« ForrigeFortsett »
ligence on her hearing the bell rung, but upOn the mere ringing thereof. The language suggested to the court was not, in our opinion, Sufficient, under all the circumstances involved, and though the defendant was entitled to have its theory of the case submitted to the jury, the requested instruction WaS too reStricted. *
No issue is made by the pleadings as to the Want of either natural or artificial light, but as the testimony tends to show that at the time of the injury the place where it occurred was dark, the court properly kept in mind that fact, as a condition from which the jury might deduce the plaintiff's Contributory negligence, only in case they found she heard the ringing of the bell before she attempted to cross the railroad track. If the darkness had been called to the attention of the jury in any part of the charge, SO that a finding thereon had been requested, the statement thereof, though hypothetically made, would probably have been erroneous, because it Was not predicated on any fact maintained by either of the parties and controverted by the other. Woodward V. Oregon R. & N. Co., 18 Or. 289, 22 Pac. 1076; Buchtel V. Evans, 21 Or. 309, 28 Pac. 67; Coos Bay R. R. Co. v. Siglin, 26 Or. 387, 38 Pac. 192.
The darkness has been adverted to by way of argument and to explain that as no light on the engine or employé's lantern was visible to the plaintiff, when she attempted to cross the track, it was necessary that she should have heard the ringing of the bell. As the requested instruction was faulty in not Specifying that fact, no error was committed in refusing to give it.
It follows from these considerations that the judgment Should be affirmed, and it is so Ordered.
STATE V. COCHRAN. (Supreme Court of Oregon. Dec. 21, 1909.)
1. CouRTs (§ 205*)—SUPREME CouRT—JURIsDICTION-QUESTION OF CONSTITUTIONALITY OF OFFICE OF SUPREME JUDGE. The Supreme Court will take jurisdiction of a collateral attack on the constitutionality of the offices of certain of its members.
[Ed. Note.—For other cases, see Courts, Cent. Dig. $495; Dec. Dig. § 205.*]
2. CONSTITUTIONAL LAW (§ 13*)—CONSTRUCTION OF CONSTITUTION.—OBJECT AND PURPOSE. In construing the Constitution, its object and purpose must be considered, and it must not be interpreted on narrow or technical principles, but on broad general lines, that it may accomplish the object intended, and the presumption and legal intendment is that each and every word, clause, and sentence in a written Constitution has been inserted for some useful purpose, so that it must be construed as a Winole.
[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 10; Dec. Dig. § 13.*]
3. CONSTITUTIONAL LAw (§ 15*)—CoNSTRUCTION OF CONSTITUTION – TWO CONSTRUCTIONS. . Where two constructions of a Constitution are possible, one of which raises a conflict or takes away the meaning of a section, sentence, phrase, or word, and the other does not, the latter construction must be adopted, or the interpretation which harmonizes the Constitution as a whole must prevail.
... [Ed. Note:-For other cases, see Constitutional Law, Cent. Dig. § 9; Dec. Dig. § 15.*]
4. CoNSTITUTIONAL LAW (§ 26*)—NATURE OF
... A state Constitution, unlike a federal Constitution, is one of limitation and not a grant of powers, and any act adopted by the Legislature not prohibited by the state Constitution is valid, and the inhibition must expressly or impliedly be made to appear beyond a reasonable doubt.
[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 30; Dee. Dig. § 26.*]
5. COURTS (§ 42*) – SUPREME CourTS – INCREASE OF JUDGES-CONSTITUTIONAL PROVISIONS. Bill of Rights, § 10, declares that justice shall be administered openly and without purchase, completely and without delay, and that every man shall have remedy by due course of law, etc., to the end, as the preamble declares, that justice be established, order maintained, and liberty perpetuated. Const. art. 7, § 1, provides that the judicial power of the state shall be vested in the Supreme Court, circuit courts, and county courts. Section 2 provides that a Supreme Court shall consist of four judges, to be chosen in districts by the electors thereof, and that the number of districts may be increased, but shall not exceed five until the white population of the state shall amount to 100,000, and shall never exceed seven. Section 10 provides that, when the white population amounts to 200,000, the legislative assembly may provide for the election of supreme and circuit judges in distinct classes, one of which classes shall consist of three judges of the Supreme Court, who shall not perform circuit duty, and the other class shall consist of the necessary number of circuit judges, etc. Held, that in view of the rule that a state Constitution is a limitation and not a grant of power, and that prohibitions must be strictly stated, and in view of the fact that section 10, Bill of Rights, would ultimately require more than five circuit and three supreme judges to dispense justice, if such a number were required by a population of 200,000, article 7, § 10, must be deemed to provide that, when the state should reach the population requiring a separation into distinct classes, the number of supreme judges should begin with three and no less, leaving the additional number to be determined under the future conditions as they might arise.
