Lessard v. Snell
| Citation | 63 P.2d 893,155 Or. 293 |
| Parties | LESSARD v. SNELL. |
| Decision Date | 07 January 1937 |
| Court | Supreme Court of Oregon |
In Banc.
Appeal from Circuit Court, Multnomah County; John P. Winter, Judge.
Suit by Dellmore Lessard against Earl Snell. From an order sustaining a general demurrer to the complaint and dismissing the suit plaintiff appeals.
Reversed and rendered.
Elton Watkins, of Portland (Chas. W. Robison, John W. Kaste, and Leland F. Hess, all of Portland, on the brief) for appellant.
Ralph E. Moody, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for respondent.
This is a suit to enjoin the Secretary of State from notifying the members of the board of county commissioners of Multnomah county that a vacancy exists in the office of State Senator for the Thirteenth Senatorial District of this state, and directing such county commissioners to appoint a person to fill said office. The trial court sustained a general demurrer to the complaint and, upon refusal of the plaintiff further to plead, dismissed the suit. Hence this appeal.
It appears from the complaint-the material allegations of which are admitted on demurrer-that the plaintiff Dellmore Lessard on the 6th day of November, 1934, was elected to the office of State Senator for the Thirteenth Senatorial District; that a certificate of election was duly issued to him by the Governor of the State of Oregon; and that at all times since the said plaintiff has been the "duly elected qualified, and acting" State Senator for said senatorial district. It also appears from the complaint that plaintiff who is an attorney at law, was, on the 27th day of September, 1934, duly commissioned as a notary public for a period of four years from said date of appointment. It is also alleged that, on the 19th day of March, 1935, plaintiff was appointed by the World War Veterans' State Aid Commission to act as an additional attorney in Multnomah county for the purpose of examining abstracts of title for applicants applying to the commission for loans, and to foreclose mortgages when and if directed to do so by said Veterans' Commission. Plaintiff received for such legal services the sum of $10 for examination of each abstract of title and the sum of $50 for acting in mortgage foreclosure proceedings.
Plaintiff further alleges that the defendant, Earl Snell, as Secretary of State, contends that, under section 10, article 2, of the Constitution of this state, plaintiff is ineligible to serve in the Thirty-Ninth Legislative Assembly as State Senator for the reason that plaintiff is holding a lucrative office under appointment, and that, unless restrained, the defendant Secretary of State will declare vacant the office to which plaintiff has been elected and will, in accordance with the provisions of chapter 190, Laws of Oregon for 1935 (page 281), notify the county commissioners of Multnomah county of such vacancy and direct them to appoint a successor.
In the prayer of the complaint, this court is asked to decree: (1) That plaintiff is the duly qualified, elected, and acting State Senator for the Thirteenth Senatorial District and is entitled to his seat in the Thirty-Ninth Legislative Assembly; (2) that the offices of notary public, attorney at law, and "resident attorney" for the World War Veterans' State Aid Commission are not public offices or appointments within the meaning of the Oregon Constitution; (3) that the Secretary of State be enjoined from acting as above alleged.
At the very threshold of this case we are confronted with the plain and explicit provision of section 11 of article 4 of the Oregon Constitution that, "Each house, when assembled, shall *** judge of the election, qualifications, and returns of its own members." In view of this constitutional power vested in the Legislature, it is clear that this court has no jurisdiction to determine the qualifications of the plaintiff as State Senator. That is a matter which rests in the sole and exclusive jurisdiction of the State Senate. It would, indeed, be a vain and idle thing for this court to render a decree which it has no power to enforce. More important, to pass upon the eligibility of plaintiff to the office of State Senator would be an encroachment upon the constitutional prerogatives of a co-ordinate branch of the government. It would be wholly foreign to our constitutional system of government for the executive or judicial department to determine a matter expressly reserved for the Legislature. There is no principle more fundamental than that the three branches of the government-the legislative, the executive, and the judicial-are co-ordinate and independent. Neither can interfere with the duties or functions of the other without striking a blow at the foundation of the government itself.
It must be obvious that any decision which this court might make in determining the eligibility of the plaintiff would have no force or effect for the simple reason that it has no jurisdiction over such subject-matter. We apprehend there is no case in the...
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Jones, In re
...to judge the title of any member to a seat therein; the courts have no jurisdiction to make such a determination.); Lessard v. Snell, 155 Or. 293, 63 P.2d 893 (1937) (In view of the senate's power under the Oregon Constitution to judge the qualifications of its members, the courts have no j......
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Stephenson v. Woodward
...to consider whether the state legislator was disqualified from service based on his conviction for an infamous crime); Lessard v. Snell, 155 Ore. 293, 63 P.2d 893 (1937) (declining to question the qualifications of a state senator who had been commissioned as a Notary Public and employed as......
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Secretary of State v. STATE LEGISLATURE
...by the California Constitution's directive that "`[e]ach house shall judge the qualifications and elections of its members.'"48 And in Lessard v. Snell,49 the Oregon Supreme Court found that a similar Oregon constitutional provision prevented it from determining whether a state senator was ......
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State ex inf. McKittrick v. Bode
...State ex rel. O'Donnell v. Houston, 40 La. Ann. 598, 4 So. 482; People v. Mahaney, 13 Mich. 481; Young v. Boles, 122 S.W. 481; Lessard v. Snell, 63 P.2d 893; Naumann Board of City Canvassers, 73 Mich. 252, 41 N.W. 267; State v. Gilmore, 20 Kan. 551; Covington v. Buffet, 45 A. 204. (5) The p......