Biggs v. McBride

• Decision Date: 20 June 1889
• Citation: 17 Or. 640,21 P. 878
• Parties: BIGGS v. MCBRIDE, Secretary of State.
• Court: Oregon Supreme Court

21 P. 878

17 Or. 640

BIGGS v. MCBRIDE, Secretary of State.

Supreme Court of Oregon

June 20, 1889

Appeal from circuit court, Marion county.

(Syllabus by the Court)

An act which passes both houses of the legislature, and which contains an emergency clause, followed by the words "that the same shall take effect and be in force from and after its approval by the governor," but which the governor never approves, but vetoes, and the same is then duly passed by both houses by the necessary majorities notwithstanding the veto, takes effect and is in force from and after its passage.

Such act takes effect when the law-making power has done every act or thing necessary under the constitution to its complete enactment as a law.

The constitution has vested in the legislature the power to declare in the body or preamble of an act the emergencies by which it may be put in force in less than 90 days after the adjournment of the session; and, when the emergency is specified in the act, the same is conclusive upon the courts and is not reviewable.

By article 5, § 1, of the constitution, the chief executive power of the state is vested in a governor, but this does not include the power to fill vacancies in office. When and under what circumstances that power may be exercised by the governor is prescribed and defined by section 16 of the same article.

When a power has been exercised by one department of the government ever since the adoption of the constitution, and such exercise has been constantly acquiesced in by the other departments as well as the people, such practical construction is of great weight in doubtful cases, and should not be lightly regarded in any case.

Whether the power to remove an officer, for cause, may be conferred upon the governor, or belongs exclusively to the judicial department of the government under the constitution, is not decided; but, by whomsoever the power of removal, for cause may be exercised, it must be done upon notice to the delinquent of the particular charges against him, and an opportunity be given him to be heard in his defense.

Mandamus is not the proper proceeding by which to try the title to an office.

N.B. Knight, P.H. D'Arcy, and J.J. Murphy, for appellant.

Joseph Simon, Richard Williams, and Geo. H. Burnett, for respondent.

STRAHAN J.

This proceeding was instituted by the plaintiff, claiming to be one of the railroad commissioners of the state, against the secretary of state, to compel him by writ of mandamus to draw a warrant upon the state treasury for the sum of $277.77, being the amount claimed as plaintiff's salary up to the date of the filing of the petition for the writ. The petition alleges, in substance, that George W. McBride is the duly-elected, qualified, and acting secretary of state of the state of Oregon, and is, by virtue of said office, the auditor of public accounts; that your petitioner is one of the duly-appointed, qualified, and acting railroad commissioners of the state of Oregon, constituting one of the members of the board of said railroad commissioners of said state, and has been such since the 21st day of February, 1889, at which time the appellant was duly appointed said railroad commissioner by Hon. S. Pennoyer, governor of the state of Oregon, in pursuance of a law duly enacted and passed at the fourteenth regular session of the legislative assembly of said state, and which was approved the 18th of February, 1887; that, as such railroad commissioner, your petitioner, on the 31st day of March, 1889, became entitled to receive for his services as such officer the sum of $277.77, in United States gold coin, for the quarter ending March 31, 1889; that on the 1st day of April, 1889, your petitioner applied to said defendant at his office in the city of Salem, and requested and demanded that the defendant, as such secretary of state and auditor of public accounts, should audit, allow, and issue his warrant upon the treasurer of the state, for the payment of said $277.77, but that the defendant refused and neglected, and still does refuse and neglect, without lawful right or excuse, to either audit, allow, or issue his warrant upon said treasurer, for the payment of said claim, or any part thereof; that your petitioner has no plain, speedy, or adequate remedy at law for the recovery of said sum of $277.77, which became justly due and owing to the plaintiff on the 31st day of March, 1889. Prayer that the writ of mandamus be awarded, etc. The defendant demurred to the writ, upon the ground that the same did not state facts sufficient to entitle the plaintiff to the relief prayed for, or to any relief, which demurrer was sustained, and the writ dismissed, from which judgment this appeal was taken.

The appellant's notice of appeal specifies, in substance, the following grounds of error upon which he intends to rely upon the appeal: (1) The court erred in sustaining the defendant's demurrer. (2) The court erred in denying the writ of mandamus prayed for in said cause. (3) The court erred in dismissing plaintiff's cause at his costs. The board of railroad commissioners in this state was created by the act of the legislative assembly approved February 18, 1887. This act, among other things, provided that such board should consist of two persons, to be appointed by the governor from each of the two political parties, who should hold their offices for and during the term of four years, or until their successors are appointed, as in said act provided; and, if a vacancy occurs by resignation, death, or otherwise, the governor, in the manner thereinafter provided, was to appoint a commissioner to fill such vacancy for the residue of the term, and might in the same manner remove any commissioner, for cause. During the session of the legislative assembly next preceding the expiration of the term of office of the commissioners first appointed by this act, and every four years thereafter, it was made the duty of the governor, by and with the advice and consent of the senate, to appoint the successors of such commissioners, who should, in like manner, serve for four years. It was further provided that said commissioners should be selected, one from the political party that cast the highest number of votes at the last general election, in this state, preceding his appointment, and one from the political party casting the next highest number of votes at said election. Pursuant to this act, a board of commissioners was appointed by the governor, who continued to serve until the 16th day of January, 1889, on which day the governor made an executive order removing them, for cause. On the 12th day of February, 1889, the legislative assembly passed an act amendatory of the existing law on the subject of railroad commissioners, whereby the board was increased to three persons, and provision was made for choosing said commissioners biennially by the legislative assembly, and they were to hold office for the term of two years, and until their successors were elected and qualified. The following emergency clause was added at the end of the bill: "Sec. 5. Inasmuch as the amendments herein proposed would greatly tend to benefit the people of this state, and there is urgent necessity therefor, this act shall take effect and be in force from and after its approval by the governor." The act was vetoed by the governor on the 19th day of February, 1889. On the same day it passed the senate, notwithstanding the veto of the governor, by the requisite majority; and, on the 20th day of the same month, it passed the house by a like majority, and was deposited in the office of the secretary of state. On this statement three questions have been argued before us, and presented for our determination: First. The event on which the last-named act was to take effect never happened. This left the first act in force, under which the governor might lawfully appoint. Second. The amendatory act contains no emergency clause. It did not, therefore, go into effect until 90 days after the adjournment of the legislature. This view would also leave the first act in force during the 90 days, and the governor might exercise the power of appointment during that time. Third. But, conceding that either of the objections are well taken, and that the amendatory act took effect on the 20th day of February, 1889, still the legislative assembly could not exercise the power of appointment. That is an executive act, and belongs exclusively to the governor, under the constitution. These questions will be examined in their order.

1. The point of contention presented by the first question arises out of the language used in section 5 of the amendatory act to the effect that the same should take effect and be in force from and after its approval by the governor. It is contended by the appellant that, by the terms of the act itself, it was only to be in force from and after its approval as aforesaid; and, if the governor failed to approve it, it could only take effect at the end of 90 days after the adjournment of the session. But it seems to me this argument proves too much. If the words "from and after its approval by the governor" are to be treated as a condition precedent, as the contention assumes, then it could never take effect, for the reason the condition had never happened. But this method of treating a grave constitutional question seems scarcely satisfactory. It seems more like a quibble over words than an attempt to ascertain what the legislature really meant by the use of the phraseology in question. I think there can be no doubt that the legislature used the language in question in the same sense they used the words "from and after its passage." Wherever an emergency clause was added to a bill, one of...