104 P. 419 | Or. | 1909
Lead Opinion
delivered the opinion of the court.
St. Johns was first incorporated by an act of the legislative assembly on February 19, 1903. By Section 18, subd. 13 thereof, the council was given power and authority “to license, tax, regulate, and restrain, suppress and prohibit * * barrooms, groceries, tippling houses; * * and all citizens within the corporate limits shall be exempt from any county license which is or may hereafter be imposed by the general laws of the State. * *”. The local option law authorizing the voters in any county or subdivision thereof within the State to determine whether the sale of intoxicating liquors shall be prohibited in such county or subdivision was initiated and adopted by the vote of the people of the State on June 6, 1904, and took effect June 24, 1904. Laws 1905, p. 41. On January 20, 1905, the legislature granted the city of St. Johns a new charter by an act entitled “An act to incorporate the city of St. Johns, Multnomah County, State of Oregon, and to provide a charter therefor and to repeal all acts or parts of acts in conflict therewith.” Special Session Laws 1905, p. 519. By Section 69, subd. 45, thereof, the council is granted the power and authority “to regulate and restrain bartenders, saloon keepers, dealers in and manufacturers of spirituous, vinous, fermented or malt liquors, barrooms, drinking shops, or places where spirituous,
“Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend, or repeal any charter, or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the constitution and criminal laws of the State of Oregon.”
In the year 1907 the people of the city of St. Johns, by the initiative, adopted “an act to incorporate the city of St. Johns, Multnomah County, Oregon, to provide a charter therefor, and to repeal all acts or parts of acts in conflict therewith.” Section 68, subd. 45, of this charter, is a copy of Section 69, subd. 45, of the charter of 1905, with the addition of the word “license” immediately following the first word “to.” At the general election on June 1, 1908, by a vote of the people in the precinct mentioned, prohibition was adopted under the provisions of the general act on the subject.
Defendant maintains there is no difference in effect between the provisions of the charter of St. Johns and that of the city of Medford, so far as applies to the sale of intoxicants, by reason of which it is insisted that the conclusion announced by this court in Hall v. Dunn, 52 Or. 475 (97 Pac. 811) is decisive of this case; while plaintiff’s principal reliance for affirmance is upon the decision
“To restrain is to prohibit, limit, confine, or abridge a thing. The restraint may be permanent or temporary. It may be intended to prohibit, limit, or abridge for all time, or for a day only. The law draws no distinction in this respect.”
To the same effect: Smith v. Town of Warrior, 99 Ala. 481 (12 South. 418); Vinson v. Town of Monticello, 118 Ind. 103 (19 N. E. 734.) One of the statements in Portland v. Schmidt, 13 Or. 17, 22 (6 Pac. 221), tends to the contrary, but the court there only had under consideration the validity of a license ordinance, and the powers enumerated related solely to the regulation of barrooms and drinking shops. The opinion there injected relative to the limitation to be placed upon the word “restrain”, is not only mere dicta, but is in conflict with the great weight of authority, and is not supported by any authoritative lexicographer.
