State v. Olcott

187 P. 286, 94 Or. 633, 1920 Ore. LEXIS 7

• Court: Oregon Supreme Court
• Decided: January 13, 1920
• Status: Published

Opinions

JOHNS, J.

1. In legal effect, the question now before us is the one which was sought to be presented in the case of Olcott v. Hoff, 92 Or. 462 (181 Pac. 466), but was not then decided, because some members of this court did not think the question was legally before it and for such reason no four members could then agree upon .an opinion. The controversy now has to do with whether Mr. Olcott ceases to be governor when his term of office as secretary of state expires, or whether he shall continue to hold that office for the remainder of the unexpired term of the late Governor Withyeombe. The vital question to be determined is: What was legally decided in the case of Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180), and how far is that decision binding upon this court!

It was the intention of the framers of the original Constitution that all of the administrative officers of the state should be elected for the period of four years and at the same election. Section 1 of Article V of the Constitution provides:

“The chief executive power of the state shall be vested in a governor, who shall hold his office for the term of four years; and no person .shall be eligible to such office more than eight in any period of twelve. years. ’ ’

And Section 7 is as follows:

“The official term of the governor shall be four years; and shall commence at such times as may be prescribed by this Constitution, or prescribed by law.”

Section 16 of that article says:

“When during a recess of the legislative assembly a vacancy shall happen in any office, the appointment to which is vested in the legislative assembly, or when at any time a vacancy shall have occurred in any other state office, or in the office of judge of any court, the - governor shall fill such vacancy by appointment, which shall expire when a successor .shall have been elected and qualified.”

In our first Code, compiled by Hon. M. P. Deady, Section 16 is annotated by him to read:

“Governor to fill vacancies by appointment.”

That construction has been followed, and all appointments to state offices have been made by the governor, who alone is vested with that authority; but there is no provision for the appointment of a governor and there has never been a vacancy in that office. To prevent that and to provide a line of succession, Section 8 of Article Y of the Constitution was adopted, reading thus:

“In case of the removal of th§ governor from office, or of his death, resignation, or inability to discharge the duties of the office, the same shall devolve on the secretary of state; and in case of the removal from office, death, resignation, or inability, both of the governor and secretary of state, the president of the senate shall act as governor, until the disability be removed, or a governor be elected.”

Although it is true, as Mr. Justice Harris has pointed out in his opinion in Olcott v. Hoff, that in annotating this section Judge Deady used the words, “Acting governor in case of vacancy or disability,” it is also true that in the later Code compiled by Deady and Lane the same section was annotated to read, “In case of vacancy or disability.”

The decision in Chadwick v. Earhart was rendered by a unanimous court in October, 1884. Hill’s Code was annotated and published in 1892, and in annotating Section 8 of Article Y of the Constitution Mr. Hill said:

“Secretary as governor. — The secretary of state entering upon the duties of governor, upon the governor’s resignation, may continue to perform the functions of governor for the remainder of the governor’s term of office, though he cease in the meantime to be secretary of state: Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180).”

Bellinger & Cotton’s Code was published in 1902 and the compilers then made the following annotation to the section mentioned, citing Chadwick v. Earhart:

“The secretary of state entering upon the duties of governor, upon the governor’s resignation, may continue to perform the functions of governor for the remainder of the governor’s term of office though he ceases in the meantime to be secretary of state.”

Lord’s Oregon Laws were published in 1910 and the following annotation therein is made to that section:

“Under this provision, when the governor resigns, the duties of the governor’s office devolve upon the secretary of state, who continues to perform them for the remainder of the term of the outgoing governor: Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180).”

Mr. Lord was one of the judges by whom the decision in Chadwick v. Earhart was rendered in 1884.

