Eddy v. Kincaid

41 P. 157, 28 Or. 537, 1895 Ore. LEXIS 124

Opinions

Opinion by

Mr. Chief Justice Bean.

It will be observed that this is not a contest between the plaintiff, claiming to hold over after the expiration of his original term, and an appointee of the governor made on the assumption that a vacancy existed in the office. Nor does the case involve the existence of the office itself, but the real question here is, whether the plaintiff shall hold the office and receive its emoluments by virtue of his election in eighteen hundred and ninety-three, or whether it is vacant, and must be filled by an appointment by the governor? We proceed to state briefly our views of the objections made by the secretary of state to the payment ©f plaintiffs salary.

1. In view of the former decisions of this court, and the practical exposition of the constitution from almost the organization of the state to the present time, it is in our opinion now too late to question the right of the legislature to appoint the class of public officers to which the plaintiff belongs. It is admitted that there is no direct inhibition in the constitution against the exercise of such a power by the legislature, and it has been the long continued practice of that body to create a certain class of public offices, and to appoint the incumbents thereof. The state librarian, fish and pilot commissioners, food commissioner, game and fish warden, boatman at Astoria, and the railroad commissioners have always been elected by the legislature in joint convention, and the right to do so has never been questioned except in the cas© of Biggs v. McBride, hereafter referred to. We have thus for a series of years concurrent legislative exposition of the constitution to which the court ought to yield unless satisfied that it is repugnant to its plain words. Of course the plain provisions of the constitution cannot be broken down by practical exposition, but -when, as here, such a practice is in violation of none of its express provisions, such an exposition is a very persuasive argument, and often of controlling force. In speaking of the effect of practical exposition, it was said by an able court that “It has always been regarded by the courts as equivalent to a positive law”: Bruce v. Schuyler, 4 Gilman, 267 (46 Am. Dec. 447). And in Rogers v. Goodwin, 2 Mass. 477, in giving a reason for adhering to long continued exposition, it is said: “"We cannot shake a principle which in practico has so long and extensively prevailed.” Indeed, harmony prevails throughout the whole scope of judicial opinion on this question: Cline v. Greenwood, 10 Or. 230; Hovey v. State, 119 Ind. 386 (21 N. E. 890), and authorities there cited. Independently, then, of judicial authority, we should hesitate to declare the act in question unconstitutional because of the practical exposition given to the constitution by the legislature, and acquiesced in by the other departments of government and the people. But we are without authority on the question.

2. In Biggs v. McBride, 17 Or. 640, (5 L. R. A. 115, 21 Pac. 878,) the right of the legislature to appoint railroad commissioners under the act now before us was called in question, and, while the case might have been decided on another point, it nevertheless received much consideration at the argument, and was one of the principal questions discussed by the court in its opinion, and the conclusion reached presumably met with the approval of the then members of the court. In that case it was contended, as here, that the right to appoint to public office belongs exclusively to the executive, and that the assumption of the legislature to fill the office of railroad commissioner by persons of their own selection is a usurpation by that department of government of powers that are vested by the constitution in the executive. Answering this argument Mr. Justice Strahan said: “It was not claimed at the argument that there is any express provision of the constitution which authorizes the governor in direct terms to make the appointment in question, but that it is included in the grant contained in article V, section 1 of the constitution. That section declares: ‘The chief executive power of the state shall be vested in a governor.’ Now, if it could be shown that the power to appoint all officers which are not expressly made elective by the people is a part of ‘the chief executive power of the state,’ the appellant’s contention would be sustained. But no authority whatever has been cited to sustain this view, nor is it believed that any exists. On the contrary, the provisions of the fifth article of the constitution, which relates to the executive department, all seem at variance with this view. The framers of this instrument evidently designed that no prerogative powers should be left lurking in any of its provisions. No doubt they remembered something of the history of the conflicts with prerogatives in that country from which we inherited the common law. They therefore defined the powers of the chief executive of the state so clearly and distinctly that there ought to be no controversy concerning the method of filling, or, in some cases, of changing the method of filling, an existing office.” And, after referring to the several offices which have been uniformly filled by appointment by the legislature, the learned judge continued: “The power exercised by the legislature in the appointment of some of these officers is almost coeval with the constitution. The power thus exercised has never been called in question, but has ever been acquiesced in by every department of the government, and is in itself a contemporaneous construction of the constitution, which, if the question were doubtful, might be sufficient to turn the scale in its favor. Under any view, such construction is entitled to great weight, and could not be lightly regarded.” And in State v. George, 22 Or. 152, (29 Am. St. Rep. 586, 29 Pac. , 16 L. R. A. 737,) which involved the right of the legislature to appoint or provide for the appointment of the bridge commissioners of the City of Portland, by some other authority than the executive, Mr. Justice Lord said: “Except as limited by constitutional restrictions, it is agreed that the legislature may exercise all governmental powers. It is the law making power of the state. While our constitution separates the powers of government into three distinct departments, and prohibits any of them from exercising any powers confided to the other, it does not undertake to declare what shall be considered legislative, executive, or judicial acts.” And he quotes from Walker, J., in People v. Morgan, 90 Ill. 558, that such “provision declares only in general terms, that each department of the government shall be confined to the exercise of the functions of its own department. It does not undertake to define, in any specific manner, what are legislative, executive, or judicial powers or acts. Like most other provisions of that instrument, the terms employed are of the most general and comprehensive character. * * The executive power in a state is understood to be that power, wherever lodged, which compels the laws to be enforced and obeyed. And the instrumentalities employed for that purpose are officers, elected or appointed, who are charged with the enforcement of the laws. But the power to appoint is by no means an executive function, unless made so by organic law or legislative enactment. And in this case it is not so unless the power is thus conferred.” In view of these judicial expressions by our predecessors, and the long continued practical exposition of the constitution to which we have already referred, wé feel constrained to hold the act in question constitutional, although, if the question was one of first impression, the court, as at present organized, might probably hold otherwise.

