17 Or. 640 | Or. | 1889
This proceeding was instituted by the plaintiff, claiming to be one of the railroad commissioners of the state, against the secretary of state, to compel him by writ of mandamus to di’aw a warrant upon the state treasury for the sum of $277.77, being the amount claimed as plaintiff’s salary up to the date of the filing of the petition for the writ.
The petition alleges, in substance, that George W. McBride is the duly elected, qualified, and acting secretary of state of the state of Oregon, and is, by virtue* of said office, the auditor of public accounts; that your petitioner is one of the duly appointed, qualified, and acting railroad commissioners of the state of Oregon, constituting one of the members of the board of said railroad commissioners of said state, and has been such since the twenty-first day of February, 1889, at which time the appellant was duly appointed said railroad commissioner by Hon. S. Pennover, governor of the state of Oregon, in pursuance of a law duly enacted and passed at the fourteenth regular session of the legislative assembly of said state, and which was approved the 18th of February, 1887; that as such railroad commissioner your petitioner, on the thirty-first day of March, 1889, became entitled to receive for his services as such officer the sum of $277.77, in United States gold coin, for the quarter ending March 31, 1889; that on the first day of April, 1889, your petitioner applied to said defendant, at his office in the city of Salem, and requested and demanded that the defendant, as such secretary of state and auditor of public accounts, should audit, allow, and issue his warrant upon
The appellant’s notice of appeal specifies, in substance, the following- grounds of error, upon which he intends to rely upon the appeal: 1. The court erred in. sustaining the defendant’s demurrer; 2. The court erred in denying the writ of mandamus prayed for in. said cause; 3. The court erred in dismissing plaintiff’s cause at his costs.
The board of railroad commissioners in. this state was created by the act of the legislative assembly approved February 18, 1887. This act, among other things, provided that such board should consist of two persons, to be appointed by the governor- from each of the two political parties, who should hold their offices for and during the term of four years, or until their successors, are appointed as in said act provided; and if a vacancy occurs by resignation, death, or otherwise, the goyernor, in the manner thereinafter provided, was to appoint a commissioner to fill such vacancy for the residue of the term, and, might in the same manner remove any commissioner for cav,se.
During the session of the legislative assembly next preceding the expiration of the term of office of the' com mis
On the twelfth day of February, 1889, the legislative assembly passed an act amendatory of the existing law on the subject of railroad commissioners, whereby the board was increased to three persons, and provision was made for choosing said commissioners biennially by the legislative assembly, and they were to hold office for the term of two years, and until their successors were elected and qualified.
The following emergency clause was added at the end of the bill: —
“ Section 5. Inasmuch as the amendments herein proposed would greatly tend to benefit the people 'of this state, and there is urgent necessity therefor, this act shall take effect and be in force from and after its ap-. proval by the governor.”
The act was vetoed by the governor on the nineteenth day of February, 1889; on the same day it passed the senate, notwithstanding the veto of the governor, by the requisite majority, and on the twentieth day of the same month it passed the house by a like majority, and was deposited in the office of the secretary of state.
1. The point of contention presented by the first question arises out of the language used in section 5 of the amendatory act, to the effect that the same should take effect and be in force from and after its approval by the governor. It is contended by the appellant that by the terms of the act itself it was only to be in force from and after its approval as aforesaid, and if the govenor failed to approve it, it could only take effect at the end of ninety days after the adjournment of the session. But it seems to me this argument proves too much. If the words “from and after its approval by the governor” are to be treated as a condition precedent, as the contention assumes, then it could never take effect, for the reason the condition had never happened. But this method of treating a grave constitutional question seems scarcely satisfactory./ It seems more like a quibble over words than an attempt to ascertain what the legislature really meant by the use of the phraseology in question. I think
2. Article 4, section 28, of the constitution, provides: ' “ No act shall take effect until ninety days from the end of the session at which the same shall have been passed, except in case of emergency, Which emergency shall be declared in the preamble or in the body of the law.’y It is contended by the appellant that there is no emergency declared in the body of this law, and that, therefore, the act did not take effect until ninety days after the adjournment of the legislature. In the absence ofiá constitutional or statutory rule upon the subject, all statutes would take effect from the first day‘of the session at which they are passed, at least that is the common-law rule. (Cooley’s Constitutional Limitations, sec. 156.) But the constitution of this state has prescribed the rule by which every department of the government is bound, and the only duty the court has to perform is, to determine whether or not it has been complied with in this particular case. The emergency is declared in these words: “Inasmuch as the amendments herein proposed would greatly tend to benefit the people’of this state, and there is urgent necessity therefor,” etc., I do not think that the latter member of the sentence adds anything to the first..
