State ex rel. Shaw v. Ware

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 nam — 381 — ing 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 gaid 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'date has been and now is the duly elected and qualified judge of said district; that he has not died nor resigned said office, but is now discharging the duties thereof, and his six-years term of 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 npon the ground that it did not state facts sufficient to constitute a defense to said writ, or any reason why a — 382 — 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 forty 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, 566, sec. 4.) 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 — 383 — 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 on Legal Remedies, sec. 431; People v. Halsey, 53 Barb. 547; People v. Collins, 19 Wend. 56; County of Pike v. State, 11 Ill. 202; City of Ottawa v.. People, 48 Id. 233; School Trustees v. Ball, 71 Id. 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.) 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. — 384 — 345, the court held that a proceeding in mandamus to compel the sheriff to give notice and make proclamation to the qualified voters of a 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 the court answered: il 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 filling 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 determina — 385 — tion 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 Bla. Com. 36.) It is said to be a public station or employment, conferred by the appointment of government. (United States v. Hartwell, 6 Wall. 393; Abbott’s 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. (Jacob’s 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 beneplácito. As a consequence, there could not be a vacancy in the term of a public officer. At common law, therefore, vacancy ex vi termini, means vacancy in the office, and not in the term. And this is ordinarily the meaning attached to the word when a vacancy is spoken of; we mean that the office is empty; that it is without an incumbent who has a right to exercise its functions and take its fees or emoluments. In this country, where written constitutions prevail, the great majority of public offices are elective, having a fixed term for a prescribed number of years, with varying provisions as to filling vacancies. The term of an office is said to be a fixed period prescribed for holding the office. (People v. Brundage, 78 N. Y. 407.) And is the estate or interest which the incumbent has in it. — 386 — (2 Bla. Com. 144.) When a vacancy happens hy death, resignation, or removal, the term is gone, and the office reverts, as at common law, not to the king, but to the people, to be again filled upon like conditions, for the full term prescribed, unless by express provision or manifest intent, the constitution has limited or restricted the term of the new. incumbent. Whether, therefore, the vacancy is in the office as at common law, and reverts to the people to fill for the full term prescribed, or so to speak, the vacancy is in the term, and limited to filling for the unexpired portion thereof, is made to depend upon the intent of the framers as expressed in the constitution. But when the constitution fixes a definite term of office, as for six years, without any limitation or reference whatever to unexpired terms, there, when a vacancy occurs, the common-law acceptation, meaning vacancy in office, must be received and applied. in the construction, and when filled, the incumbent is vested with a full term of six years. A reference to some of the adjudicated cases will illustrate the application of this principle. In Ex parte Meredith, 33 Gratt. 120, the question to be decided was, whether Judge Wheedon was elected and entitled to hold for the full constitutional period of six years, or for the remainder of Judge Nicoli’s unexpired term. The provision of the constitution was as follows: “ County judges shall be chosen in the same manner as the judges of the Circuit Court. They shall hold their offices for a term of six years, except the first term under this constitution, which shall be three years.” The court say: “It will be observed there is no reference whatever to unexpired terms of judicial officers. .... Whenever elected, and for whatever purpose elected, the incumbent shall hold for six years. The language is general and positive.” And the court held that the judge who had — 387 — been elected to fill a vacancy occasioned by the death of the former judge was elected for a full term of six years, and not for the unexpired term of the former judge. In Sansbury v. Middleton, 11 Md. 313, the court was required to give a construction to the fourteenth section of the fourth article of the constitution, which provided that “ there shall be in each county a clerk of the Circuit Court, who shall be elected ” by the people, “ and shall hold his office for the term of six years from the time of his election, and until a new election is held,” and “ in case of a vacancy in the office of a clerk,” the judge of the court shall “ appoint a clerk until the general election of delegates held next thereafter, when a clerk shall be elected to fill such vacancy.” Bartol, C. J., in delivering the opinion of the court, said: “ By the express words of the section, the term of office of a clerk to be elected by the people is declared to be for ‘six years from the time of his election, and until a new election is held.’ This applies not merely to the officer chosen at the first election, but to every one who is legally elected by the people afterwards; and is conclusive of the question before us, unless there is something found in the same section, or in some other part of the constitution, which limits the term of such officer.....It is true that the word vacancy, when used in written constitutions with reference to a public officer, sometimes signifies an unexpired term, but this is not necessarily so. It often relates merely to the office, without reference to the term, and in this case, the very words of the section under consideration so limit and define it. The case provided for is a vacancy in the office of clerk, and the election is to fill such vacancy. What vacancy? Clearly in the office, and not in the term.” And it was held that a clerk elected by the people to fill a vacancy under this clause of the constitution holds his office for — 388 — six years from the time of his election, and not simply for the unexpired term of his predecessor. In the matter of the