315 P.2d 797 (Or. 1957), Monaghan v. School Dist. No. 1, Clackamas County

CourtSupreme Court of Oregon
Writing for the CourtWARNER, J.
Citation211 Or. 360,315 P.2d 797
Docket Number.
Date25 September 1957
PartiesThomas MONAGHAN, Appellant, v. SCHOOL DISTRICT NO. 1, CLACKAMAS COUNTY, Oregon, Respondent.

Page 797

315 P.2d 797 (Or. 1957)

211 Or. 360

Thomas MONAGHAN, Appellant,



Supreme Court of Oregon, En Banc.

September 25, 1957

Argued Sept. 11, 1957.

Page 798

[Copyrighted Material Omitted]

Page 799

[211 Or. 362] Gerald J. Meindl, Portland, argued the cause for appellant. With him on the brief were Meindl, Mize & Kriesien, Portland.

E. W. Kirkpatrick, Milwaukie, argued the cause and filed a brief for respondent.

WARNER, Justice.

This is an appeal from a judgment rendered in a proceeding brought under Chapter 27, ORS (ORS 27.010 to 27.030, inclusive). These sections of the code provide for the determination of questions in controversy without action or suit.

[211 Or. 363] The plaintiff, Thomas Monaghan, is a duly elected, qualified and acting member of the House of Representatives of the 49th Legislative Assembly of the State of Oregon. He is also a teacher in the public schools of School District No. 1 of Clackamas County, Oregon, under contract executed on April 5, 1957, by and between himself and the defendant, school board of that district.

The controversy projected by the statement filed under Chapter 27, ORS, supra, seeks to determine whether or not Monaghan is eligible for employment as a teacher in the public schools of this state while he holds a position as a member of the House of Representatives. The school district contends that he is not. It relies upon the provisions of Art. III, § 1 and Art. II, § 10 of the Oregon Constitution.

The plaintiff's position is: That notwithstanding the foregoing provisions of the Constitution, he is eligible to perform his function as a teacher under his contract with the district and without the necessity of resigning his seat in the state legislature.

From a decision of the circuit court adverse to the plaintiff, he brings this appeal.

There is no issue of fact presented. Our sole duty in the premises is to resolve the dispute in terms of the applicability of one or both of the constitutional provisions relied upon by the school district.

We are inhibited from passing upon Mr. Monaghan's qualifications as a member of the legislature. That power reposes exclusively in the branch of the legislative assembly to which he was elected to serve. (Oregon Constitution, Art. IV, § 2) Lessard v. Snell, 155 Or. 293, 295, 63 P.2d 893. We, therefore, address ourselves only to the question of plaintiff's qualifications [211 Or. 364] to act as a school teacher while continuing as a member of the legislature.

We first give attention to the provisions of Art. III, § 1 which deals with the separation

Page 800

of powers of the three major departments of government. It reads:

'The powers of the Government shall be divided into three seperate [sic] departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.'

It is an exact counterpart of Art. III, § 1 of the 1851 Constitution of the State of Indiana from whence it was taken. Carey, A History of the Oregon Constitution, p. 470.

The foregoing section, designed to insure separation of powers in government, is one of paramount purpose in the system of the political philosophy peculiar to our federal and state governments. All state constitutions, except one or two, contain provisions of similar import and objective.

To discover why the forefathers wrote a provision of this character into the federal constitution and, indeed, why provisions of the same tenor are in most every state constitution, we turn to 1 Hamilton or Madison, The Federalist (No. 51), pp. 353, 354, from whence we quote:

'In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own, and consequently should be so constituted that the members of each should [211 Or. 365] have as little agency as possible in the appointment of the members of the others. * * *

'It is equally evident that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the Legislature in this particular, their independence in every other would be merely nominal.' (Emphasis supplied.)