[Ed. Note.—For other cases, see Courts, Cent. Dig. § 164; Dec. Dig. $42.*]
6. CourTS (§ 42*)—SUPREME COURT-INCREASE OF JUDGES—CONSTITUTIONAL PROVISIONS.
A determination that the state had reached that stage of advancement where more members of the Supreme Court had become essential to the carrying out of the purposes of the Constitution as expressed in its preamble, and in section 10, Bill of Rights, resting with the legislative assembly only, Laws 1909, p. 99, c. 50, declaring such an emergency, and increasing the number of judges from three to five, was constitutional.
[Ed. Note.—For other cases, see Courts, Cent. Dig. § 164; Dec. Dig. $42.*]
On motion to affirm judgment, and for rehearing. Motion denied. For former opinion, see 104 Pac. 419.
In support of motion, in the first instance, appeared A. M. Crawford, Atty. Gen., and J. H. Page, Dep. Dist. Atty. In opposition there was a brief over the names of Thos. O'Day, for appellant, and Martin L. Pipes, amicus curiae. In opposition to the motion there was a brief, amici curiae, Over the names of the following counsel: A. E. Clark, Chas. H. Carey, S. B. Linthicum, M. G. Munley, Dan J. Malarkey, John F. Logan, W. W. Cotton, Platt & Platt, John P. Kavanaugh, James B. Kerr, S. B. Huston, Bauer & Greene, Arthur C. Spencer, Veazie & Veazie, John H. Hall, Franklin T. Griffith, Alex Bernstein, D. Solis Collen, C. M. Idleman, Cole & Cole, W. T. Muir, Ralph W. Wilbur, Rollock & Zollinger, Graham, Cleeton & Davis, Roger B. Sinnott, Harrison Allen, Schuyler C. Spencer, Ralph E. Moody, Russell E. Sewall, Milton W. Smith, Conley & De Neffe, William Brewster, W. C. Benbow, John Manning, W. E. Thomas, Jerry Bronaugh, Gus C. Moser, John C. McCue, John H. Stevenson, W. W. Banks, Chas. J. Schnabel, W. P. La Roche, Allen R. Joy, J. H. Middleton, McAllister & Upton, John A. Collier, H. E. Collier, A. C. Emmons, J. Frank Shelton, James McCain, Frank W. Fenton, W. T. Vinton, B. A. Rliks, Joseph E. Hedges, E. B. Tongue, C. A. Hardy, John A. Carson, W. H. Holmes, W. M. Kaiser, N. L. Butler, Oscar Hayter, J. E. Sibley, Gale S. Hill, Walter L. Tooze, Jr., W. R. Bilyeu, J. K. Weatherford, Percy R. Kelly, J. J. Whitney, W. S. McFadden, J. F. Yates, E. R. Bryson, E. E. Wilson, Ed Horgan, George Denman, J. A. Buchanan, W. Lair Thompson, A. S. Bennett, C. E. WoodSon, Stephen A. Lowell, J. P. Winter, Roscoe R. Johnson, Turner Oliver, William Miller, J. L. Rand, J. N. Hart, M. L. Olmsted, Samuel White, James R. Nichols, Brooke & TOmlinsOn, R. G. Wheeler, G. W. Hayes, C. H. Leonard, C. L. McNary, and John H. McNary. In reply, supporting the motion, there Was a brief over the names of A. M. Crawford, Atty. Gen., Geo. J. Cameron, Pros. Atty., J. H. Page, Dep. ProS. Atty., and A. King Wilson, for respondent.