tenure of the judges (16 Fla. 841), in which the supreme judges expressed to the governor their construction on a provision of the constitution of that state which provided “ there shall be seven circuit judges appointed by the governor and confirmed by the senate, who shall hold their office for eight years,” the question to be decided was, whether a judge of the Circuit Court, appointed by the governor and confirmed by the senate, holds his office for eight years in a case where there has been a previous incumbent, who, while appointed for eight years, has filled the office only a part of the time. Westacott, answering, said: “There is nothing in this provision which limits the time of service of one appointed by reference to the time served by a previous one.....Unless there is some other provision of the constitution limiting or otherwise explaining this language, it must have the usual and ordinary effect. There is nothing here establishing a term of office to exist between fixed dates of months or years. Nor is there anything having the most remote reference to an unexpired term, or to a vacancy in an office, as distinct from the office itself. There is no other provision of the constitution which changes or affects this section.” And the conclusion reached was: “That a judge of the Circuit Court, appointed by the governor and confirmed by the senate, holds his office for eight full years, and that no part of a previous eight years during which another has held the office (but who has vacated it) enters into the computation of the time for which the second appointee holds.” In this state, where a similar question was involved upon a constitutional provision of like import, the holding of the court was consonant with this principle. In — 389 — State v. Johns, 3 Or. 533, the court, by McArthur, J., in construing a section of our constitution which provides for the election of, “in each county, for the term, of four years, a county judge,” held that in the absence of any “constitutional or statutory prohibition,” a county judge, whenever elected, holds for the full term of four years. (See also People v. Weller, 11 Cal. 77; Opinion of the Justices, 61 Me. 603; People v. Green, 2 Wend. 266.) Section 3 of article 7 of the constitution of this state provides that “the judges first chosen under this constitution shall allot among themselves their terms of office, so that the term of one of them shall expire in two years, one in four years, and two in six years, and thereafter one or more shall be chosen every two years, to serve for the term of six years.” Section 4 provides that “every vacancy in the office of judge of the Supreme Court shall be filled by election for the remainder of the vacant term, unless it would expire at the next election, and until so filled, or when it would so expire, the governor shall fill the vacancy by appointment.”* Section 10 provides that “when the white population of the state shall amount to two hundred thousand, the legislative assembly may provide for the election of supreme and circuit judges in distinct classes, one of which classes shall consist of three justices of the supreme court, who shall not perform circuit duty, and the other class shall consist of the necessary number of circuit judges, who shall hold full terms without allotment, and who shall take the same oath as supreme judges.” It will be perceived that the term of office prescribed by section 3 is limited and restricted in the event of a vacancy by section 4, to be filled by election for the remainder of the vacant term, unless it would expire at the next election, etc. In 1878 the legislature, conceiving that the state contained the requisite population, passed an act which — 390 — provided for the election of supreme and circuit judges in distinct classes, for the purpose of carrying into effect section 10 of the constitution. Prior to the act of 1878 the supreme judges did appellate and circuit duty under the constitution. Under that system there were two courts as now — supreme and circuit — hut the judges who performed the duties of these courts were styled in the constitution supreme judges. There was no such officer as circuit judge eo nomine. The term of the supreme judges, who in fact performed the duties and filled both offices, was for six years, except that the supreme judges first chosen under the constitution were to allot their terms, but thereafter the term was for six years. But this term of the supreme judges in case of vacancy by death, resignation, or otherwise, was to be filled by election for the remainder of the unexpired term. This necessarily' affected both offices alike, notwithstanding the allotment, when a vacancy occurred, and limited the election of the new incumbent to the residue of the unexpired term. The latter part of section 10 provides that the circuit judges shall hold full terms without allotment, and take the same oath as the supreme judges. This language implies that the term of office and the oath to be taken are already provided for when the legislature shall make operative that section. And unless the term and oath mentioned in section 10 refer to the term and oath provided by sections 3 and 21 for the supreme judges, when the constitution was adopted, there is no other term or oath to be found in that instrument to which they can apply, and the legislature has absolute discretion in the matter. It must be clear, then, that the two classes of judges — supreme and circuit — which section 10 provided wére to be elected in distinct classes, were to take the same term which the constitution had provided for the supreme judges, with this difference, that the circuit judges were to take theirs without allotment. — 391 — By the act of 1878, designed to carry into effect this provision, the supreme judges were to allot their terms after election, the same as had been done by the supreme judges when they were first chosen under the constitution, and the circuit judges were to take their terms without allotment. In all other respects, the two classes of judges derive their terms from the same source, and took the same term which the constitution had provided for the supreme judges when they were invested with the duties of both offices. Now, this term, although for six-years, the constitution expressly provides, in case of a vacancy for any cause, shall be filled by election for the remainder of such vacant term. To the inquiry, How long shall the new incumbent hold who has been elected to fill a vacancy? the constitution makes an unequivocal and positive answer: “For the remainder of the vacant term .” What term? Clearly