The opinion
LEEDY, J.
(dissenting). — I respectfully dissent from the. conclusion reached by the principal opinion.- I agree that Sec. 18, Art. V, “vests jurisdiction in the circuit court of
any county in the state,
in the exercise of its judicial discretion, to determine whether the needs of justice in such county require additional magistrates within the constitutional limitation as to the number thereof ’ ’; that it is self-enforcing, and “without legislative enactment it supplies a rule for the enjoyment of the right granted.” The principal opinion construes See. 1, Laws 1945, p. 767, as “implementing” this self-executing provision,, although expressly conceding that the act is inconsistent in some respects with the very provisions it purports to implement. I agree that inconsistencies do exist, one of them constituting, I submit, the basis for making absolute the preliminary rule in prohibition herein. Such is the ground of my dissent.
I think that, on the authority of the cases cited by the principal opinion, it is clear that Section 1 of the statute is an impairment of the self-executing nature of the constitutional provision because of its requirement of a petition signed by 500 voters as a condition to the exercise of the circuit court’s jurisdiction to determine the judicial question of the needs of justice. As I understand the rule respecting the permissible scope of legislation of the character here involved, such legislation must facilitate the constitutional right, or, as some of the eases say, it “must be in harmony with the Constitution and further the exercise of constitutional right and make it more available.” 11 Am. Jur. Constitutional Law, Sec. 76, p. 694. Here the
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constitution authorizes the circuit .court to exercise its jurisdiction “upon petition” (and after a hearing, etc.) without specifying any particular number of signers, so that it is perfectly [989] clear one signer would be sufficient, in the absence of the statute. I am unable to agree that the requirement of a petition signed by 500 voters may reasonably be construed as being in the nature of a safeguard of the constitutional right, or as making it more available. It is the determination of a judicial question which is committed to the circuit court, as the principal opinion properly holds, It is not a referendum to be conducted under the supervision of the circuit court. Regardless of how many voters favor or oppose increasing the number of magistrates, the ultimate question is the one of the needs of justice with respect to magistrate court facilities in the particular county, and, accordingly, is not affected by the number of signers to a petition praying the adjudication of that question.
Tiplon, G. J.,
concurs.