181 P. 466 | Or. | 1919
Lead Opinion
Under our form of government all power, both state and federal, is vested in the legislative, executive and judicial departments. Each is separate and distinct from the other. In the affairs of state the governor is the chief executive and all other officers in that branch are more or less subordinate to his position. The office of secretary of state is next in importance. Article III, Section 1, of the Constitution provides:
“The powers of the 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.”
Sections 1 and 8 of Article V follow:
“The chief executive power of the state shall be vested in a governor, who shall hold his office for the term of four years; and no person shall be eligible to such office more than eight in any period of twelve years.
“In case of the'removal of the governor from office, or of his death, resignation or inability to discharge the duties of the office, the same shall devolve on the secretary of state; and in case of the removal from office, death, resignation or inability, both of the governor and secretary of state, the president of the*466 senate shall act as governor, until the disability be removed, or a governor be elected.”
The latter article also defines the qualifications of governor and the manner of his election, specifies who are ineligible for the office and names his special powers and duties.
“In case of the removal of the governor from office or of his death, resignation or inability to discharge the duties of the office, the same shall devolve on the lieutenant governor.”
By substituting the words “secretary of state” for “lieutenant-governor” that section of the Indiana organic law is,made identical with the corresponding section of our own Constitution. Counsel have not cited, and we have not been able to find any decision of the State of Indiana construing that section of its Constitution.
The Federal Constitution, Article II, Section 1, provides:
“In case of the removal of the president from office, or of his death, resignation or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president.”
It will be noted that by inserting the words “powers and” between the words “the” and “duties” and substituting the title “vice-president” for “secretary of state” our own Constitution is made identical with, the federal. In so far as we are advised, this particular section of the Federal Constitution has never been construed by any court, yet upon the death of the President no one has ever claimed that the Vice-president became Acting President only, or that he would not succeed to the office of president itself for the remainder of the unexpired term for which the President was elected.
We have examined the Constitutions of every state in the Union, and none of them are identical with our
Under their respective Constitutions, in the event of the death of the governor, the powers and duties of that office devolve upon the lieutenant-governor in the following states:
Alabama
California
Colorado
Connecticut
Delaware
Idaho
Illinois
Indiana
Iowa
Kentucky
Louisiana
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Pennsylvania
Rhode Island
South Dakota
Texas
Vermont
Virginia
Washington
Wisconsin
and under like condition such duties devolve upon the President or Speaker of the Senate in the following named states:
Arkansas
Florida
Georgia
Kansas
Maine
Maryland
New Hampshire
New Jersey
Tennessee
West Virginia.
It is only in Oregon, Arizona, Utah and Wyoming that in the event of the governor’s death the secretary of state succeeds to his office or performs his duties. Excluding Oregon, the Constitutions of Alabama,
The only decision -of this court on the subject was rendered in the ease of Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180), which is vigorously assailed by counsel here, who claim that it was largely dictum, is not the law and should be overruled. That case was decided at the October term, 1884, and it appears from the brief of the respondent B. P. Earhart, who was then the secretary of state, that:
“The statement of facts contained in the stipulation which is the basis of this action may be briefly stated by submitting the questions. In the event of the resignation of the governor of Oregon does the secretary of state become the governor by operation of law, and is he entitled to the salary provided by law for that office? # # A. nice question is raised by the stipulation, but it is of no importance in ascertaining whether appellant is entitled to the salary in question, that is, was the appellant the governor during the two days after the qualification of the respondent and before the qualification • of Governor Thayer? And further, as the secretary of state is governor or acting governor, as the case may be, the office or duties thereof devolved on the respondent during that time. And we maintain that the title to each office terminated with the expiration of the four years after his qualification.”
Among other things, it was stipulated that:
“Mr. Earhart objects to the salary being paid from the 9th day of September, 1878, to the 11th day of September, 1878 — two days — on the ground that Mr. Chadwick was not secretary of state after Mr. Ear*470 hart was sworn in on the 9th day of September,-1878, though Mr. Chadwick acted as governor until and including the 11th day of September, 1878.”
The attorney for Mr. Chadwick, the appellant, made the following contention in his brief:
“In the event of the happening of any one -of the above contingencies the office of governor devolves upon the secretary of state.. The language in reference to the duties of secretary of state in this'event is the same as that defining the office of President when the Vice President succeeds to the same, except the word ‘powers’ is omitted.
“The office of governor is distinctive. It cannot merge into another. It cannot be vacant any more than can be the President’s office. The appointments under a constitution cannot be broken, whether they are made by an election or otherwise. The office is always filled. The incumbent is an incident to the office. Whether the incumbent is at the time secretary of state, he is the governor, and as much as if his appointment had been made by an election. The office devolves on him. The means used to fill the office of governor are absolute, and while they may be different according to contingencies, the one act of filling the office makes the incumbent .governor. It is the office, not the man. Under a constitution there can be no such thing as an ‘acting officer.’ That is one that appears to be what he is not. No more than a clerk of a department could discharge the duties of President.
“There can be but one construction of the constitution in reference to this matter, and that is that the office shall devolve on the secretary of state. Duties are subordinate to the office and a part of it, and when the office devolves on the secretary of state, duties follow — prescribed, or to be prescribed, by legislative enactment: 1 Kent Com. 279.”
' It was on such stipulation of facts and the briefs of respective counsel that the decision was rendered,
“Two questions are submitted in this case. The first and principal one is, whether, when, under section 8 of Article V of the constitution of Oregon, the duties of the office of governor devolve upon the secretary of state, he has a right to the salary of the office. Second. If this question be answered in the affirmative, whether he shall continue to perform the duties of the office for the remainder of the term of the outgoing governor, or shall he perform those duties only so long as he shall continue to be secretary of state. * *
“Counsel for the respondent claims that in the contingency provided for in said section 8, the duties of the office of governor become annexed to the office of secretary of state, and are discharged as duties incident to the latter office. In other words, that the duties of the office, but not the office itself, devolve upon the secretary of state.
“This position seems to require: First. Either that the office of governor should continue vacant during the time the secretary discharges its duties, and that such duties be in some way performed by the secretary of state, as such, consistently with a condition of vacancy; 'or, Second. That the office be filled and yet he who fills it be in nowise governor, but continue to be merely secretary of state.
“In the first place, it is not shown how an office can be vacant and yet there be a person, not the deputy, or locum tenens, of another, empowered by law to discharge the duties of the office and who does in fact discharge them. It is not explained how, in such a case, the duties can be separated from the office, so that he who discharges them does not become an incumbent of the office. And, in the second place, how a person can fill the office of governor without being governor.