But, assuming that the word “restrain” does not go to the extent stated, this variance from the language used in the Medford charter could not affect the result. The Medford charter adds the power “to license,” but in the charter under consideration, this power is included in the word “regulate.” Chicago Packing Co. v. Chicago 88 Ill. 221, 226 (30 Am. Rep. 545.) And the power to license is irreconcilable with the local option law, and, when construed with a provision to the effect that no general law respecting'sales of intoxicants shall apply to the municipality in which such power is granted, must necessarily take such locality out of the operation of the act. The two laws cannot operate in the same place at the same time, for one permits and the other prohibits, sales for beverage purposes. Again the effect of the word “pro
2. It is insisted by counsel for the State that the language of the St. Johns charter of 1905 (Special Laws 1905, p. 542), retains the provisions of Section 18, subd. 13, of the original charter (Laws 1903, p. 660), which reads, “All citizens within the corporate limits shall be exempt from any county license which is or may hereafter be imposed by the general laws of the State,” and is within the ruling of Renshaw v. Lane County, 49 Or. 526 (89 Pac. 147), to the effect that this subdivision of the 1905 charter is not a new enactment, but merely the retention of the earlier provision, which remains unaffected by the new charter, and is subject to the local option law. The fallacy in this position lies in the inaccuracy of the premises assumed. It will be observed that this clause in the first charter merely exempts the citizens of St. Johns from the necessity of procuring any other license than from the city, while the 1905 charter exempts the city from the operation of any law that concerns “the sale or disposition” of intoxicants, thereby indicating that it meant something more than is contained in the language of the former charter. The Yale charter (Special Laws 1905, p. 136), contains no exemption from the operation of any State law, in which respect it is distinguishable from the one under consideration. It simply grants the power to “license, tax, regulate, or prohibit,” etc., and contains no declaration indicating an intent to take the provisions on the subject out of the operation of the local option law, and without such manifest intention no municipality can be held exempt therefrom, from which it follows that the holding in that case can have no bearing
3. The initiative charter adopted in 1907, is a re-incorporation of the city, and largely a repetition of the provisions of the charter of 1905, leaving the effect of the subdivision now in question unchanged and unaffected by the re-enactment, and not a new statement of law: Allison v. Hatton, 46 Or. 370 (80 Pac. 101) ; Renshaw v. Lane County, 49 Or. 526 (89 Pac. 147.) It was not an effort by the people of the municipality to exempt the city from the operation of the local option law, which they have no power to do, but leaves the conditions relative thereto as they were prior to the adoption of the new charter, and, the city - being exempt from the operation of the local option law by the terms of the charter of 1905, the re-enactment amounted merely to an attempted recognition of that fact, clearly indicating that the repealing cause was not intended to apply to that section.
4. It is also argued that the statement in the charter to the effect that no provisions of the law concerning the sale or disposition of any spirituous, vinous, fermented, or malt liquors in Multnimoh County shall apply to the sale or disposition of the same in St. Johns was only intended to apply to the gallon law. This contention overlooks the fact that what was known as the “gallon law” applies with equal effect to every other county, and that practically all incorporated cities are excepted from its operation. The local option law until excepted by subsequent legislation, like that under consideration, applies to every county and municipality in the State, and as does the Medford charter. The local option law concerns only the “sale or disposition” of spirituous liquors, and, as stated, is clearly within the St. Johns charter exemption on the subject.
It was contended with much force at the oral argument that since under the holding in Baxter v. State, 49 Or. 353
It follows from the foregoing views that the judgment of the trial court must be reversed; and, as this disposes of the case on the merits in favor of the defenndant, who has been admitted to bail, it is ordered that his bail be, and is hereby, exonerated. Reversed.
Dissenting Opinion
delivered the following dissenting opinion:
There is no similarity between the Medford charter and that of St. Johns, either in its language or effect. The language of the Medford charter that takes it out of the local option law is that the city council shall have power and authority to “license, tax, regulate, or prohibit, barrooms, drinking shops * * irrespective of any general law in the State on the subject enacted by the legislature or by the people at large,’ clearly showing a purpose to except it from the provisions of the local option law; while the language of the St. Johns charter is that the council shall have the authority to “regulate and restrain * * barrooms * * the sale and disposal. * * No provisions of the law concerning the sale or disposition of any spirituous, vinous, fermented, or malt liquors in Multnomah County, shall apply to the sale or disposition of the same in the city of St. Johns,” having reference only to license regulation, and cannot apply as a limitation upon the power of the State to prohibit such sales. The local option law contains no provision in regard to the license tax or the regulation of the business. The legislative policy in
■ Again, it will be noted that the St. Johns charter does not empower the city to prohibit, but only to “regulate and restrain” “the sale and disposition” of liquor. This we think does not empower it to prohibit sales. It is so expressly held in City of Portland v. Schmidt, 13 Or. 22 (6 Pac. 224), where Mr. Justice Thayer says: “There can be no question that the power of the common council in regard to the sale of liquor extends no further than to license, tax, regulate and restrain barrooms and drinking shops. There is a provision in the charter empowering the council to restrain intoxication; also a clause to provide for the good order of the city. * * The council doubtless have power under them to prohibit the sale of liquor upon particular days or at particular places, such as upon a street, but not to prohibit their sale generally.” See also, Black, Intoxicating Liquors, Section 227. In 23 Cyc. 69 it is said: “And although the municipality may be given power to ‘restrain’ the sale of intoxicants, this term is construed as equivalent to ‘restrict,’ and not as equivalent to ‘suppress,’ and hence does not authorize a prohibitory ordinance.” This is also the holding in
Rehearing
On Motion to Affirm Judgment and for Rehearing.
