Baker v. Payne

29 P. 787, 22 Or. 335, 1892 Ore. LEXIS 65

• Court: Oregon Supreme Court
• Decided: April 30, 1892
• Status: Published

Opinions

Lord, J.

This is a proceeding for a mandamus, brought by Wm. E. Baker, who is alleged to be a citizen and voter of Linn county, Oregon, to compel the defendant and appellant, as county clerk of said county, to correct his notices of election for the general election to be held, in June, 1892, by naming therein the office of attorney-general for the state of Oregon, 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 by naming the office of attorney-general of the state of Oregon, to be filled at said general election, or show cause why he has not done so. Upon the return day, the defendant returned said writ with his answer annexed thereto, in which he denied all the material allegations in said petition, and for a further and separate defense in substance alleged: That pursuant to the provisions of an act of the legislative assembly of the state of Oregon, entitled, “An act to create the office of attorney-general, provide the duties and fix the compensation,” filed in the office of the secretary of state, February 21,1891, it was made the duty of the governor of the state of Oregon to appoint a suitable person to be attorney-general of the state of Oregon; and that pursuant to the provisions of the act, his excellency, the governor, did on or about the twenty-first day of May, 1891, appoint Geo. E. Chamberlain such attorney-general, and that said appointee did thereupon qualify and enter upon the duties of such office, and that he is now the duly qualified incumbent; that under the provisions of said act, there is to be elected by the qualified electors of the state of Oregon at the general election to be held in June, 1894, and every fourth year thereafter, an attorney-general, who shall hold his office for the term of four years, and until his successor is elected and qualified, and that the term of the office of attorney-general shall commence on the same day as secretary of state, as now provided by law; that such appointee, the present incumbent, as defendant is informed and believes, is entitled to hold his said office until the general election in June, 1894; that for the reasons set out in his answer, and not otherwise, defendant has refused and still refuses to give notice of the election of an attorney-general, and he prays said writ be quashed, etc., and for his costs and disbursements.

The separate answer was demurred to; and the cause coming on for hearing, the court sustained the demurrer, and the defendant refusing to plead or answer further, it was ordered that a peremptory writ issue, directed to the defendant, commanding him to insert in the notices of election for each election precinct in said county that an attorney-general will he voted for and elected at the next general election to be held in June, 1892. From this order this appeal has been taken.

The only question to be determined is, whether there is an attorney-general to be elected at the next general' election in June, 1892; and the solution of this question involves the construction of sections two and five of an act of the legislative assembly, entitled, “An act to create the office of attorney-general, provide the duties, and fix the compensation.” (Laws, 1891, 188.) The second section of said act reads as follows: “ There shall be elected by the qualified voters of the state of Oregon, at the general election held in June, 1894, and each fourth year thereafter, an attorney-general, who shall hold his office for the term of four years, and until his successor is elected and qualified; and the term of office of the attorney-general shall commence on the same day as secretary of state, as now provided by law.” The provisions of this section relate solely to the election of a person to a full or vacant term of four years in the office of attorney-general; they have no reference to a vacancy in a term, or a fractional part of a term. This becomes manifest when the different provisions of the section are examined and their purpose understood. The section provides that an attorney-general shall be elected in June, 1894, and every four years thereafter, who shall hold his office for four years, and that the term of his office shall commence on the same day as secretary of state. Here, it will be noted, as regards a full or vacant term to be filled by election, the time of his election, the commencement of his term and its duration of four years, is the same as is provided for governor, secretary of state, and treasurer. The evident purpose is to preserve uniformity in the tenure of state offices. As the next four-year or full term of these officers will not commence until the second Monday in January next after their election in June, 1894, it was necessary, if the attorney-general’s term was to commence at the same, time, and be of the same duration, that he should be elected at the same time, namely, in June, 1894. Hence, the section provided that an attorney-general should be elected in June, 1894, for a term of four years, and that his term should commence on .the same day as the term of the office of secretary of state. 'This construction makes operative every part of the section, without affecting the ordinary meaning of its language; and unless it is in conflict with some other section ,:of the act from which it is clear that the law-making power intended otherwise, it must be regarded as the proper construction.

