Jory v. Martin

IN BANC. Suit by Ed. A. Jory, a citizen and taxpayer of Oregon, against Charles H. Martin, Governor, and others. From a judgment dismissing the suit, the plaintiff appeals.

AFFIRMED. Plaintiff, a taxpayer and resident of this state, brought this suit to enjoin the Honorable Charles H. Martin from receiving or being paid for his services as governor of Oregon any sum in excess of $1,500 per year and also to enjoin the secretary of state from issuing and the state treasurer from paying any warrants in favor of the governor which, in the aggregate, shall exceed that sum during any one year.

Defendants demurred to the complaint upon the grounds, first, that it failed to state facts sufficient to constitute a cause of suit, and, second, that the plaintiff had no legal capacity to sue. The trial court sustained the demurrer and dismissed the suit, and plaintiff has appealed.

Section 67-601, Oregon Code 1930, provides that the governor shall receive an annual salary of $7,500. Plaintiff contends that this section contravenes section 1 of Article XIII of the state constitution which provides:

"The governor shall receive an annual salary of fifteen hundred dollars. The secretary of state shall receive an annual salary of fifteen hundred dollars. The treasurer of state shall receive an annual salary of eight hundred dollars. The judges of the supreme court shall each receive an annual salary of two thousand dollars. They shall receive no fees or perquisites whatever for the performance of any duties connected with their respective offices; and the compensation of officers, if not fixed by this constitution, shall be provided by law."

In support of his contention that section 67-601 is unconstitutional, plaintiff says that the language employed in the above provision of the constitution is plain and free from all ambiguity and, therefore, that it was not within the power of the legislature to increase the salary of the governor over and above the sum specified and, for that reason, the demurrer was improperly sustained, while the defendants contend that the framers of the constitution and the people in adopting it intended to fix the sum specified as minimum sums only and did not intend to take from the legislature the power to increase the salaries of any of the officers so mentioned, whenever, in its discretion, it was deemed proper to do so. Their argument is that, since no negative words were used in this section of the constitution and no express prohibition is contained in it, limiting the power of the legislature to increase the compensation of said officers, the matter of providing for future increases in such salaries was intended to be left to the discretion of the legislature and not to be fixed irrevocably by the constitution.

Before considering these contentions, it is proper to state that this provision if intended to constitute any limitation upon the powers of the legislature to increase such salaries, was a part of the constitution as originally adopted by the people at an election held on November 9, 1857, and has never been amended except as to the salaries of the justices of the supreme court, which, by section 1 of Article VII, adopted on November 8, 1910, were taken out of the operation of the above section and were thereafter expressly made to be such as may be provided by law.

To sustain their contention, defendants call attention to the many provisions of the constitution in which words of negation or express prohibition are used to limit the powers of the legislature and particularly to section 29 of Article IV and section 10 of Article VII of the constitution. The first section, in part provides:

"The members of the legislative assembly shall receive for their services a sum not exceeding $3 a day, from the commencement of the session; but such pay shall not exceed in the aggregate $120 for per diem allowance for any one session. When convened in extra session by the governor, they shall receive $3 per day; but no extra session shall continue for a longer period than 20 days. * * *"

The last provision provides:

"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," etc.

Because of the express prohibition contained in the provision first above quoted that the compensation of the members of the legislative assembly shall not exceed $3 a day, it was held inJones v. Hoss, 132 Or. 175 (285 P. 205), that the legislature had no power to increase the compensation of its members above the amount specified in the constitution, while in State v.Cochran, 55 Or. 157 (104 P. 419, 105 P. 884), it was held that section 10 of Article VII, which provided that "one of which classes shall consist of three justices of the supreme court", did not limit the power of the legislature to increase the number of justices of the supreme court to more than three. The defendants cite the case last cited as an authority to support their contention that, since there are no negative words or express prohibition contained in section 1 of Article XIII, as were employed in section 29 of Article IV, that there was no intention upon the part of the framers of the constitution and the people in adopting it to limit the powers of the legislature to increase the salaries of the officers named therein. The reason, of course, for the express prohibition in the one case and not in the other, although not destroying the force or effect of defendants' argument, obviously is that, in the absence of such prohibition, the legislature, by its own action alone, could increase the compensation of its members to any amount desired, while no increase could be obtained in the salaries of the officers mentioned in section 1 of Article XIII, except by legislative enactment.

