State ex rel. Wagner v. Compson

• Decision Date: 14 September 1898
• Parties: STATE ex rel. WAGNER v. COMPSON.
• Court: Oregon Supreme Court

54 P. 349

34 Or. 25

STATE ex rel. WAGNER v. COMPSON.

Supreme Court of Oregon

September 14, 1898

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

Action by the state, on the relation of Albert I. Wagner, against H.B. Compson. Demurrer to complaint was sustained, and relator appeals. Affirmed.

This is an action maintained in the name of the state, upon the relation of a private party, to oust defendant from a public office. It is alleged in the complaint that on February 17 1893, the legislative assembly chose, for the term of two years, I.A. Macrum, J.B. Eddy, and H.B. Compson, as railroad commissioners, who duly qualified as such, and entered on the discharge of their duties; that said assembly, at its biennial session of 1895, neglected to appoint any successors to said commissioners, who, claiming to hold over, continued to perform the duties of said office and to take the emoluments pertaining thereto; that the legislative assembly in 1897, again failed to choose any railroad commissioners whereupon Macrum and Eddy, still claiming to hold over, took and subscribed the oath of office, and executed bonds for the faithful performance of their duties, but Compson neglected to retake the oath of office or to enter into another official undertaking; that, during a recess of the legislature, a vacancy occurred in the board by reason of the expiration of Compson's term of office, whereupon the governor, on August 20, 1897, appointed the relator, Albert I. Wagner, a railroad commissioner, who duly qualified as such, and at the time of his appointment possessed and now enjoys such qualifications as render him eligible to the office; that prior to the commencement of this action the relator demanded the possession of said office from defendant, who declined and still refuses to comply with such demand, but usurped the said office, which he unlawfully holds to relator's damage, to the injury of the public and contrary to the constitution and laws of the state of Oregon. A demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, having been sustained, the relator declined to amend the pleading, whereupon the action was dismissed, and he appeals.

C.M. Idleman, Atty. Gen., and O.F. Paxton, for appellant.

J.C. Moreland, for appellee.

PER CURIAM.

The contention in behalf of the relator is, first, that the act creating the board of railroad commissioners (Hill's Ann.Laws Or § 4002 et seq.) is unconstitutional, in so far as it attempts to vest in the legislative assembly the power of appointing the incumbents, and that the assumption of that authority by the lawmaking department trenches upon the prerogative of the governor, upon whom the duty of filling vacancies in state offices devolves. But this identical question has twice been held adversely to relator's contention by this court, and can therefore no longer be regarded as an open one. Biggs v. McBride, 17 Or. 640, 21 P. 878; Eddy v. Kincaid, 28 Or. 537, 41 P. 156, 655. The effect of these decisions is that the fundamental law of the state, so far as it relates to the legislature, is a limitation, and not a grant of power, and, this being so, the legislative assembly may exercise any of the powers of sovereignty not prohibited, and that the appointment of persons to office is within the domain of the lawmaking department ( People v. Hurlbut, 24 Mich. 44); or, as is said by Mr. Chief Justice Murray in People v. Langdon, 8 Cal. 1: "The power to fill an office is political, and this power is exercised in common by the legislatures, the governors, and other executive officers of every state in the Union, unless it has been expressly withdrawn by the organic law of the state." Mr. Justice Lord, in State v. George, 22 Or. 142, 29 P. 356, commenting upon the powers of the several departments of state, says: "While our constitution separates the powers of government into three distinct departments, and prohibits any of them from exercising any powers confided to the other, it does not undertake to declare what shall be considered legislative, executive, or judicial acts."