"While we respect Judge Deady for both his learning and ability, any construction which he may have placed upon Section 8 was given before the decision in the Chadwick case was rendered. It must be conceded that Judge Bellinger and "W. W. Cotton were men of equal learning and ability, and their annotation was made after that case was decided. The same is true as to "W. Lair Hill, who was recognized as one of the ablest lawyers in Oregon. The decision in the Chadwick case was rendered by a unanimous court then consisting1 of Chief Justice "Waldo, E. B. "Watson and "W. P. Lord, 'and it is significant that in compiling his own Code, under Section 8 of Article Y, Mr. Lord made the annotation above quoted.

"We have no record of the oral arguments, but as pointed out in our opinion in Olcott v. Hoff, two questions were raised in the respective briefs filed in the Chadwick case. Mr. Earhart, then secretary of state, contended first that Mr. Chadwick was not entitled to the salaries of both governor and secretary of state, after he had become governor by the resignation of that office by Mr. Grover, but to that of secretary of state only; and second, that he was not entitled to the salary of the governor’s office after he ceased to be secretary of state. Mr. Chadwick claimed that he was entitled to the salaries of both offices during the time he was 'Secretary of- state and governor, and to the salary of governor for the two days that he held that office after he ceased to he secretary of state. Both of Mr. Chadwick’s contentions were sustained by the unanimous decision of the court. On the second point, the right to the salary of governor- after he ceased to be secretary of state, the court held:

“This question * * must also be answered in favor of the appellant and judgment be entered accordingly. ’ ’

By reason of that decision Mr. Chadwick was paid the salary for the two days that he held the office of governor after ceasing to be secretary of state. The cause of action was for a lump sum of money which included both claims and for the reasons stated in the opinion each of his claims was allowed. The conclusion is inevitable that the second claim could be allowed only upon the theory that Mr. Chadwick continued to be governor in fact after he ceased to be secretary of state.

It is significant ihat since the rendition of that opinion, without an exception the annotators of the Code, W. Lair Hill, C. B. Bellinger, W. W. Cotton and W. P. Lord, all men of the highest type in their profession, have construed the decision to mean that now, under the existing facts, Mr. Olcott should hold the office of governor for the remainder of the late Governor Withy combe’s unexpired term. Such annotations will be found under Section 8 of Article V of the Constitution in every Code compiled and published since the rendition of that decision, which for thirty-five years has never been questioned.

Three different efforts have been made to change Section 8 of Article V of the organic law of the state: The first on November 5, 1912; the second on November 3,1914, and the last at the special election of June 3,1919. On the last occasion a committee composed of Gus C. Moser, state senator, and Chris Schuhel and William G. Hare, representatives, presented an argument in the voters ’ pamphlet in favor of the proposed amendment, saying:

“The duties of the office of governor will continue to be performed by Governor Olcott for the remainder of the term of office for which the late Governor Withycombe was elected.”

To this might be added that Arizona, Utah and Wyoming are the only states in the Union which have a Constitution providing that in the event of the governor's death the secretary of state succeeds to his office or performs the duties thereof. Tet every attempt to change that section of the Constitution has been defeated by the vote of the people. ■

It is vigorously contended that the people, should have an opportunity of choosing their own governor. They have had and exercised that right under the terms and provisions of the Constitution which three times they have refused to amend. Section 8 expressly provides that “in case of the removal of the governor from office, or of his death, # * the same shall devolve upon the secretary of state.” Every voter who cast his ballot for Mr. Olcott for the office of secretary of state legally knew that under the terms of the Constitution, upon the death of Governor Withycombe, Mr. Olcott would become governor. Further, there is no provision in either statutes or Constitution for an election to fill an unexpired term of the office of governor. Such a proceeding would have to be read into the Constitution, would be based upon implied construction only, and would overrule the precedent of Chadwick v. Earhart.