McBRIDE, J. The Attorney General and one of the deputy district attorneys for Multnomah county, on behalf of the plaintiff, by a motion calling for the issuance of a mandate affirming the judgment of the trial court in the above cause, seek to question the constitutionality of chapter 50, p. 99, LaWS 1909. This act increases the number of justices, comprising this court, from three to five, and provides for the immediate appointment by the Governor of two justices, in addition to those already in office, to hold until their SucceSSOrS are elected and qualified. Under its provisions Mr. Justice
ruary 12, 1909, by the Governor appointed justices of this court, took their oaths of . office, and, in the manner provided by the act, entered upon their duties, and have at all times since been acting in that capacity, recognized as such by their associates, as well as by the executive, and all other departments and officials of the State, including the Attorney General and district attorneys, as well as by all other counsel having busineSS before this court. Thé former opinion in this cause, being the one giving rise to this controversy, was prepared by Mr. Justice King and concurred in by Mr. Justice Slater and by the writer of this opinion, but dissented from in an opinion by Mr. Justice Eakin, in which disSent Mr. Chief Justice MOOre COncurred. See 104 Pac. 419. By the motion, and argument in its support, it is insisted that the lawfully constituted court consists Of Chief Justice Moore, Justice Eakin, and the writer, who hold their respective offices under laws in force prior to the act brought in question, by reason of which it is contended that Chief Justice MOOre and Mr. Justice Eakin Constitute a majority of the legally constituted court, and that their opinion should be treated as the majority opinion, and the majority Opinion as filed be deemed a dissenting opinion only. A peculiar situation confronts us at the Very threshold of this proceeding. The motion is not addressed to those memberS Of this body, who, it is claimed by the plaintiff, are the constitutional judges, but is addressed to the court, consisting de facto of five persons; each claiming to be a justice. If the three first named are to pass on the question in the collateral and indirect manner in which it is presented, they must Say to Justices King and Slater: “Gentlemen, we are the legitimate justices of this court, and you are intruders. You will therefore retire, while we proceed to discuss the question as to whether three or five justices constitute our legitimate membership.” In other words, we would thus be required to decide the merits of the controversy before the hearing. Or if all five of the justices sit at the hearing, and One of them should agree With Justices Ixing and Slater that the decision in State V. Cochran was properly rendered by a constitutionally organized Court, the question attempted to be raised on this motion would still be unsettled, for, unless all three of the justices, excepting Ring and Slater, concurred in condemning the constitutionality of the act, a majority Of the court de facto Would be in favor of its validity, and the matter would resolve itself into a struggle as to who would be recognized by the Officers of the court and the state officials. However, the gentlemen, whose tenure of office is indirectly attacked by this motion, have seen fit to submit its decision to that part of the membership of son of which the contingencies here suggested Will not actually arise; but the fact that they might properly so arise furnishes some justification for the theory, which we think, in view of a precedent (to which We Will later refer) of this court, it is unnecessary to adopt, that the question here presented belongs to the domain of legislation rather than judicial determination, or at least that, in the manner here presented, it is not properly before the court. If the question were before the court for the first time, we might hesitate to pass upon it, especially in the form here introduced. The points presented have seldom arisen in this country; but there is respectable authority to the effect that they are political, and therefore not Subject to review by the courts, and, notwithstanding the ViewS to follow, we deem it not inappropriate at this time, before proceeding with a discussion of the merits, to call attention to the Opinions of Some other courts relative thereto. In the case of Luther V. Borden, 7 HOW. 1, 12 L. Ed. 581, a similar question was raised. In that case the people of the State of Rhode Island had become dissatisfied With their government. Rhode Island, when it entered the Union, did not adopt a Constitution, but continued its government under a charter received from Charles II. ItS Legislature, under the charter government, delayed, or refused to authorize by law, the calling of a constitutional convention to adopt a new Constitution. A number of its citizens, claiming to be a majority, assembled, and, holding a constitutional Convention, and Subsequently, an election under the Constitution there adopted, elected executive, legislative, and judicial Officers, and pretended to go into operation as a fullfledged government. The existing government resisted this as an in Surrection and declared martial law, arresting