State ex rel. Powers v. Welch

• Decision Date: 24 June 1953
• Citation: 259 P.2d 112,198 Or. 670
• Parties: STATE ex rel. POWERS v. WELCH.
• Court: Oregon Supreme Court

Page 112

259 P.2d 112

198 Or. 670

STATE ex rel. POWERS v. WELCH.

Supreme Court of Oregon, En Banc.

Argued June 3, 1953.

Decided June 24, 1953.

Arthur E. Prag, of Portland, argued the cause and filed a brief for appellant.

Dan M. Dibble, Deputy Dist. Atty., of Portland, argued the cause for respondent. With him on the brief was John B. McCourt, Dist. Atty., of Portland.

LATOURETTE, Chief Justice.

Peter W. Welch, who was elected surveyor of Multnomah county on November 4, 1952, was declared by the trial court, in a quo warranto proceeding, to be ineligible to hold such office because he did not possess the qualification set forth in ch. 31, Oregon Laws 1949, as follows:

'* * * a person shall not be eligible to hold the office of county surveyor unless he is registered under the laws of the state of Oregon as a registered professional engineer or a registered professional land surveyor; * * *.'

It is conceded by Welch that he did not have the above qualification. From such decision Welch has appealed.

It appears that Claude G. Powers, the relator, was elected county surveyor of Multnomah county on November 2, 1948, and the judgment of the trial court, by its terms, declared that said Claude G. Powers is entitled to the occupancy and control of said office, the theory being that he holds his office until his successor is legally elected and qualified.

Appellant contends that 'inasmuch as the office of county surveyor is a constitutional office, and that the constitution itself provides the qualification for this office, the legislature is powerless to prescribe additional qualifications,' and that he is entitled to hold the office of county surveyor. The constitutional provisions relied on by him are as follows:

'There shall be elected in each county by the qualified electors thereof at the time of holding general elections, a county clerk, treasurer, sheriff, coroner and surveyor, who shall severally hold their offices for the term of four years.' § 6, Art. VI, Oregon Constitution.

'No person shall be elected or appointed to a county office who shall not be an elector of the county; and all county, township, precinct, and city officers shall keep their respective offices at such places therein, and perform such duties as may be prescribed by law.' § 8, Art. VI, Oregon Constitution.

The constitution of the state, unlike that of the federal constitution, is one of limitation of powers, and, unless the legislative act is prohibited, expressly or impliedly, by the constitution, it must be held valid, and before the court will declare an act unconstitutional it must appear to be such beyond a reasonable doubt. State v. Cochran, 55 Or. 157, 179, 104 P. 419, 105 P. 884.

The law is well established that, where a state constitution provides for certain officials and names the qualifications for such officers, the legislature is without authority to prescribe additional qualifications unless the constitution, either expressly or by implication, gives the legislature such power. The converse is true that the legislature may create any reasonable qualifications for a legislative officer, or a constitutional officer where no qualification is prescribed in the constitution itself. The cases are legion in support of these principles, and, with one or two exceptions, are universal in so holding.

In 81 C.J.S., States, § 67, p. 998, it is said:

'* * * where the constitution prescribes the qualifications for state office, the legislature can neither add to, nor detract from, the qualifications so prescribed. Persons selected by the people for a state office and eligible according to the constitution have a constitutional right to such office.'

In 3 McQuillin, Municipal Corporations, 3d ed., § 12.58, p. 234, we read:

'* * * If, however, the constitution prescribed the qualifications of an officer it is, of course, beyond the power of the legislature to prescribe additional qualifications. It is self-evident that a statute cannot change the qualifications fixed by the constitution; * * *.'

In an annotation in 47 A.L.R. 481, we find the following:

'With but one exception, the courts have recognized the general rule that when a state Constitution names the qualifications for a constitutional office, the legislature has no authority to prescribe additional qualifications, or to remove any of the requirements provided for in the Constitution, unless that instrument, expressly or by implication, gives the legislature such power.'

Supporting the above text cases from nine jurisdictions are cited. Additional cases may be found in Permanent Volumes 1 and 2, A.L.R. Blue Book of Supplemental Decisions.

The subject is well treated by Chief Justice Vanderbilt in the case of Imbrie v. Marsh, 3 N.J. 578, 71 A.2d 352, 356, 18 A.L.R.2d 241. He there stated:

"It would seem but fair reasoning upon the plainest principles of interpretation, that when the Constitution established certain qualifications as necessary for office, it meant to exclude all others as prerequisites. From the very nature of such a provision the affirmation of these qualifications would seem to imply a negative of all others * * *. A power to add new qualifications is certainly equivalent to the power to vary them.' 1 Story, Commentaries on the Constitution, § 625.

"The legislature cannot add to the constitutional qualifications of an officer.' 1 Cooley on Constitutional Limitations, 140.'

The above rule is sustained in Kivett v. Mason, 185 Tenn. 558, 206 S.W.2d 789, 791. In that case, one Kivett, a judge, was disbarred from the practice of law in Tennessee on account of "unprofessional conduct and dishonesty". Thereafter, the legislature enacted a law requiring, as a qualification to hold judicial office, that a judge be a practicing attorney. Thereupon, Kivett brought mandamus proceedings to oust one Mason, who had been appointed by the governor to hold his office, on the theory that a vacancy existed. Kivett contended that the qualification enacted by the legislature, that a judge must be a practicing attorney, was unconstitutional and that he still retained his judicial office, the point argued being that the constitutional qualifications for a judge were that he be 'thirty years of age, and shall, before his election, have been a resident of the state for five years, and of the circuit or district one year.' The supreme court of Tennessee, in upholding Kivett's contention, said:

'* * * We think, however, that the Constitution on its face furnishes affirmative evidence that its authors deliberately refrained from inserting a provision which would require that only lawyers be selected as judges of the Courts for which article 6 of the Constitution provides. Nowhere in article 6 or elsewhere in the Constitution, in so far as we have been able to find, is there any reference to lawyers in connection with who shall be the judges of our Courts. * * *

* * *

* * *

'* * * This constitutional right given the voters of Claiborne County to elect whoever they please within the constitutional age and residential requirements cannot be thus abridged by the legislature. The rule applicable here is that approved by this Court quoting from Cooley's Constitutional Limitations thus:--'Another rule of construction is, that when the constitution defines the circumstances...