“It is the function of a public officer to discharge public duties. Such duties constitute his office. Hence, given, a public office and one who, duly empowered, discharges its duties, and we have an incumbent in*472 that office. Such is the case here. The secretary of state, by force of the function cast upon him, becomes governor, and consequently entitled to the salary appertaining to the office.
“Nor does the language of the section, grammatically considered, bear the interpretation counsel has put upon it. Leaving out the co-ordinate clauses following the first clause, and the sentence reads: ‘In case of the removal of the governor from office, the same shall devolve on the secretary of state’; that is, the office shall devolve. So, taken with each of the succeeding clauses, the word ‘same’ stands for ‘office.’ ”
As to the second question, the opinion holds that the individual
“ * # answering the description at the time the contingency arises designates him as the person who is to enter and fill the office, and when, as thus designated, he enters into the office, he holds it in his natural, and not in his official capacity. This seems to be the principle which applies when the office of governor devolves on the secretary of state on the happening of any of the events specified in the constitution. * * Now, as two offices may remain distinct, which are not incompatible though the officer is the same person, it would seem that the same principle should govern the holding of the office of governor by the secretary of state.
“This question, therefore, must also be answered in favor of the appellant, and judgment be entered accordingly. ’ ’
We do not agree with the statement of counsel that other courts have refused “to accept the Chadwick case as sound law.” Upon that particular point, no United States court has ever construed the Federal Constitution and no state court has ever rendered any decision construing the same, or a similar provision of a state Constitution.
“If the governor be impeached, displaced, resign or die, or from mental or physical disease or otherwise, become incapable of performing the duties of his office or-be absent from the state, the secretary of state shall act as governor until the vacancy is filled or the disability removed”: Wyoming, Art. TV, § 6.
11 “In case of the impeachment of the governor or his removal from office, death, inability to discharge the duties of the said office, resignation or absence from the state, the powers and duties of the office shall devolve upon the lieutenant governor for the residue of the term or until the disability shall cease”: Nevada, Art. V, § 18. _ .
_ “In case of the death, resignation or removal from office of the governor, the powers, duties and emoluments of the office shall devolve upon the president of the senate”: New Jersey, Art. V, § 12.
“In case of the impeachment of the governor or his removal from office, death, inability to discharge the powers and duties of his office, resignation or absence from the state, the powers and duties of the office shall devolve- upon the lieutenant governor for the residue*474 of the term or until the disability shall cease”: California, Art. V, § 16.
“In case of the death, impeachment or conviction of felony or infamous misdemeanor, failure to qualify,, resignation, absence from the state or other disability of the governor, the powers, duties and emoluments of the office for the residue of the term or until the disability be removed, shall devolve upon the lieutenant governor”: Colorado, Art. IY, § 13.
“Whenever the office of the governor shall become vacant by death, resignation, removal from office or otherwise, the president of the senate shall exercise the office of governor until another governor shall be duly qualified ’ ’: Maine, Art. V, § 14.
“The lieutenant governor shall be ex-officio president of the senate; and in case a vacancy shall occur, from any cause whatever, in the office of governor, he shall be governor during such vacancy”: Minnesota, Art. Y, § 6.
“In case of the removal, resignation, death or disability of the governor, the duties of the office shall devolve upon the lieutenant governor”: Washington, Art. Ill, '§ 10. y
“In case of the death, conviction or impeachment, failure to qualify, resignation, absence from the state, or other disability of the governor, the powers, duties and emoluments of the office for the remainder of the term or until the disability be removed or a governor elected and qualified, shall devolve upon and accrue to the president of the senate”: Arkansas, Art. VI, §12.
It will be noted that in all of the sections quoted it is not the office, but the powers and duties of the office, which devolve upon his successor in the event of the death of the governor. The importance of that distinction is clearly pointed out by the recent decision of the Supreme Court of Arkansas in construing the Constitution of that state in the case of Futrell v. Old-
“If the framers of the constitution had intended to provide for the devolution of the office of governor, in case of vacancy by resignation or otherwise, upon the president of the senate, that intention could easily have been directly expressed in appropriate words. But they chose other terms which clearly observe the distinction between the course of succession of the-office itself and a mere' devolution of the duties and the emoluments of the office for the time being, and deliberately adopted the latter as the best means of having the government administered until the people themselves can elect a governor.”
That distinction was also made and emphasized by this court in the case of Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180).
W. H. Holmes, who submitted an amicus curiae brief in the instant case, was also one of counsel for the respondent Earhart in the Chadwick case and then contended that “the right of the appellant to the salary would depend on whether the title of the office of governor was vested in him or not”; that the title to that office was not vested in Chadwick and that his term as governor was special, “and the time cannot be extended by implication.” In his brief in the pending case he frankly says:
, “If the Chadwick case was correct law, it would seem the question has already been determined judicially and there would be nothing for the attorney general to do except to state that the question has been decided by the court of last resort in the state of Oregon and that the secretary of state would be justified in following the decision. Owing to the refusal of other courts in the land to accept the Chadwick case as sound law, and inasmuch as the secretary of state wants his rights and duties defined in regard to resigning his*476 office as secretary of state, with the view of assuming the office of governor and appointing a person to the office which he proposes to resign, it is important that the -question now before the court be correctly decided..’ ’
Then, as now, he vigorously asserted that it was not the law and should be overruled.
Much stress is laid upon the fact that E. P. Boise was a member of the constitutional convention and that as" circuit judge he sustained the demurrer to the complaint in the Chadwick case. "We have a very high regard and a profound respect for his judicial learning and ability, but his decision was rendered under the old practice and upon an agreed statement of facts, with a view of prosecuting an appeal and obtaining an early decision in the appellate court. Outside of the fact that Judge Boise sustained the demurrer, there is no written evidence in this or the Circuit Court as to what may have been his personal opinion or reason for sustaining the demurrer. The fact-remains that the Chadwick case was decided by this court in October, 1884; that the opinion of the then judges of this court, William P. Lord, W. W. Thayer and J. P. Waldo, Chief Justice, was unanimous and" that for more than thirty-four years it has never been questioned in this court.
Counsel now attack the grammatical construction given to that section of the Constitution in the opinion, contending that the word “same” as used therein refers to the word “duties” and not to “office,” and that it should be construed to mean that in case of the removal of the governor or of his death, resignation or inability to discharge the duties of his office, the duties of the office, and not the office itself should devolve upon the secretary of state. That question was
“In case of the removal of the governor from office or of his death, resignation or inability to discharge the duties of the office, the office itself shall devolve upon the secretary of state.”
