State ex inf. Moore v. Farnham

• Decision Date: 31 March 1925
• Citation: 234 P. 806,114 Or. 32
• Parties: STATE EX INF. MOORE, DIST. ATTY., v. FARNHAM.
• Court: Oregon Supreme Court

234 P. 806

114 Or. 32

STATE EX INF. MOORE, DIST. ATTY., v. FARNHAM.

Supreme Court of Oregon

March 31, 1925

In Banc.

Original proceeding in quo warranto, by the State, on the information of A. J. Moore, District Attorney for Deschutes County against Ross Farnham. Dismissed.

Jay H. Upton, of Bend (Martin L. Pipes, of Portland and A. J. Moore, Dist. Atty., of Bend, on the brief), for plaintiff.

J. B Hosford, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for respondent.

RAND J.

This is an action in the nature of a quo warranto proceeding which was commenced in this court on the information of the prosecuting attorney for Deschutes county. Under section 2224--45, Or. L., the defendant was appointed by the Governor as a special prosecutor to take charge of and control all prosecutions of persons accused of having violated the state prohibition law in that county, and also the disbursement of all funds provided by law for the enforcement of the prohibition law in that county. Under this appointment and in conformity with the directions of the statute, the defendant, against the objections of the prosecuting attorney of that county, undertook to control said prosecution and to disburse said funds. This action was instituted to have determined the right of the defendant over the objections of the prosecuting attorney, to control said prosecutions and the disbursement of said funds.

The right of the defendant to exercise the powers of a special prosecutor, as provided for in section 2224--45, Or. L., depends upon the constitutionality of that statute which reads as follows:

"And whenever any prosecuting officer shall be unable, or shall neglect or refuse, to enforce the provisions of this act, in his county, or where, from any reason whatever, the provisions of this act (the state prohibition law) shall not be enforced in any county, the Governor as the executive officer of the state shall appoint as many prosecutors as he may deem necessary, who shall be removable at his pleasure, and these, or either of them, shall be authorized and are hereby authorized to sign, verify, and file all complaints, informations and petitions and other papers, the same as the district attorney is authorized to sign, verify and file, and to do and perform any and all the acts that the said district attorney might lawfully do or perform. The Governor in appointing such assistants shall designate the salary or other compensation which they shall receive."

Article 7 of the original Constitution of this state was amended in 1910 (see Laws 1911, p. 7) and as so amended section 17, which had formerly been a part thereof, was entirely omitted therefrom. Prior to said amendment that section read as follows:

"There shall be elected, by districts comprised of one or more counties, a sufficient number of prosecuting attorneys, who shall be the law officers of the state, and of the counties within their respective districts, and shall perform such duties pertaining to the administration of law and general police as the legislative assembly may direct."

Construing this section as it existed prior to said amendment, this court said:

"The district attorney is the law officer of the state, within the limits of his district, with the powers, in the absence of statutory regulation, of the attorney general at common law." State v. Douglas County Road Co., 10 Or. 198, 201.

And in another case this court said:

"The office of prosecuting attorney is provided for, and its duties defined, in part, by section 17, article VII, of the Constitution of Oregon. The office therefore cannot be abolished or the constitutional duties thereof abridged by the Legislature." State v. Walton, 53 Or. 557, 561, 99 P. 431, 433.

Section 2224--45, Or. L., confers upon the Governor the power to appoint special prosecutors to enforce the prohibition law of the state, and vests in said appointees the power to prosecute all persons accused of violating the prohibition law. When the powers thus conferred are exercised by the Governor and his appointees it diverts the prosecuting attorneys of the state and vests in the appointees of the Governor the power to control the prosecution of that class of criminal actions in the courts of their districts. Prior to the amendment, the power to prosecute criminal actions within their districts, regardless of the nature of the charge, was, by section 17 of article 7, vested in the duly elected and acting prosecuting attorneys or their deputies.

