State ex rel. Baker v. Payne

• Decision Date: 30 April 1892
• Citation: 22 Or. 335,29 P. 787
• Parties: STATE ex rel. BAKER v. PAYNE, County Clerk.
• Court: Oregon Supreme Court

29 P. 787

22 Or. 335

STATE ex rel. BAKER v. PAYNE, County Clerk.

Supreme Court of Oregon

April 30, 1892

Appeal from circuit court, Linn county; R.P. BOISE, Judge.

Mandamus on the relation of William E. Baker against N.P. Payne county clerk. Writ allowed. Defendant appeals. Affirmed.

J.K Weatherford and Blackburn & Watson, for appellant.

Montanye & Hackleman, F.P. Mays, and G.G. Bingham, Dist.Atty., for respondent.

LORD J.

This is a proceeding for a mandamus, brought by the state of Oregon upon the relation of William E. Baker, who is alleged to be a citizen and voter of Linn county, Or., to compel the defendant and appellant, as county clerk of said county, to correct his notices of election for the general election to be held in June, 1892, by naming therein the office of attorney general for the state of Oregon to be filled thereat. Upon the presentation of the petition an order was made by the judge that an alternative writ of mandamus issue directed to the defendant, commanding him to correct said notices by naming the office of attorney general of the state of Oregon to be filled at said general election, or show cause why he has not done so. Upon the return day the defendant returned said writ, with his answer annexed thereto, in which he denied all the material allegations in said petition, and for a further and separate defense, in substance, alleged "that, pursuant to the provision of an act of the legislative assembly of the state of Oregon, entitled 'An act to create the office of attorney general, provide the duties, and fix the compensation,' filed in the office of secretary of state February 21, 1891, it was made the duty of the governor of the state of Oregon to appoint a suitable person to be attorney general of the state of Oregon, and that, pursuant to the provisions of the act, his excellency, the governor, did, on or about the 21st day of May, 1891, appoint Geo. E. Chamberlain such attorney general, and that said appointee did thereupon qualify and enter upon the duties of such office, and that he is now the duly-qualified incumbent; that, under the provisions of said act, there is to be elected by the qualified electors of the state of Oregon, at the general election to be held in June, 1894, and every fourth year thereafter, an attorney general, who shall hold his office for the term of four years, and until his successor is elected and qualified, and that the term of the office of attorney general shall commence on the same day as secretary of state, as now provided by law; that such appointee, the present incumbent, as defendant is informed and believes, is entitled to hold his said office until the general election in June, 1894; that for the reasons set out in his answer, and not otherwise, defendant has refused, and still refuses, to give notice of the election of an attorney general; and he prays said writ be quashed," etc., "and for his costs and disbursements." The separate answer was demurred to, and, the cause coming on for hearing, the court sustained the demurrer, and, the defendant refusing further to plead or answer, it was ordered that a peremptory writ issue, directed to the defendant, "commanding him to insert in the notices of election for each election precinct in said county that an attorney general will be voted for and elected at the next general election to be held in June, 1892." From this order this appeal has been taken.

The only question to be determined is whether there is an attorney general to be elected at the next general election in June, 1892, and the solution of this question involves the construction of sections 2 and 5 of an act of the legislative assembly, entitled "An act to create the office of attorney general, provide the duties, and fix the compensation," to be found in the Session Laws of Oregon for 1891, p. 188. The second section of said act reads as follows: "There shall be elected by the qualified voters of the state of Oregon, at the general election held in June, 1894, and each fourth year thereafter, an attorney general, who shall hold his office for the term of four years, and until his successor is elected and qualified; and the term of the office of the attorney general shall commence on the same day as secretary of state, as now provided by law." The provisions of this section relate solely to the election of a person to a full or vacant term of four years in the office of attorney general. They have no reference to a vacancy in a term, or a fractional part of a term. This becomes manifest when the different provisions of the section are examined and their purpose understood. The section provides that an attorney general shall be elected in June, 1894, and every four years thereafter, who shall hold his office for four years, and that the term of his office shall commence on the same day as secretary of state. Here, it will be noted, as regards a full or vacant term to be filled by election, the time of his election, the commencement of his term, and its duration of four years, is the same as is provided for governor, secretary of state, and treasurer. The evident purpose is to preserve uniformity in the tenure of state offices. As the next four-year or full term of these officers will not commence until the second Monday in January, 1895, next after their election in June, 1894, it was necessary, if the attorney general's term was to commence at the same time and be of the same duration, that he should be elected at the same time, namely, in June, 1894. Hence the section provided that an attorney general should be elected in June, 1894, for a term of four years, and that his term should commence on the same day as the term of the office of secretary of state. This construction makes operative every part of the section, without affecting the ordinary meaning of its language, and, unless it is in conflict with some other section of the act, from which it is clear that the lawmaking power intended otherwise, it must be regarded as the proper construction. It is, however, in respect to the construction to be given to section 5 of the act that the controversy mainly arises. This section provides: "Upon the approval of this act, and at any time when a vacancy may by any cause occur in the office of attorney general, the governor shall appoint a suitable person to be attorney general, who shall hold the office until the next general election, when his successor shall be elected and shall qualify as provided for in this act." In our view, this section relates exclusively to a fractional term, or a vacancy in the term of the office of attorney general. It is wholly directed to the filling of an hiatus in a term of such office, which may for any cause become vacant, by appointment, and by election, if a general election should intervene before such part of a term expired after the appointment. When the act became a law, in February, 1891, the office created by it was vacant; but before there could be an election for a term of four years, as provided by section 2, which was to commence on the second Monday in January, 1895, the commencement of the secretary of state's term of office, there existed a fractional part of a term, extending between these periods, which this section contemplated should be filled in the manner provided therein. This vacancy, existing upon the approval of the act creating the office, stands precisely upon the same footing as a vacancy occurring hereafter for any cause, such as the death or resignation of an attorney general elected for a full term. In either of these cases the section, as we construe it, is intended to apply to a fractional or unexpired portion of a term.

It remains now to test the application of this construction of the purpose of section 5, and to ascertain if the result it works out is consistent with that section, and not in conflict with section 2. Upon the approval of the act the governor was authorized by this section to appoint a suitable person to be attorney general. There was then existing a vacancy in the term of the office of attorney general extending over a period of more than three years. It was the fractional part of a term, and, after an appointment was made to fill it, there intervenes a general election to be held in June, 1892, before such term expires, and a new term begins. The section further provides that the suitable person appointed by the governor "shall hold the office until the next general election," which, according to the plain meaning of the words, would be the general election to be held in June, 1892. The "next general election," especially in view of the fact that our constitution provides that general elections shall be held on the first Monday in June, biennially, (section 14, art. 2,) after the appointment of the present incumbent in 1891, is not "the general election held in June, 1894," provided by section 2, but it is the "next general election," which is to be held in June, 1892. Nor is this result affected by the concluding words, "when his successor shall be elected and shall qualify as provided for in this act." "When his successor shall be elected" refers to the "next general election," which precedes "when," or at which time, the "successor" to the person appointed by the governor "shall be elected" and "shall qualify as provided for in this act," which is by filing his certificate with his oath of office indorsed thereon, etc., as prescribed by section 6 of the act. To take the whole section and construe it as we understand it, with explanations, it would read in this wise: "Upon the approval of this act *** the governor shall appoint a suitable person to be attorney general, who shall hold the office until the next general election, when [at which...