Article II, Section 7, of the organic law of Oregon adopted in 1845, provides that:
“The governor shall continue in office two years, and until his successor is duly elected and qualified; and in case of the office becoming vacant by death, resignation or otherwise, the secretary shall exercise the duties of the office until the vacancy be filled by election.”
Volume 9 of United States Statutes at Large, page 824, Act Aug. 14, 1848, c. 177, Section 3, establishing the territory of Oregon, provides:
“And in case of death, removal, resignation or absence of the governor from the territory, the secretary shall be, and he is hereby authorized * * to perform all the powers and duties of the governor, during such vacancy or absence, or until another governor shall duly be appointed and qualified to fill such vacancy.”
“In case of the removal of the governor from office, or of his death, resignation or inability to discharge the duties of the office, the same shall devolve on the secretary of state.”
They did not select either, but drafted and adopted another section, using language of their own, with a different meaning. That section further says:
“In case of the removal from office, death, resignation or inability, both of the governor and the secretary of state, the president of the senate shall act as governor until the disability be removed or a governor elected.”
And it is contended that because in such a case “the President of the Senate shall act as governor,” it must follow that the section should be construed to tnean that upon the death of the governor the secretary of state should “act as governor.” We do not think that it will bear that construction. It specifically says that:
“In case of the removal of the governor from office, or of his death, resignation or inability to discharge*479 the duties of the office, the same shall devolve on the secretary of state”
—and that in the event of the death or disability of both the governor and the secretary of state the president of the senate shall act as governor. It does not say that the secretary of state shall act as governor, although it says that the president of the senate shall “act as governor.” If it had been the intent of the framers of the Constitution that the secretary of state should “act as governor,” it would have been an easy matter to say so and to apply the same language to the secretary of state that it did to the president of the senate.
“The rule of stare decisis is peculiarly applicable to the construction of the constitution. The interpretation of that document should not be made dependent upon every change in the personnel of the court. When one of its clauses has been construed, that construction should not be set aside except for the most cogent reasons. Certainty in the law is of the first importance.”
In Cooley’s Constitutional Limitations (7 ed.), page 83, it is said:
“Precedents, therefore,' become important, and counsel are allowed and expected to call the attention of the court to them, not as concluding controversies, but as guides to the judicial mind. Chancellor Kent says: ‘A solemn decision upon appoint of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was mis*480 understood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness and the community has a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would therefore be extremely inconvenient to the public if precedents were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of propérty. When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review, and never by the same court, except for very urgent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law. ’ ”
This rule of construction has been adopted and followed by a long line of decisions of this court, commencing with the case of State v. Clark, 9 Or. 470, and ending with the case of Multnomah County v. United States Fidelity & Guaranty Co., 92 Or. 146 (180 Pac. 104), decided April 22, 1919. The rule is well stated by Mr. Justice Burnett in his dissenting opinion in Kalich v. Knapp, 73 Or. 587 (145 Pac. 27, Ann. Cas. 1916E, 1051), thus:
“Another doctrine equally well settled is that of stare decisis, to the effect that, when a decision has once been rendered,' it amounts to an authoritative construction of the law, and should not be disregarded or overturned, except for very cogent reasons showing beyond question that on principle it was wrongly decided. The principle is that laws are largely conventional rules of action, and it is more important that the rule be settled as a guiding precept to the public than that by the action of the courts the law should*481 be made to fluctuate like tbe tides.” (Citing authorities.)
Article II, Section 10, of the Constitution provides that:
“ * * Nor shall any person hold more than one lucrative office at the same time, except as in this constitution expressly permitted.”
It is contended that under Article III, Section 1, supra, and the section just quoted no one individual can receive the emoluments and hold the offices of governor and secretary of state at the same time, but it will be noted that each of such sections contains the clause, “except as in this Constitution expressly permitted,” and that the offices of governor and secretary of state are both executive or administrative, and not legislative or judicial. All of the Constitution was adopted at the same time and its various provisions must be construed as a whole, and when Article II, Section 10, and Article III, Section 1, are considered with Article Y, Section 8, they are not in conflict. The devolving of the office of governor, at the death of that official, upon the secretary of state is one of the exceptions contemplated by the framers of the Constitution, provided for by Article II, Section 10, and Article III, Section 1. The word ‘£ devolve ’ ’ has a legal meaning and is well defined by Bouvier thus: “To pass from a person dying to a person living.”
Regardless of the question as to whether the Chadwick case is sustained by the weight of authority, the fact remains that since its decision in October, 1884, many legislatures have come and gone; that the people have directly or indirectly had the power to amend the Constitution; that for more than thirty-four years it has been the law of the state and that it was decided
Mr. Olcott is governor in fact and has the right and title to the office itself, with the accompanying right and authority to perform the duties and receive the emoluments of the office. As to whether he could resign as secretary of state, and as governor appoint another to that position and still continue to hold the office of governor, we do not feel legally justified in going beyond anything said in this opinion. That is less a public and more a personal question for Mr. Olcott.
But we do hold that upon the death of the late Governor Withycombe, by reason of the fact that Mr. Olcott was then secretary of state he automatically became governor, and when he took the oath as such the office of governor and the title to that office were thrust upon him by the terms and provisions of Article Y, Section 8, of the Constitution, and that under the authority of Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180), he became and is now governor in fact and is entitled to hold tha.t office, perform all of its duties and receive its emoluments for the full period of the unexpired term to which the late Governor Withycombe was elected. This decision is based upon the express terms and provisions of our state Constitution which was adopted by a direct vote of the people and which within itself, in case of the removal of the governor from office, or of his death, etc., provides how and by whom the office of governor shall be filled; and for such reason it is not in conflict with the recent opinion of the majority of this court in State ex rel. v. Kellaher, 90 Or. 538 (177 Pac, 944). In that kind of
The court sincerely thanks distinguished counsel for their able and instructive briefs as amid curiae on the respective sides and assures them that the same are duly appreciated.
Let the writ issue as prayed for in the petition.
Writ Allowed.
Concurrence Opinion
Specially Concurring. — I fully concur with the reasoning of Justice Johns, and in the conclusion arrived at by him, but think we should go further and decide every question that is presented in the briefs.
