20 Or. 365 | Or. | 1891
— This case involves a controversy between the relator Pichard Everding and the respondent Joseph Simon concerning the right to exercise the office of police commissioner of the city of Portland. The facts are these: In 1885, section 72 of the charter of the city of Portland was so amended as to provide that the police force of the city shall be appointed and organized by three commissioners, and prescribing the qualifications and duties of these officers. This act provides that the first three commissioners shall be appointed by the governor, and shall hold their office for
At the general election for city officers in June, 1889, the relator was a candidate for police commissioner, and as such candidate, received all the votes cast for said office, there being no opposing candidate. He afterwards duly qualified and demanded of respondent the possession of the office, which was refused, hence this proceeding.
By the act of 1889, the office of police commissioner remained with its duties clearly defined, but with no term fixed, and no provision for an election or appointment to the office, except an appointment by the mayor in case of
It will readily be perceived, then, that this omission cannot be supplied by the court without assuming the functions of the law-making power, and this a court cannot do. It is our legitimate province to interpret legislation, but not to supply omissions. Nor do we think there is anything in the language of the act of 1889 that can be construed to authorize an election for the office in controversy. It is provided, it is true, “that the commissioners now in office shall hold their respective offices until their successors are elected and qualified,” and that “the commissioners shall enter upon the discharge of their duties on the first Monday in July succeeding their election”; but this does not in any way authorize an election. It may and perhaps does indicate an intention on the part of the legislature that such officers should be elected, but unless some provision is made for carrying out such intention it is of no avail. An election in order to be valid must be held in pursuance of the provisions of some law authorizing it, in force at the time. There is no inherent reserved power in the people to hold an election. (People v. Bull, 46 N. Y. 57, 7 Am. Rep. 302; State v. Jenkins, 43 Mo. 261; People ex rel. v. Johnston, 6 Cal. 673; Matthews v. Board, 34 Kan. 606; State ex rel. v. Sims, 18 S. C. 460.) This rule was recognized in the act of 1885, and the time and place of the election provided, but the act of 1889 contains no such
Our attention has been called to section 11 of the charter of the city of Portland, which provides for the annual city election. This is only a provision for the general election, and certainly does not authorize the election of any officer of the city, unless special provision is made by law, either directly or by implication, for the election of such officer for the particular term to which he is seeking to be elected. (Sawyer v. Haydon, 1 Nev. 75; McKune ex rel. v. Weller, 11 Cal. 49.)
As we have already seen, there is no provision of law for the election of police commissioner. If the language of the act of 1889 should be so construed as to authorize an election, at what time must such election be held? At the time the relator claims to have been elected? If so, upon what theory? Certainly not because it was the general election for city officers. The act of 1885 provided an election for this office at the general election, and as we have already seen, this provision was annulled Or repealed by being omitted from the act of 1889. If any inference is to be drawn from this omission, it must be that the legislature intended, if it intended an election should be held at all, it be held at some other time, else why should this provision have been omitted ? And, again, if an election could be had at all, it must have been immediately preceding the expiration of respondent’s term of office; and when did his term expire? We look in vain to the law as it existed in June, 1889, for an answer. It is true, respondent was appointed at a time when the term was fixed at three years, but before the expiration of his term the legislature repealed that provision, so that at the time the relator claims to have been elected no term for the office was fixed by law. That the legislature had the right to change the term of the office will not be denied. (Territory ex rel. v. Pyle, 1 Or. 149.) These suggestions show the impossibility of so construing the law as to authorize an election without interpolating
But whatever may have been the intention of the legislature, it failed to carry it into effect. The inference we draw from the language of the act is not that the legislature thereby gave, even by implication, any power to the people to elect police commissioners, but rather intimated an intention to do so — an intention which it failed to carry out. Courts “must not, even in order to give effect to what they may suppose to be the intention of the legislature, put upon the provisions of a statute a construction not supported by the words, even although the consequences should be to defeat the object of the act.” (Smith’s Stat. Cons. §714.) This is a case, it would seem, where the legislature has omitted by mistake or otherwise to make the necessary provisions to carry out its intention, but we cannot by construction supply these omissions. As was said by Davies, J., “It is always competent for the legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain and obvious meaning of an act, rather than to speculate upon what might have been the views of the legislature in the emergency which may have arisen. It is wiser and safer to leave to the legislative department to supply a supposed or actual casus omissus than to attempt to do so by judicial construction.” (People v. Woodruff, 32 N Y. 364.) Courts cannot supply omissions in legislation, nor afford relief because they are supposed to exist. To adopt the language of Mr. Justice Woods, in Hobbs v. McLean, 117 U. S. 579, “ when a provision is left out of a statute, either by design or mistake of the legislature, the courts have no
In September, 1871, Rosenfeld was by the state at large elected state harbor commissioner of the state of California for the term of four years, from December 1,1871, and served until May 23,1873, when he resigned, and defendant Mathewson was duly appointed by the governor to fill the vacancy. On January 1,1873, the revised code of California went into effect, from which in some manner the provision for an election of harbor commissioner was omitted. Yet the two political parties each nominated a candidate for the office> and at the general election in September, 1873, one Newman received the greater number of votes cast for said office, to whom a commission was regularly issued by the governor,
We could safely rest the case before us here, but there is another question urged by counsel which we think proper to notice. It is contended that the act of 1889 invests respondent with an office the tenure of which is longer than four years, and therefore in conflict with section 2, article XV of the constitution, which inhibits the legislature from creating any office the tenure of which shall be longer than four years. The fallacy of this argument lies in the fact that the act of 1889 does not create the office of police commissioner, nor did it invest respondent with the office, ' nor does it undertake to definitely fix the tenure. The office was created by the act of 1885 with a fixed term, and defendant was regularly appointed, and, while he was rightfully in possession of the office and discharging its duties, the legislature abolished the term and mode of elect, ing his successor, leaving the office, with its duties clearly defined, in the legal possession of respondent, with no mode provided for the election or selection of his successor, except in case of death or resignation. He does not hold the office by virtue of the provisions of the act of 1889, but under his original appointment and the failure of the law to provide
The reason of this rule is that public policy requires that the duties of the office be performed, and it is better that the incumbent should continue in the office and in the performance of its duties than that an interregnum should occur. It conserves the public interests by preserving the methods and instrumentalities by which alone public business can be transacted; while the opposite rule, when pushed to its consequences, might result in the suspension of business in many of the departments of the public service.
It was urged that the statute under consideration is harsh and oppressive in its character, and contrary to the genius
The judgment of the court below is, therefore, affirmed.