Gantenbein v. West

• Decision Date: 22 December 1914
• Citation: 74 Or. 334,144 P. 1171
• Parties: GANTENBEIN v. WEST. GOVERNOR.
• Court: Oregon Supreme Court

144 P. 1171

74 Or. 334

GANTENBEIN v. WEST. GOVERNOR.

Supreme Court of Oregon

December 22, 1914

In Banc. A written application for mandamus by Calvin U Gantenbein against Oswald West, Governor of the state of Oregon. Writ issued.

This is a proceeding in mandamus to require the Governor to issue a certificate of election to the plaintiff, declaring him to have been elected circuit judge of department No. 6 of Multnomah county, at the general election held November 3 1914. The petition alleged the statutory qualification of plaintiff to hold the office and the regularity of the election, and sets forth, further, that at said election there were cast for candidates for said office 69,827 votes and that plaintiff, having received a majority of 36,147 votes, was duly elected to said office. After reciting all the preliminary steps leading up to the final canvass of the votes, it alleges that such canvass was regularly made by the secretary of state with the result aforesaid, and that thereafter on December 8, 1914, petitioner demanded of the Governor a certificate of election, which was refused. There is no objection made to the form or substance of the petition except in respects hereinafter stated. There was a general demurrer to the sufficiency of the petition. The grounds of the demurrer are based upon the alleged unconstitutionality of the statute creating an additional circuit judge in Multnomah county, which statute was passed March 4, 1913, and is found in Laws 1913, c. 378, p. 769, being as follows:

"An act to provide an additional circuit judge for the Fourth judicial district of the state of Oregon; to abolish the office of county judge in Multnomah county, Oregon, and provide for the transfer to the circuit court of said Fourth judicial district of all the judicial business and jurisdiction of the said county court; providing that the present incumbent of said office of county judge shall be and shall serve as the additional circuit judge created by this act until his successor is elected and qualified, as herein provided.

"Be it enacted by the people of the state of Oregon:

"Section 1. That in addition to the five circuit judges now provided by law for the Fourth judicial district of the state of Oregon, comprising Multnomah county, there shall be elected on the first Tuesday after the first Monday in November, A. D. 1914, and at the general election every six years thereafter, one circuit judge in said district who shall possess the qualifications prescribed by law for circuit judges, and whose term shall commence on the first Monday of January, A. D. 1915, and who shall hold office for the term of six years and until his successor is elected and qualified.

"Sec 2. The duties, powers, and jurisdiction of said circuit judge shall be such as are prescribed by law and the salary shall be the same as the salary now, or hereafter, received by the other circuit judges of said district and be paid in like manner. The circuit judge herein provided shall sit in a department to be named or designated as department number 6.

"Sec 3. The office of county judge for the county of Multnomah is hereby abolished and the present incumbent of said office is hereby created a circuit judge of the said Fourth judicial district to sit in department number 6 provided for in the preceding section of this act and to hold such office and to exercise all the powers and jurisdiction of a circuit judge until his successor is elected and qualified as provided in section 1 of this act.

"Sec. 4. Upon the taking effect of this act all judicial jurisdiction, power and authority of the county judge and of the county court of said Multnomah county, as distinguished from such power and jurisdiction as is exercised in the transaction of county business, shall then, and thereafter, be vested in and exercised by the circuit court of said Fourth judicial district, and all said matters, causes and proceedings pending in said county court shall be considered as transferred, continued, heard and disposed of in the said circuit court.

"Sec. 5. As far as is practicable all matters relating to the administration of estates of decedents, minors and other legally incompetent persons and probate matters generally, shall be referred to and heard and considered in said department number 6.

"Sec. 6. All acts and parts of acts in conflict herewith are hereby repealed."

A. E. Clark, of Portland (Clark, Skulason & Clark, of Portland, on the brief), for petitioner. E. R. Ringo, of Salem, for defendant. Geo. S. Shepherd, of Portland, amicus curiæ.

McBRIDE, C.J. (after stating the facts as above).

In the opinions heretofore handed down in Branch v. McCormick, 144 P. 425, and State ex rel. v. Holman, 144 P. 429, a majority of the court expressed the opinion that so much of the act in question as attempted to transfer probate jurisdiction in Multnomah county to the circuit court, and to transfer the county judge of that county to a position as circuit judge, was void because in contravention of subdivision 3 of section 23, article 4, of the Constitution. So for the purposes of this case that contention may be taken as settled, and counsel on both sides of the present controversy have so treated it.

The contention made in the able arguments and briefs of counsel for defendant in the case at bar is that the whole act is void because it violates section 20, article 4, of the Constitution, which reads:

"Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title."

A perusal of the first sentence of the title shows that the creation of an additional circuit judge is clearly expressed as one of the subjects to be dealt with, and evidently the principal object, the other matters dealt with being only incidental to it; and, therefore, so far as this objection is concerned it must be held to be unsound. State v. Shaw, 22 Or. 287, 29 P. 1028; Clemmensen v. Peterson, 35 Or. 48, 56 P. 1016; Eastman v. Clackamas County (C. C.) 32 F. 31; Thomas v. State, 124 Ala. 48, 27 So. 315; Beatrice v. Masslich, 108 F. 743, 47 C. C. A. 657; Nichols v. Loyd, 111 Tenn. 145, 76 S.W. 911; Abeel v. Clark, 84 Cal. 226, 24 P. 383; West v. Latah County, 14 Idaho, 353, 94 P. 445; People v. McBride, 234 Ill. 146, 84 N.E. 865, 123 Am. St. Rep. 82, 14 Ann. Cas. 994; Ash v. Thorp, 65 Kan. 60, 68 P. 1067; McEldowney v. Wyatt, 44 W.Va. 711, 30 S.E. 239, 45 L. R. A. 609.

The second objection to the act is that it contains two subjects not related to each other, and that it is therefore void as being in contravention of the section of our Constitution last cited. The rule governing cases of this character is laid down in Cooley's Constitutional Limitations (7th Ed.) p. 247, in the following language:

"If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature intended them as a whole, and if all could not be carried into effect, the Legislature would not pass the residue independently; then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them."

The same authority also uses the following language:

"Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other."

Bearing these definitions in mind, we will proceed to examine the act under consideration. As before remarked, that portion of the act providing for an additional judge in Multnomah county, namely, the first two sections, are easily separable from those sections heretofore held unconstitutional. All matters relating to the transfer of the probate jurisdiction of the county court into the circuit court, and the transformation of the county judge into a circuit judge with varied and variegated powers, could be stricken both from the title and from the act itself, and yet leave a complete act providing for an additional judge.

It is going far into the realm of speculation to say that the additional judgeship would not have been created had the sections providing for such transfer been omitted. On the face of the act they are not so interdependent that we can presume that such a result would have followed the omission of the last four sections. Such a conclusion would be to presume against the constitutionality of an act instead of in its favor; and it is a canon of...