In the specially concurring opinions of Justices Burnett and Bennett, it is urged that the question, as to whether the petitioner will hold for the remainder of the unexpired term of the late Governor Withycombe, or only until his own term as secretary of state expires; and the further question, as to whether Mr. Olcott can now resign, the office of secretary of state and continue to hold the office of governor, are not necessarily involved here, and that any discussion of these questions is academic, and any opinion rendered in respect to them, would be merely dictum.
If these questions involved merely the private rights of individuals this contention would undoubtedly be correct; but where the general public has an interest
In Giles v. Harris, 189 U. S. 475 (47 L. Ed. 909, 23 Sup. Ct. Rep. 639), the United States Supreme Court says:
“Perhaps it should be added to the foregoing statement that the bill was filed in September, 1902, and alleged the plaintiff’s desire to vote at an election coming off in November. This election has gone by, so that it is impossible to give specific relief with regard to that. But we are not prepared to- dismiss the bill or the appeal on that ground, because t.o be enabled*485 to cast a vote in that election is not, as in Mills v. Green, 159 U. S. 651, 657 (40 L. Ed. 293, 16 Sup. Ct. Rep. 132), the whole object of the bill. It is not even the principal object of relief sought by the plaintiff. The principal object of that is to obtain the permanent advantages of registration as of a date before 1903. * *
“The traditional limits of proceedings in equity have not embraced a remedy for political wrongs. * * But we cannot forget that we are dealing with a new and extraordinary situation, and we are unwilling to stop short of the final considerations which seem to us to dispose of the case”: Giles v. Harris, 189 U. S. 475, 484, 486 (47 L. Ed. 909, 23 Sup. Ct. Rep. 639, 641, 642).
In Memphis St. Ry. Co. v. Rapid Transit Co., 133 Tenn. 99 (179 S. W. 635, Ann. Cas. 1917C, 1045, L. R. A. 1916B, 1147), the Supreme Court of Tennessee says:
“We have formerly held that when any question involving the constitutionality of an Act of the Legislature is bona fide made and relied upon in a case, this Court should take appellate jurisdiction of such a case. * * Although we appreciate the delicacy of passing on the validity of an Act of the Legislature, such a duty is often imposed upon us and we must not dodge our jurisdiction. Where an Act of the Legislature undertakes to regulate a particular subject and the application of such an act is invoked by one party in a suit involving that subject and the validity of the Act is questioned by the other party, we think it proper that the statute should be tested.”
In State v. Southern Tel. & Constr. Co., 65 Fla. 67 (61 South. 119), the Supreme Court of Florida says:
“The Railroad Commissioners, acting for the state, are the relators and plaintiffs in error, and the fact that the person in whose favor the order is sought to be enforced has moved away does not show that under no circumstances can the writ be made effective for the purpose designed in this case. And even if under*486 no circumstances the writ could he made effective because of Mr. Chaires’ removal, the appellate court does not thereby lose jurisdiction of the cause, and it may be retained for the determination of questions properly presented involving the duties and authority of state officials that are of general interest to the public. * *
“The respondent’s motion to quash the alternative writ presents questions of law that affect the authority and -duties of the Railroad Commissioners in regulating the service rendered by telephone companies, and the public as well as the relators is interested in having the legal questions raised determined for the future guidance of the state officials. * # ”
In Commonwealth of Massachusetts v. Klaus, 145 App. Div. 798 (130 N. Y. Supp. 713), the court says: .
“This is an appeal from an order of a justice * * denying a motion to issue a subpoena requiring Rembrandt Peale, a person within the state, to appear and testify in a criminal action pending in the state of Mass. # * By the subpoena applied for, it was sought to pro'cure the attendance of Peale in Mass, in Sept., 1910, and it may be that the criminal prosecution has already ended, so that his attendance would now be useless.
“On this point the papers on appeal do not advise us, but even if such were the case we should deem it our duty to examine the question of the validity of the act because the special term decision already referred to will, unless overruled, probably serve to render the act nugatory. Appellate courts not infrequently pass upon questions affecting public interests, even where in the particular ease the question has become academic.”
In re Fairchild, 151 N. Y. 361 (45 N. E. 943), the Court of Appeals of New York says:
“The respondent contends that, inasmuch as the election has been held, the decision of the questions presented on this appeal is of no importance, as it can,*487 at most, only affect the questions of costs. We think the questions involved are of sufficient importance to require their determination by this court, as it may prevent future embarrassment in the congressional district to which the controversy relates, and also settle other questions upon which there is a conflict in the decisions of the supreme court. * * ”
In People v. General Committee, etc., 25 App. Div. 339 (49 N. Y. Supp. 723), the same court says:
“This court held In re Cuddeback, 3 App. Div. 103 (39 N. Y. Supp. 388), viz.:
“ ‘An appeal will not always be dismissed because the question is no longer a practical one. Notwithstanding the fact that an election has been held, and a decision of the question involved cannot affect the result of that election, yet, where the point at issue is one of public interest, affecting the rights of all the electors of the state, the courts will determine it.’
“Following the doctrine there laid down, it seems that we ought not, in this case, to dismiss the appeal, because the question here involved is as much a matter of public interest as the question involved in the case from which the quotation has been made. * * ”
And In re Morgan, 114 App. Div. 45 (99 N. Y. Supp. 775), the same court says:
“ * * The sole question involved in this appeal is the constitutionality of said amendment, and, although the said election has long since passed, and therefore our decision can have no effect upon the rights of the appellant at said election, both sides urge a consideration by this court of a public question vitally affecting the conduct of elections in the future. Although in one sense academic, such considerations have moved both this court * * and the Court of Appeals # * to consider and determine cases involving the election laws, although the immediate necessity therefor has passed away. * * ”
This phase of the matter here under discussion did not escape the astute mind of Bouvier, who observes:
*488 “So also it has been held, with respect to a court of last resort, that all that is needed to render its decision authoritative is that there was an application of the judicial mind to the precise question adjudged; and that the point was investigated with care and considered in its fullest extent (Alexander v. Worthington et al.), 5 Md. 488; and that when a question of general interest is involved, and is fully discussed and submitted by counsel, and the court decides the question with a view to settle the law, the decision cannot be considered a dictum. (Id.)”
In the present case it cannot be successfully argued that the public has not a profound interest in the speedy solution of the questions submitted. There can be little question that Mr. Olcott is entitled to hold both the office of governor and secretary of state, and to draw the salaries .of both. It is creditable to him that he does not wish to do the first and will not do the second. In the infancy of the state, when its business Was insignificant and its revenues small, one person could well perform the duties of both governor and secretary of state, but with the enormous expansion of state business each of the three constitutional officers finds in his own department all the business which he can attend to, and more.
