Jory v. Martin
| Decision Date | 14 April 1936 |
| Parties | JORY v. MARTIN, Governor, et al. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Marion County; L. G. Lewelling, Judge.
Suit by Ed A. Jory, a citizen and taxpayer of Oregon, against Charles H. Martin, Governor, and others. From a judgment dismissing the suit, the plaintiff appeals.
Affirmed.
Rodney W. Alden, of Woodburn, for appellant.
Ralph E. Moody, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for respondents.
Plaintiff a taxpayer and resident of this state, brought this suit to enjoin the Honorable Charles H. Martin from receiving or being paid for his services as Governor of Oregon any sum in excess of $1,500 per year and also to enjoin the secretary of state from issuing and the state treasurer from paying any warrants in favor of the Governor which, in the aggregate shall exceed that sum during any one year.
Defendants demurred to the complaint upon the grounds, first, that it failed to state facts sufficient to constitute a cause of suit; and, second, that the plaintiff had no legal capacity to sue. The trial court sustained the demurrer and dismissed the suit, and plaintiff has appealed.
Section 67-601, Oregon Code 1930, provides that the Governor shall receive an annual salary of $7,500. Plaintiff contends that this section contravenes section 1 of article 13 of the State Constitution which provides:
In support of his contention that section 67-601 is unconstitutional, plaintiff says that the language employed in the above provision of the Constitution is plain and free from all ambiguity, and, therefore, that it was not within the power of the Legislature to increase the salary of the Governor over and above the sum specified, and, for that reason, the demurrer was improperly sustained, while the defendants contend that the framers of the Constitution and the people in adopting it intended to fix the sums specified as minimum sums only and did not intend to take from the Legislature the power to increase the salaries of any of the officers so mentioned, whenever, in its discretion, it was deemed proper to do so. Their argument is that, since no negative words were used in this section of the Constitution and no express prohibition is contained in it, limiting the power of the Legislature to increase the compensation of said officers, the matter of providing for future increases in such salaries was intended to be left to the discretion of the Legislature and not to be fixed irrevocably by the Constitution.
Before considering these contentions, it is proper to state that this provision, if intended to constitute any limitation upon the powers of the Legislature to increase such salaries, was a part of the Constitution as originally adopted by the people at an election held on November 9, 1857, and has never been amended except as to the salaries of the justices of the Supreme Court, which, by section 1 of article 7, adopted on November 8, 1910, were taken out of the operation of the above section and were thereafter expressly made to be such as may be provided by law.
To sustain their contention, defendants call attention to the many provisions of the Constitution in which words of negation or express prohibition are used to limit the powers of the Legislature, and particularly to section 29 of article 4 and section 10 of article 7 of the Constitution. The first section, in part, provides: The last provision provides: "When the white population of the state shall amount to two hundred thousand, the legislative assembly may provide for the election of supreme and circuit judges in distinct classes, one of which classes shall consist of three justices of the supreme court, who shall not perform circuit duty," etc.
Because of the express prohibition contained in the provision first above quoted that the compensation of the members of the Legislative Assembly shall not exceed $3 a day, it was held in Jones v. Hoss, 132 Or. 175, 285 P. 205, that the Legislature had no power to increase the compensation of its members above the amount specified in the Constitution, while in State v. Cochran, 55 Or. 157, 104 P. 419, 105 P 884, 892, it was held that section 10 of article 7, which provided that "one of which classes shall consist of three justices of the supreme court," did not limit the power of the Legislature to increase the number of justices of the Supreme Court to more than three. The defendants cite the case last cited as an authority to support their contention that, since there are no negative words or express prohibition contained in section 1 of article 13, as were employed in section 29 of article 4, that there was no intention upon the part of the framers of the Constitution and the people in adopting it to limit the powers of the Legislature to increase the salaries of the officers named therein. The reason, of course, for the express prohibition in the one case and not in the other, although not destroying the force or effect of defendants' argument, obviously is that, in the absence of such prohibition, the Legislature, by its own action alone, could increase the compensation of its members to any amount desired, while no increase could be obtained in the salaries of the officers mentioned in section 1 of article 13, except by legislative enactment.
