13 Or. 380 | Or. | 1886
Lead Opinion
This is a proceeding for a mandamus brought by the state of Oregon upon the relation of William S. Shaw, who is alleged to be a citizen and voter of Lane County, Oregon, to compel the defendant and appellant, as clerk of Lane County, Oregon, to correct his notices of election for the general election to be held in said county on the first Monday in June, 1886, by naming therein the office of circuit judge of the second judicial district to be filled thereat. Upon the presentation of the petition, an order was made by the judge that an alternative writ of mandamus issue directed to the defendant, commanding him to correct said notices of election by nam
Our statute provides that the county clerk shall, at least forty days before any general election, make out and deliver to the sheriff of his county notices of election, naming the offices to be filled, etc. (Code, 566, sec. 4.) No objection is raised but what the duty which this section of the statute imposes is ministerial and imperative, and may be enforced by mandamus. But it was questioned at the argument whether the relator had such an interest in the matter as would sustain the proceeding. The case presented is for the enforcement, not of a private but of a public right. The relator has no special interest as distinct from the public to .require the performance of this duty, but he has an interest in having the duty performed in common with other members of the community. Is this sufficient? Upon reason and authority, we think it is. Mr. High says: “As regards the degree of interest upon the part of the relator, requisite to make him a proper party on whose information the proceeding may be instituted, a distinction is taken between cases where the extraordinary aid of mandamus is invoked merely for the purpose of enforcing or protecting a private right, unconnected with the public interest, and those cases where the purpose of the application is the enforcement of a purely public right, where the people at large are the real party in interest. And while the authorities are conflicting, yet the decided
The more important feature of this case remains now to be considered. The object of the proceeding is to determine whether that portion of the act of 1878, which provides for the election of circuit judges in 1886, is constitutional. This, in effect, is to determine whether the present incumbent of the office of circuit judge of the second judicial district — and all others similarly situated — is filling an unexpired term or a term of six years by election. The question, therefore, to be decided is, whether the office of circuit judge becomes vacant on the first Monday in July, 1886. The proper determina
An office is defined to be a right to exercise a public or private employment, and to take the fees or emoluments thereunto belonging. (2 Bla. Com. 36.) It is said to be a public station or employment, conferred by the appointment of government. (United States v. Hartwell, 6 Wall. 393; Abbott’s Law Dict., tit. Office.) In theory of the common law, the king was the source of all power and the disposer of offices. All public offices were granted by him on the condition of good behavior, and no public office could be granted for years or a term. (Jacob’s Law Dict., tit. Office.) From whatever cause a vacancy might occur in a public office, the office reverted to the king to be again filled, or granted by him for life, conditioned on good behavior, or durante beneplácito. As a consequence, there could not be a vacancy in the term of a public officer. At common law, therefore, vacancy ex vi termini, means vacancy in the office, and not in the term. And this is ordinarily the meaning attached to the word when a vacancy is spoken of; we mean that the office is empty; that it is without an incumbent who has a right to exercise its functions and take its fees or emoluments.
In this country, where written constitutions prevail, the great majority of public offices are elective, having a fixed term for a prescribed number of years, with varying provisions as to filling vacancies. The term of an office is said to be a fixed period prescribed for holding the office. (People v. Brundage, 78 N. Y. 407.) And is the estate or interest which the incumbent has in it.