For a judicial statement of high excellence and of more recent date stressing the importance of the maintenance of this departmental separation, we turn to O'Donoghue v. United States, 1933, 289 U.S. 516, 53 S.Ct. 740, 743, 77 L.Ed. 1356, where, at page 1360, Mr. Justice Sutherland, speaking for the court, says:

'The Constitution, in distributing the powers of government, creates three distinct and separate departments--the legislative, the executive, and the judicial. This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, * * * namely, to preclude a commingling of these essentially different powers of government in the same hands. * * *

'If it be important thus to separate the several departments of government and restrict them to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that each department should be kept completely independent of the others--independent not in the sense that they shall not co-operate to the common end of carrying into effect the purposes of the Constitution, but in the sense that the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other departments. James Wilson, one of the framers of the Constitution and a justice of this court, in one of his law lectures said that the independence of each department required that its proceedings 'should be free from the remotest influence, direct [211 Or. 366] or indirect, of either of the other two powers.' 1 Andrews, Works of James Wilson (1896) p. 367. And the importance of such independence was similarly recognized by Mr. Justice Story when he said that in reference to each other neither of the departments 'ought to possess, directly or indirectly,

Page 801

an overruling influence in the administration of their respective powers.'' (Emphasis supplied.)

The position taken by the appellant would have us accord to the word 'functions' in Art. III, § 1 the same meaning to be derived from the phrase 'official duties,' thus, in legal effect, making them synonymous. If this were true, it would apply only to those exercising official duties in more than one department of government. As a corollary, appellant asserts that Art. III, § 1 has no application to employees as distinguished from officers of the several departments.

Appellant's support for this is found in the dissenting opinion to State ex rel. Black v. Burch, 1948, 226 Ind. 445, 80 N.E.2d 294, 560, 81 N.E.2d 850. This dissent implies that the use of 'functions' in Art. III, § 1 of the Indiana Constitution of 1851 was resorted to as a substitute in that section merely to avoid redundancy which would be consequent upon the insertion of the phrase 'official duties' in place of the word 'functions' as we there find it. State ex rel. Black v. Burch, supra 80 N.E.2d 561. Thus, the dissenting opinion in the Burch case is made to fit the pattern of appellant's argument here, that is, that 'official duties' and 'functions' are alike in their meaning.

We are, however, constrained by rules of construction which make it impossible to follow the course suggested by the appellant.

In construing the organic law, the presumption and legal intendment are that every word, clause and [211 Or. 367] sentence therein have been inserted for some useful purpose. School District No. 1, Multnomah County v. Bingham, 1955, 204 Or. 601, 611, 283 P.2d 670, 284 P.2d 779.

When so engaged, the object is to give effect to the intent of the people adopting it. But this intent is to be found in the instrument itself. It is to be presumed that the language which has been employed is sufficiently precise to convey the intent of the framers of the instrument. To find the thought a given section expresses, the first resort in all cases is to the natural signification of the words used in the order of the grammatical arrangement in which they have been placed. If thus regarded the words embody a definite meaning, involving no absurdity and no contradiction between different parts of the section construed and that meaning apparent on its face is the very one we are at liberty to say was intended to be conveyed. In such a case, there is no room for construction. Where one meaning is plainly declared in the instrument, the courts are not at liberty to search elsewhere for possible or even probable meanings. Schubel v. Olcott, 60 Or. 503, 512, 120 P. 375; 1 Cooley's Constitutional Limitations (8th ed.) p. 124; 16 C.J.S. Constitutional Law § 19, p. 81.

The constitution derives its force and effect from the people who ratified it and not from the proceedings of the convention where it was framed, yet we are permitted to consider some of the circumstances, conditions and personalities present at that time as a source of help but not as a matter necessarily conclusive upon our own judgment. See Jory v. Martin, 153 Or. 278, 56 P.2d 1093; State v. Merten, 175 Or. 254, 152 P.2d 942.

We have already observed that Art. III, § 1 of our constitution, as framed by the Constitutional Convention of this state, held in 1857, is copied verbatim from [211 Or. 368] a like provision of the Constitution of Indiana, as framed by its Constitutional Convention of 1851. So, too, were many...