It must be borne in mind that the convention which framed the constitution was convened on August 17, 1857, and adjourned thirty-two days thereafter and that the constitution was adopted by the people at an election held on November 9, 1857, and went into effect on February 14, 1859, upon the admission of the state into the Union, and that at the time of its admission, the state had a population of only 53,000.

It must also be remembered that the framers of the constitution were far-seeing men who must have visioned that there would be a great future increase in the population of this state and that the time would soon come when these salaries would be wholly insufficient to compensate the governor, secretary of state, state treasurer and the justices of the supreme court for their services. The framers knew that the duties and responsibilities of these officers would be increased in proportion to the increase in population and the development of the state and, knowing this, it is reasonable to suppose that had the framers intended to take away from the legislature the power to increase these salaries and to make their increase impossible except by an amendment of the constitution, they would have said so in plain and unmistakable language and not have left the matter in doubt.

It must also be remembered that some of the ablest lawyers of their time were members of the convention and knew the importance and necessity of limiting the power of the legislature by the use of negative words, and this is shown in numerous provisions of the constitution, as will be seen from an examination thereof. It must also be borne in mind that the framers of the constitution and the people in adopting it, without expressly providing that these salaries should not be increased, were not dealing with any question involving the fundamental rights or liberties of the people or any essential attribute of state government, but were dealing with a matter that, upon changed conditions, would be peculiarly within the discretion of the legislature and, hence, there is no presumption that these salary provisions, which are matters of temporary concern only, could not be changed without an amendment of the constitution.

We must also remember that our constitution, like all other state constitutions is not to be regarded as a grant of power but rather as a limitation upon the powers of the legislature and that the people, in adopting it, committed to the legislature the whole lawmaking power of the state, which they did not expressly or impliedly withhold. Plenary power in the legislature, for all purposes of civil government, is the rule, and a prohibition to exercise a particular power is an exception. It, therefore, is competent for the legislature to enact any law not forbidden by the constitution or delegated to the federal government or prohibited by the constitution of the United States. State ex rel. v.Steele, 39 Or. 419 (65 P. 515); Rockhill v. Benson, 97 Or. 176 (191 P. 497); Eastern Western Lumber Co. v. Patterson,124 Or. 112 (258 P. 193, 264 P. 441, 60 A.L.R. 528); Latourette v.Clackamas County, 131 Or. 168 (281 P. 182); Loe v. Britting,132 Or. 572 (287 P. 74); People v. Draper, 15 N.Y. 532, 543; Cooley, Const. Lim. (8th Ed.), page 176.

In David v. Portland Water Committee, 14 Or. 98, 109 (12 P. 174), Mr. Justice THAYER, speaking for the court, said:

"* * * 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 Cresap v. Gray, 10 Or. 345, 349, Mr. Justice LORD stated the rule as follows:

"* * * An act of a state legislature, not prohibited by the express words of the constitution, or by necessary implication, cannot be declared void as a violation of that instrument."

Mr. Chief Justice WALDO, in Crawford v. Linn County, 11 Or. 482,486 (5 P. 738), said:

"* * * The general assembly cannot, therefore, pass any law to conflict with the rightful authority of congress, nor perform a judicial or executive function, nor violate the popular privileges reserved by the declaration of rights, nor change the organic structure of the government, nor exercise any other power prohibited in the constitution. If it does any of these things, the judiciary claims, and in clear cases has always exercised, the right to declare all such acts void. 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."

In speaking of the distinction which exists between the powers of congress and those of a state legislature, Judge Cooley said:

"It is to be borne in mind, however, that there is a broad difference between the Constitution of the United States and the constitutions of the States as 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 ascertain 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."

Cooley, Const. Lim. (8th Ed.), vol. 1, p. 354.

While it is true, as pointed out by Judge Cooley, op. cit., p. 127, that it is not lightly to be inferred that any portion of a written constitution is so ambiguous as to require extrinsic aid in its construction, yet it must be remembered that the constitution was adopted as a whole and a clause which, standing by itself, might seem of doubtful import may yet be made plain by comparison with other clauses or portions of the same instrument and, therefore, the whole instrument is to be examined with a view to arriving at the true intention of each part.

