State v. Steele

65 P. 515 | Or. | 1901

Mr. Justice Wolverton,

after stating the facts, delivered the opinion of the court.

1. It is provided by the state constitution (Art. VII, § 11): “There shall be elected in each county, for the term of four years, a county judge, who shall hold the county court at times to be regulated by law ;” and (section 12) : “The county court shall have the jurisdiction pertaining to probate courts, and boards of county commissioners, and such other powers and duties, and such civil jurisdiction, not exceeding the amount or value of five hundred dollars, and such criminal jurisdiction, not extending to death or imprisonment in the penitentiary, as may be prescribed by law. But the legislative assembly may provide for the election of two commissioners, to sit with the county judge whilst transacting county business in any or all the counties, or may provide a separate board for transacting such business.” A contention for defendant is that when the legislature of 1898 provided for the election of a separate board of commissioners it exhausted its power upon the subject, and could not thereafter change the construction of the tribunal for the transaction of county business ; but such is clearly not the intendment of the constitution. The county judge, who is authorized to hold the county court, has been given, in the exercise of that authority, jurisdiction pertaining to boards of county commissioners, and the legislature may, if it is deemed expedient, leave the important function of transacting county business entirely with that functionary. But it may provide for the election of two commissioners to sit with the county judge in any or all of the counties, who would thereby share his responsibility, or it may provide a separate board for the transaction of such business. Thus, the legislature is given discretionary power of providing any one of three differently constituted tribunals for the transaction of county business, for one or more of the counties, without regard to uniformity of operation throughout the state. There is no limitation upon the power; the legislature is dependent for its exercise upon no condition or event; and there is no intention anywhere manifest of so circumscribing. or restricting its ordinary power that-when it has once acted in the premises it may not act again, even to the undoing of that which it has formerly established. The discretion is absolute and wholly unfettered, and hence we conclude that the legislature may exercise it at any time, with respect to any county, by adopting any one of the three methods that it may in its wisdom deem the exigencies of the case demand.

2. It is further insisted that whether the county judge alone is permitted to act and exercise the jurisdiction, or two commissioners are provided to act .with him, or a separate board is established, the tribunal is, at all events, the same, although differently constructed, because the duties and functions are identical, which, it is urged, is the test of identity of the tribunal itself, and that the act of 1901 is tantamount to his removal from office, which the legislature was without adequate authority to do, the office being elective. The respondent combats the idea of the identity of the tribunal, howsoever constructed. But it does not seem to us that it can make any difference in the present case what may be the nature of the tribunal in that regard. The legislature is authorized to provide either one of the three, and to change the structure at will from that of the county judge alone to one composed of the judge and two commissioners, or to that of a separate board, and vice versa, to suit its notions of the exigencies of the case; and with this goes the power to provide for the requisite number of commissioners, as well as so to dispose of those in office according as the nature of the tribunal selected may demand, and, if there is an excess of incumbents, to remove such as are not required. 'Were the constitution a grant of powers, it would carry with it such implied powers as are necessary and proper to subserve and carry into effect the purposes of the grant To quote from the celebrated opinion of Chief Justice Marshall in McCulloch v. Maryland, 17 U. S. (4 Wheat.) 316: “The powers of the government are limited, and its limits are.not to be transcended. But the sound construction of the constitution must allow to the. national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.” If this be so as it respects a grant of powers, with how much stronger reason does it apply to a constitution which is not a grant, but a limitation, — where the residuum of power is retained by the people, to be exercised through the legislature, except as limited and circumscribed by that instrument. “The people, in framing the constitution,” says Chief Justice Denio, speaking of a state constitution, “committed to the legislature the whole lawmaking power of the state which they did not expressly or impliedly withhold. Plenary power in the legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an exception. * * * The frame of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the lawmaking authority as strong as though a negative was expressed in each instance ; but independently of these restraints, express or implied, every subject withiD the scope of civil government is liable to be dealt with by the legislature” : People v. Draper, 15 N. Y. 532, 543.

The legislature, therefore, having been authorized, at its discretion, to adopt any one of these differently constructed tribunals for the transaction of the county business, and to change the same and substitute another at its will, has the requisite power to so dispose of the incumbents in office as to perfectly effectuate the change. Mr. Steele was relieved from office by the act, presumably because there was an excess of incumbents,.and it became necessary in the reconstruction of the tribunal. The authority to do this springs out of the power to reconstruct. With the regularity of the tenure of Mack and Showers we having nothing to do, nor can we assume to probe the motives of the legislative assembly in relieving Mr. Steele, and reinvesting the county judge with his former jurisdiction. This latter is a matter wholly within legislative discretion, and the courts are precluded from inquiry or interference therewith.

3. Although the office of county commissioner is one mentioned in the constitution, it is not such an office that the legislature may not shorten or enlarge the term, or even abolish it, in the process of changing the construction of the tribunal for the transaction of county business : State ex rel. v. Hermann, 11 Mo. App. 43 ; Perkins v. Corbin, 45 Ala. 103 (6 Am. Rep. 698); Reals v. Smith, 8 Wyo. 159 (56 Pac. 690).

4. There is another contention, that the subject of Mr. Steele’s removal from 'office'is not embraced in the title of the act; and still another, that the act by its terms does not take effect upon the authority of the legislature. Answering the first of these, it is apparent, from what has been said, that the relieving of Steele from office was germane to the purpose of the act, and hence was embraced in the title. As it pertains to the latter, the effect of the legislation was to repeal the prior act, and the act of 1901 took effect concurrently with such repeal, and the power and authority of the newly-constructed board vested immediately, and it might have entered at once upon the exercise thereof. These considerations are in affirmance of the judgment, and an order will be entered accordingly. Affirmed.