the moverS thereof and imprisoning them. In a case involving the authority of the charter government to make these arreStS, it WaS COntended that the new government was at the time the legitimate government, and that the charter government had been Superseded. Afterwards the charter government called a constitutional convention, adopted a Constitution, and instituted courts thereunder. Before One of these courts, SO instituted by the charter government, the contention was made that the very government from which it held its commission was not the legitimate government at the time of the acts referred to. If Such a contention could be made in that court, necessarily the effect of the decision Would have been to in Validate - the authority of the government, and, accordingly, the court trying the cause. Concerning that question the Supreme Court of the United States, at page 40 of the opinion in 7 HOW. (12 L. Ed. 581), say: “Indeed, we do not see how the question could be
Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the government from Which it is derived; and, if the authority of that government is annulled and overthrown, the power of its courts and Other Officers is annulled With it; and if a State court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted, had been put aside and displaced by an Opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power.” In the case of Brittle v. People, 2 Neb. 198, the right of a colored man to sit upon a jury was questioned, the outcome of which depended upon whether or not the Constitution of Nebraska was in force, in considering which Mr. Justice Crounse, at page 214 of 2 Neb., speaking for the court, after discussing the principles thereby involved, said: “This, then, is the legitimate conclusion, fairly stated as I believe, that must or may follow from any attempt on our part to treat as judicial those questions which are solely political. We are not only able to destroy an entire State government, but, at the same time, present the singular spectacle of a court sitting as a court to declare that we are not a court.” In Re Ah Lee (D. C.) 5 Fed. 899, 908, the Court had under COnSideration SOme Of the provisions of the Constitution here involved. It was a habeas corpus proceeding, and there argued that the circuit as Well as Supreme judges were not de facto officers. The contention was stated (and the same point is urged here) by the court as follows: “That a person cannot be considered an officer de facto unless the Office he is Said to be in legally exists, and, there being no such office as circuit judge Or judge of the circuit court established by the Constitution, the person who acted as judge on the trial of the petitioner in the Court below Was not even a de facto judge.” It Will be remembered that the original Constitution did not create the Office of circuit judge aS Such, but the Supreme and circuit courts were created, which were to be filled by the justices as there designated. The court anSWered the question, Stated in the above language, as follows: “As to the third point, it is sufficient to Say that the Constitution in effect Creates a circuit Court in each county to be held by a justice of the Supreme Court or a circuit judge, as the case may be, and such court is the office of the judge who holds it. A circuit judge's office is the cirhe fills—and such is the place or office filled by the person Who acted as judge upon the trial of the petitioner.” In conclusion the learned jurist held that, whether the law under Which the circuit court and Supreme judges were acting Was unconstitutional Or not, such officials were de facto officers, and the court was therefore precluded from further inquiry in relation thereto in that proceeding, which, as in the case under conSideration, Was a COllateral attack Only. Among other cases bearing upon and SuStaining the rule thus announced by Judge Deady, see, Lang v. Bayonne, 74 N. J. Law, 455, 68 Atl. 90, 15 L. R. A. (N. S.) 93, 122 Am. St. Rep. 391; Walcott V. Wells, 21 Nev. 47, 24 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478; Leach V. People, 122 Ill. 420, 12 N. E. 726; State ex rel. V. Ely, 16 N. D. 569, 113 N. W. 711, 14 L. R. A. (N. S.) 638; Donough V. Dewey, 82 Mich. 309, 46 N. W. 782; Burt V. Winona & St. P. Ry. Co., 31 Minn. 472, 18 N. W. 285; State V. Gardner, 54 Ohio St. 24, 42 N. E. 999, 31 L. R. A. 660; Commonwealth V. McCombS, 56 Pa. 436; Parker V. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567. Respectable authorities, however, are cited by counsel for the plaintiff, holding to a different View to the last above COnSidered, among which is Norton V. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178; but We deem it unnecessary to weigh them, or to determine their applicability to the Case at bar, Or to aScertain Which is the better course to pursue, for a method of procedure, sufficient for this case, was adopted by the unanimOuS decision Of this court in Cline V. Greenwood, 10 Or. 230, in which the constitutionality of the entire court was Challenged COllaterally. In that case, notWithstanding no question Was raised as to the judges of the court being de facto officers, jurisdiction Was entertained to determine the constitutionality of the official positions held by the members of the Supreme Court as first appointed and the question adjudicated, holding all proceedings pertaining thereto regular and in conformity with the provisions of section 10, art. 7, of Our COnStitution. At the time Of the deciSion, Chief Justice LOrd, and his associates, Justices Watson and Waldo, Were the members of the court, while their predecessors, Whose decree was brought into question, were Chief Justice Kelly and associates, Justices Boise and Prim; but, notWithstanding this difference in the personnel of the court, it was, in law, the same court, and the fact remains that the attack WaS collateral. In that case an appeal was taken from the circuit court to the Supreme Court, and there, as in the case under consideration, the decision Of the trial court Was reVersed. See GreenWOOd V. Cline, 7 Or. 17. A decree Was, accordingly, entered upon the mandate Of the Supreme Court. Later the
to set aside this decree, on the ground that the Supreme Court, before whom the cause WaS tried and a decree entered, annulling the Will there in controversy, was not organized in conformity with the Constitution, in that the appointment of the members of the court by the Governor was in direct Violation Of Section 10 Of article 7 of the COnStitution Of the State. It Will thus be Seen that the proceedings there were in legal effect analogous to those taken here, except that here the collateral attack is made by motion in place of by suit, assailing the action of the alleged unconstitutional court. Until Overruled that case is binding upon this court, and We do not entertain Sufficient doubts, concerning the soundness of the course there pursued, to feel justified in disregarding or overruling the precedent thus established, and Will therefore follow the method of procedure there adopted, and determine the points here presented. On their merits. This brings us to the inquiry presented by plaintiff’s motion; that is to Say, is the act of 1909, under which Justices King and Slater were appointed, constitutional, or had the Legislature the power to increase the number of Supreme judges, constituting this court, from three to five? But before entering upon a discussion of the various sections of our fundamental law, bearing upon this question, it is important that we call attention to the general rules of construction under Which COnStitutions are univerSally interpreted. They may be summarized as follows: (1) The object and purpose of the la W, Whether fundamental Or Other Wise, must be considered, and the Constitution must not be interpreted on narrow or technical principles, but liberally and on broad general lines, in order that it may accomplish the objects intended by it and carry out the principles of government. (2) The Whole COnStitution must be COnStrued together. (3) When two constructions are possible, one of which raises a conflict or takes away the meaning of a Section, Sentence, phrase, or word, and the other does not, the latter construction must be adopted, or the interpretation which harmonizes the Constitution as a whole must prevail. In this connection it must also be kept in mind that the Constitution of a State, unlike that Of our national organic law, is one of limitation, and not a grant, of powers, and that any act adopted by the legislative department of the State, not prohibited by its fundamental laws, must be held Valid; and this inhibition must expressly or impliedly be made to appear beyond a reaSOnable doubt. The foregoing principles appear so well settled by a unanimity of decisions, not only in other jurisdictions, but by the courts of this state, since its inception, that they may be deemed elementary; but, Since the COnstruction so earnestly relied upon by the foregoing principles, we deem it appropriate to Call attention to a few declarationS. Of our courts upon the subject. Before doing so, however, we quote from that eminent text-writer and jurist, Judge Cooley, who, as an exponent of constitutional law, has no superior. In his work on Constitutional Limitations ([7th Ed.] p. 241) he states the rule as follows: “It is to be borne in mind, however, that there is a broad difference betWeen the Constitution Of the United States and the COnStitution of the States a S regards the powers which may be exercised under them. The government of the United States is one of enumerated powers; the governments of the states are possessed of all the general powers of legislation. When a law of Congress is assailed as void, we look in the national COnStitution to See if the grant of specified powers is broad enough to embrace it; but, When a state law is attacked on the same ground, it is presumably Valid in any case, and this presumption is a conclusive One, unless in the Constitution Of the United States Or Of the State We are able to discover that it is prohibited. We look in the Constitution Of the United States for grants of legislative power, but in the Constitution of the State to a Scertain if any limitations have been imposed upon the COmplete power with which the legislative department of the state was vested in its creation. Congress can pass no laws but such as the Constitution authorizes either expressly or by clear implication, while the state Legislature has jurisdiction of all Subjects on which its legislation is not prohibited.’