delivered the opinion of the court.
5. The Attorney General and one of the deputy district attorneys for Multnomah County, on behalf of the plaintiff, by a motion calling for the issuance of a mandate affirming the judgment of the trial court in the above cause, seek to question the constitutionality of Chapter 50, p. 99, Laws 1909. This act increases the number of justices, comprising this court, from three to five, and provides for the immediate appointment by the Governor of two justices, in addition to those already in office, to hold until their successors are elected and qualified. Under its provisions Mr. Justice King and Mr. Justice Slater were, on February 12,1909, by the Governor, appointed justices of this court, took their oaths of office, and, in the manner provided by the act, entered upon their duties, and have at all times since been acting in that capacity, recognized as such by their' associates, as well as by the executive, and all other departments and officials of the State, including the Attorney General and district attorneys, as well as by all other counsel having business before this court.
The former opinion in this cause, béing the one giving rise to this controversy, was prepared by Mr. Justice King and concurred in by Mr. Justice Slater and by the writer of this opinion, but dissented from in an opinion by Mr. Justice Eakin, in which dissent Mr. Chief Justice Moore concurred. See 55 Or.- (104 Pac. 419.) By the motion, and argument in its support, it is insisted that the lawfully constituted court consists of Chief Justice Moore, Justice Eakin, and the writer, who hold their respective offices under laws in force prior to the act brought in question, by reason of which it is contended
A peculiar situation confronts us at the very threshold of this proceeding. The motion is not addressed to those members of this body, who, it is claimed by the plaintiff, are the constitutional judges, but it is addressed to the court, consisting de facto of five persons; each claiming to be a justice. If the three first named are to pass on the question in the collateral and indirect manner in which it is presented, they must say to Justices King and Slater : “Gentlemen, we are the legitimate justices of this court, and you are intruders. You will therefore retire, while we proceed to discuss the question as to whether three or five justices constitute our legitimate membership.” In other words, we would thus be required to decide the merits of the controversy before the hearing, Or if all five of the justices sit at the hearing, and one of them should agree with Justices King and Slater that the decision in State v. Cochran was propertly rendered by a constitutionally organized court, the question attempted to be raised on this motion would still be unsettled, for, unless all three of the justices, excepting King and Slater, concurred in condemning the constitutionality oT the act, a majority of the court de facto would be in favor of its validity, and the matter would resolve itself into a struggle as to who would be recognized by the officers of the court and the State officials. However, the gentlemen whose tenure of office is indirectly attacked by this motion, have seen fit to submit its decision to that part of the membership of this court whose title is unassailed, by reason of which the contingencies here suggested will not actually arise; but the fact that they might properly so arise furnishes some justification for the theory, which
If the question were before the court for the first time, we might hesitate to pass upon it, especially in .the form here introduced. The points presented have seldom arisen in this country; but'there is respectable authority to the effect that they are political, and therefore not subject to review by the courts, and, notwithstanding the views to follow, we deem it not inappropriate at this time, before proceeding with a discussion of the merits, to call attention to the opinions of some other courts relative thereto.
