State ex rel. Everding v. Simon

• Decision Date: 23 March 1891
• Citation: 20 Or. 365,26 P. 170
• Parties: STATE ex rel. EVERDING v. SIMON.
• Court: Oregon Supreme Court

26 P. 170

20 Or. 365

STATE ex rel. EVERDING v. SIMON.

Supreme Court of Oregon

March 23, 1891

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

(Syllabus by the Court.)

In the construction of a statute the cardinal point is to ascertain the intention of the legislature, but this intention must be ascertained from the words used, in connection with surrounding circumstances.

Where a statute has been amended, resort may be had to the original act to explain any ambiguity which may exist in language of amended act, but not to supply omissions.

Statutes and parts of statutes omitted from a revision are to be considered annulled, and cannot be revised by construction.

An election, in order to be valid, must be held in pursuance of some law authorizing it, in force at the time.

The provision for the general election in the city of Portland does not authorize the election of any officer of the city unless special provision is made by law, either directly or by implication, for the election of such officer for the particular time to which he is seeking to be elected.

Courts cannot, even in order to give effect to what they may suppose to be the intention of the legislature, put upon the provisions of a statute a construction not supported by the words.

When the legislature has omitted, by mistake or otherwise, to make the necessary provisions to carry out its intention, the court cannot by construction supply the omissions.

Where while a person is rightfully in possession of a public office, the legislature abolishes the term and mode of electing his successor, the public necessities requiring that the office be in possession of some one with authority to discharge its duties, he continues to hold it until he shall be superseded by proper legislative action.

Under the provisions of section 1, art. 15, of the constitution a member of the board of commissioners of the city of Portland is authorized to hold the office until his successor is duly elected or appointed under some existing provision of the law.

W.L Boise and John H. Hall, for appellant.

A.F. Sears, Jr., for respondent.

BEAN, J.

This case involves a controversy between the relator, Richard Everding, and the respondent, Joseph Simon, concerning the right to exercise the office of police commissioner of the city of Portland. The facts are these: In 1885, section 72 of the charter of the city of Portland was so amended as to provide that the police force of the city shall be appointed and organized by three commissioners, and prescribing the qualifications and duties of these officers. This act provides that the first three commissioners shall be appointed by the governor, and shall hold their office for one, two, and three years, respectively, from the first Monday in July, 1886; their respective terms to be determined by lot; and, commencing with the general election to be held in the city on the third Monday in June, 1887 there shall be elected, annually, one commissioner, who shall hold his office for three years, and until his successor is elected and qualified. That all vacancies shall be filled by appointment made by the mayor, with the consent of a majority of the common council; and that the commissioners shall take the oath of office required of other city officers, and enter upon their duties within 10 days after their appointment by the governor, or on the first Monday in July succeeding their election when elected by the people. The respondent was appointed, by the governor, one of the commissioners provided by the act, and in the allotment of terms secured the three-years term. In 1889, and before his term had expired the legislature amended the act of 1885, by providing "that section 72 be amended so as to read as follows." The section, as amended, is substantially the same as former acts, except there is omitted therefrom all the provisions concerning the appointment by the governor, term of office, and time and place of election of these officers, and in lieu thereof the following inserted: "The police commissioners now in office shall hold their respective offices until their sucessors are elected and qualified." It also limits the mayor's power of appointment to vacancies caused by death or resignation. At the general election for city officers in June, 1889, the relator was a candidate for police commissioner, and as such candidate received all the votes cast for said office; there being no opposing candidate. He afterwards duly qualified, and demanded of respondent the possession of the office, which was refused; hence this proceeding. By the act of 1889 the office of police commissioner remained, with its duties clearly defined, but with no term fixed, and no provision for an election or appointment to the office except an appointment by the mayor in case of a vacancy occurring by death or resignation; but we are urged to supply these omissions by construction. It is claimed that the language of the act of 1889, "that commissioners now in office shall hold their respective offices until their successors are elected and qualified," and that "the commissioners shall take the oath of office required of other city officers, and enter upon the discharge of their duties on the first Monday in July succeeding their election," evinces an intention on the part of the legislature that the successors of the commissioners then in office should be elected by the people, and that, in order to carry out such intention, recourse should be had to the act of 1885 to supply the omission. The rule is unquestioned that in the construction of a statute the cardinal point is to ascertain the intention of the legislature; but it is just as well settled that this intention must be ascertained from the words used, in connection with the surrounding circumstances. For the purpose of explaining any ambiguity that may exist in the language of the act of 1889, resort may be had to the act of 1885, sought to be amended; but the parts of the former act omitted in the revision cannot be supplied under the guise of construction. The rule seems to be that statutes and parts of statutes omitted from a revision are to be considered annulled, and cannot be revived by construction. They cannot be read into the latter statute, so as to restrict its operation; and this, although it seems likely that the omissions were unintentional. End. Interp. St. §§ 202, 384; Woodbury v. Berry, 18 Ohio St. 456. All the provisions of the act of 1885 fixing the terms of office of police commissioner, and providing for an election for such office, are omitted from the act of 1889, and this court cannot assume that provisions of such vital and far-reaching importance were unintentionally omitted. State v. Clark, 57 Mo. 25. It seems more probable, from the manner in which the omissions occurred and the substituted language, that the legislative act was intentionally and deliberately done, with a design to insert the proper provisions in some other part of the statute.

The term of office is not fixed by the act of 1889, nor is there anything in the language from which the length of such term can be inferred. The three-years term provided by the act of 1885 has been omitted in the amendment, and must therefore be considered repealed. If the court should undertake, by any possible construction of the language "until their successors are elected and qualified," to ascertain the length of the term intended, what term would it declare? Not three years,--the former term,--because that has been expressly abolished, and the legislature has thereby indicated an intention to make some change in the length of the term, or at least we must conclude that it so intended. It will readily be perceived, then, that this omission cannot be supplied by the court without assuming the functions of the law-making power, and this a court cannot do. It is our legitimate province to interpret legislation, but not to supply omissions.

Nor do we think there is anything in the language of the act of 1889 that can be construed to authorize an election for the office in controversy. It is provided, it is true, "that commissioners now in office shall hold their respective offices until their successors are elected and qualified," and that "the commissioners shall enter upon the discharge of their duties on the first Monday in July succeeding their election;" but this does not in any way authorize an election. It may, and perhaps does indicate an intention on the part of the legislature that such officers should be elected, but, unless some provision is made for carrying out such intention, it is of no avail. An election, in order to be valid, must be held in pursuance of the provisions of some law authorizing it, in force at the time. There is no inherent reserved power in the people to hold an election. People v. Bull, 46 N.Y. 67; State v. Jenkins, 43 Mo. 261; People v. Johnston, 6 Cal. 673; Matthews v. Commissioners, 34 Kan. 606, 9 P. 765; State v. Sims, 18 S.C. 460. This rule was recognized in the act of 1885, and the time and place of the election provided; but the act of 1889 contains no such provision, nor does it contain anything from which it can be inferred. Our attention has been called to section 11 of the charter of the city of Portland, which provides for the annual city election. This is only a provision for the general election, and certainly does not authorize the election of any officer of the city, unless special provision is made by law, either directly or by implication, for the election of such officer for the particular term to which he is seeking to be elected. Sawyer v. Haydon, 1 Nev. 75; McKune v. Weller, 11 Cal. 49. As we have already seen, there is no provision of law for...