In Ex parte Meredith, 33 Gratt. 120, the question to be decided was, whether Judge Wheedon was elected and entitled to hold for the full constitutional period of six years, or for the remainder of Judge Nicoli’s unexpired term. The provision of the constitution was as follows: “ County judges shall be chosen in the same manner as the judges of the Circuit Court. They shall hold their offices for a term of six years, except the first term under this constitution, which shall be three years.” The court say: “It will be observed there is no reference whatever to unexpired terms of judicial officers. .... Whenever elected, and for whatever purpose elected, the incumbent shall hold for six years. The language is general and positive.” And the court held that the judge who had
In Sansbury v. Middleton, 11 Md. 313, the court was required to give a construction to the fourteenth section of the fourth article of the constitution, which provided that “ there shall be in each county a clerk of the Circuit Court, who shall be elected ” by the people, “ and shall hold his office for the term of six years from the time of his election, and until a new election is held,” and “ in case of a vacancy in the office of a clerk,” the judge of the court shall “ appoint a clerk until the general election of delegates held next thereafter, when a clerk shall be elected to fill such vacancy.” Bartol, C. J., in delivering the opinion of the court, said: “ By the express words of the section, the term of office of a clerk to be elected by the people is declared to be for ‘six years from the time of his election, and until a new election is held.’ This applies not merely to the officer chosen at the first election, but to every one who is legally elected by the people afterwards; and is conclusive of the question before us, unless there is something found in the same section, or in some other part of the constitution, which limits the term of such officer.....It is true that the word vacancy, when used in written constitutions with reference to a public officer, sometimes signifies an unexpired term, but this is not necessarily so. It often relates merely to the office, without reference to the term, and in this case, the very words of the section under consideration so limit and define it. The case provided for is a vacancy in the office of clerk, and the election is to fill such vacancy. What vacancy? Clearly in the office, and not in the term.” And it was held that a clerk elected by the people to fill a vacancy under this clause of the constitution holds his office for
In the matter of the tenure of the judges (16 Fla. 841), in which the supreme judges expressed to the governor their construction on a provision of the constitution of that state which provided “ there shall be seven circuit judges appointed by the governor and confirmed by the senate, who shall hold their office for eight years,” the question to be decided was, whether a judge of the Circuit Court, appointed by the governor and confirmed by the senate, holds his office for eight years in a case where there has been a previous incumbent, who, while appointed for eight years, has filled the office only a part of the time. Westacott, answering, said: “There is nothing in this provision which limits the time of service of one appointed by reference to the time served by a previous one.....Unless there is some other provision of the constitution limiting or otherwise explaining this language, it must have the usual and ordinary effect. There is nothing here establishing a term of office to exist between fixed dates of months or years. Nor is there anything having the most remote reference to an unexpired term, or to a vacancy in an office, as distinct from the office itself. There is no other provision of the constitution which changes or affects this section.” And the conclusion reached was: “That a judge of the Circuit Court, appointed by the governor and confirmed by the senate, holds his office for eight full years, and that no part of a previous eight years during which another has held the office (but who has vacated it) enters into the computation of the time for which the second appointee holds.”
In this state, where a similar question was involved upon a constitutional provision of like import, the holding of the court was consonant with this principle. In
Section 3 of article 7 of the constitution of this state provides that “the judges first chosen under this constitution shall allot among themselves their terms of office, so that the term of one of them shall expire in two years, one in four years, and two in six years, and thereafter one or more shall be chosen every two years, to serve for the term of six years.” Section 4 provides that “every vacancy in the office of judge of the Supreme Court shall be filled by election for the remainder of the vacant term, unless it would expire at the next election, and until so filled, or when it would so expire, the governor shall fill the vacancy by appointment.”* Section 10 provides that “when the white population of the state shall amount to two hundred thousand, the legislative assembly may provide for the election of supreme and circuit judges in distinct classes, one of which classes shall consist of three justices of the supreme court, who shall not perform circuit duty, and the other class shall consist of the necessary number of circuit judges, who shall hold full terms without allotment, and who shall take the same oath as supreme judges.” It will be perceived that the term of office prescribed by section 3 is limited and restricted in the event of a vacancy by section 4, to be filled by election for the remainder of the vacant term, unless it would expire at the next election, etc. In 1878 the legislature, conceiving that the state contained the requisite population, passed an act which
The common-law meaning of vacancy cannot he applied here without violating a commandment of the constitution. It is unqualifiedly admitted, when a fixed term is given for a prescribed number of years, without limitation or restriction as to unexpired terms, and a vacancy occurs, the common-law acceptation must he given to it, and the person elected holds for the full term. All the authorities show this, and many of them have been cited at some length to illustrate the application of the principle. But this effect cannot be produced without ignoring or eras
The system then designed to be established and perpetuated by the allotment can he preserved and kept up without the presence or need of section 4 in the constitution. It must then have been inserted in that instrument to cover and effect some further purpose. What is that purpose? Clearly, when taken in connection with the other provisions, to provide that vacancies occurring by death, resignation, or removal, in the term given by section 3, should be filled by election for the remainder of the vacant term. The framers of the constitution did not design alone for the present, but section 10 shows that they had the future in contemplation, and were then providing a term and oath which should apply to-supreme and circuit judges, when the prosperity of the state, based upon the requisite population, should require that they be elected in distinct classes. And by these provisions they intended that whoever was entitled under the constitution to hold the term prescribed by section 3, in the event of a vacancy, should take it subject to the limitation prescribed in section 4. They intended that when this section of the constitution should go into effect, the words “ circuit judge ” should be incorporated in the constitution. The fact that section 4 reads, “vacancy in the office of the supreme judge” does not affect the question; for section 3, from which the terms of both classes of judges are now conceded to come, applies by its literal reading only to supreme judges. Read either section literally, and neither can be made to apply to circuit judges, for there was no such judge eo
Nor is our constitution peculiar or alone in thus restricting the filling of vacancies in the office of supreme and circuit judges to the residue of the vacant term. Reference to the constitutions of other states will show that they also have provided, when a vacancy occurs in these offices, that the successor shall be elected for .the unexpired term, and in some instances, when the vacancy occurs in the office of any judge. In my judgment the act is not in conflict with the constitution, and may be carried into effect without violating any of its provisions.