In the case of Luther v. Borden, 7 How. 1 (12 L. Ed. 581) a similar question was raised. In that case the people of the state of Rhode Island had become dissatisfied with their government. Rhode Island, when it em tered the Union, did not adopt a constitution, but continued its government under a charter received from Charles II. Its legislature, under the charter government, delayed, or refused to authorize by law, the calling of a constitutional convention to adopt a new constitution. A number of its citizens, claiming to be a majority, assembled, and, holding a constitutional convention, and subsequently, an election under the constitution there adopted, elected executive, legislative, and judicial officers, and pretended to go into operation as a full-fledged government. The existing government resisted this as an insurrection and declared martial law, arresting the movers thereof and imprisoning them. In a case involving the authority of the charter government to make these arrests, it was contended that the new government was at the time the legitimate government, and that the charter government had been superseded. Afterwards the char
In the case of Brittle v. People, 2 Neb. 198, the right of a colored man to sit upon a jury was questioned, the outcome of which depended upon whether or not the constitution of Nebraska was in force, in considering which Mr. Justice Crounse, at page 214 of 2 Neb., speaking for the court, after discussing the principles thereby involved, said: “This, then, is the legitimate conclusion, fairly
In re Ah Lee (D. C.) 5 Fed. 899, 908, the court had under consideration some of the provisions of the constitution here involved. It was a habeas corpus proceeding, and there argued that the circuit as well as supreme judges were not dé facto officers. The contention was stated (and the same point is urged here) by the court as follows: “That a person cannot be considered an officer de facto unless the office he is said to be in legally exists, and, there being no such office as circuit judge or judge of the circuit court established by the constitution, the person who acted as judge on the trial of the petitioner in the court below was not even a de facto judge.” It will be remembered that the original constitution did not create the office of circuit judge as such, but the supreme and circuit courts were created, which were to be filled by the justices as there designated. The court answered the question, stated in the above language, as follows: “As to the third point, it is sufficient to say that the constitution in effect creates a circuit court in each county to be held by a justice of the supreme court or a circuit judge, a? the case may be, and such court is the office of the judge who holds it. A circuit judge’s office is the circuit court in which he sits—the place which he fills—and such is the place or office filled by the person who acted as judge upon the trial of the petitioner.” In conclusion the learned jurist held that, whether the law under which the circuit court and supreme judges were acting was unconstitutional or not, such officials were de facto officers, and the court was therefore precluded from further inquiry in relation thereto in that proceeding, which, as in the case
Respectable authorities, however, are cited by counsel for the plaintiff, holding to a different view to the last above considered, among which is Norton v. Shelby County, 118 U. S. 425 (6 Sup. Ct. 1121: 30 L. Ed. 178) ; but we deem it unnecessary to weigh them, or to determine their applicability to the case at bar, or to ascertain which is the better course to pursue, for a method of procedure, sufficient for this case, was adopted by the unanimous decision of this court in Cline v. Greenwood, 10 Or. 230, in which the constitutionality of the entire court was challenged collaterally. In that case, notwithstanding no question was raised as to the judges of the court being de facto officers, jurisdiction was entertained to determine the constitutionality of the official positions held by the members of the Supreme Court as first appointed and the question adjudicated, holding all proceedings pertaining thereto regular and in conformity with the provisions of Section 10, Article VII, of our constitution. At the time of the decision, Chief Justice Lokd, and his associates, Justices Watson and Waldo, were the members of the court, while their predecessors, whose decree was brought into question, were Chief Justice Kelly and associates,
6. This brings us to the inquiry presented by the plaintiff’s motion; that is to say, is the act of 1909, under which Justices King and Slater were appointed, constitutional, or had the legislature the powed to increase the number of supreme judges, constituting this court, from three to five? But before entering upon a discussion of the various sections of our fundamental law, bearing upon this question, it is important that we call attention to the general rules of construction under which constitutions are' universally interpreted. They may be summarized as follows:
7. When two constructions are possible, one of which raises a conflict or takes away the meaning of a section, sentence, phrase, or word, and the other does not, the latter construction must be adopted, or the interpretation which harmonizes the constitution as a whole must prevail.