3. It is next contended that the failure of the legislature of eighteen hundred and ninety-five to elect plaintiff’s successor operated to create a vacancy in the office, and that plaintiff was not entitled to hold over; but it seems to us this question is settled by the express declaration of the constitution of this state and of the law under which he was elected. Section 1 of article XV of the constitution provides that “All officers, except members of the legislative assembly, shall hold their office until their successors are elected and qualified,” and the act creating the board of railroad commissioners provides that such officers “shall hold their offices for and during the term of two years and until their successors are elected and qualified as in this act provided.” It is thus declared, both in the constitution and the act itself, that the incumbent of the office shall hold until his successor is elected and qualified. The legislature having failed to elect plaintiff’s successor, it necessarily follows, if we are to give force and effect to the plain and express provisions of the constitution and the law, that he is entitled to hold the office and to receive its emoluments until such time as his successor shall be duly elected. And to this effect are the authorities under similar provisions of law. State v. Simon, 20 Or. 365 (26 Pac. 170); Gosman v. State, 106 Ind. 203 (6 N. E. 319); State v. Harrison, 113 Ind. 435 (3 Am. St. Rep. 663, 16 N. E. 384); State v. Howe, 25 Ohio St. 588 (18 Am. Rep. 321); People v. Tilton, 37 Cal. 614; Badger v. United States, 93 U. S. 599.

4. It is next claimed that the sureties on plaintiff’s official bond would not be liable for any breach thereof occuring after the expiration of the two years’ term provided by law, and that, therefore, his failure to renew the bond after the expiration of such term of itself worked a forfeiture of the office. There is a line of authorities holding that where one is elected to an office under a law which provides that he shall hold the office for a fixed term, and until his successor is elected and qualified, and he is either reelected at the expiration of the term, but fails to give a new bond, or a successor is regularly elected, but fails to qualify, and he is permitted to hold over, that the sureties on his bond are not liable for a defalcation occurring after the expiration of the fixed term. But these authorities seem to proceed generally upon the theory that his holding over is wrongful, because his own reflection or that of his successor, and a failure to qualify, terminated his right to the office, and created a vacancy which should have been filled by the proper appointing power: County of Scott v. Ring, 29 Minn. 398 (13 N. W. 181). But whatever may be the true rule in the character of cases above suggested, “The weight of American authority sustains the proposition,” says Mr. Throop, “that where an officer holds over rightfully, that is, pursuant to a statute providing that he shall hold over until his successor shall be chosen, or shall be chosen and shall qualify; this constitutes one of the exceptions to the rule that the liability of the sureties in an official bond does not extend beyond the principal’s term, and that the sureties are liable for his defaults during the additional time”: Throop on Public Officers, §213. The author cites, in support of this position, Akers v. State, 8 Ind. 484; Thompson v. State, 37 Miss. 518; State v. Wells, 8 Nev. 105; United States v. Jameson, 3 McCrary, 620; Mayor v. Horn, 2 Harr. (Del.), 190; to which may be added State v. Kurtzeborn, 78 Mo. 98; State v. Daniel, 6 Jones, (N. C.), 444. It would seem from this rule that, since plaintiff is rightfully holding over by virtue of the express provisions of the Ihw creating the office, and his successor has never been chosen, the sureties on his official bond continue liable, and no new bond is necessary. But, however this may be, it seems to us clear that the mere failure by plaintiff to renew his bond, if it was necessary, did not of itself work a forfeiture of the office, but, under any view, could be nothing more than a ground of forfeiture in a proper proceeding for that purpose. As no such proceeding has been taken, and as there is no law of which we are aware authorizing the secretary of state to declare a public office forfeited, it follows from either view of the question that plaintiff is entitled to the office and its emoluments, notwithstanding the fact that he has failed to renew his official oath or bond.

5. And, finally, it is claimed that so much of the act creating the board of railroad commissioners as provides for the election of such officers by the legislative assembly was repealed by implication by the act of eighteen hundred and ninety-one, known as the “Australian Ballot Law,” the first section of which declares “that a general election shall be held in the several election precincts in this state on the first Monday in June, eighteen hundred and ninety-two, and biennially thereafter, at which there shall be chosen so many of the following officers as are to be elected in such year,” (naming several state officers, the railroad commissioners, however, not being among the number,) “and all other state, district, county, or pre cinct officers provided by law.5’ The contention for defendant is that the office of railroad commissioner having been created prior to the passage of this act, the latter clause of the section quoted repealed by implication the then existing provisions authorizing the legislature to elect such commissioners. But a sufficient answer to this contention is that the section of the Australian Ballot Law relied upon by the defendant is not a new legislative declaration, but is merely a reenactment of the provisions of the law as it existed long prior to the creation of the board of railroad commissioners, and therefore does not repeal by implication any provision of that act, even if it is in conflict therewith: Endlich on Interpretation of Statutes, § 195. We conclude, therefore, after a careful examination of this case and all the questions involved in it, that the judgment of the court below was right, and must be affirmed.

Affirmed.

Decided September 12, 1895.