DISSENTING OPINION
By CROW, J.For both interpretative and constitutional reasons the attempted changes in the time for the beginning of the terms, must be held ineffectual.
Of transcendent importance are these plain words of the legislative act in controversy which I will call the Act: “In Cuyahoga County, fifteen judges.”
Directly conflicting with that language definitely fixing the number of the judge-ships at fifteen are the words which would create six hiatuses pertaining to the terms of the seven judges to be elected in 1936, three hiatuses pertaining to the terms of four of the judges to be elected in 1938, and two hiatuses pertaining to the terms of three of the judges to be elected in 1940.
Each of said hiatuses if given effect according to the terms of the act would in fact leave Cuyahoga County with fewer judges than the fifteen, which number, we emphasize, the Act provides for absolutely.
In every enactment providing for additional judgeships in Cuyahoga County, the commencement of the terms has been January first, and there has been no instance of decrease.
The number of judgeships, fifteen, for Cuyahoga County, was precisely the same when the act took effect as it was before that time.
The rule governing that situation is perfectly stated in Lewis’ Sutherland Statutory Construction, Second Edition, §238:
*123“Section 238. REPEAL AND RE-ENACTMENT — CONSTRUCTION AND EFFECT. Where, there is an express repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and a reenactment of a portion of it, the re-enactment neutralizes' the repeal so far as the old law is continued in force. It operates without interruption where the re-enactment takes effect at the same time.”
Which of those two conflicting provisions clearly irreconcilable, must fall, the paramount one establishing fifteen judgeships in harmony with the public policy reflected by the former statutes on the subject or cne unsubstantial and absurd one whose only purpose is to disturb the dates for the commencement of the terms? Manifestly this is not an instance of total conflict nor is it one of equality of scope, and hence the doctrine of position of conflicting provisions, does not apply.
Therefore I would hold that the paramount provision prevails over and engulfs the other one. Lewis’ etc. supra page 669. Otherwise, there would not be fifteen judges all the time until January 3, 1941.
The constitution of Ohio has definitely marked the power of the legislature in respect of membership of the Courts of Common Pleas, which is to increase beyond one or diminish tc one the number of judges in any county. Implied in that power is authority when the number of judges has been increased to fix the time or times for the commencement of the term or terms. Once exercised, such implied authority exhausts itself and consequently cannot be again exercised, though such judgeship or judgeships may be abolished under the power to diminish the number.
Judgment therein should be for the relator.