8. In this connection it must also be kept in mind that the constitution of a state, unlike that of our national organic law, is one of limitation, and not a grant, of powers, and that any act adopted by the legislative department of the State, not prohibited by its fundamental laws, must be held valid; and this inhibition must expressly or impliedly be made to appear beyond a reasonable doubt.
9. The foregoing principles appear so well settled by a unanimity of decisions, not only in other jurisdictions, but by the courts of this State, since its inception, that they may be deemed elementary; but, since the construction so earnestly relied upon by the plaintiff would necessitate a disregard of the foregoing principles, we deem it appropriate to call attention to a few declarations of our courts upon the subject. Before doing so, however, we quote from that eminent text-writer and jurist, Judge Cooley, who, as an exponent of constitutional law, has no superior. In his work on Constitutional Limitations ([7 ed.] p. 241) he states the rule as follows: “It is to be borne in mind, however, that there is a broad difference between the constitution of the United States and the constitution of the states as regards the powers which may be exercised
In Cline v. Greenwood, 10 Or. 230, 240, 241, Mr. Justice Lord, speaking for this court, states the principles of the constitutionality of legislative enactments thus: “But, did we entertain any doubt whether the legislature had exercised its power in the mode prescribed by the constitution, we should be compelled to dissolve that doubt in favor of the constitutionality of the mode which the legislature had adopted. Before a statute is declared void, in whole or in part, its repugnancy to the constitution ought to be clear and palpable and free from all doubt. Every intendment must be given in favor of its constitutionality. Able and learned judges have, with great unanimity, laid down and adhered to a rigid rule on this subject. Chief Justice Marshall, in Fletcher v. Peck, 6 Cranch, 128 (3 L. ed. 162); Chief Justice Parsons, in Kendall v. Kingston, 5 Mass. 534; Chief Justice Tilghman, in Farmers’ & Mechanics’ Bank v. Smith, 3 Serg. & R. (Pa.)
Bearing in mind the fundamental principles of constitutional construction, let us examine the provisions of our constitution bearing upon the creation and perpetuity of our judicial system, for the purpose of ascertaining whether it is there disclosed that the number of justices to constitute the Supreme Court should be perpetually restricted to three, or whether, by express terms or clear implication, any provisions are disclosed inhibiting the lawmaking department of our State from providing that a greater number of justices may constitute the court. Section 10 of our Bill of Rights expressly declares that “justice shall be administered openly -without purchase, completely and without delay, and that every man shall have remedy by due course of law for injury done him, in person, property or reputation.” This is one among other provisions, says the preamble, “is to the end that justice be established, order maintained, and liberty perpetuated.” Keeping this object in view, the constitutional convention, which included many lawyers, a large number of whom have since ranked among the leading counsel of our State and nation, made provision for a judicial department. This provision comprises most of Article VII, the first section of which declares that “the judicial power of the State shall be vested in a Supreme Court, circuit courts and county courts. * *” Other sections on the subject, material to this controversy, are as follow:
“Sec. 2. The Supreme Court shall consist of four justices, to be chosen in districts by the electors thereof, who shall be citizens of the United States, and who shall have resided in the State at least three years next preceding their election, and after their election to reside in their respective districts. The number of justices and districts may be increased, but shall notexceed five, until the white population of the State shall amount to one hundred thousand, and shall never exceed seven; and the boundaries
“Sec. 3. 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.
“Sec. 4. 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.
“Sec.. 5. The judge who has 'the shortest term to serve, or the oldest of several having such shortest term, and not holding by appointment, shall be the Chief Justice.”
“Sec. 10. 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 the supreme judges.”