Questions, involving the care and expenditure of vast sums of money and affecting large social and economic interests, continually present themselves before the various boards, of which these officers are members. The object of having a board, composed of these officers, was to have the advantage of the opinions of three minds and the independent research of three persons before conclusions, vital in the administration of the state’s fiscal affairs, were arrived at. Where the offices of governor and secretary of state are merged in one individual, the public loses the safe
The public also has an interest in having the duration of his term of office settled. If a new governor is to be chosen at the next general election, the voters of the state should be apprised of that fact, so they may look about and weigh the qualifications of the various candidates, or prospective candidates, with a view to enabling themselves to choose intelligently. With the question undecided, and perhaps a large majority of the voters under the impression that Mr. Olcott’s term will not expire at the next general election, the primary election for that office will be clouded with uncertainties not conducive to intelligent selection.
It is true that each of these questions could be presented later by two or more additional lawsuits; that to use a homely simile, we could “cut the dog’s tail off by inches” instead of by making one slash and finishing the business once for all.
It is true the progress by inches would furnish business for attorneys and capital for petty politicians, but it would not promote the interest of the public, which, as before shown, is to have these questions settled now.
I consider every question discussed in the various briefs absolutely settled by the case of Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180), cited in the principal opinion. Justice Waldo, who delivered the opin
His annotation to Article V, Section 8, of the Constitution, is as follows, citing Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180):
“Under this provision when the governor resigns, the duties of the governor’s office devolve upon the secretary of state, who continues to perform them for the remainder of the term.”
If the language of the opinion were even obscure, which it is not, this interpretation by one of the learned justices, who participated in its rendition, ought to settle the question as to what the court meant to decide.
I do not consider the cases of State v. Johns, 3 Or. 533, State v. Ware, 13 Or. 380 (10 Pac. 885), State v. Kellaher, 90 Or. 538 (177 Pac. 944), in point in the present controversy. They were decided upon the theory that where a vacancy in an elective office is filled by appointment, the people should have the right to elect a successor at the earliest opportunity. Such is not the case here. Mr. Olcott was not appointed to the office of governor. He succeeded to it by virtue of
For the reasons given by Justice Johns, as well as those urged herein, I am of the opinion that this court should declare the petitioner is governor in fact and not acting governor; that he is entitled to the salary of governor; that he holds the office for the remainder of the term of the late Governor Withycombe, and that he may resign the office of secretary of state and still hold the office of governor.
Concurrence Opinion
Concurring in Part. — On April 1,1919, a warrant was issued by the secretary of state in favor of “Ben W. Olcott, governor, for the sum of $336 in payment of the salary due said Ben W. Olcott, as governor, from March 7 to March 31, 1919.” The state treasurer contends that the warrant “should be drawn to Ben W. Olcott, secretary of state, acting governor”; and since the warrant is not so drawn the state treas
The conclusion reached by this court in 1884 in Chadwick v. Earhart. 11 Or. 389 (4 Pac. 1180), when
Stephen F. Chadwick was elected secretary of state and L. F. Grover was chosen governor at the June, 1874, election. Each was elected for a term of four years. At that time the biennial sessions of the legislative assembly commenced on the second Monday of September in the even-numbered years and this accounts for the fact that there was a regular session in 1874 and also in 1878; but commencing with 1885 the biennial sessions have begun on the second Mon
“The term of office of the secretary of state, state treasurer and state printer shall cease on the first day of the regular session of the legislative assembly next following the general election on which the terms of their successors shall begin”: Deady’s Code, p. 711; Section 3441, L. O. L.
In 1908 the Constitution was amended so as to read thus:
“All officers except the governor, elected at any regular general biennial election after the adoption of this amendment, shall assume the duties of their respective offices on the first Monday in January following such election”: Article II, Section 14.
The legislative session which was held in 1878 commenced on Monday the ninth day of September; R. P. Earhart was elected secretary of state at the June 1878 election; Chadwick qualified as secretary of state in September 1874 and by force of the statute then in existence his term as secretary of state ceased on September 9, 1878, and Earhart’s term as secretary of state began simultaneously with the termination of
The house and the senate each effected a permanent organization on September 9, 1878. On the following day D. P. Thompson of Multnomah' County introduced House Joint Resolution No. 2, which reads as follows:
“Resolved, that a committee of three on the part of the House and two on the part of the Senate be appointed to wait on his Excellency, Governor R. P. Earhart, and inform him of the organization of the two Houses, and that they are ready to receive any message he may be pleased to make.”
H. Green of Benton County immediately moved to amend the resolution “by striking out the word ‘Earhart’ and substituting therefor the word ‘Chadwick.’ ” The motion to amend prevailed, and then the resolution, as amended, was adopted by a vote of 34 for with 23 against it. Among those voting ag-ainst the resolution, as amended, was W. A. Starkweather, who was a
“The convention was called to order by the President of the Senate, who stated the object of the convention to be to hear the biennial message of the outgoing executive, Gov. Chadwick, and also, the inaugural address of His Excellency, W. W. Thayer, Governor elect.”
Chadwick delivered a message to the joint convention and then Thayer “took the oath of office” and delivered his inaugural address.
We find from an examination of the records that Chadwick, who helped to frame the Constitution, asserted that he was governor; that Starkweather by his vote as a member of the house of representatives denied that Chadwick had authority to act as governor after his term of secretary of state had expired; and that R. P. Boise, who was also a member of the constitutional convention, as a circuit judge decided that Chadwick was not entitled to the salary of governor for any part of the period from February 1, 1877, to September 11, 1878. It is,a very significant circumstance that Matthew P. Deady, who was the president of the constitutional convention and afterwards became a very eminent jurist, in his Code of 1866 employs the following marginal heading for Section 8 of Article V: “Acting governor in case of vacancy or disability.” We find members of the house of representatives, among whom were lawyers of recognized ability, expressing different views; but we also find a
A judicial decision which is clearly and manifestly erroneous and, because erroneous, produces injustice and hardship, should, like the errors of any other tribunal, officer or person, be corrected and righted at the earliest opportunity; for the doctrine of stare decisis was never intended to apply to such a situation; but when a court is confronted, as we are now, with a controversy involving the construction of a section of the Constitution, and the official records of the state disclose the fact that different persons, bearing the responsibilities of public office, have in the discharge of their duties expressed variant opinions, and it appears that a legislative assembly, removed only nineteen years from, the date of the adoption of the Constitution, has by unmistakable action decided that the resignation of the elected governor devolves the office of governor upon and transfers it to the secretary of state,, and it is shown that an appellate court has by
“Mr. Earhart objects to the salary being paid from the 9th day of September, 1878, to the 11th day of September, 1878 — two days on the ground that Mr. Chadwick was not secretary of state after Mr. Earhart was sworn in on the 9th day of September, 1878, though Mr. Chadwick acted as governor until and including the 11th of September, 1878.”