It must be borne in mind that the convention which framed the Constitution was convened on August 17, 1857, and adjourned thirty-two days thereafter and that the Constitution was adopted by the people at an election held on November 9, 1857, and went into effect on February 14, 1859, upon the admission of the state into the Union, and that, at the time of its admission, the state had a population of only 53,000.
It must also be remembered that the framers of the Constitution were far-seeing men who must have visioned that there would be a great future increase in the population of this state and that the time would soon come when these salaries would be wholly insufficient to compensate the Governor, secretary of state, state treasurer, and the justices of the Supreme Court for their services. The framers knew that the duties and responsibilities of these officers would be increased in proportion to the increase in population and the development of the state, and, knowing this, it is reasonable to suppose that had the framers intended to take away from the Legislature the power to increase these salaries and to make their increase impossible except by an amendment of the Constitution, they would have said so in plain and unmistakable language and not have left the matter in doubt.
It must also be remembered that some of the ablest lawyers of their time were members of the convention and knew the importance and necessity of limiting the power of the Legislature by the use of negative words, and this is shown in numerous provisions of the Constitution, as will be seen from an examination thereof. It must also be borne in mind that the framers of the Constitution and the people in adopting it, without expressly providing that these salaries should not be increased, were not dealing with any question involving the fundamental rights or liberties of the people or any essential attribute of state government, but were dealing with a matter that, upon changed conditions, would be peculiarly within the discretion of the Legislature, and, hence, there is no presumption that these salary provisions, which are matters of temporary concern only, could not be changed without an amendment of the Constitution.
We must also remember that our Constitution, like all other State Constitutions, is not to be regarded as a grant of power, but rather as a limitation upon the powers of the Legislature and that the people, in adopting it, committed to the Legislature the whole lawmaking power of the state, which they did not expressly or impliedly withhold. Plenary power in the Legislature, for all purposes of civil government, is the rule, and a prohibition to exercise a particular power is an exception. It therefore is competent for the Legislature to enact any law not forbidden by the Constitution or delegated to the federal government or prohibited by the Constitution of the United States. State ex rel. v. Steele, 39 Or. 419, 65 P. 515; Rockhill v. Benson, 97 Or. 176, 191 P. 497; Eastern & Western Lumber Co. v. Patterson, 124 Or. 112, 258 P. 193, 264 P. 441, 60 A.L.R. 528; Latourette v. Clackamas County, 131 Or. 168, 281 P. 182; v. Britting, 132 Or. 572, 287 P. 74; People v. Draper, 15 N.Y. 532, 543; Cooley, Const.Lim. (8 Ed.) p. 176.
In David v. Portland Water Committee, 14 Or. 98, 109 12 P. 174, 178, Mr. Justice Thayer, speaking for the court, said: ...
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State v. Ciancanelli
...frequently has resorted to later-enacted statutes to determine the meaning of the constitution. For example, in Jory v. Martin, 153 Or. 278, 293-95, 56 P.2d 1093 (1936), the court determined the meaning of the constitution by reference to, among other things, legislative enactments during t......
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Horton v. Or. Health & Sci. Univ., Corp.
...the otherwise plenary authority of the legislature. MacPherson v. DAS, 340 Or. 117, 127, 130 P.3d 308 (2006) (quoting Jory v. Martin, 153 Or. 278, 286, 56 P.2d 1093 (1936) (“ ‘Plenary power in the legislature, for all purposes of civil government, is the rule, and a prohibition to exercise ......
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State v. Hirsch/Friend
...constitutional rights and yet chose not to exclude those persons expressly from the right to bear arms. See generally Jory v. Martin, 153 Or. 278, 288, 56 P.2d 1093 (1936) (absence of wording that limited legislative action in provision at issue, in light of presence of limiting wording in ......
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...constitution does not grant the legislature authority but, rather, only limits it. As the Supreme Court explained in Jory v. Martin, 153 Or. 278, 284-85, 56 P.2d 1093 (1936): "We must also remember that our constitution, like all other state constitutions is not to be regarded as a grant of......