54 P. 349 | Or. | 1898
The contention in behalf of the relator is, first, that the act creating the Board of Railroad Commissioners (Hill’s Ann. Laws, § 4002 et seq.) is unconstitutional, in so far as it attempts to vest in the legislative assembly the power of appointing the incumbents, and that the assumption of that authority by the lawmaking department trenches upon the prerogative of the Governor, upon whom the duty of filling vacancies in State offices devolves. But this identical question has twice been held adversely to relator’s contention by this court, and can therefore no longer be regarded as an open one : Biggs v. McBride, 17 Or. 640 (21 Pac. 878, 5 L. R. A. 115); Eddy v. Kincaid, 28 Or. 537 (41 Pac. 156, 655). The effect of these decisions is that the fundamental law of the State, so far as it relates to the Legis
Notwithstanding some contrariety of judicial utterance in relation to the power of a legislative body to appoint persons to office may be found to exist, we think, under a constitution like ours, which does not prohibit such appointments, the rule announced in Biggs v. McBride, 17 Or. 640 (21 Pac. 878, 5 L. R. A. 115), is founded in reason and unassailable upon principle. The following cases support this doctrine: Board of Revenue v. Barber, 53 Ala. 589; People v. Osborne, 7 Colo. 605 (4 Pac. 1074); State v. Covington, 29 Ohio St. 102; People v. Draper, 15 N. Y. 532; People v. Batchelor, 22 N. Y. 128; People v. Woodruff, 32 N. Y. 355; People v. Pinckney, 32 N. Y. 377; Sturgis v. Spofford, 45 N. Y. 446; People v. Langdon, 8 Cal. 1; People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103); State v. Irwin, 5 Nev. 111; State v. Swift, 11 Nev. 128; Mayor, etc., of Baltimore v. State, 15 Md.
It is next maintained that, at the expiration of four years from the date of Compson’s appointment, the office became vacant, under the provision of the constitution, Article XV, § 2, which declares that “the legislative assembly shall not create any office, the tenure of which shall be longer than four years.” Section 2 of the Act creating the Board of Railroad Commissioners and prescribing its duties reads as follows: “Said commissioners constituting said board shall be chosen biennially by the Legislative Assembly of the State of Oregon, and shall hold their office for and during the term of two years and until their successors are elected and qualified as in this act provided, and if a vacancy occurs by resignation, death, or otherwise, the Governor shall appoint a commissioner to fill such vacancy for the residue of the term:” Hill’s Ann. Laws, § 4003. This act manifestly creates an office the term or tenure of which is two years, with a provision that the incumbent shall hold the office until his successor is elected and qualified. But the contention of relator is that the words “until his successor is elected and qualified’ ’ may, in consequence of a contingency, serve to prolong the incumbent’s term of office, in which case the extension resulting therefrom is as much a part of the entire term as any portion of the period specified in the act, and that, as a consequence, it is violative of the constitution for anyone to hold an office created by the legislative assembly more than four years by virtue of one election or appointment. In other
The law seems to be settled that, where the duration of an official term is limited by the constitution, the office becomes vacant at the expiration of that term, even though the legislature has provided that the incumbent shall hold until his successor is duly qualified: 19 Am. & Eng. Enc. Law (1 ed.), 433; State v. Howe, 25 Ohio St. 588 (18 Am. Rep. 321); State ex rel. v. Brewster, 44 Ohio St. 589 (9 N. E. 849). But when the constitution in one clause inhibits the legislature from creating an office the tenure of which shall be longer than a specified number of years, and in another provides that such officer shall hold until his successor is qualified, the two
Attention is specially directed to the use of the words “elected and qualified” in the section referred to, and it is insisted that as so used they refer solely to the selection by the people, and references are made to many instances in which the terms “election” and “appointment” are used in the various provisions of the constitution. The word “election,” in the strict sense, undoubtedly means the choice of an officer in the exercise of which all the qualified electors have an opportunity to participate, while the word “appointment” is understood to mean the selection by one or more persons, who have been commissioned for that purpose, of another, who, by virtue of the choice, represents or may exercise some authority over the persons delegating the power to make the appointment: Throop, Pub. Off. § 84; Speed
v. Crawford, 3 Metcalf (Ky.), 207; State v. McCollister, 11 Ohio, 46; Gosman v. State, 106 Ind. 203 (6 N. E. 349); Kimberlin v. State ex rel. 130 Ind. 120 (30 Am. St. Rep. 208, 14 L. R. A. 858, 29 N. E. 773); McGruder v. Swan, 25 Md. 173; State v. Irwin, 5 Nev. 111; Conger v. Gilmer, 32 Cal. 75; Wickersham v. Brittan, 93 Cal. 34 (15 L. R. A. 106, 28 Pac. 792, and 29 Pac. 51); Carpenter v. People, 8 Colo. 116 (5 Pac. 828). In People v. Langdon, 8 Cal. 1, it was insisted that the words “elected” and “appointed,” as used in a section of the California Constitution, were not equivalent expressions of the meaning intended to be imparted by the framers of that instrument; but Mr. Chief Justice Murray, in answering the argument, says : “Much stress is laid upon the word ‘appointed,’ as used in this section. This is mere hypercriticism. The former decisions of this court have substantially set-
While the words ‘ ‘ elect ’ ’ and ‘ ‘ appoint ’ ’ are not ordinarily synonymous, we think a careful examination of the language of our constitution will show that, in some instances, the framers of that instrument have used them as such. Thus, it is provided in Constitution, Article II, § 15, that “in all elections by the legislative assembly, or by either branch thereof, votes shall be given openly or viva voce,” etc. It might seem, at first view, that the word “elections,” as here used, was limited to the choice of officers of the house or senate by the members thereof, but if this be so, Section 30, Article IV, which reads : “No senator or representative shall, during the time for which he may have been elected, be eligible to any office the election to which is vested in the legislative assembly,” etc., — would prevent the organization of either branch of the legislature, thus showing that under the definition hereinbefore given the word “ elections ” in the first clause evidently means “appointment” only. So, too, the legislative assembly is authorized to ‘ ‘ elect ’ ’ a Governor from the candidates who have received an equal and the highest number of votes cast therefor (Section 5, Article V), thereby indicating that the phrase “ to elect,” as used in this section of the organic act, undoubtedly means “to appoint.”
Again, it is insisted that the constitutional provision that officers shall hold until their successors are elected and qualified, and the provision of the act creating the Board of Railroad Commissioners to the same effect, were
It is also maintained that the sureties on Compson’s official bond are not liable for defalcations occurring after the expiration of the two-years’ term for which he was elected, and that by reason of his failure to renew the undertaking there was such a vacancy in his office as would enable the Governor to fill it by appointment. But our attention has not been called to any provision of law requiring an officer who holds over after the expiration of his term .to renew his official bond, or declaring that the office shall become vacant in case he fails to do so, and, without such a provision, it is clear that the Governor could not declare a forfeiture or oust Compson from the office to which he had been appointed by the legislative assembly. The Governor could appoint only in case of a vacancy in an office for a failure to renew the
Aeeiemed .