It will be observed that the Supreme Court is created by Section 2, which first provides the number shall consist of four, and until the population reaches a certain limit, shall not exceed five, but that after the population reaches 100,000 the number of justices of the Supreme Court may be further increased, but shall never exceed seven. While provision is made to the effect that the justices may be elected by districts and may perform circuit duty, they remain justices of the Supreme Court, and the judges of circuit courts are left to be provided for by Section 10, which continues the subject by declaring that when the population reaches 200,000 the legislative assembly shall make provision for circuit judges and divide the judiciary into two distinct classes, one of which shall perform
Aside from this feature, however, it must be remembered that there are other provisions upon the subject,
Article II of the constitution relates to suffrages and elections. Section 2 of this article provides that every white male citizen of the United States of the age of 21 years and upwards, who shall have resided in the State during the six months immediately preceding such election, and every white male of foreign birth, who shall
Article IV of the constitution relates to the legislative department, Section 2 of which provides: “The Senate shall consist of 16 and the House of Representatives of 34 members, which number shall not be increased until the year 1860. * *” It will be noticed that notwithstanding the first two clauses say the Senate shall consist of 16 and the House of Representatives of 34 members, and although this language is similar to that language employed with reference to the number to constitute the Supreme Court, clearly the framers were not of the opinion
If the maxim, “expressio unius est exclusio alterius,” so much relied upon by counsel for the motion, is pertinent in this cause, its application must be general to all similar clauses where State or district officers are specified. For example, Section 17 of the article under consideration provides for prosecuting attorneys, and defines, generally, their powers and duties. They are the prosecuting officers of the State, yet the office of deputy prosecuting attorney is provided for, and, by virtue of the act authorizing such appointments, the able deputy district attorney from Multnomah County appears on the motion in this contention. The constitution also provides for certain State officers, but nowhere provides for the office of Attorney General, and expressly declares (Section 17, Article VI), that the prosecuting attorneys shall be the law officers of the State. If the designation, or enumeration, of certain officers takes from the legislature the power to provide for others as the growing needs of public business demand, then the official positions of both the distinguished counsel, who subscribed to the motion, are shrivi eled to nothingness in the fires of their own logic, and they stand here mere intruders in the alleged offices which they assume to hold, and by virtue of which they assume the right to appear for plaintiff in support of this motion. Years ago, however, this court took a common-sense view of these provisions of the constitution, and, as already shown, so far as the office of deputy district attorney is concerned, held that, as the constitution did not prohibit the creation of that office, the legislature had the right to make provision therefor, and, as hereinbefore stated, up
If the constitution had merely said the judicial power of the State shall be vested in a supreme judge, and contained no other provision bearing on the subject, the above maxim might be applicable. Such, for example, is the provision, with reference to the chief executive, which reads: “The chief executive power of the State shall be vested in a Governor. * *” Nothing is anywhere disclosed to indicate a possibility that more than one chief executive would ever be provided for; in fact, such is an impossibility, without an express provision indicating such an intent. Section 1 of Article VII, provides that the judicial power of a State shall consist of a Supreme Court, circuit and county courts, etc. The maxim mentioned also applies here, and the statement excludes all courts not there enumerated; but “a court,” "and the members to compose it, presents a different question. And if the section or sentence relied upon under this rule stood alone, unaccompanied by any other provisions bearing on the subject, there might be room for discussion upon the subject; but, as remarked by Mr. Justice Thayer, in referring to the judiciary in his concurring opinion in State v. Ware, 13 Or. 402 (10 Pac. 898), “Our constitution upon the subject is sui generis, and must be interpreted in view of its various provisions and general scope and design.” That is, the whole instrument must be examined with a, view to ascertaining the meaning of each and every part. Coke, Litt. 381a. In a written constitution the presumption and legal intendment is that each and every word, clause and sentence has been inserted for some useful pur-., pose, for which reason the instrument must be construed as a whole; otherwise its intent and general purposes may not be ascertained. As a necessary result of this rule, it follows that, wherever it is practicable to do so, each provision must be so construced that it shall harmonize with