Should the attorney general, for example, die, there would then be a vacancy in that office which could be filled by appointment by the governor, under Section 16 of Article V of the Constitution. But when the governor dies, his office, under Section 8 of the same article, “shall devolve upon the secretary of state.” That is to say, this section provides a line of succession to the office of governor; and upon the death of the incumbent the secretary of state automatically becomes governor. Upon the death of the secretary of state while in the office of governor the president of the senate becomes acting governor. There is a marked distinction between the meaning, force and effect of Section 16 and Section 8 of Article V. Under Section 16 a vacancy occurs, which the governor may fill by appointment. While the line of succession remains unbroken, as we construe Section 8, there is no such occurrence as a vacancy in the office of governor; and Sections 1 and 7 of Article Y expressly provide that the term of the governor shall be four years. There is no provision by which anyone is authorized to appoint a governor. Section 8 provides a line of automatic succession; it was adopted to prevent a vacancy in the office of governor. Therein lies the distinction between the instant controversy and the cases of State ex rel. v. Johns, 3 Or. 533, and State ex rel. v. Ware, 13 Or. 380 (10 Pac. 885).

Under our Constitution the governor is the chief executive officer of the state, in whom only the power of appointment is vested, and in the very nature of things a vacancy in that office would destroy the whole plan of the state government. A governor was elected in November, 1918, and qualified in January, 1919, and one has been elected and qualified every four preceding years since the adoption of the Constitution. Under Sections 1 and 7 of Article Y of the organic law the term for which a governor is elected is absolutely fixed at four years and there is no provision in either the statutes or Constitution for the election of a go verdor for any portion of an unexpired term. Hence, under the terms of those sections, if a governor should be elected at the next general election, he would hold office not only for the remainder of the unexpired term of the late Governor Withycombe, but for a full four year period from January, 1921, to January, 1925. That would disarrange and destroy the whole plan of the framers of the Constitution.

2. The rule of stare decisis is well stated by Mr. Justice Burnett in dissenting opinion in Kalich v. Knapp, 73 Or. 587 (145 Pac. 27, Ann. Cas. 1916E, 1051), thus:

“Another doctrine equally well settled is that of stare decisis, to the -effect that, when a decision has once been rendered, it amounts to an authoritative construction of the law, and should not be disregarded or overturned, except for very cogent reasons showing beyond question that on principle it was wrongly decided. The principle is that laws are largely conventional rules of action, and it is more important that the rule be settled as a guiding precept to the public than that by the action of the courts the law should be made to fluctuate like the tides”; citing authorities.

And it applies with peculiar force to the decisions of courts on questions of constitutional law. The same doctrine is announced in In re City of Seattle, 62 Wash. 218 (113 Pac. 762), where the Supreme Court of Washington said:

‘ ‘ The rule of stare decisis is peculiarly applicable to the construction of the Constitution. The interpretation of that document should not be made dependent upon every change in the personnel of the court. When one of its clauses has been construed, that construction should not be -set aside except for the most cogent reasons. Certainty in the law is of the first importance.”

In Multnomah County v. Sliker, 10 Or. 65, 66, Mr. Chief Justice Lord said:

“The matter here is the constitutionality of a statute, and the rule is said to be almost universal in construing statutes and the Constitution, to adhere to the doctrine of stare decisis

In State v. Frear, 142 Wis. 320, 327 (125 N. W. 961, 964, 20 Ann. Cas. 633), the Supreme Court of that state said:

“Decisions on constitutional questions that have long been considered the settled law of the state should not be lightly set aside, although this court as presently constituted might reach a different conclusion if the proposition were, an original one. ’ ’

Black’s Constitutional Law (3-ed.), page 81, subdivision 15, lays down the rule thus:

“The principle of stare decisis applies with special force to the construction of Constitutions, and ,an interpretation once déliberately put upon the provisions of such an instrument should not be departed from without grave reasons.”

The authorities are uniform upon the force and effect of stare decisis in regard to a constitutional question.

In face of the decision in Chadwick v. Earhart, and with knowledge of such collateral facts, the people have always opposed any amendment to Section 8 of Article Y of the Constitution. That decision was upon a constitutional question and under the facts it cannot be said that it is not sustained by reason and authority. Whatever may be our present opinions, it must now be held, under the principle of stare decisis, as binding upon this court. The writ is denied and the demurrer is sustained. Writ Denied. Demurrer Sustained.