State ex rel. Sherman v. George

• Citation: 29 P. 356,22 Or. 142
• Parties: STATE ex rel. SHERMAN v. GEORGE et al.
• Decision Date: 22 March 1892
• Court: Supreme Court of Oregon

29 P. 356

22 Or. 142

STATE ex rel. SHERMAN v. GEORGE et al.

Supreme Court of Oregon

March 22, 1892

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

Quo warranto proceeding on the relation of D.F. Sherman against M.C. George, E.A. King, J.L. Sperry, C.H. Meusdorffer William M. Ladd, John Parker, C.C. Redman, and T.W Pittinger, to test their rights to hold the positions of bridge committeemen of the city of Portland. From a judgment dismissing the action plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by LORD J.:

This was a proceeding in the nature of a quo warranto, brought by the state upon the relation of D.F. Sherman, a citizen and tax-payer, to try the title of the respondents to hold the office of bridge committeemen under the act of the legislative assembly commonly known as the "Meusdorffer Act." By section 2 of said act it is provided that "the power and authority given to the cities named in section 1 hereof, since consolidated as the city of Portland, to construct, purchase, and hire and keep up and maintain bridges across the Willamette river, and to issue and dispose of bonds therefor, shall be exercised, as hereinafter provided, by eight tax-payers of Multnomah county, to be appointed by the two judges of the circuit court for said county, who shall be styled the 'Bridge Committee.' " The act then directs that within 30 days after the time it takes effect it shall be the duty of said judges to appoint the committee referred to in section 2, and to cause notice of such appointment to be served on each person appointed. Within 20 days after notice of their appointment the members of the committee are directed to meet, and organize by the election of a presiding officer from their number, who shall be styled the "Chairman of the Committee;" by the selection of a clerk, who shall be styled the "Clerk of the Committee;" and the appointment of a treasurer. The committee thus constituted is authorized to fill any vacancy that may occur in that body by death, resignation, removal from the city of which he is a resident, or otherwise, by appointment of a person to be a member thereof who is a bona fide resident of the city in which resided the member he is appointed to succeed. Whenever, and, in the judgment of the committee, as soon as, the several bridges are procured as contemplated, or the limit of the sum of money authorized to be expended has been reached, the act commands the selection of four persons, whose duty it shall be to maintain, manage, and keep the bridges in repair. These shall be styled individually "Bridge Commissioners," and collectively the "Bridge Commission;" and thereafter the power conferred upon the city by the enactment named shall be exercised by said commission in the manner explicitly provided. These commissioners are to be selected in the first instance by the committee from their own number, one each from the members who reside, respectively, in the cities of East Portland and Albina, and two from members who reside in the city of Portland, for the several terms of two, four, six, and eight years. In case a sufficient number do not consent to serve as such commissioners, the remainder may be selected from the resident tax-payers of the respective cities, and thereafter the commissioners shall be appointed by the said judges from such tax-payers in the following manner: If a vacancy arises otherwise than by the expiration of a term, for the remainder of the term; and in case of the expiration of a term, for the full term of eight years thereafter. The commission is required to meet at a time and place to be appointed by the committee, and organized by the election of a chairman, treasurer, and clerk, as provided in the case of the committee. When the commission is elected and organized in accordance with the intention of the law, the committee is directed to turn over to it the bridges and all property pertaining thereto and remaining under the control of the committee. It is then made the duty of the commission to take entire possession and charge of all the property and affairs of the committee, and thenceforward manage and conduct the same. The two judges of the circuit court of the state of Oregon for Multnomah county, acting in pursuance of the authority conferred by the terms of said act, and within the time therein limited, duly appointed the respondents to the position of bridge committeemen, making the selection of the different individuals with reference to their places of residence and other qualifications prescribed. The committeemen met within the proper time, qualified, and organized in all respects in conformity with the law. On the 18th day of November, 1891, John M. Pittinger resigned. The remaining seven members of the committee, at a meeting duly called, appointed T.W. Pittinger, who possessed the requisite qualifications, as his successor. After reciting these and other facts, the petition then alleges "that the defendants to this action, and all and each of them, ever since their said appointment as aforesaid, and under said appointment, have acted as and claimed to be, and are now acting as and claiming to be, the bridge committee of said three cities," etc., "as the same existed prior to said consolidation, and as the same now exists, and has existed since said consolidation; and that said defendants, claiming to be said bridge committee, are about to issue, sell, and dispose of a large amount of the negotiable bonds," etc., "as provided for in said free bridge act, which said bonds will be a burden upon the property of the above-named relator, and the other citizens and tax-payers of the present city of Portland, and subject them to expensive litigation, in order to prevent the assessment and collection of taxes upon their property for the payment of the principal and interest of such bonds," etc.; concluding with a prayer for a judgment of ouster. The defendants demurred to the petition upon the ground of the insufficiency of the facts to constitute a cause of action. The demurrer was sustained by the court below, and judgment rendered dismissing the action, from which judgment this appeal is taken.

Thos. A. Stephens, Dist.Atty., and Paxton & Paddock, for appellant.

Wm. T. Muir, City Atty., for respondents.

LORD, J., (after stating the facts.)

The question presented for our determination arises upon the sufficiency of the facts to show the defendants are entitled to hold the office of bridge committee, and to exercise the functions thereof. The aim of the proceeding is to test the constitutionality of the method provided by the act (Sess.Laws 1891, p. 633) commonly known as the "Meusdorffer Act," for the appointment of the bridge committee. It is insisted that the facts alleged show that the defendants are holding the offices of bridge committee, and exercising the functions thereof without title or legal right, because the two judges of the circuit court for Multnomah county, referred to in the act are prohibited by article 3 of the constitution from exercising the appointing power, or any function other than judicial. This proceeds upon the assumption that the act of the two judges of the circuit court in appointing the bridge committee was not a judicial duty, nor a function pertaining to the judicial department of the government. By article 3 of the constitution the powers of the government are divided into three separate departments,--the legislative; the executive, including the administrative; and the judicial,--and any person charged with official duties under one of these departments is prohibited from exercising the functions or powers confided to either of the other departments, except as in the constitution expressly provided. It is claimed that the two judges of the circuit court, no matter whether they are referred to in the Meusdorffer act as individuals or judicial officers, are persons charged with official duties under the judicial department of the government, as the members of the legislature are under the legislative department; and that by force of this constitutional provision the legislature is prohibited from conferring upon such judges, and such judges from exercising, the power of appointment conferred by the act; and hence such act and all the appointments under it are void. There can be no doubt that there are authorities to the effect that the exercise of the power of appointment to office is an executive act, and that, being such, the power cannot be exercised by the legislature or judiciary under a constitutional provision distributing the powers of government into three separate departments, like our own. But this question, although not directly passed upon by the court in Biggs v. McBride, 17 Or. 640, 21 P. 878, nevertheless received a good deal of its attention. The point was there made that so much of the act creating the offices of railroad commissioners in joint convention of both houses of the legislature was in conflict with the constitution, and void. After referring to article 3 and section 1, art. 5, of the constitution, STRAHAN, J., said: "Now, if it could be shown that the power to appoint all officers which are not expressly made elective by the people is a part of the chief executive power of the state, the appellant's contention would be sustained. But no authority whatever has been cited to sustain this view, nor is it believed that any exists. On the contrary, the provisions of the fifth article of the constitution, which relates to the executive department, all seem at variance with this view. The framers of this instrument evidently designed that no prerogative powers should be left lurking in any of its provisions. No doubt they remembered...