10. Then recurring to our Bill of Bights, its preamble declares that the constitution is ordaned “to the end that justice be established, order maintained, and liberty perpetuated,”. and, section 10 thereof, that “justice shall be administered openly without purchase, completely and without delay, and every may shall have his remedy by due course of law for injury done him in person, property or reputation.” Now, assuming the intention that the number of supreme judges should forever be limited to three, and that for all time the number of crcuit judges should remain five and no more, or should not exceed the number found necessary by the legislature when we reached the 200,000 mark, would not this intent also have to be considered along with the declarations last above referred to in our Bill of Bights? This would not only be essential to conform to the rules of construction laid down by Judge Cooley and all other text-writers on the subject, but also required in order that the general purpose of our fundamental law, as indicated by its preamble, should not be defeated. Unless this could be done, the very purpose of our State would, in time, be overthrown, for it is obvious that, if three supreme judges and five circuit judges were required to carry out the purpose of this instrument when the population reached but 200,000, a greater number of each would be required when the population should reach five times that number or more. Otherwise the delays necessarily incident to the trial of persons accused of violating the law, and determination of property interests, would inevitably amount, in a large proportion of the cases, to a denial of justice, deprivation of liberty, by long confinements awaitng trial, and, through the inadequacy of legal protection in many
“Sec. 4. Inasmuch as the act of February 23, 1907, providing for the assistance of two commissioners to the Supreme Court is about to expire by limitation thereof, and said court is now about one year behind with the trial of cases now on its trial docket, and additional cases are being filed therein faster than three justices, unaided, can speedily hear and determine them, thereby indirectly and in effect contravening the provisions of the constitution ‘that justice shall be administered without delay,’ it is hereby declared that the status of affairs is such that the prompt enforcement of this act is necessary for the immediate preservation of the public peace and safety, and an emergency is hereby declared to exist, and this act shall be exempt from the power of the referendum, and shall take effect and be in full force and effect from and after its approval by the Governor.” Laws 1909^ p. 100.
We thus have a legislative interpretation declaring that the time had arrived when more judges were essential to a compliance with the command of our fundamental law “that justice shall be administered without delay.” The authority to determine when the State has reached a point demanding such action rests with the lawmaking department only. Referring to this power, the principles applicable thereto are clearly, ably, and concisely stated by Mr. Justice Bean, speaking for this court, as follows: “Most unquestionably those who make the laws are required, in the process of their enactment, to pass upon all questions of expediency and necessity connected therewith, and must therefore determine whether a given law is necessary for the preservation of the public peace,
Taking into consideration, then, the well-established principles enunciated in Kadderly v. Portland, the soundness of which is beyond question, it must follow that, under any view of the subject, when the legislature declared our State had reached a condition where, without an increase in the membership of our judiciary, the very purposes of the constitution as a whole would be defeated, it was its duly, and within its power, in the absence of a clear inhibition of the constitution to the contrary, to take such steps as it deemed essential for that purpose. Nor does the fact that a proposed amendment, including a provision that the number of justices shall be such as might be fixed by the lawmaking department, submitted to the people, and by their vote rejected, have any bearing upon the legal principles here involved. The proposed amendment included a proposed change of our entire judicial system, and the power there to be granted to our lawmakers to increase or decrease, at its will, the number of supreme judges, constituted but one of the proposed changes. It proposed to give the legislative department the right to abolish our present system of probate courts and county judges, leaving it optional
It is not unusual for statutes, or even amendments to a constitution, to contain, along with proposed changes, some provisions already in force; but this is never taken as grounds for the interpretation of a section or provision already in force. A new Bill .of Rights might be proposed and submitted to a vote, containing all the present sections, with many other declarations or sections added; but it would not be seriously contended that, if the proposition should be rejected by a vote of the people, by reason thereof our Bill of Rights was never a part of our fundamental laws. As to why the proposed change was defeated we need not inquire. It may have been on account of the proposed change in the entire system of judicial and district officers of the State, including the provisions therein to the effect that the right to provide for this new system contemplated taking from the county courts all probate jurisdiction; it may have been because it proposed to delegate to the lawmaking power the authority to increase or diminish the number of supreme judges, which, under the proposed system, might have been reduced to one member only, or increased without limit; or. it may have been because of the proposed changes in the method of selecting district, county, and precinct officers, that induced its rejection by the people. Whatever may have been the moving cause of the defeat of the proposed amendment, the result thereof can in no manner be held to revolutionize the well-settled, 'and, we may add, elementary rules of construction, by which all courts, in their deliberations, are governed..