It is, however, in respect to the construction to be given to- section 5 of the act that the controversy mainly arises. This section provides: “Upon the approval of this act, arid at any time when a vacancy may by any cause occur in the office of .attorney-general, the governor shall appoint a suitable person to be attorney-general, who shall hold the office until the next general election, when his suecessor shall be elected and shall qualify as provided for in this act.” In our view, this section relates exclusively to a fractional term, or a vacancy in the term of the office of attorney-general. It is wholly directed to the filling of an hiatus in a term of such office, which may for any cause become vacant,-by appointment, and by election, if a general election should intervene1 before such part of a term expired after the appointment. When the act became a law in February, 1891, the office created by it was vacant; but before there could be an election for a term of four years, as provided by section 2, which was to commence on the second Monday in January, 1895, the commencement of the secretary of state’s term of toffice, there* existed a fractional part of a* term, extending between these periods, which this section- contemplated should be filled in the manner provided ■ therein. This vacancy existing upon the approval of the act creating the office, stands precisely upon the same footing, as ..a vacancy occurring hereafter for any cause, such as the death or resignation of an attorney-general, elected for a full terra. In either of these cases, the section, as we construe it, is intended to apply to a fractional or unexpired portion of a term.

It remains now to test the application of this construction of the purpose of section 5, and to ascertain if the result it works out is consistent with that section, and not in conflict with section 2. Upon the approval of the act, the governor was authorized by this section to appoint a suitable person to be attorney-general. There was then existing a vacancy in the term of the office of attorney-general extending over a period of more than three years. It was the fractional part of a term; and after an appointment was made to fill it, there intervenes a general election to be held in June, 1892, before such term expires and a new term begins. The section further provides that the suitable person appointed by the governor shall hold the office until the next general election, which, according to the plain meaning of the words, would be the general election to be held in June, 1892. The next general election, especially in view of the fact that our constitution provides that general elections shall be held on the first Monday in June biennially (article 4, section 14,) after the appointment of the present incumbent in 1891, is not the general election held in June, 1894, provided by section 2, but it is the next general election, which is to be held in June, 1892. Nor is this result affected by the concluding words, “when his successor shall be elected and shall qualify as provided for in this act.” When his successor shall be elected, refers to the next general election, which precedes when, or at which time, the successor to the person appointed by the governor shall be elected, and shall qualify as provided for in this act, which is by filing his certificate with his oath of office endorsed thereon, etc., as prescribed by section 6 of the act.

To take the whole section and construe it as we understand it with explanations, it would read in this wise; “Upon the approval of this act, * * * the governor shall appoint a suitable person to be attorney-general, who shall hold the office until the next general election, when (at which time) his successor (the successor to the person appointed by the governor) shall be elected (at the next general election as provided in this section) and shall qualify as provided for in this act” (which is prescribed by section 6 of the act).

It was contended for the appellant that the words in section 5, “the next general election,” when construed in connection with the words or language which follow, “when his successor shall be elected and qualified as provided for in this act,” referred to the general election held in June, 1894, and not, as the words would seem to import, at the next general election, which is to be held in June, 1892. But the next general election, provided for in this act, when a vacancy exists in a part of a term of such office, is provided by section 5, and not by section 2, as that section relates to the filling of the office of attorney-general by election for a term of four years. It is to vacancies in an unexpired term to which section 5 applies; and if there is such a vacancy, the governor fills it until the next general election, when, if the term has not yet expired, the people fill it at the next general election for such unexpired portion of the term. When there can be no general election intervening between the appointment of the governor and the expiration of the term, the appointment of the governor then fills the unexpired term.