The same principle was announced in State v. Ware, 13 Or. 380,402 (10 P. 885), and restated in State v. Cochran, supra, as follows:

"``Our constitution upon the subject is sui generis, and must be interpreted in view of its various provisions and general scope and design.' That is, the whole instrument must be examined with a view to ascertaining the meaning of each and every part. Coke, Litt. 381a. In a written constitution the presumption and legal intendment is that each and every word, clause and sentence has been inserted for some useful purpose, for which reason the instrument must be construed as a whole; otherwise its intent and general purposes may not be ascertained. As a necessary result of this rule, it follows that, wherever it is practicable to do so, each provision must be so construed that it shall harmonize with all others, without distorting the meaning of any of such provisions, to the end that the intent of the framers may be ascertained and carried out, and effect given to the whole instrument: [Citing authorities]."

When the constitution is examined as a whole and the many instances where the framers used words of inhibition are noted, the fact that no such words were used in fixing these salaries indicates most strongly that it was not the intention of its framers to prohibit the legislature from increasing these salaries at any time when such increase should become necessary. That they did not so intend clearly appears from the proceedings of the convention, as shown by the Journal of the Constitutional Convention on pages 92 and 93, as published by the state printer pursuant to Senate Joint Resolution No. 6, adopted by the Senate September 23, 1882, and concurred in by the House on September 25, 1882, and also from "A History of the Oregon Constitution", edited by the Honorable Charles H. Carey, on pages 371-373. It appears from these published reports of the proceedings of the convention that, while section 1 of Article XIII was being considered, Mr. John C. Peebles, a member from Marion county, moved to amend, by adding to the end of the section the following words:

"Provided, further, That the salaries of the judges shall not be subject to increase, and the salaries of the Governor and Secretary shall never exceed two thousand dollars nor that of the Treasurer exceed twelve hundred dollars."

and that this proposed amendment was rejected. It further shows that on the same day, Mr. William H. Packwood, a member from Curry county,

"moved to amend section 1, on salaries, by striking out all after the word ``offices,' in fifth line, and insert the words ``nor shall the pay of any officer in this state be diminished or increased, except as provided for in the first section for the making of amendments to this constitution;' which was disagreed to."

It will thus be seen that the question of whether section 1 of Article XIII, as framed by the convention and as adopted by the people, would have the effect of prohibiting the legislature from increasing these salaries was considered by the framers and that they were of the opinion that it did not have that effect and that, since the proceedings of the convention were published in the two then leading newspapers of the state, the Oregon Statesman and the Oregonian, it would seem to follow that the people, in adopting the constitution, were of the same opinion and intended to leave the matter of increasing these salaries, whenever a necessity therefor should arise, to the discretion of the legislature. However, in January, 1887, certain members of the legislative assembly, in considering a proposed bill then pending before the legislature to increase the salaries of certain of the officers named in said article, were in doubt as to the power of the legislature, under the constitution, to enact the bill and thereupon the legislature requested a number of the most distinguished lawyers who had sat in the constitutional convention to give them their written opinions upon that question. So far as the record now available shows, every one of such persons was of the opinion that the legislature was not prohibited by the constitution from increasing such salaries. Honorable MATHEW P. DEADY wrote in part as follows:

"I have no doubt of the power of the legislature to increase the salaries of the Judges of the Supreme Court. * * * The language of the constitution on its face is fairly susceptible of the construction that the judges shall have the sum therein mentioned at least, and as much more as the legislature may provide. Certain it is that there is no express limitation on the power of the legislature to increase. In such a state of things, even if it can be said that the arguments for and against the constitutionality of the measure are evenly balanced, the doubt ought to be reserved in favor of the increase, because it wrongs no one and is demanded by the public good."

Honorable George H. Williams, in his letter of January 24, 1887, expressed his opinion as follows:

"According to my recollection, an effort was made in the constitutional convention to amend the existing provision as to the salaries of supreme judges by declaring that their salaries should be $2,000 each per annum, and no more, and the amendment was voted down, leaving the implication that the object of the proposition in the constitution as it now stands was to fix minimum and not the maximum amount of the salaries."