We are not unconscious of the fact that various constructions have been placed upon Article VII of the Con
In conclusion we will add that under any point of view it is manifest, from the various constructions placed by eminent counsel upon Article VII, however different they may be, in view of the legislative interpretation thereof, that, under light most unfavorable to the act in question, no one can say the constitution is free from ambiguity on the subject, or that such act under consideration is beyond a rational doubt unconstitutional. Placed therefore under the most damaging scrutiny possible, there is no escape from the conclusion that the legislative assembly did not, in the enactment of the law in question, exceed its constitutional powers. To hold otherwise would be to disregard, as hereinbefore disclosed, the well-settled rules of construction heretofore promulgated by an unbroken line of decisions by this court from the earliest history of our State.
Concurrence Opinion
delivered the following concurring opinion:
“In creating a legislative department, and conferring upon it legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion.”
Authorities to this effect are numerous. The same author, quoted above, in fifth edition, p. 207, said:
“When a state law is attacked, * * it is presumably valid in any case, and this presumption is a conclusive one, unless in the Constitution of the United States or of the state we are able to discover that it is prohibited. We look * * in the Constitution of the State to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the
In Bushnell v. Beloit, 10 Wis. 225, the court says:
“We suppose it to be a well-settled political principle that the Constitution of the State is to be regarded, not as a grant of power, but rather as a limitation upon the powers of the legislature, and that it is competent for the legislature to exercise all legislative power not forbidden by the constitution or delegated to the general government, or prohibited by the Constitution of the United States.”
This clause of section 10, in question, places no limitation upon the legislative power after the change there provided for has been made. The same phraseology, as to the number of justices, is used in section 2, namely, “the Supreme Court shall consist of four justices”; but that language is followed by a limitation, “shall never exceed seven.” Section 10 provides that the Supreme Court “shall consist of three justices,” without any words of limitation. In fact, section 10 must be construed as a proviso to both sections 2 and 8, and in the changed conditions they are still controlled by sections 3, 4, and 5. State v. Ware, 13 Or. 389 (10 Pac. 885). If section 10 was intended to contain any restriction, or one different from that contained in section 2, the addition of the word “only” or the words “and no more” would have readily accomplished that end. Throughout the constitution, we find restrictions and prohibitions indicating that its framers recognized the necessity thereof. If such a condition as this were in the United States Constitution, which is a grant of power beyond which Congress cannot go, it might well be said that its power would be limited to three justices; but the reverse is the case under a state constitution. The legislature has all power not taken away by the constitution. Before
“The courts will never exercise the extraordinary power of declaring an act of the legislature unconstitutional unless there is a plain, palpable, and clear conflict between the statute and the constitution.”
In re Wellington, 16 Pick. (Mass.) 87 (26 Am. Dec. 631). In Sinking Fund Cases, 99 U. S. 718 (25 L. Ed, 496) it is said:
“Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.”
Every doubt must be resolved in favor of the legislative act. Every intendment must be given in favor of its constitutionality, and we are not justified in holding that the legislative act, increasing the number of justices of the Supreme Court to five, is unconstitutional.
Concurrence Opinion
Concurring opinion of
Though adhering to the dissent as originally expressed, I concur in the conclusions reached by Mr. Justice McBride and Mr. Justice Eakin, and, for reasons announced in their opinions herein, the motion and the petition for a rehearing are denied.
Reversed : Rehearing Denied.