a county is or shall be attached to an adjoining district the qualified voters of such county shall be entitled to vote for the president judge and an additional law judge when provided for.” At the general election held in November, 1884, for the election of two judges learned in the law, for the 17th judicial district, the appellants, and John McMichael and Aaron L. Hazen, and another were candidates. The qualified electors of each of said counties, met at their respective legal places for holding elections, and voted for two judges, and the votes cast in each county were counted and ascertained at the county seat thereof. A return judge ivas appointed according to the requirement of the statute, in each county, to meet a similar officer appointed by the other county. Those two met at the county seat of Butler county, at the time designated by statute and cast up the votes of both counties, and on a correct computation thereof, found that John McMichael and Aaron L. Hazen had received the highest number of votes, and issued certificates to them accordingly. [346] The appellants attack the constitutional validity of the Act of 1888, in. permitting the qualified voters of the county of Lawrence to vote for law judges, and claim that the votes cast in that county, were improperly counted. If this view be collect, then appellants were duly elected and entitled to receive the certificates accordingly. The tribunal authorized by law to decide such a contest, decided adversely to the claim of the appellants, and the commissions have been issued to the other candidates named. The appellants rest their case on Art. V. sect. 5 of the Constitution which declares “whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district, and shall elect one judge learned in the law ; and the General Assembly shall provide for additional judges as the business of the said districts may require. Counties containing a population less than is sufficient to constitute separate districts shall be formed into convenient single districts or if necessary may be attached to contiguous districts as the General Assembly may provide.” As the United States decennial census of 1880, showed the county of Butler contained more than fifty thousand inhabitants, the appellants claim that it alone thereby became entitled to become a separate judicial district, and that the electors thereof only, could participate in the election of judges learned in the law, assigned to said district. In other words although the county of Lawrence was legally united, annexed, or attached, in the formation of the district, yet the qualified electors thereof, are, by the Constitution, denied all right to vote for the judges, who for a full term of ten years, are to preside in the courts of their county. A proposition so startling as this, and one affirming such an unequal and unjust discrimination against all the legal voters of a county, ought not to be assented to, unless its correctness be clearly established. The section of the Constitution relied on was before us for construction in the case of Commonwealth ex rel. Chase v. Harding et. al., 6 Norris, 343. It was carefully considered, and construction given thereto. It was held that this section did not of itself constitute a separate district when a county attains the number of inhabitants specified; but it indicates the basis on which, at the proper time and in the proper manner, judicial districts may be created by the legislature. The unreasonable and mischievous effects of any other construction are well stated in the able opinion of Mr. Chief Justice Agnew. The correctness of this construction has since been affirmed and approved by this court, in a distinct manner in Commonwealth ex rel. Burns v. Handley et al., 10 Out. 245 ; [347] and in sur petition of Cahill, Slevin and McVay, 16 W. N. C. 485. That the section of the Constitution cited, was not intended to execute itself in the formation of judicial districts, but requires legislative action is clearly shown by sect., 14 of the schedule. It declares “tbe General Assembly shall at the next suceeding session after each decennial census and not oftener, designate the several judicial districts as required by the Constitution.” Thus not only is the whole power of designating judicial districts given to the legislature, but it can be exercised only after each decennial census. Although a county, forming part of another district, may in fact, for many years, have the population stated as sufficient to constitute a separate judicial district, yet it must bide its time and await the action of the General Assembly. In seeking for the true meaning and proper construction of Sect. 5, Art. V., we must consider other portions of the Constitution and so interpret the different parts as to produce harmony between them, and give a just and reasonable effect to the whole. Sect. 15 of the same Article declares “all judges required to be learned in the law, except the judges of the Supreme Court, shall bo elected by the qualified electors of the respective districts over which they are to preside, and shall hold their offices for the period of ten years, if they shall so long behave themselves well.” Who are qualified electors? Sect. 1, Art. VIII., answers this question. “Every male citizen twenty-one years of age, possessing the following qualifications, shall be entitled to vote at all elections.” The qualifications following, refer only to citizenship, duration of residence and the payment óf taxes. If then, persons possessing these qualifications, are entitled to vote at “ all elections ” and judges learned in the law shall be elected by the qualified electors of the respective districts over which they are to preside, it must be conceded that these sections intend to give and do give, to the electors of the county of Lawrence, the right to vote for their judges, unless that county is not within the 17th judicial district over which said judges are to preside. This conclusion is supported by Colvin" v. Beaver, 13 Norris, 388. Two things are indisputable. One is that the law judges of the 17th district do preside over and in the county of Lawrence. The other is that the county is not in any other judicial district. No judges, other than those of the 17th district are authorized to preside there. All writs issued from the several courts of record of the county of Lawrence must be tested in the name of the president juclge of the district. The [348] commissions issue to these judges as judges of the 17th judicial district. If the county of Lawrence is not within the district of these judges, then the president judge thereof has no power to call upon the president or law judge of any other district to hold a term of court therein. The electors of the county of Lawrence are either within the 17th district with the right to vote in the election of judges learned in the law, to preside there, or else they are outside of that district, and in no other, and legally have no such judge to preside in the courts of their county. Such a result would not only be repugant to the whole scope and spirit of the Constitution relating to courts, but would destroy that uniformity in the organization and operation of courts of equal grade, which it expressly declares shall be preserved. Thus section 26, of Art. V., inter alia declares “all laws relating to courts shall be general, and of uniform operation, and the organization, jurisdiction and powers of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process and judgments of such courts shall be uniform.” The construction claimed by the appellants for section 5, denies to one county that uniform organization and operation which the constitution declares shall tee enjoyed by all the counties, and which no law shall impair. The authority given by law to the presiding judge constitutes an essential part of the organization of the court, and fixes a limit to its operations. This however is only one view of the case. It has another side, that side is the people. Uniformity in the organization and operations of a court is not for the exclusive convenience of the judge who administers the laws, but its main purpose is for the benefit of the people of every county, whose rights might be injuriously affected by an absence of this uniformity. We cannot assent to the view of the appellants. It is in clear conflict with too many parts of the Constitution. It strikes down those equal rights and valuable privileges which are so highly prized by our people, and which the Constitution was intended to secure, and we think does secure. We are not unmindful of the case of Commonwealth ex rel. Attorney General v. Dumbald et ah, 1 Out., 293. It was twice argued, and each time decided differently. The last time by a bare majority of the judges of this court. It stands however as authority that under the legislation then existing, the county of Fayette was not entitled to elect associate judges. The question as to the right of the qualified electors of the county attached, to vote,was not before us for decision, and was not decided. We are therefore unanimously of the opinion that the qualified electors of the- county of Lawrence [349] were entitled to vote forjudges learned in the law, at the election held on the 4th day of November, 1884, and that John McMichael and Aaron L. IJazen received the greatest number of legal votes and are entitled to the office to which each was elected. It is further ordered that this decision be certified to the Secretary of the Commonwealth. Decree affirmed and the appeal in each case is dismissed at the cost of the respective appellant therein.