Judge P.P. PRIM, referring to the section under consideration, also said:

"The above provision is to the effect that each shall receive that amount without containing a necessary implication that they shall receive no more if the legislature in its wisdom shall so provide. It is my understanding that a large majority of the members of the convention was opposed to inserting anything in the constitution prohibiting the legislature from increasing the salary of state officers at any time when such increase should become necessary."

Judge R.P. BOISE expressed his opinion as follows:

"All authorities on constitutional limitations hold that to deprive the legislative department of the state of the power to legislate concerning any matter touching the interests of the state, words of inhibition must be used." Referring to section 1 of Article 13, he says: "This cannot be construed to prohibit the assembly which represents the sovereign power of the state from increasing these salaries, if in its judgment it ought to be done. I have frequently heard this matter discussed and always entertained and often expressed the opinion that the assembly has this power."

Judge E.D. SHATTUCK, in his letter to the legislature, said:

"First. That the constitution of Oregon is to be deemed, not a grant of powers, but as a limitation or restriction upon powers already existing.

"Second. That the legislative assembly of Oregon has power to order and enact whatever it may deem proper and useful upon all subjects, except where its action is restricted by the constitution.

"Third. That the limitation or restriction upon legislative action rendering void an act of the legislative assembly should be manifested by express terms and allowed only of cases free from doubt or uncertainty.

"Fourth. That there is no constitutional impediment to raising the salaries of state officers, directly by legislative action."

Judge J.K. KELLY rendered an elaborate opinion upon the question and, in part, he said:

"We are not to ascertain whether the power to do a certain act of legislation is given to a legislature in a state constitution, but whether it is prohibited, and if not prohibited it can be exercised by the legislative body."

Speaking of section 1 of Article XIII, he said:

"There is here no restriction upon the power of the legislative assembly to increase the salaries of the judges. If the words, ``and no more', had been added to that clause of the constitution then clearly there would have been no legislative power to increase the salary over $2,000, or if the framers of the constitution had employed the restrictive words which they did in regard to the compensation to be paid to members of the legislative assembly, then it would be an unconstitutional act to increase the salary."

Honorable Stephen F. Chadwick, in his letter of January 24, 1887, said:

"It was my understanding that the prevailing opinion of that convention was that the legislature would have the power to increase the salaries of judges. From the action of the convention I was of that opinion myself. Every attempt to prevent the increase of salaries of judges by constitutional provision was promptly voted down. Such attempts were made as the proceedings will show."

The statements quoted above were published in the briefs filed in this court in State v. Cochran, supra, and also in Vol. XI, at page 82, of the Oregon Historical Publication for March, 1910.

All the men whose opinions are quoted above sat in the convention which framed the constitution, all were regarded as among the ablest lawyers of the state and, with the exception of ex-Governor Chadwick, all had been justices of the supreme court of Oregon. Judge DEADY had presided over the convention and had, for many years, served as United States District Judge for the District of Oregon, while Judge WILLIAMS had served as Attorney-General of the United States under President Grant. Manifestly, no other persons at that time were better qualified to express an opinion as to the meaning of the constitution, or could speak more authoritatively, than these men and, therefore, their opinions upon the very question which we are now called upon to decide ought not lightly to be disregarded. While it is true (see Cooley, op. cit., pp. 142-144), that the constitution derives its force from the people who ratified it and not from the convention which framed it, yet these proceedings of the convention and the opinions of the men who took a leading part in framing the constitution are of great value in interpreting the meaning of the constitution, for as said in 12 C.J., p. 711:

"The proceedings of the constitutional convention and the debates while powerless to vary the terms of the constitution are nevertheless valuable aids in determining the purpose and consequent meaning of a doubtful provision. In examining the proceedings of a convention it is the intent of the people through their representatives that is sought for; but with a legislature it is the intent of the representatives themselves that is sought for; and generally the proceedings of a legislature are regarded as more conclusive and more satisfactory as a source of information than those of a convention. But in either case, where the proceedings clearly point out the objects and purposes of the doubtful provision, the aid to be obtained is valuable as a means of interpretation."