The judgment is affirmed.
Concurrence Opinion
(concurring). This case is evidently here to obtain an advance decision of this court as to the constitutionality of a part of the act of 1878, which provides for the election of supreme and circuit judges in distinct classes. There seems to have heen a question raised by some parties as to whether the circuit judges elected at the last state election hold only until the first day of July, 1886, as provided in said act, or for four years thereafter, and this proceeding is devised to have this court express an opinion upon it. The appellant, as county clerk of Lane County, has refused to deliver a notice to the sheriff of that county naming the office of circuit judge of the second judicial district of the state, to be filled at the ensuing state election, to be held on the first Monday of June next; and the relator, who has no apparent interest in the matter beyond that of any other citizen in the community, has attempted to compel him to do so by mandamus, not because the refusal to deliver such notice will affect the right to proceed and elect a circuit judge, hut to ascertain who will be entitled to the office in case another should be elected in place of the present incumbent. It is a very summary mode of settling constitutional questions, and brushing away the provision of a statute liable to incommode some one unless removed. But for my own part, I am utterly opposed to making inquiry as to the constitutionality of a statute of the state under such a proceeding. I think it premature. Such matters are too grave to be trifled with, and should not he considered until the question arises that makes it necessary.
A statute duly enacted is the highest authority known to the law, and every legislative enactment adopted in accordance with the forms prescribed in the constitution is presumed to be an expression of sovereign will. Its validity should not be questioned, unless destructive of
The legislature of this state, at the September session, in 1878, passed an act providing for the election of supreme and circuit judges in distinct classes, which contained the following provision: “ There shall be elected on the first Monday in June, 1880, a circuit judge in each of the judicial districts, as they now exist in this state, whose terms of office shall commence on the first Monday in July, 1880, and continue for six years, and until their successors are elected and qualified; and at the general election in 1886, and every six ye’ars thereafter, there shall be elected a circuit judge in each of the said judicial districts, whose terms of office shall commence on the first Monday in July thereafter, and continue for six years, until their successors are elected and qualified.” One of the''members of that body who enacted the provision, and another who had participated in the proceeding, are at present members of this court, and they are solicited, in the latter capacity, to nullify what they did in the former, because, I suppose, another construction can be given the constitution, under which the act was adopted, different from that they placed upon it, and possibly more acceptable to more acute minds, though not a particle better or more practical in any view.
The constitution provided for one set of judges to perform in the outset Supreme and Circuit Court duties. They partook of the character of both, performed circuit duty the same as the present judges, and were elected in the several districts in the same manner circuit judges are elected, though they were termed in the constitution “justices of the Supreme Court,” and “judges of the Supreme Court,” and performed Supreme Court duty, but seem to be regarded in the constitution as circuit judges also, and the framers of it were evidently under the impression that whenever they referred therein to the class of judges who were to perform the several functions mentioned, that the term employed would apply to circuit judges when elected in a distinct class, and that the same rules applicable to one class in the beginning would apply to both when separated.