Notwithstanding some contrariety of judicial utterance in relation to the power of a legislative body to appoint persons to office may be found to exist, we think, under a constitution like ours, which does not prohibit such appointments, the rule announced in Biggs v. McBride, supra, is founded in reason and unassailable upon principle. The following cases support this doctrine: Board of Revenue v. Barber, 53 Ala. 589; People v. Osborne, 7 Colo. 605, 4 P. 1074; State v. Covington, 29 Ohio St. 102; People v. Draper, 15 N.Y. 532; People v. Batchelor, 22 N.Y. 128; People v. Woodruff, 32 N.Y. 355; People v. Pinckney, Id. 377; Sturgis v. Spofford, 45 N.Y. 446; People v. Langdon, supra; People v. Hurlbut, supra; State v. Irwin, 5 Nev. 111; State v. Swift, 11 Nev. 128; Mayor, etc., of Baltimore v. State, 15 Md. 376; Bridges v. Shallcross, 6 W.Va. 562; Baker v. Kirk, 33 Ind. 517; State v. Harrison, 113 Ind. 434, 16 N.E. 384; Thorpe v. Railroad Co., 27 Vt. 140. See, also, on this subject, the very able dissenting opinion of Mr. Chief Justice Elliott in State v. Hyde, 121 Ind. 20, 22 N.E. 644.

It is next maintained that, at the expiration of four years from the date of Compson's appointment, the office became vacant, under the provision of the constitution (article 15, § 2) which declares that "the legislative assembly shall not create any office, the tenure of which shall be longer than four years." Section 2 of the act creating the board of railroad commissioners and prescribing its duties reads as follows: "Said commissioners constituting said board shall be chosen biennially by the legislative assembly of the state of Oregon, and shall hold their office for and during the term of two years and until their successors are elected and qualified as in this act provided, and if a vacancy occurs by resignation, death, or otherwise, the governor shall appoint a commissioner to fill such vacancy for the residue of the term." Hill's Ann.Laws Or. § 4003. This act manifestly creates an office the term or tenure of which is two years, with a provision that the incumbent shall hold the office until his successor is elected and qualified. But the contention of relator is that the words, "until his successor is elected and qualified," may, in consequence of a contingency, serve to prolong the incumbent's term of office, in which case the extension resulting therefrom is as much a part of the entire term as any portion of the period specified in the act, and that as a consequence it is violative of the constitution for any one to hold an office created by the legislative assembly more than four years by virtue of one election or appointment. In other words, the contention is that the provision that the incumbent shall hold over until his successor is elected and qualified cannot extend his right, under any circumstances, more than four years; that Compson could legally hold the office by virtue of his appointment for the fixed term of two years and in consequence of the failure of the legislative assembly of 1895 to appoint his successor two years longer, but at the expiration of four years the office became vacant under the constitution, notwithstanding the provision that he should hold until his successor is elected and qualified. The logic of the argument is that the legislature may create an office the term of which shall be four years, and may reserve to itself the right to select the incumbent; but it is inhibited, as between the officer and the appointing power, from providing that the incumbent of such office shall hold after the expiration of that time or until his successor is elected and qualified. This position is probably sound, unless section 1 of article 15 of the constitution, which provides that "all officers, except members of the legislative assembly, shall hold their offices until their successors are elected and qualified," applies to the office of railroad commissioner.

The law seems to be settled that, where the duration of an official term is limited by the constitution, the office becomes vacant at the expiration of that term, even though the legislature has provided that the incumbent shall hold until his successor is duly qualified. 19 Am. & Eng.Enc.Law 433; State v. Howe, 25 Ohio St. 588; State v. Brewster, 44 Ohio St. 589, 9 N.E. 849. But when the constitution in one clause inhibits the legislature from creating an office the tenure of which shall be longer than a specified number of years, and in another provides that such officer shall hold until his successor is qualified, the two provisions are to be read and interpreted together, and the result is that the legislature is inhibited from creating an office the tenure of which shall be for a longer period than the time specified in the constitution; but if, at the expiration of that period, no successor has been elected and qualified, the incumbent holds over by the paramount right of tenure, which the constitution supplies until he is superseded by a qualified successor appointed or elected under some provision of law, and a failure of the particular authority to elect his successor does not create a vacancy in the office. State v. Harrison, 113 Ind. 434, 16 N.E. 384. This position is practically undisputed by counsel for the relator, and it is substantially conceded that, if section 1 of article 15 of the constitution applies to...