It declares no emergency. It is the fact of the existence of any event or occasional combination of circumstances
But in all such cases it is for the legislature to ascertain and declare the fact of the existence of the emergency, and its determination is not reviewable elsewhere. The constitution has vested the law-making department of the government with the power to determine that question (Carpenter v. Montgomery, 7 Black, 415; Gentile v. State, 29 Ind. 409), and such determination is not made reviewable in the courts. No doubt the emergency must be declared in the body or preamble of the act, but if there is no fact, event, or state or condition of affairs mentioned which the legislature determines creates an emergency, no difference how strongly or directly it may be asserted in the act that it is necessary that it should go into effect immediately, the legislative declaration must fail, for the reason that the constitution is not complied with. By the act under consideration it is declared that the amendments proposed therein “would greatly tend to benefit the people of this state.” “Benefit to the people” is the object and purpose of all government; and where the result is manifest, no doubt the legislature ought to resort to unusual and even extraordinary ends to attain it. It is true, in this cpse, we may be unable to perceive in what manner the proposed benefit is to accrue; but the legislature having declared that the people will be benefited, we must assume that such determination is proper, and, so far as the court is concerned, final. Such determination is in its nature political, and not judicial,land for such errors, if they be errors, the remedy must be found in the virtue
3. The third question remains to be considered. It has been argued, in effect, on the part of the appellant, that, under the constitution of this state, the legislature cannot create a new office — one not provided for by the constitution — and fill it by an election in joint convention of the two houses; that while it is competent for the legislature to create such additional offices as the public necessities may require, still, when created, if an election by the people is not provided for, the right to fill the same by appointment is devolved upon the governor by the constitution. In other words, the right to fill a vacant office belongs to the executive as one of the duties pertaining to his office, and that the assumption on the part of the legislature to fill the office of railroad commissioners by persons of their own selection is a usurpation, by that department of government, of powers that are vested by the constitution in the executive. By article 3, section 1, of the constitution, it is provided: “The powers of government shall be divided into three separate departments, — the legislative, the executive, including the administrative, and the judicial, — and no person charged with official duties under one of these departments shall exercise any of the functions of another except as in this constitution expressly provided.” For most practical purposes, the line of demarkation which separates the three departments of government the one from the other are obvious enough, and there is but little probability that one department will assume to exercise functions which properly belong to one of the others. It is only where the power in question lies near the border-line that any serious question can arise, and then it must be determined on its own particular facts.
In. Wynham v. People, 13 N. Y. 391, the court of appeals
4. Thus far, nothing has been said on the subject of the power of the governor to remove the railroad commissioners. The act under which they were appointed provided that he might remove them for cause. This clearly implied that they could not be removed at the mere will of the governor, or without cause. Whether such a power is so far judicial in its nature that it cannot constitutionally be vested in the chief executive, as many authorities hold (Page v. Hardin, 8 B. Mon. 648; Curry v. Stewart, 8 Bush, 560; Hyde v. State, 52 Miss. 665; State v. Pritchard, 36 N. J. L. 101; Honey v. Graham, 39 Tex. 1; Dallam v. Wilson, 53 Mich. 392), or whether it is in its nature executive, and therefore properly belongs to the governor, we do not at this time undertake to determine. But it is believed, under either view, and by whomsoever the power of removal for cause may be exercised, it must be done upon notice to the delinquent of the particular charges against him, and an opportunity be given him to he heard in his defense. (Dallam v. Wilson, supra; Attorney-General v. Hawkins, 44 Ohio St. 98; People v. Fire Commissioners, 72 N. Y. 445; People v. Mayor of the City of New York, 19 Hun, 441.) But we do not decide this question now, aud we only refer to it to avoid misconception.
5. There is another question I think proper to mention for the same.reason. The ostensible object of this proceeding is to obtain payment from the state treasury of the salary plaintiff claims as railroad commissioner, but we cannot shut our eyes to the fact that its real object is to try the plaintiff’s title to that office, and that is the question discussed; but no objection was made by the respondent; and on account of the public importance of
The judgment of the court below must therefore be affirmed.