Eddy v. Kincaid

• Decision Date: 05 August 1895
• Citation: 41 P. 156,28 Or. 537
• Parties: EDDY v. KINCAID. [1]
• Court: Oregon Supreme Court

41 P. 156

28 Or. 537

EDDY v. KINCAID. ^[1]

Supreme Court of Oregon

August 5, 1895

Appeal from circuit court, Marion county; H.H. Hewitt, Judge.

Mandamus by James B. Eddy against H.R. Kincaid, secretary of the state, to compel the defendant to issue a warrant on the state treasurer for plaintiff's salary as railroad commissioner. From a judgment granting the writ, defendant appeals. Affirmed.

Frank V. Drake, for appellant.

J.C. Moreland and R. Mallory, for respondent.

BEAN C.J.

This is a proceeding by mandamus to compel the secretary of state to draw a warrant on the state treasurer for the balance of salary alleged to be due plaintiff as railroad commissioner for the quarter ending March 31, 1895. The act creating the board of railroad commissioners provides that the persons constituting such board shall be chosen biennially by the legislative assembly, and "shall hold their office for and during the term of two years and until their successors are elected and qualified as in this act provided, and if a vacancy occurs by resignation, death or otherwise, the governor shall appoint a commissioner to fill such vacancy for the residue of the term." Hill's Ann.Laws, § 4003. In compliance with the provisions of this statute, the legislature of 1893 regularly elected plaintiff as one of the commissioners, and he immediately thereafter qualified and entered upon the discharge of his duties, and has continued so to act. The legislature of 1895, although making the necessary appropriation to pay the salary and expenses of the commissioners, failed and neglected to choose a successor to plaintiff, and by reason thereof and the provisions of the law under which he was chosen he now claims the right to hold the office, and receive its emoluments until a successor shall be regularly chosen in the manner provided by law. The defendant, the secretary of state, however, being in doubt as to the plaintiff's right to the office, refuses to draw a warrant in payment of his salary as such commissioner, and suggests as reasons for his refusal: (1) That so much of the act creating the commission as provides for the election of the members thereof by the legislature is unconstitutional and void, and therefore plaintiff was never legally elected to such office (2) that, if plaintiff was legally elected in 1893, the failure of the legislature to elect his successor in 1895 created a vacancy in the office, which must be filled by appointment by the governor; (3) if he is in error in both of these positions, he claims that the failure of plaintiff to renew his official bond ipso facto worked a forfeiture of the office; and (4) that so much of the act as provides for the election of railroad commissioners by the legislature is repealed by implication by the act known as the "Australian Ballot Law."

It will be observed that this is not a contest between the plaintiff, claiming to hold over after the expiration of his original term, and an appointee of the governor, made on the assumption that a vacancy existed in the office. Nor does the case involve the existence of the office itself, but the real question here is whether the plaintiff shall hold the office and receive its emoluments by virtue of his election in 1893, or whether it is vacant, and must be filled by an appointment by the governor. We proceed to state briefly our views of the objections made by the secretary of state to the payment of plaintiff's salary.

1. In view of the former decisions of this court and the practical exposition of the constitution from almost the organization of the state to the present time it is in our opinion now too late to question the right of the legislature to appoint the class of public officers to which the plaintiff belongs. It is admitted that there is no direct inhibition in the constitution against the exercise of such a power by the legislature, and it has been the long-continued practice of that body to create a certain class of public offices, and to appoint the incumbents thereof. The state librarian, fish and pilot commissioners, food commissioner, game and fish warden boatmen at Astoria, and the railroad commissioners have always been elected by the legislature in joint convention and the right to do so has never been questioned, except in the case of Biggs v. McBride, hereafter referred to. We have thus for a series of years concurrent legislative exposition of the constitution to which the court ought to yield unless satisfied that it is repugnant to its plain words. Of course, the plain provisions of the constitution cannot be broken down by practical exposition; but when, as here, such a practice is in violation of none of its express provisions, such an exposition is a very persuasive argument, and often of controlling force. In speaking of the effect of practical exposition, it was said by an able court that "it has always been regarded by the courts as equivalent to a positive law." Bruce v. Schuyler, 4 Gilman, 267. And in Rogers v. Goodwin. 2 Mass. 477, in giving a reason for adhering to long-continued exposition, it is said: "We cannot shake a principle which in practice has so long and extensively prevailed." Indeed, harmony prevails throughout the whole scope of judicial opinion on this question. Cline v. Greenwood, 10 Or. 230; Hovey v. State (Ind.Sup.) 21 N.E. 890, and authorities there cited. Independently, then, of judicial authority, we should hesitate to declare the act in question unconstitutional because of the practical exposition given to the constitution by the legislature, and acquiesced in by the other departments of government and the people. but we are not without authority on the question. In Biggs v. McBride, 17 Or. 640, 21 P. 878, the right of the legislature to appoint railroad commissioners under the act now before us was called in question, and, while the case might have been decided on another point, it nevertheless received much consideration at the argument, and was one of the principal questions discussed by the court in its opinion, and the conclusion reached presumably met with the approval of the then members of the court. In that case it was contended, as here, that the right to appoint to public office belongs exclusively to the executive, and that the assumption of the legislature to fill the office of railroad commissioner by persons of their own selection is a usurpation by that department of government of powers that are vested by the constitution in the executive. Answering this argument, Mr. Justice Strahan said: "It was not claimed at the argument that there is any express provision of the constitution which authorizes the governor in direct terms to make the appointment in question, but that it is included in the grant contained in section 1, article 5, of the constitution . That section declares, 'The chief executive power of the state shall be vested in a governor.' Now, if it could be shown that the power to appoint all officers which are not expressly made elective by the people is a part of 'the chief executive power of the state,' the appellant's contention would be sustained. But no authority whatever has been cited to sustain this view, nor is it believed that any exists. On the contrary, the provisions of the fifth article of the constitution, which relates to the executive department, all seem at variance with this view. The framers of this instrument evidently designed that no prerogative powers should be left lurking in any of its provisions. No doubt they remembered something of the history of the conflicts with prerogatives in that country from which we inherited the common law. They therefore defined the powers of the chief executive of the state so clearly and distinctly that there ought to be no controversy concerning the method of filling, or, in some cases, of changing the method of filling, an existing office." And, after referring to the several offices which have been uniformly filled by appointment by the legislature, the learned judge continued: "The power exercised by the legislature in the appointment of some of these officers is almost coeval with the constitution. The power thus exercised has never been called in question, but has ever been acquiesced in by every...