Thus it will be seen that the question of salary covered two periods: (1) From February 1, 1877, to September 9, 1878, or the period during which Chadwick was secretary of state; and (2) from September 9, 1878 to September 11, 1878, or the period during which Chadwick was not secretary of state. The court decided that Chadwick was entitled to the salary
However, as I read it, the written opinion rendered in Chadwick v. Earhart does not decide that the people cannot elect a governor at the general election to be held in 1920 or that the person so elected cannot qualify and assume the office of governor when the speaker of the house publishes the vote in January, 1921, after the legislature convenes. Ben W. Olcott was elected secretary of state at the November, 1916, election and his term as such will expire on the first Monday in January, 1921. His successor will be elected at the November, 1920, election and such successor will assume the duties of secretary of state on the first Monday in January, 1921. ' James Withycombe was elected governor at the November, 1918, election and he qualified on January 14, 1919, after the speaker of the house of representatives published the vote cast for governor. James Withycombe was elected for a term of four years ending in January, 1923; but he died on March 3, 1919, and hence two regular elections will be held between the date of his death and the end of the four year period for which he was elected. In this respect the facts in Olcott v. Hoff are essentially different from the facts in Chadwick v. Earhart; for in the latter case Grover resigned
In Article II, Section 10 we read that no person shall “hold more than one lucrative office at the same time, except as in this constitution expressly permitted.” There is no provision in the Constitution expressly or by manifest implication declaring that the secretary of state shall hold the office of governor through two biennial elections; but upon the contrary the whole plan and purpose of the Constitution negatives the idea that the secretary of state can hold any longer than is necessary. The Constitution provides for the two offices of governor and secretary of state because the framers of the organic act deemed two offices necessary; one person is prohibited from holding two lucrative offices except as in the Constitution expressly provided, because the framers of the organic act deemed it desirable that one person hold only one lucrative office. The rule established by the Constitution is that one person can hold but one office; for one person to hold two offices is the exception. The framers of the Constitution anticipated the contingencies of death, resignation or removal by providing for the exception. The important business of the management of school and university lands and funds was
Concurrence Opinion
Specially Concurring. — In this case it appears from the pleading that the petitioner, who was secretary of state at the time of' the death of Governor "Withycombe, and who has assumed the office
The defendant, the state treasurer, refused to honor this warrant upon the ground that it should have been drawn to “Ben W. Olcott, Secretary of State, Acting Governor.”
It seems the legal controversy between the parties is over a mere matter of words — -the one claiming the warrant, should be drawn for his salary “as Governor,” and the other that the warrant should have been drawn in his favor as “Acting Governor.”
I do not think there is any question but what the warrant was sufficient and, therefore, in any view, should have been honored, and that the plaintiff is entitled to the relief prayed for. I therefore concur in the result of the opinion of Mr. Justice Johns.
The real purpose of the proceeding was, no doubt, to test questions wMch, as I view them, go far beyond the real question involved in the case. However important the public questions involved may be, I do not think we have any authority to go beyond the case presented to us. If we did and should decide questions not presented, our decision would be mere dictum, and not binding upon our successors, or even upon us individually, if we should change our individual opinion at some future date.
No doubt the power should be vested in the courts to pass upon moot questions of great public interest like this, in an authoritative way, but so far the legislature does not seem to have conferred that power. I, therefore, reserve my opinion as to the question of whether or not the petitioner will continue to hold the
In view of the opinions written by the Chief Justice, and some of the other justices, I deem it necessary to add something to the above brief expression of my views.
I do not view the authorities cited by Mr. Chief Justice McBride, in relation to our authority or lack of authority, to pass upon questions in no way involved in the case before us, as at all in point, or as giving us the slightest authority to go beyond the issues presented in this case. •
In all of these cases the questions decided by the court were squarely within the issues made by the pleadings, and the decision was entirely pertinent and responsive to the actual case in litigation. In some of them the decision of the court could still be made partly or wholly effective. In others, by reason of the lapse of time or the happening of some event, between the decision of the lower court and that of the appellate tribunal, the decree in the particular case, could no longer be enforced, but the issues between the parties, which were living issues at the time of the commencement of the action, still remained. In such a case it is well settled that the appellate court may retain and decide the case, or it may, at its option, refuse to proceed further and dismiss the appeal.
The leading case cited — Giles v. Harris, 189 U. S. 475 (47 L. Ed. 909, 23 Sup. Ct. Rep. 639), belongs to the former class of cases, and the questions decided were not only clearly within the issues made by the pleadings, but were still practical living issues in the case at the time of the ultimate decision.
That case was a suit.brought by a colored man in the State of Alabama, on behalf of himself and five
“To be enabled to cast a vote in that election is not * # the whole object of the-bill. It is not even the principal object of the relief sought by the plaintiff. The principal object * * is to obtain the permanent advantages of registration.”
The court denied the relief upon two grounds. Having considered the case and found against the plaintiff upon one ground, it also proceeded to consider the second ground and decide against him as to that also, and it was in this connection that the court used the language, which is referred to in the second quotation:
“We are unwilling to stop short of the final considerations, which seem to us to dispose of the case.”
Here, then, was simply the common occurrence of there being two grounds upon which a case could be decided — both of them squarely within the issues of the case and the court deciding them both. In such a case, I think it is well settled that the court may dispose of the case upon one ground alone, or may properly pass upon both questions involved.
I cannot see how such a case furnishes an iota of authority, for us to go entirely outside, of every issue in this case, and decide questions that are not in the case at all.
“We express no opinion as to the alleged fact of their unconstitutionality.”
Another significant thing is, that the court cites with approval the previous case of Mills v. Green, 159 U. S. 651 (40 L. Ed. 293, 16 Sup. Ct. Eep. 32), in which the same court had used the following language:
“The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect and not to give opinions upon moot questions or abstract propositions, or to disclose principles or rules of law, which cannot affect the matter in issue, in the case before it.”