In Cline V. Greenwood, 10 Or. 230, 240, 241, Mr. Justice Lord, speaking for this court, states the principles of the constitutionality of legislative enactments thus: “But, did we entertain any doubt whether the Legislature had exercised its power in the mode prescribed by the Constitution, we should be compelled to dissolve that doubt in favor of the constitutionality of the mode which the Legislature had adopted. Before a statute is declared Void, in Whole or in part, its repugnancy to the Constitution ought to be clear and palpable and free from all doubt. Every intendment must be given in favor of its constitutionality. Able and learned judges have, With great unanimity, laid down and adhered to a rigid rule On this subject. Chief Justice Marshall, in Fletcher V. Peck, 6 Cranch, 128, 3 L. Ed. 162; Chief Justice Parsons, in Kendall v. Kingston, 5 Mass. 534; Chief Justice Tilghman, in Farmers' & Mechanics' Bank W. Smith, 3 Serg. & R. (Pa.) 72; Chief Justice Shaw, in Inhabitants of Norwich v. Hampshire County Com’rs, 13 Pick. (Mass.) 61; and Chief Justice Savage, in Ex parte McCollum, 1 Cow. (N. Y.) 564—have, with one voice, declared that: “It is not on slight implication and Vague conjecture that the Legislature is to be pronounced to have transcended its pow
opposition between the Constitution and the law should be such that the people (judge) feel a clear and strong conviction of their incompatibility with each other.’” In Crowley v. State, 11 Or. 512, 6 Pac. 70, the same eminent jurist further remarked: “A Statute will not be declared Void, in Whole or in part, unless its invalidity is distinctly pointed out and made clearly manifest. The general rule is that every intendment must be given in its favor.” Soon afterwards this court, in passing upon the Subject, in an opinion by Mr. Justice Waldo, in Crawford v. Linn Co., 11 Or. 482, 486, 5 Pac. 738, 740, after observing that, where it appears that an act is in Violation of either the State Or national Constitutions, it must be held invalid, observes: “But, beyond this, there lies a Vast field of power granted to the Legislature by the general words of the Constitution, and not reserved, prohibited, or given away to others. Of this field the General Assembly is entitled to the full and uncontrolled possession. Their use of it can be limited only by their own discretion. ‘There is nothing more easy than to imagine a thousand tyrannical things, which the Legislature may do if its members forget all their duties, disregard utterly the obligations Which they owe to their constituents, and recklessly determine to trample on right and justice; but to take away the power from the Legislature because they may abuse it, and give to the judges the right of controlling it, would not be advancing a single Step, Since the judges can be imagined to be as corrupt and Wicked as legislators.’” In David V. Portland Water Committee, 14 Or. 98, 109, 12 Pac. 174, 178, Mr. Justice Thayer says: “The people of this state possessed originally all legislative power subject to the restrictions contained in the Constitution of the United States, and they have invested the legislative assembly with that power to the fullest extent, except so far as they expressly inhibited its exercise as before suggested. The question in such cases is not as to the extent of power that has been delegated by the people to the legislative assembly, but as to the limitations they have imposed upon that body.” In the recent case of State V. Walton, 99 Pac. 431, it was urged that the indictment was insufficient for the reason that it was not signed by the district attorney, but by his deputy, in discussing which Mr. Justice Bean, for this court, held: “The office of the prosecuting attorney is provided for, and its duties defined, in part, by the Constitution, Section 17, art. 7. The office therefore cannot be abolished Or the constitutional duties thereOf abridged by the Legislature; but there is nothing in the Constitution which restricts the Legislature or lawmaking power from providing that such officer may have deputies to act in his name and Stead.” It is then held that the office of deputy prose