See also McMullen v. Shepherd, 133 Md. 157 (104 A. 424,425), where the court said:

"In construing the Constitution we are to consider the circumstances attending its adoption and what appears to have been the understanding of the people when they adopted it, and one of the useful and most helpful sources is the debates of the convention."

When this provision of the constitution is viewed in the light of the construction that has been given to it by the legislative department of this state, we find that, at the first regular session of the legislature after the admission of the state into the Union, the legislature, by section 2 of an act approved October 19, 1860, appropriated, in addition to the annual salary of the governor, "For such other allowances of per diem and mileage to the Governor of the State as may be provided for by law, one thousand dollars, or as much thereof as may be necessary." See Laws of Oregon, 1859-60, p. 52.

Again, by an act approved October 17, 1862, the legislature made an additional appropriation of $3,000, or so much thereof as may be necessary, "for such allowances of per diem and mileage to the governor of the state, secretary of state and treasurer of state, as has been, or may be, provided by law." (See Or.L., 1862, p. 64.) At the same session, by section 2 of a bill approved October 17, 1862, the legislature appropriated for the governor, a further salary of $400 per annum. (See Or.L., 1862, p. 71.)

By section 3 of an act of the legislature approved October 21, 1864, in addition to his annual salary, the governor was allowed $200 a year and all necessary traveling expenses to be paid quarterly. (See section 3, chapter 44, Title I, p. 701, General Laws of Oregon, compiled and annotated by Matthew P. Deady and Lafayette Lane.) On page 605 of the same volume appears another act of the legislature authorizing the secretary of state to charge and retain as additional compensation for the performance of the duties of his office certain fees specified therein.

By section 26 of an act approved February 18, 1893, (Laws, 1893, pages 23 and 24), the legislature appropriated the sum of $3,000 for the biennium, to be paid to the governor, the secretary of state and the state treasurer each at the rate of $500 a year, payable quarterly, as additional compensation to them for the performance of the duties of their offices.

The legislature, in 1895, provided as additional compensation that the governor should be paid $1,000 a year, and the secretary of state and the state treasurer each $500 a year, for their services in supervising public works, public buildings, etc., which was in addition to the compensation provided for by previous laws. (See Laws of Oregon, 1895, p. 47.)

In 1905, the legislature raised the annual salary of the governor to $5,000 and that of the secretary of state and state treasurer to $4,500. (See chapter 68, Laws, 1905.)

In 1927, the governor's salary was raised to $7,500 and that of the secretary of state and state treasurer to $5,400 per annum. (See chapter 4, General Laws of Oregon, 1927.)

It is also material to consider the action of the legislature in raising the salaries of the justices of the supreme court prior to the amendment of November 8, 1910, since, if any impediment existed against increasing the salary of the governor, the same would apply equally to the justices of the supreme court. By an act approved October 17, 1872 (see Laws of Oregon, 1872, p. 29), there was appropriated for each of the several justices of the supreme court the additional sum of $1,000 per annum "to defray the traveling and other incidental expenses, to which said justices may be subjected in the execution of their official duties". And by an act approved February 18, 1889 (General Laws of Oregon, 1889, pp. 5 and 6), the salaries of each of the justices of the supreme court were increased from $2,000 to $3,500 a year, and, by an act filed in the office of the secretary of state February 24, 1903 (General Laws of Oregon, 1903, p. 182), these salaries were increased to $4,500 per annum.

From this legislation it will be seen that from the very first regular session of the legislature up to the present moment, a period of 76 years, a majority at least of the members of the legislature have construed section 1 of Article XIII as intending to fix minimum sums only and that the legislature could increase these sums whenever deemed necessary.

As against this practical construction of this provision of the constitution by the legislative department of this state, in enacting laws appropriating moneys to the governor, secretary of state, state treasurer and former justices of the supreme court and by such state officers in accepting salaries in excess of the sums specified in the constitution, which, in itself, amounts to a practical construction of this provision by the executive and judicial departments of the state, and continuing as it has for a period of 76 years and comprising as it does the entire time that the state has been in existence, our attention is called to but two incidents where a contrary opinion as to the meaning of this provision of the constitution seems to have been entertained. It appears in the House Journal of 1870, p. 453, that Honorable L.F. Grover, then governor of Oregon, vetoed a bill passed by the legislature which increased the salaries of certain of the officers mentioned in this provision of the constitution, stating in his veto message that the salaries of these officers were fixed by the constitution and could not be increased without violating its provisions. His veto was sustained and the bill failed to become a law. This action by the governor, of course, shows that, at the time of the veto, the governor was of the opinion that the legislature had no power to increase said salaries. However, at the next session of the legislature, the same governor approved a bill increasing the salaries of each of the justices of the supreme court $1,000 over and above the amounts stated in the constitution, and this action upon his part shows that his opinion had been changed in respect to this question.

