The view expressed March 3, 1941, in my concurring opinion in the Bailey-Abington case: that there had been reapportionment — is now accepted by the court. Therefore, for purposes of this dissent, it is unnecessary to go back of 6 of amendment 23 where it is provided that at the next general election following an apportionment, senators and representatives shall be elected in accordance with such apportionment.
The majority opinion reads into the mandate a condition I have been unable to discover, the effect of which is that "senators shall not be elected unless the board, in making its report, rearranges a district."
The "next general election" following the apportionment now conceded to have been made January 21, 1941, will be held November 3, 1942; and, let it be repeated, the amendment says that at such election "senators and representatives shall be elected."
The drawing for long and short terms takes place "at the first regular session succeeding any apportionment so made."
Selection of eighteen members for two years, and seventeen for four years, is consummated "by lot."
I cannot see that art. 5, 3, of the constitution, has anything to do with this controversy. The amendment expressly fixes the period of tenure. Under accepted *Page 25 rules of construction, the last statutory or constitutional expression supersedes prior provisions. Judicial construction is necessary only where there is indefiniteness or ambiguity. Here there is nothing to construe: eighteen senators from thirty-five elected serve two years and seventeen serve four years, ". . . after which all shall be elected for four years until the next reapportionment hereunder."
We have the anomalous situation of reapportionment, express language directing election of senators "at the next general election," a command that at the session in 1943 division as to long and short terms be made, and a decision by the Supreme Court that the amendment means nothing of the kind because, ergo, the constitution of 1874 still controls. By construction terms of office may not expire in such manner as to permit 6 to become operative.
Because all of my colleagues make the majority opinion I deplore the necessity of disavowing the result; yet, in spite of disinclination to become a conspicuous minority, my convictions are so deep-seated regarding the amendment's meaning that I would be false to official responsibility in yielding to the easier way and remaining noncommittal.
The majority's argument that in the absence of district changes there is no necessity for election of all senators, and that the people "did not so intend," is not without superficial plausibility. The fallacy occurs, however, in assuming an intent not expressed in the amendment and not implied: one which, upon consideration, conflicts with what may be termed the genius of the plan. The opinion assumes the amendment to have been adopted as a convenience to holdover senators and finds unjust the requirement that all stand for reelection, or that they give way to other aspirants. But the fact cannot be blotted out that all senators serve by virtue of the popular will; and by amendment to the fundamental law the electorate has reserved the right to vote upon full membership at stated decennial periods. Whether this be wise or witless is not for us. Perhaps the public *Page 26 business would be better served, legislatively, by having holdover senators who are familiar with procedure. The longer an acceptable officer serves, the more competent he or she becomes.
The issue here is not one of personal preference. It involves a design to relieve against an intolerable condition respecting apportionment. I fear the amendment has been emasculated.