State v. Ware

• Citation: 13 Or. 380,10 P. 885
• Parties: STATE ex rel. SHAW v. WARE, County Clerk, etc.
• Decision Date: 26 April 1886
• Court: Supreme Court of Oregon

10 P. 885

13 Or. 380

STATE ex rel. SHAW v. WARE, County Clerk, etc.

Supreme Court of Oregon

April 26, 1886

WALDO C.J., dissenting.

E.B Watson and George F. Washburn, for appellant, Joel Ware County Clerk, etc.

W.R Willis and O.F. Paxton, for the State.

LORD J.

This is a proceeding for a mandamus, brought by the state of Oregon upon the relation of William S. Shaw, who is alleged to be a citizen and voter of Lane county, Oregon, to compel the defendant and appellant, as clerk of Lane county, Oregon, to correct his notices of election for the general election to be held in said county on the first Monday in June, 1886, by naming therein the office of circuit judge of the Second judicial district 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 of election by naming the office of circuit judge 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 at the general election held in the Second judicial district of the state on the first Monday in June, 1880, Hon. JAMES F. WATSON was duly elected judge of said district by the legal voters thereof, and thereafter duly qualified as such judge, and entered upon the discharge of the duties of said office, and continued so to act until about the first day of February, 1882, when he resigned said office; that on or about said last date Hon. JOHN BURNETT was duly appointed and commissioned by the governor of the state as judge of said district, and continued so to act by virtue of the same until the first Monday in July, 1882; that on the first Monday in June, 1882, at a general election held in said district, Hon.

ROBERT S. BEAN was duly elected judge of said district by the legal voters thereof, and thereafter duly qualified as judge of said district, and entered upon the discharge of the duties of said office, and ever since said time has been and now is the duly elected and qualified judge of said district: that he has not died or resigned said office, but is now discharging the duties thereof, and his six-years term of said office will not expire until the first Monday in July, 1888. The defendant further alleges that his reasons for not naming the office of circuit judge for said district in the notices of election to be held in said county on the first Monday in June, 1886, are that there is no circuit judge of said district of the state to be elected at said election. To the separate answer of the defendant the plaintiff demurred, upon the ground that it did not state facts sufficient to constitute a defense to said writ, or any reason why a peremptory writ should not issue. 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 immediately correct said notices of election by naming therein the office of circuit judge of said district, to be filled at the general election in June, 1886, etc. From this order and judgment the defendant appeals to this court.

Our statute provides that the county clerk shall, at least 40 days before any general election, make out and deliver to the sheriff of his county notices of election, naming the offices to be filled, etc. Code, § 4, p. 566. No objection is raised but what the duty which this section of the statute imposes is ministerial and imperative, and may be enforced by mandamus; but it was questioned at the argument whether the relator had such an interest in the matter as would sustain the proceeding. The case presented is for the enforcement, not of a private, but of a public, right. The relator has no special interest as distinct from the public to require the performance of this duty, but he has an interest in having the duty performed in common with other members of the community. Is this sufficient? Upon reason and authority we think it is. Mr. High says:

"As regards the degree of interest upon the part of the relator requisite to make him a proper party on whose information the proceeding may be instituted, a distinction is taken between cases where the extraordinary aid of mandamus is invoked merely for the purpose of enforcing or protecting a private right, unconnected with the public interest, and those cases where the purpose of the application is the enforcement of a purely public right, where the people at large are the real party in interest; and while the authorities are conflicting, yet the decided weight of authority supports the proposition that, where the relief is merely for the protection of private rights, the relator must show some personal or special interest in the subject-matter, since he is regarded as the real party in interest, and his right must clearly appear. On the other hand, where the question is one of public right, and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party; and the relator, at whose instigation the proceedings are instituted, need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen, and as such is interested in the execution of the law." High, Leg.Rem. § 431; People v. Halsey, 53 Barb. 547; People v. Collins, 19 Wend. 56; County of Pike v. People, 11 Ill. 202; City of Ottawa v. People, 48 Ill. 233; School Trustees v. Ball, 71 Ill. 559; State v. County Judge, 7 Iowa, 186; Hamilton v. State, 3 Ind. 452; State v. Gracey, 11 Nev. 223; State v. Eberhardt, 14 Neb. 201; S.C. 15 N.W. 320.

That the defendant should discharge correctly the duties of his office in respect to the particular matter here sought to be enforced, is a subject-matter in which the relator as a citizen and voter of the county has a general interest, and, in the absence of any other vital objection affecting the remedy by mandamus, that interest is, of itself, sufficient to enable him to maintain this proceeding. Notice to the electors lies at the foundation of any popular system of government. Our laws in respect to elections are framed upon this system, and the duty enjoined upon the clerk by our statute in "naming the offices to be filled" in the election notices recognizes the importance of such a requirement; nor have we been referred to any cases wherein the courts have refused to sustain a proceeding in mandamus upon the relation of an elector, where the law devolved the duty upon the officer to give such notice. In State v. Brown, 38 Ohio St. 345, the court held that a proceeding in mandamus, to compel the sheriff to give notice and make proclamation to the qualified voters of the county to elect a judge of the court of common pleas therein, was properly instituted upon the relation of an elector of such county. The objection there was as here; but to this court answered: "The relator, as a citizen of Clermont county, is interested in having the proper number of courts and judges to administer justice therein. As an elector he would be entitled to vote at the election, if an election were proper, and would be himself eligible to the office." In Wise v. Bigger, 79 Va. ---, the question to be decided was as to the validity of an act of the legislature apportioning the representation of the state in congress. The proceeding was for a mandamus, instituted upon the relation of Wise as a citizen, and the court held that when the right sought to be protected or enforced by mandamus was a public right, it was sufficient that the relator was a citizen, and as such interested in the execution of the law, and that in such a proceeding it was the indisputable and clear function of the court to pass upon the constitutionality of legislative acts. See Marbury v. Madison, 1 Cranch, 172. We must therefore pass this objection as untenable.

The more important feature of this case remains now to be considered. The object of the proceeding is to determine whether that portion of the act of 1878 which provides for the election of circuit judges in 1886 is constitutional. This, in effect, is to determine whether the present incumbent of the office of circuit judge of the Second judicial district, and all others similarly situated, is filing an unexpired term, or a term of six years by election. The question therefore, to be decided is whether the office of circuit judge becomes vacant on the first Monday in July, 1886. The proper determination of this question must necessarily depend, in a great measure, on the construction to be given to several provisions of our constitution to which we shall presently advert. But there are some preliminary inquiries necessary to be made which will materially aid in the explanation of that construction. An "office" is defined to be a right to exercise a public or private employment, and to take the fees or emoluments thereunto belonging. 2 Bl.Comm. 36. It is said to be a public station or employment, conferred by the appointment of government. U.S. v. Hartwell, 6 Wall. 393; Abb.Law Dict. tit. "Office." In theory of the common law the king was the source of all power, and the disposer of offices. All public offices were granted by him on the condition of good behavior, and no public office could be granted for years or a term. Jac.Law Dict. tit. "Office." From whatever cause a vacancy might occur in a public office, the office reverted to the king, to be again filled, or granted by him for life, conditioned on good behavior, or durante beneplacito. As...