The second incident referred to is: The legislature, at its regular session in 1885, passed a joint resolution to amend section 1 of Article XIII, so as to expressly provide that the salaries referred to therein might thereafter be provided by law, and, at the next regular session in 1887, the proposed amendment was submitted to the legislature and a bill passed directing the governor to call an election and submit such amendment, together with two other proposed amendments, to the people for their adoption or rejection, and, when the vote was taken, the people rejected each of the proposed amendments. At no other session of the legislature was any action taken indicating that the legislature had any doubt of its power to increase these salaries. Moreover, at every session of the legislature immediately following the adoption of the constitution, some of its members had sat in the convention and, by no action or vote of theirs, does it appear that they, or any of them, entertained any doubt as to the powers of the legislature.

Again, an examination of the House and Senate Journals of 1885 and 1887, and also the Session Laws of those years, shows that, at each of said sessions, moneys were appropriated in excess of the sums fixed by the constitution as salaries of said officers. Moreover, with the exception of Mr. Justice ROSSMAN and Mr. Justice BELT, each member of this court has been a member of the legislature and voted appropriations of moneys as salaries for the officers mentioned in section 1 of Article XIII, in excess of the amounts provided therein.

Hence, we are now confronted with a practical construction which has been continuously, for a period of 76 years, placed upon this provision of the constitution not only by the legislature but also by the executive and judicial departments of this state and, during that time, the power of the legislature has never been questioned except in the two instances above referred to, and, during all said time, the people have acquiesced in this construction of this provision of the constitution and, until plaintiff brought this suit, no citizen has ever questioned, in any court proceeding, the power of the legislature to increase these salaries.

The object of construction, as applied to a written constitution, is to give effect to the intention of the people in adopting it and, when any particular provision of the constitution has received a practical construction for a period of 76 years by each of the three great departments of the state and such construction has been acquiesced in by the people for that whole period, the court should not apply a different construction to that provision unless its unconstitutionality is established beyond all reasonable doubt.

The proposed amendment to the constitution submitted by the legislature in 1887 contained a provision that the salaries of these officers should not be increased or diminished during their term of office and this evidently was one of the main purposes of the proposed amendment. Manifestly, a mere proposal of such an amendment could not overcome the practical construction that, from the very inception of the state government, had uniformly been given to section 1 of Article XIII by the legislative and executive departments of the state, particularly so since the people themselves had acquiesced in such a construction for so long a period of time, and, of course, the veto message of Governor Grover did not have that effect. Where, as said by Judge Cooley, op. cit., page 144:

"there has been a practical construction, which has been acquiesced in for a considerable period, considerations in favor of adhering to this construction sometimes present themselves to the courts with a plausibility and force which it is not easy to resist. Indeed, where a particular construction has been generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the constitution, and by those who had opportunity to understand the intention of the instrument, it is not to be denied that a strong presumption exists that the construction rightly interprets the intention. And where this has been given by officers in the discharge of their official duty, and rights have accrued in reliance upon it, which would be divested by a decision that the construction was erroneous, the argument ab inconvenienti is sometimes allowed to have very great weight."

In a footnote, he says:

"It requires a very clear case to justify changing the construction of a constitution, conceded to be somewhat involved, which has been uninterruptedly acquiesced in, for so long a period as fifty years. State v. Frear, 138 Wis. 536,120 N.W. 216, 16 Ann.Cas. 1019."

Upon this subject Mr. Chief Justice Marshall, in Cohens v.Virginia, 6 Wheat. 264, 418 (5 L. Ed. 257), said:

"great weight has always been attached, and very rightly attached, to contemporaneous exposition."