At the argument, by way of illustration, counsel was asked, if an attorney-general should die or resign in a few days after his election in June, 1894, leaving a vacancy in such office to be filled for such unexpired term, whether the person appointed by the governor would hold the office for the whole of such unexpired term or until the next general election, when his successor could be elected to fill the vacancy for the remaining part of the unexpired term. His answer was consistent with his argument. He claimed that the appointee of the governor would hold for the remaining part of the term, notwithstanding the next general election would intervene before the expiration of such term. It seems to us to give the words the next general election, in section 5, when such general election intervenes before the general election to be held in June, 1894, the construction contended for, is to violate the plain meaning of the words, the next general election, and to disregard the purpose which the section was designed to accomplish. The golden rule of construction is to give effect to the ordinary meaning of words employed in a statute, unless it be clear that the law-making power intended otherwise. “ Every word and clause, if possible, should have assigned to it a meaning, leaving no useless words.” (Bishop on Written Law.) Statutes must rest on the words used, “nothing adding thereto, nothing diminishing.” (Leavenworth R. R. Co. v. U. S. 92 U. S. 751.)

Another contention of counsel was that section 5 should have added or interpolated the words “ for offices of a like class, or state officers,” so as to make the section read as follows: * * * “ Who shall hold the office until the next general election for offices of a like class, or for state officers, when his successor shall be elected and shall qualify as provided for in this act.” But this is importing words into the statute not found there to sustain the construction contended for, and to give the statute and the section a particular meaning which they would not bear without them. As Patterson, J., said: “ I see the necessity of not importing into statutes words which are not found there. Such a mode of interpretation only gives occasion to endless difficulty.” (Rex v. Barell, 12 Ad. & Ell. 468.)

As to the contention in respect to the punctuation of the statute, it is enough to say that the rule is, that courts will, in the construction of statutes, for the purpose of arriving at the real meaning and intention of the law. makers, disregard the punctuation or re-punctuate if need be, to render clear the true meaning of the statute. In Cushing v. Warrick, 9 Gray, 382, it was held that “punctuation was not to be regarded in constructing a statute.” Oakley, J., says: “The courts will re-punctuate if necessary to render the meaning clear.” (Allen v. Russell, 39 Ohio St. 336; Gyger’s Estate, 65 Pa. St. 311; Allbright v. Payne, 43 Ohio St. 8.)

And, finally, it was claimed that the original bill, as introduced, provided for the first election of attorney-general, “at the first election held after the approval of this act,” but that it was so amended as to provide that the election should take place in June, 1894, as now provided by section 2. This it is claimed shows that it was the intention of the legislature that no election of attorney-general should be held until June, 1894, and that the provision in section 5 as to the next general election simply means the general election in June, 1894, until which time the appointee of the governor will hold his office. To our minds, the reason for the change indicates a wholly different purpose. To have made the election of' attorney-general to take place “at the first general election held after the approval of the act,” would have destroyed the uniformity in the term of this office with other state officers, which was accomplished by making the election for a full term take place in June, 1894. To make the election take place at the first general election after the approval of the act, would have made the election for the term of four years take place in June, 1892, and in such case it would have been impossible to make the term of the office of attorney-general commence on the same day as the term of the office of secretary of state, and brought about the uniformity which is effected by making the election take place in June, 1894. That counsel regarded the object in amending section 2, was to preserve uniformity in state offices, is manifest by the words which he sought to interpolate into section 5. On the other hand, the construction we have given to sections 2 and 5, needs no artificial aid or words interpolated to give these sections any other meaning, or any particular meaning, than the words naturally bear. This construction aims to give to every word its ordinary signification, and to every clause a meaning and effect. Under it, as provided by section 2, there will be an attorney-general elected in June, 1894, who will hold his office for a full term of four years, and whose term will commence with that of the secretary of state, thus preserving uniformity in the tenure of state offices. Under it, as section 5 provides, when a vacancy occurs in a term, or there is an unexpired term to fill, the governor will appoint a suitable person, who will hold his office until the next general election, when, if such term is still unexpired, the power reverting to the people, they will fill it by electing his successor for the remaining part of such term. From these considerations, it results that the present incumbent, appointed by the governor, holds his office until the next general election, which is to be held in June, 1892, when his successor, whoever he shall be, will be elected; and when such successor’s election shall be officially known and declared, and he shall qualify as prescribed by section 6, the title of the office of attorney-general will be transferred to him, and he will be the attorney-general of the state of Oregon for the balance of such term, or until a new term begins.

There was no error, and the judgment must be affirmed.