Gantenbein v. West ( 1914 )

Opinion by

Mr. Chief Justice McBride.

In the opinions heretofore handed down in Branch v. McCormick, 72 Or. 608 (144 Pac. 425); and State ex rel. v. Holman, 73 Or. 18 (144 Pac. 429). a majority of the court expressed the opinion that so much of the act in question as attempted to transfer probate jurisdiction in Multnomah County to the Circuit Court, and to transfer the county judge of that county to a position as' circuit judge, was void because in contravention of subdivision 3 of Section 23, Article IY, of the Constitution. So for the purposes of this case that contention may be taken as settled, and counsel on both sides of the present controversy have so treated it.

1. The contention made in the able arguments and briefs of counsel for defendant in the case at bar is that the whole act is void because it violates Article IV, Section 20, of the Constitution, which reads:

“Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.”

A perusal of the first sentence of the title shows that the creation of an additional circuit judge is clearly expressed as one of the subjects to be dealt with, and evidently the principal object, the other matters dealt with being only incidental to it; and, therefore, so far as this objection is concerned, it must be held to be unsound: State v. Shaw, 22 Or. 287 (29 Pac. 1028); Clemmensen v. Peterson, 35 Or. 48 (56 Pac. 1016); Eastman v. Clackamas County (C. C.), 32 Fed. 31; Thomas v. State, 124 Ala. 48 (27 South. 315); Beatrice v. Masslich, 108 Fed. 743 (47 C. C. A. 657); Nichols v. Loyd, 111 Tenn. 145 (76 S. W. 911); Abeel v. Clark, 84 Cal. 226 (24 Pac. 383); West v. Latah County, 14 Idaho, 353 (94 Pac. 445); People v. McBride, 234 Ill. 146 (84 N. E. 865, 123 Am. St. Rep. 82, 14 Ann. Cas. 994); Ash v. Thorp, 65 Kan. 60 (68 Pac. 1067); McEldowney v. Wyatt, 44 W. Va. 711 (30 S. E. 239, 45 L. R. A. 609).

2. The second objection to the act is that it contains two subjects not related to each other, and that it is therefore void as being in contravention of the section of our Constitution last cited. The rule governing cases of this character is laid down in Cooley’s Constitutional Limitations (7 ed.), page 247, in the following language:

“If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and' dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect, the legislature would not pass the residue independently; then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.”

The same authority also uses the following language :

“Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remained void also, unless all the provisions are connected in subject matter, depending on each other, operating together for the same 'purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the one without the other.”

Bearing these definitions in mind, we will proceed to examine the act under consideration. As before remarked, that portion of the act providing for an additional judge in Multnomah County, namely, the first two sections, is easily separable from those sections heretofore held unconstitutional. All matters relating to the transfer of the probate jurisdiction of the County Court into the Circuit Court, and tfie transformation of the county judge into a circuit judge with varied and variegated powers, could be stricken both from the title and from the act itself, and yet leave a complete act providing for an additional judge.

3. It is going far into the realm of speculation to say that the additional judgeship would not have been created had the sections providing for such transfer been omitted. On the face of the act they are not so interdependent that we can presume that such a result would have followed the omission of the last four sections. Such a conclusion would be to presume against the constitutionality of an act instead of in its favor; and it is a canon of statutory construction that if a statute can be given any reasonable interpretation consistent with its validity, such interpretation should be adopted. If we should go outside the terms of the statute itself and consider conditions as they actually existed at the time, we should not have to go beyond the files of this court to find that, owing to the congested condition of the docket in Multnomah County, frequent and almost continual requests have been made upon the chief justice of this court for the assignment of judges from other districts to hold court in that district, and that judges have.been continually assigned to that duty, no doubt to the inconvenience of themselves and to the detriment of business in their own districts. The congestion of business has been a matter of public comment, and is generally known, so that it is more reasonable to presume that the legislature would have passed the act in any event than that they would have .allowed judicial business to accumulate in Multnomah County as it has in the past. Cases supposed to support the theory of defendant are cited; but when closely examined, they are not in point as to the case at bar.

In re County Commissioners, 22 Okl. 435 (98 Pac. 557), cited by defendant, is an able and instructive opinion. In that case an act of the legislature provided, in substance, that when it should be made to appear to the Supreme Court that any district had such an unusual number of cases awaiting trial that a prompt and effective administration of justice could not be secured, it should recommend to the Governor the appointment of an additional judge, and that upon such recommendation the Governor should appoint such judge, but that no such appointment should extend beyond January 1, 1911, which constituted a term of less than four years. The Constitution of Oklahoma fixed the term of district judges at four years. The objection that the act contained two distinct subjects was raised, and decided in the negative. So upon that question it is not a precedent for the defendant in this case. The court, however, held the act unconstitutional because it delegated legislative powers to the judiciary, which question is not in the case at bar, and for the further reason that it limited the term of the judges to be appointed to a period of less than four years, contrary to the express provisions of the Constitution. It was contended that that part of the act so limiting the term of these temporary judges might be rejected, and the act allowed to stand, leaving the judge so appointed to serve for a term of four years. The court answered this contention in the following clear and convincing language:

"Counsel for petitioners insist that, although that part of the act providing for the period or term to be fixed by the Supreme Court falls, the term of such additional judge then is that prescribed in the Constitution.' In such event, every such additional judge becomes a fixture and a permanent officer. Now, what was the intention of this act? Was it contemplated that the Supreme Court might fix the term to extend with that of the regular elected district judge? And was it further contemplated that the Supreme Court might fix a shorter term? In that event, the shorter term might fall, and the regular term stand. But section 2 of said act says: 'And provided further, that no appointment under this act shall extend beyond January 1, 1911.' . It/ is evident that the legislature did not intend that any further term should be created, and the presumption is that, if the legislature had intended to create further terms, they would have done so. But, having indicated that they did not intend to create further terms, if we are to take the construction suggested by counsel, we would be writing a meaning into the law that was never contemplated by the legislature.”

The opinion is admirable for its clearness and research, bnt does not even touch upon the question here presented. In that case there was but one object in the entire act, namely, the appointment of temporary judges to serve for a less period than the constitutional term, and the act expressly prohibited the appointment of a judge for a period as long as such term. Looking solely at the act itself, it was evident that the legislature would not have passed it without this limitation; the whole scope and purpose of the act being the appointment of temporary judges whose term of office should expire with the exigency which rendered their appointment necessary.

In the case of Frackelton v. Masters, 249 Ill. 30 (94 N. E. 124), the court, going beyond the terms of the act and considering judicial conditions in various parts of the state, was of the opinion that these conditions were such that the act would not have been passed with the unconstitutional portions omitted. These conditions do not necessarily obtain here.

4. The brief amicus curiae filed in this case cites Cooley’s Constitutional Limitations (7 ed.), page 211, This citation contains the true rule and the reason of it. It is as follows:

“The effect if the title embrace more than one object. Perhaps in those, states where this ■ constitutional provision is limited in its operation to private and local bills, it might be held that an act was not void for embracing two or more objects which were indicated by its title, provided one of them only was of a private and local nature. It has been held in New York that a local bill was not void because embracing general provisions also; and, if they may constitutionally be embraced in the act, it is presumed they may also be constitutionally embraced in the title. But if the title to the act actually indicates, and the act itself actually embraces, two distinct objects, when the Constitution says it shall embrace but one, the whole act must be treated as void, from the manifest impossibility in the court choosing between the two and holding the act valid as to the one and void as to the other.”

The reason for the rule is stated in the concluding paragraph, to wit:

“The manifest impossibility in the court chosing between the two and holding the act valid as to the one and void as to the other.”

The learned author evidently had in mind those instances, and they are the most frequent where two subjects, each entirely within the purview of the Constitution and each constitutionally unobjectionable if presented separately, are included in one act. Obviously the court would be unable to select between them and declare one valid and the other void; for instance, it is entirely constitutional for the legislature to provide an additional circuit judge in the fifth judicial district. It is also entirely constitutional for it to provide a separate county recorder for Jackson County, but they are two absolutely separate subjects. Now, if these two subjects should be included in the same bill under a title covering both, the court would be compelled to say:

“Here are two subjects both in themselves within the purview of the legislature to enact separately, but obnoxious to the Constitution when included in one act. We are unable to select, and therefore the whole act must be declared void.”

This condition does not arise when one subject is within the legislative power and the other wholly outside of it, unless they are so blended and interwoven that the court is convinced that one would not have been enacted without the other, which, as already indicated, is not the case at bar, where that subject which is constitutional and wholly within the legislative power is easily separable and distinct from the one which a majority of this court has declared not within the power of the legislature to enact.

5. It is also suggested that the act is contrary to the provisions of Article VII, Section 1, of the Constitution, which provides that the judges of the Supreme Court and other courts shall be elected for a term of six years, whereas the act in question provides that the additional judge shall hold his office for the term of six years and until his successor is elected and qualified. If the provision cited stood alone the contention would be plausible, but read in connection with Article XV of Section 1, it will be found to be strictly within the Constitution. The latter section reads as follows:

“All officers, except members of the legislative assembly, shall hold their offices until their successors are elected and qualified.”

6. It is also suggested that mandamus will not lie to compel the Governor to issue the certificate. It may be said that in practice this is purely an academic question, as there is no doubt that the Governor will cheerfully and without question issue the certificate whenever his right to do so is clearly defined by the courts; but there is also no doubt that, in cases of this character, where the duties imposed upon the executive are merely ministerial, mandamus will lie to compel their performance: State ex rel v. Lord, 28 Or. 498 (43 Pac. 471, 31 L. R. A. 473); Greenwood Cemetery Land Co. v. Routt, 17 Colo. 156 (28 Pac. 1125, 31 Am. St. Rep. 284, 15 L. R. A. 369); Board v. McComb, 92 U. S. 531 (23 L. Ed. 623); State v. Chase, 5 Ohio St. 535.

The act, so far as it attempts to create an additional judgeship in Multnomah County, is valid, and the plaintiff, having been duly chosen to fill that office, is entitled to a certificate of election. Let an order be entered accordingly.

Judgment fob Petitionee. Reheabing Denied.