Section 10 of article 7 of the constitution provides as follows: “When the white population of the state shall amount to 200,000, the legislative assembly may provide for the election of supreme and circuit judges in distinct classes; one of which classes shall consist of three justices of the Supreme Court who shall not perform circuit duty, and the other class shall consist of the necessary number of circuit judges who shall hold full terms without allotment, and who shall take the same oath as the supreme judges.” Section 3 of article 7 of the constitution pro
Now, if section 3 would have applied to said circuit judges, then certainly section 4 would, and that was allowed to stand unqualified. Again, the language of section 10 clearly indicates that the convention supposed that the judges named in sections 3 and 4 included the circuit judges thereafter elected. The words “when the white population of the state shall amount to two hundred thousand, the legislative assembly may provide for the election of supreme and circuit judges in distinct classes,” imply that there were then supreme and circuit judges, but were elected in one class. It is reasonable that such an idea should have prevailed. Under the provisional system adopted, the functions of the two offices were blended in one. The same judge performed both, and was in fact both a supreme and circuit judge, and the convention would naturally suppose that the general provisions employed in the constitution, applicable to the justices or judges of the Supreme Court as they existed under the old regimen, would apply to both classes when formed
This construction may not, possibly, be the correct one,, but it is reasonable and has received the sanction of able-members of the bar. Messrs. Chapman & Hewitt have-kindly submitted a brief in the case in which they indorse this view, and their reasoning in support of it is. very thorough and convincing. The counsel for the-respondent, who argued the case at the hearing, have-presented strong proofs in its favor; and I cannot see any necessity nor good policy in giving it a different construction. Courts must be conservative or they will do* more harm than benefit. Nor should they set themselves-up as the embodiment of all the wisdom in the land. What is to be gained by rejecting the evident legislative-construction in question, and adopting the one contended for by the appellant’s counsel? The former is certainly reasonable, while the latter leads to an apparent absurdity.. They contend that the constitution accords to the circuit judges an absolute six-years term, and when inquired off as to wherein the constitution provides such term, they refer to said section, article 7; but that-section does not. mention circuit judges eo nomine. It says: “The judges first chosen under this constitution,” and the “one or-more” thereafter chosen. The judges first chosen were-
When the legislature has a right to provide a term of office for a class of officials, it certainly has the right to make it uniform. It has done that in this case by providing particular time at which they must all be elected and enter upon their duties. It seems very evident to my mind that whichever horn of this dilemma the ap
It will be noticed that the language of said section 10 of article 7 of the constitution empowered the legislature to provide for the election of the two sets of judges in distinct classes. It is a “ class ” of judges the election of which is to be provided for. The act to be adopted should properly apply to them collectively. A provision, therefore, that they should hold their term of office for the period of six years, that they should be elected at the general election in June, 1880, and in June of 1886, and every six years thereafter, that their term of office should begin on the first day of July of the several years at which the election takes place, seems to me to be within the power conferred; that it comes fairly within the authority vested in the legislature by the section of the constitution referred to, unless the other view suggested be the correct one. If it had been provided in the constitution by a direct clause that there should be elected in each judicial district in the state, for the term of six years, a circuit judge, at times to be regulated by
Much has been said by some of the counsel on both sides in regard to “ the term attaching to the office,” and “ attaching to the person of the judge,” but I must say that I do not understand what is meant by it. That expression has been used in cases, and possibly it conveys a meaning to- the minds of others, but to me it is meaningless. Under our theory of government, a civil office is simply a public trust, belongs to the public, and is instituted for public benefit, and the time a person is entitled to discharge its duties and receive its emoluments depends upon the terms of the law under which he holds it. And that can be changed by the power which enacted it, and cut off the official in the very prime of his career. I repudiate the expression as anti-republican. I have carefully considered the question before the court, and while my mind is not altogether unbiased, as I entertain a lurking notion that the proceeding was set on foot to promote personal ends, yet I have tried to view it fairly, and am of the opinion that' the said part of the act is valid. Our constitution upon the subject is sui generis, and must be interpreted in view of its various
Dissenting Opinion
(dissenting). It is an invariable rule of the common law that when an office granted for years reverts to the people before the expiration of the term for which it was granted, and the office is granted anew, the new' incumbent takes the office without reference to the unexpired term of his predecessor, unless there be a contrary intent expressed in the grant itself, or there be some limitation imposed on the granting power. It is conceded that this rule governs the tenure of office of the circuit judges of this state; for there is not only no limitation of the rule as applied to the one in the constitution, but in fact the framers of that instrument have used affirmative language which forbids a contrary interpretation.
It will be conceded that the office of circuit judge is a constitutional office; that is, an office created by the constitution. That it was not only created by, but that it came into existence with, the constitution as an office distinct from the office of supreme judge; for two offices may be distinct though the officer be the same person. (Crow v. Ramsay, T. Jones, 11.) The supreme judges, however, formerly performed the duties of the office of circuit judge. They were, by virtue of their offices as supreme judges, judges also of the Circuit Courts. They held both offices under one title, that of judge of the Supreme Court. A full term of a judge of the Supreme Court was six years. He was ex officio judge of the Circuit Court for the same period. The constitution gave the legislature power, in' section 10, article 7, of the constitution, to establish circuit judges as a distinct class, but without power to change the term for which the
Supreme judges took their offices originally by allot
Therefore, if the word “ term ” signified, as we have seen that it does, duration merely, and not the quality or interest in the office, there can be no ambiguity whatever in the declaration that circuit judges. shall hold full terms without allotment except the duration of the term which they shall hold. If the duration of the term be ascertained and fixed at a certain number of years, as we have seen that it is fixed at six years by the strongest implication, all ambiguity is removed. Circuit judges shall hold full terms of office of the duration of six years without allotment. This construction is not only that of the letter and the spirit of the