the term provided by section 3; there is no other. The vacancy, then, is in the term, as contradistinguished from the meaning of “vacancy” at common law. It is the residue of the “ vacant term ” which is to he filled; so that when a vacancy occurs in the term given by section 3, and the power reverts to the people to fill, and when filled, the person elected holds, not for the full term, but the unexpired term of his predecessor. The common-law meaning of vacancy cannot he applied here without violating a commandment of the constitution. It is unqualifiedly admitted, when a fixed term is given for a prescribed number of years, without limitation or restriction as to unexpired terms, and a vacancy occurs, the common-law acceptation must he given to it, and the person elected holds for the full term. All the authorities show this, and many of them have been cited at some length to illustrate the application of the principle. But this effect cannot be produced without ignoring or eras — 392 — ing section 4 from the constitution. Blot out the limitation which it imposes upon the term given by section 3 when a vacancy occurs, and it is freely admitted, in the case of a vacancy, that the circuit judges, whenever elected, would be elected and entitled to hold for the full term of six years; but a like effect would not result to the supreme judges upon such a contingency, for the reason that it would violate the purpose for which the terms of these judges were required to be allotted. But it is argued that the object of section 4 in confining vacancies to be filled to the residue of the vacant term was for the purpose of preserving the allotment prescribed by section 3, which the supreme judges were required to make; and as section 10 provided that the circuit judges shall hold their terms without allotment, therefore, say counsel, section 4 does not apply to them. The object of an allotment undoubtedly is to provide that officers sitting in the same body shall go out of office at different periods. Hence it is claimed, to maintain and perpetuate the system established by allotments, when a vacancy occurs, or an officer of such body fails for any reason to hold for his full term, necessarily and logically his successor must hold for the unexpired term of his predecessor. I grant this. But if such is the purpose and intention of an allotment, there is no need of section 4 to preserve it. The fact that it is provided that such officers composing the body are to allot their terms when first chosen, writes out plainly and unmistakably the intention or object to be subserved by the allotment, and renders unnecessary and needless any declaration or provision to preserve it. What need, then, of section 4? Erase it from the constitution, and you do not destroy the allotment or affect the intention for which it was established. The allotment, and the purposes it was intended to embrace, can stand without it. Section 3 provided for the allotment of the — 393 — terms of the supreme judges, and to preserve the purposes of that allotment, vacancies occurring by reason of death or resignation would have been necessarily and legally limited to filling for the remainder of the vacant term. (See Baker v. Kirk, 33 Ind. 524.) The system then designed to be established and perpetuated by the allotment can he preserved and kept up without the presence or need of section 4 in the constitution. It must then have been inserted in that instrument to cover and effect some further purpose. What is that purpose? Clearly, when taken in connection with the other provisions, to provide that vacancies occurring by death, resignation, or removal, in the term given by section 3, should be filled by election for the remainder of the vacant term. The framers of the constitution did not design alone for the present, but section 10 shows that they had the future in contemplation, and were then providing a term and oath which should apply to-supreme and circuit judges, when the prosperity of the state, based upon the requisite population, should require that they be elected in distinct classes. And by these provisions they intended that whoever was entitled under the constitution to hold the term prescribed by section 3, in the event of a vacancy, should take it subject to the limitation prescribed in section 4. They intended that when this section of the constitution should go into effect, the words “ circuit judge ” should be incorporated in the constitution. The fact that section 4 reads, “vacancy in the office of the supreme judge” does not affect the question; for section 3, from which the terms of both classes of judges are now conceded to come, applies by its literal reading only to supreme judges. Read either section literally, and neither can be made to apply to circuit judges, for there was no such judge eo — 394 — nomine before the act of 1878. So, too, with the oath to be taken. Section 10 provides that the circuit judges •shall take the same oath as the supreme judges. There 'is no other oath to which this can refer, except the oath provided for the supreme judges by section 21, when the constitution was adopted. Whatever that oath prescribes for one, it prescribes for the other, and one is as much legally bound by it as the other. The truth is, •when the act of 1878 made operative section 10 of the •constitution, the effect was to write into these provisions ■“circuit judge.” The only difference in the particular '.here referred to is, that the circuit judges by the provision take full terms without allotment. For this, the .-act of 1878 provided. When the first members of this -court were chosen by election under that act, we allotted ■our terms. At the same time, when the circuit judges •were elected, they were elected to hold full terms without allotment, and these they yet hold, unless some one •of them has died or resigned, whereby a vacancy was -created. In that event, the constitution has expressly provided that the vacancy “shall be filled by election for •the remainder of the vacant term.” Nor is our constitution peculiar or alone in thus restricting the filling of vacancies in the office of supreme and circuit judges to the residue of the vacant term. Reference to the constitutions of other states will show that they also have provided, when a vacancy occurs in these offices, that the successor shall be elected for .the unexpired term, and in some instances, when the vacancy occurs in the office of any judge. In my judgment the act is not in conflict with the constitution, and may be carried into effect without violating any of its provisions. The judgment is affirmed.