Since the exercise by the Governor and his appointees of the powers conferred by section 2224--45, Or. L., would result in depriving those prosecuting attorneys of the state who would be affected thereby of their constitutional powers and duties under section 17 of article 7 of the original Constitution, it is clear that the statute referred to is unconstitutional and void unless the provisions of section 17 of article 7 of the original Constitution have been abrogated or repealed by the amendment of 1910. The 1910 amendment of article 7 of the original Constitution was submitted to the people by initiative petition, and was approved by a majority of the votes cast thereon at the general election held on November 8, 1910, and was, on December 3, 1910, proclaimed by the Governor to have been adopted by the people of the state as a part of the Constitution of the state, and became effective on the date of said proclamation. As so submitted and as so adopted the amendment itself recited (see L. 1911, p. 7):

"Article VII of the Constitution of the state of Oregon shall be, and the same is, hereby amended to read as follows."

This clause designated and identified in clear and unmistakable terms that particular part of the Constitution which was to be amended in case the amendment was adopted. It declared in express terms that if the proposed amendment was adopted article 7 of the Constitution of the state of Oregon should thereafter consist only of those provisions that were set forth and contained in the amendment itself.

It is contended that this clause was a mere caption, title, heading, or preamble to the amendment, and not a part of the amendment itself, and for that reason should be disregarded in determining the effect of the amendment upon those sections and provisions of article 7 of the original Constitution which were not incorporated into or made a part of the amendment itself. It is true that the clause referred to is not a part of the amendment, and is not to be considered in construing anything contained in the amendment. But it is also true that the office of the clause was to point out in unmistakable terms what portion of the state Constitution, as it then existed, was to be abrogated and repealed, and that the proposed amendment, if adopted, should be substituted for the part to be thus abrogated and repealed. That this was the purpose of the clause, that it was so understood by the framers of the amendment, and by the public at large, and that it had the effect intended, is beyond the possibility of successful controversy.

The amendment contains no reference to section 17 of article 7 of the original Constitution or to any of the provisions thereof, and therefore that section was entirely abrogated and repealed, except so far as its provisions were affected by section 2 of the amendment, which reads as follows:

"The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law."

The words "until otherwise provided by law," as used in section 2 of the amendment, clearly imply that the proyisions of section 17 of article 7 of the original Constitution, if preserved and kept in force by the provisions of section 2 of the amendment, should thereafter be subject to the legislative will, and be controlled by any subsequent valid enactment of the Legislature.

The question of whether the provisions of article 7 of the original Constitution which were omitted from article 7, as amended, and which were not preserved by section 2 of said amendment, were abrogated or are still a part of the present Constitution of the state, does not seem to have been necessary heretofore for decision, but this question was referred to or incidentally discussed in the following cases: State ex rel. v. Duniway, 63 Or. 555, 128 P. 853; State ex rel. v. Holman, 68 Or. 546, 137 P. 771; Gibson v. Kay, 68 Or. 589, 137 P. 864; Baskin v. Marion County, 70 Or. 363, 141 P. 1014; State ex inf. v. Holman, 73 Or. 18, 144 P. 429; Phy v. Wright, 75 Or. 428, 146 P. 138, 147 P. 381; Yeaton v. Barnhart, 78 Or. 249, 150 P. 742, 152 P. 1192; Webster v. Boyer, 81 Or. 485, 159 P. 1166, Ann. Cas. 1918D, 988.

In the case first cited the question was whether the Legislature in 1891 had power, in view of section 17 of article 7 of the original Constitution, to create the office of Attorney General and vest him with power to prosecute or defend actions or suits in which the state was a party or interested. In discussing that question in its relation to the 1910 amendment, the court said:

"Article VII, as amended in 1910, omits any reference to this subject, by section 2 thereof leaving the judicial system as now constituted until otherwise provided by law; therefore, the provisions of section 17, article 7, of the Constitution, remain in force."

In the second case, the question was whether the duty of making a jury list rested with the board of county commissioners or the circuit court of Multnomah county under enactments applying to that county. After quoting sections 9 and 12 of article 7 of the original Constitution, the court said:

"Although article VII was so amended by the plebiscite

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