The case of Memphis v. Rapid Transit Co., cited from 133 Tenn. 99 (179 S. W. 635, Ann. Cas. 1917C, 1045, L. R. A. 1916B, 1143), was a suit by a street-car company against a jitney company, for operating jitneys in competition, the plaintiff relying upon an act of the legislature. The defendant demurred to the complaint, retying upon two grounds, one of which was that the act was unconstitutional. At the hearing it was claimed the case could be decided upon other grounds than the constitutional question, and that, therefore (under the practice in that state), the cause should have been appealed to a different court. The court held the constitutional question squarely in the case, and therefore proceeded to decide the same. It was under these conditions and in regard to such a ease, that the court used the language quoted.
It is one thing to decide the issues actually presented in a case, even although something has happened pending the appeal, making the judgment ineffective, and an entirely different matter to go clear outside of the issues, as we are asked to do.
In many cases, as in the fixing of rates for a particular year, or the right to vote at a particular election, it is impossible to reach a decision in the appellate courts before the party’s right in the particular instance has expired; and he could never have the question, or his rights decided, if his cause should be dismissed upon that ground. In such cases the courts have always, and I think properly, exercised their discretion to dismiss the cause, or to hear and decide it, as seemed just under the particular circumstances.
The other cases of State v. Stutsman, 24 N. D. 68 (139 N. W. 83, Ann. Cas. 1914D, 776); State v. Tel. Co., 65 Fla. 67 (61 South. 119); Commonwealth v. Klaus, 145 App. Div. 798 (130 N. Y. Supp. 713); In re Fairchild, 151 N. Y. 361 (45 N. E. 943); People v. General Committee, 25 App. Div. 339 (49 N. Y. Supp. 723), and In re Morgan, 114 App. Div. 45 (99 N. Y. Supp. 775),
There is no case cited, and I do not think any one can be found, in which the court has deliberately and intentionally gone clear outside of the issues (as we are asked to do) and decided questions which were not and never had been in the case.
If we do this we are not following any beaten path— we have no precedents — we are cutting the fences that have marked the boundaries of proper judicial authority, ever since we have had English speaking courts. The common law never gave us any such authority. Neither did the state Constitution, nor has the legislature. Our only pretense of authority will be the invitation of public officers, who have no more statutory right to invite us to make the decision, than we have to accept the invitation.
I do not wish to quibble or to shirk my share of responsibility in deciding any question that is properly before the court. Neither am I willing to be stampeded into a decision I have no right to make, nor to rush headlong to the exercise of powers I do not possess, in order that I may have the satisfaction or the notoriety, of helping to decide some important question.
This is not a case where the questions presented have become merely academic, after the case was commenced, by reason of the lapse of time. Here the question as to who will be governor, if the secretary of state resigns, or if another governor should be
To accept and amplify Mr. Chief Justice McBride’s homely illustration, this is not a case where anyone has suggested to “cut the dog’s tail off by inches.” It is a ease where, because one dog has a broken tail, which needs amputation, we are asked to drag in the other dogs in the community and mutilate them, because their tails might, possibly, be broken at some time in the future.
If another secretary of state, elected at the next election, shall claim the office of governor, he will have a right to be heard. There will then be an actual controversy, and I think he ought not to be foreclosed, by any premature decision we may now make, in' a “mock trial” on a “moot” question in an arranged and fictitious lawsuit.
As a citizen, I have a more or less well-defined opinion as to all the questions suggested here, ’f ormed partly from my own impressions and partly from the briefs of the attorney general, and those of public spirited citizens, who — at the invitation of the court— have taken enough time from their private business, to file more or less careful briefs in the case. If I should don my official robe and attempt to give my half-baked street opinions judicial utterance, I would agree with Mr. Chief Justice McBride as to the result, but not as to the reasoning or analogies by which he has reached that result. On the other hand, I should agree with Mr. Justice Harris as to his reasoning, up to a certain point, but not as to the result reached by him. But if I should attempt to do so, some other
I shall content myself, therefore, with the expression of an opinion on the questions really in issue, and upon which, as I understand, we are all agreed.
Concurrence Opinion
Concurring in Part. — In this case an alternative writ of mandamus was issued out of this court, directed to the defendant, from which, barring a clerical omission, we learn in substance that James "Withycombe, the duly elected and inaugurated governor of the state, died March 3,' 1919, at which time the petitioner, Ben W. Olcott, was the duly elected, qualified and acting secretary of state and has since then continued to hold the latter office. It is further recited that on April 1, 1919, the secretary of state issued a warrant in favor of Ben W. Olcott for $336, in payment of the salary due him for service as governor of the state from March 7 to March 31, inclusive, 1919, which warrant the petitioner herein has presented to the defendant as state treasurer and the latter fails and refuses to pay the same although there is money in his hands applicable to the payment of the salary of the . governor. By the writ, the defendant was required to show cause why he had not paid the warrant. On the return day the defendant demurred, not to the petition for the writ, but as the statute requires (L. O. L., § 618), to the writ itself, on the ground that it does not state facts sufficient to constitute a cause of action against the defendant.
The sole question presented is whether the defendant is right in refusing to pay the warrant in question. We have nothing to do with the petition. It has per
Admitted, as it is, that the regularly elected governor died during his incumbency in office and that the petitioner here was at the time the duly elected, qualified ' and acting secretary of state, we are not at present concerned about whether he is performing the duties of the office of governor as de facto or de jure governor, or merely by virtue of the authority vested in him as secretary of state, or, in other words, as an alternate upon whom the Constitution imposes the functions of governor in case of the death of the latter officer. So far as public interests are concerned or the rights of the people are involved, it matters not in which of the two suggested capacities the duties and the authorities of the executive office are exercised, so they are performed. It is said in the writ:
“That under and by virtue of Section 8, Article Y of the Constitution of Oregon, the office of governor and the duties thereof devolved upon the secretary of state, and that on the 7th day of March, 1919, petitioner, Ben W. Olcott, took the oath of office, and that since that time he has been and now is the governor of the state of Oregon.”
This states but a mere conclusion of law and presents no' issuable fact. Neither is it directly averred that the petitioner has performed any of the duties or exercised any of the powers of governor. It is presumed, however, that official duty has been regularly
Coming to the precise question of whether the petitioner is entitled to the salary which otherwise would have been paid to the elected governor had he survived, the rule is well stated in Preston v. United States (D. C.), 37 Fed. 417, 418, thus:
“If there be no incompatibility between the respective duties of the two offices or employments and the functions of each are separate and distinct, he is entitled to recover two compensations.”