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  • 149 N.E.2d 273 (Ind. 1958), 29608, Book v. State Office Bldg. Commission
    • United States
    • Indiana Supreme Court of Indiana
    • April 2, 1958
    ...v. Burch, supra, 1948, 226 Ind. 445, 462, 80 N.E.2d 294, 560, 81 N.E.2d 850; Monaghan v. School District No. 1, Clackamas County, Or.1957, 315 P.2d 797, If members of the Legislature may be appointed as members of Boards which exercise functions within the executive-administrative departmen......
  • 472 N.W.2d 403 (Neb. 1991), 90-097, State ex rel. Spire v. Conway
    • United States
    • Supreme Court of Nebraska
    • July 26, 1991
    ...not, therefore, prevent our adjudication of this matter. See, State v. Evans, 735 P.2d 29 (Utah 1987); Monaghan v. School District No. 1, 211 Or. 360, 315 P.2d 797 NATURE AND APPLICATION OF ARTICLE II We thus reach the central issue. The language of article II prohibits one branch of govern......
  • 166 A.2d 360 (N.J. 1960), A--16, Reilly v. Ozzard
    • United States
    • United States State Supreme Court (New Jersey)
    • December 5, 1960
    ...office. It is a simple matter to shape the relief to avoid a constitutional difficulty if there be one. Cf. Monaghan v. School Dist., 211 Or. 360, 315 P.2d 797, 799 D Next, defendant contends the Constitution itself exhausts the subject of dual officeholding by legislators and thus supersed......
  • 806 P.2d 1085 (N.M.App. 1991), 10957, State ex rel. Stratton v. Roswell Independent Schools
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 31, 1991
    ...from the premise that school districts are but arms of the state. Stratton relies on Monaghan v. School District No. 1, Clackamas County, 211 Or. 360, 315 P.2d 797 (1957) (en banc), in support of his argument that a public school teacher violates the separation of powers provision by servin......
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34 cases
  • 162 N.W.2d 262 (Neb. 1968), 37128, State ex rel. Morris v. Marsh
    • United States
    • Nebraska Supreme Court of Nebraska
    • October 21, 1968
    ...Constitutional Law § 23, p. 91. See, also State ex rel. Johnson v. Chase, 147 Neb. 758, 25 N.W.2d 1; Monaghan v. School District No. 1, 211 Or. 360, 315 P.2d 797; Welsh, Governor v. Sells, 244 Ind. 423, 192 N.E.2d 753, 193 N.E.2d 359; Kervick v. Bontempo, 29 N.J. 469, 150 A.2d 34; County Sc......
  • 505 P.2d 939 (Or.App. 1973), Neuhaus v. Federico
    • United States
    • Oregon Court of Appeals of Oregon
    • February 2, 1973
    ...A school board, like any other agency of government, has only that authority granted by statute. Monaghan v. School District No. 1, 211 Or. 360, 315 P.2d 797 (1957); School Dist. 106 v. New Amsterdam Cas. Co., 132 Or. 673, 288 P. 196 (1930); Baxter v. Davis, 58 Or. 109, 112 P. 410, 113 P. 4......
  • 286 S.E.2d 79 (N.C. 1982), 55, State ex rel. Wallace v. Bone
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 12, 1982
    ...Burch, supra, 1948, 226 Ind. 445, 462, 80 N.E.2d 294, 560, 81 N.E.2d 850; Monaghan v. School District No. 1, Clackamas County, Or. 1957, [211 Or. 360] 315 P.2d 797, 802-804. 149 N.E.2d at 296. In State ex rel. State Building Commission of West Virginia v. Bailey, supra, the Supreme Court of......
  • 902 P.2d 1143 (Or. 1995), SC S41985, Rooney v. Kulongoski
    • United States
    • Oregon Supreme Court of Oregon
    • September 28, 1995
    ...of powers seeks to avoid the potential for coercive influence between governmental departments. See Monaghan v. School District No. 1, 211 Or. 360, 364-66, 315 P.2d 797 (1957) (recognizing the principle). The second inquiry is whether one department is performing the functions committed to ......
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