Article Y, Section 8, of the Constitution reads thus:
“In case of the removal of the governor from office, or of his death, resignation or inability to discharge the duties of the office, the same shall devolve upon the secretary of state; and in case of the removal from office, death, resignation or inability, both of the governor and secretary of state, the president of the senate shall act as governor until the disability be removed, or a governor be elected.”
Whatever view may be taken of this clause of the fundamental law, as to the capacity in which the petitioner shall administer the duties of the chief executive, it is plain that by force of the Constitution itself the duties of the two offices are not incompatible with each other, however separate and distinct they may be. In other words, the Constitution itself casts- the performance of the duties of both offices upon the same individual under certain circumstances, with the result that they are constitutionally compatible with each other. Under such circumstances, the extra duty hav
“Another reason that may be- offered for this conclusion is that it is a general principle of justice and right that when one regularly performs the duties of an office he should be entitled to the emoluments thereof. ’ ’
In United States v. Saunders, 120 U. S. 126 (30 L. Ed. 594, 7 Sup. Ct. Rep. 467), the claimant drew a salary as clerk of a committee of Congress and likewise as clerk in the President’s office. The duties of the two were held not to be incompatible and hence his claim was allowed for both salaries. In State v. Roddle, 12 S. D. 433 (81 N. W. 980), the defendant was a secretary of state and likewise was made by a statute a member of the state committee on brands and marks, carrying with it an additional compensation, and it was held that he was entitled to both emoluments. Similarly, in State ex rel. v. Walker, 97 Mo. 962, the individual who held the office of secretary of state and was also a member of the board of equalization was allowed pay for both positions. In Scranton School District v. Simpson, 133 Pa. St. 202 (19 Atl. 359), and in McCauley v. School District, 133 Pa. St. 493 (19 Atl. 410), the occupant of the office of city treasurer, who was ex-officio treasurer of the school district, was allowed the statutory compensation for both positions. The same doctrine is taught in United States v. McDaniel, 7 Pet. 1 (8 L. Ed. 587); United States v. Ripley, 7 Pet. 18 (8 L. Ed. 593); United States v. Felleborn, 7 Pet. 28 (8 L. Ed. 596), and in Milnor v. Metz, 18 Pet. 221 (10 L. Ed. 943). In Love
It is true that Article II, Section 10, of the organic law declares that:
“No person holding a lucrative office or appointment under the United States or under this state shall be eligible to a seat in the legislative assembly; nor shall any person hold more than one lucrative office at the same time, except as in this constitution expressly permitted.”
This must be read in connection with Article Y, Section 8, already quoted. If the latter section be construed to invest the petitioner with the office of governor both de facto and de jure, it would constitute an exception within the meaning of Section 10 of Article II. On the other hand, if it be held that he is merely exercising functions of the office of secretary of state visited upon him on account of the death of the elected governor, he would not be holding more
This disposes of the question presented hy the pleadings for our consideration. All else respecting the length of time the petitioner shall perform the' •duties of governor or whether he has authority to resign the office of governor or resign the office of secretary of state and continue to hold as governor, or whether he can obstruct the order of succession provided by Section 8 of Article V by appointing a secretary of state to succeed himself, is not presented by the instant record, and any attempt to dispose.of these matters in this proceeding would be gratuitous dictum. The only excuse for discussing those questions is found not in any allegation even of the petition itself and much less in the writ which is the primary pleading, but only in the last clause of the prayer of the petition, as follows:
“And this petitioner particularly prays that this court will define his duties and powers in relation to the office of Governor.”
Nowhere in the record does the petitioner intimate any desire for advice or decision about his right to resign any office or concerning the length of time he will be required or permitted to exercise its functions. As already pointed out, the petition is no part of the pleadings: McLeod v. Scott, 21 Or. 111 (26 Pac. 1061, 29 Pac. 1); Elliott v. Oliver, 22 Or. 44 (29 Pac. 1); Shively v. Pennoyer, 27 Or. 33 (39 Pac. 396). The clause of its prayer, if indeed we may consider it at all, amounts simply to a request for the court to give counsel to the petitioner on a question not presented by the record. It does not call for any decision. It is said in Section 957, L. O. L.:
*519 “Any judicial officer may act as an attorney in any action, suit or proceeding to which he is a party or in which he is directly interested. A judge of the county court or justice of the peace, otherwise authorized by law, may act as an attorney in any court other than the one of which he is judge, except in an action, suit or- proceeding removed therefrom to another court for review; but no judicial officer shall act as attorney in any court, or otherwise, other than as in this section allowed. * * ”
In effect, at least, if we undertook to advise the petitioner concerning “his duties and powers in relation to the office of governor” we would violate this provision of the statute. Moreover, as declared in Chapter 196, Laws of 1915, it is the function of the attorney general when requested to do so by any state official, to give his opinion in writing upon any question submitted to him in which the State of Oregon may have an interest, and he shall, when requested, give legal advice to any of said officials, boards or commissions. For this court or its members to give such counsel as the petitioner in his /prayer requests would be to usurp the functions of the attorney general in contravention of Section 1 of Article III of the Constitution, dividing the powers of government into three separate departments, the legislative, the executive, including the administrative, and the judicial, and forbidding any person charged with official duties under one of these departments to exercise any of the functions of another. All we are called upon by the record before us to decide is the issue of law presented by the demurrer to the writ. All beyond that would be unwarranted and would not bind anyone. We could not compel the petitioner to resign either the office of secretary of state or of governor, nor could we restrain him on the record from doing either of those acts, any
‘ ‘ The mere dictum of a judge is not the decision of a court. There is nothing authoritative in a case except what is required to be decided to reach the final judgment, and what, by the judgment, becomes res adjudidata between the parties as to the subject matter of the suit. Love v. Miller, 53 Ind. 294 (21 Am. Rep. 192). ‘An obiter dictum is a gratuitous opinion, an individual impertinence, which, whether it be wise or foolish, right or wrong, bindeth none, not even the lips that utter it. Old Judge’ — taken from the title page of a work on ‘Obiter Dicta,’ published by John D. Allen; New York, 1885: Hart v. Stribling, 25 Fla. 433, (6 South. 455, 456.)”
For these reasons I concur in the direction that a peremptory writ issue commanding the state treasurer to pay to the petitioner the amount of the warrant in question; [but I object to the gratuitous statement in the opinion of Mr. Justice Johns about the length of time the [petitioner may discharge the duties of the chief executive of the state, as not within the issue presented by the record and not even requested by either party.