In discussing this question, Judge Cooley, op. cit., p. 416, says:

"In Bank of United States v. Halstead, (10 Wheat. 51, 63,) the question was made, whether the laws of the United States authorizing the courts of the Union so to alter the form of process of execution used in the Supreme Courts of the States in September, 1789, as to subject to execution lands and other property not thus subject by the State laws in force at that time, were constitutional; and Mr. Justice Thompson, in language similar to that of Chief Justice Marshall in the preceding case, says: ``If any doubt existed whether the act of 1792 vests such power in the courts, or with respect to its constitutionality, the practical construction given to it ought to have great weight in determining both questions.' And Mr. Justice Johnson assigns a reason for this in a subsequent case: ``Every candid mind will admit that this is a very different thing from contending that the frequent repetition of wrong will create a right. It proceeds upon the presumption that the contemporaries of the Constitution have claims to our deference on the question of right, because they had the best opportunities of informing themselves of the understanding of the framers of the Constitution, and of the sense put upon it by the people when it was adopted by them.' Like views have been expressed by Chief Justice Waite in a recent decision.

"Great deference has been paid in all cases to the action of the executive department, where its officers have been called upon, under the responsibilities of their official oaths, to inaugurate a new system, and where it is to be presumed they have carefully and conscientiously weighed all considerations, and endeavored to keep within the letter and the spirit of the Constitution. If the question involved is really one of doubt, the force of their judgment, especially in view of the injurious consequences that may result from disregarding it, is fairly entitled to turn the scale in the judicial mind. (So construction of the constitution adopted by the legislative department, and long accepted by the various agencies of government and the people, is, where the meaning of the language construed is capable of two interpretations, entitled to great weight.)"

See also Evanhoff v. State Industrial Accident Comm., 78 Or. 503 (154 P. 106), where Mr. Justice McBRIDE, in referring to contemporaneous construction of a provision in the state constitution, said:

"* * * While such a construction will not be permitted to overturn and render nugatory a clear provision of the Constitution, in cases where the meaning of a clause in the instrument is capable of two interpretations, it is entitled to great weight."

Mr. Justice LORD, in Cline v. Greenwood, 10 Or. 230, 241, speaking for the court, said:

"* * * 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 5 Cranch, 128; Chief Justice Parsons, in 5 Mass. 534; Chief Justice Tilghman, in 3 S. R., 72; Chief Justice Shaw, in 13 Pick., 61, and Chief Justice Savage, in 1 Cowen, 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 powers, and its acts be considered void. The opposition between the constitution and the law should be such that the people feel a clear and strong conviction of their incompatability with each other.'"

In Crowley v. State, 11 Or. 512, 513 (6 P. 70), this court, speaking through Mr. Justice LORD, said:

"* * * 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."

In Kadderly v. Portland, 44 Or. 118, 143 (74 P. 710, 75 P. 222), this court speaking through Mr. Justice BEAN, said:

"* * * A proper respect for a co-ordinate branch of the government demands that all intendments in favor of the regularity of its proceedings shall be invoked, and, unless its violation of the constitution is clear and palpable, its act will be sustained. This rule has been often announced in the strongest language, varied only to give force of expression."

Again, Judge Cooley said:

"It has been said by an eminent jurist, that when courts are called upon to pronounce the invalidty of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt."

Cooley, op. cit., p. 371.

It is inaccurate to say, as has been contended here, that the purpose of the initiative amendment, adopted November 8, 1910, now section 1 of Article VII of the constitution, was to authorize the legislature to increase the salaries of the justices of the supreme court. The purpose of that amendment was clearly set forth in the pamphlet compiled and issued by the secretary of state under and pursuant to chapter 226, Laws of 1907, which contained the amendments to be voted upon and the arguments for and against their adoption. In said pamphlet no mention whatever is made of section 1, Article XIII, nor of any proposed increase in the salaries of the justices of the supreme court. Under the law, that pamphlet was distributed to all the registered voters in the state and the arguments advanced in support of the amendment, as set forth in the pamphlet and so distributed, was, in part, as follows:

"JUDICIARY AMENDMENTS. ARTICLE VII. The purpose of this amendment is to remove restrictions on the power of the people to make a law for any kind of court they want; to allow the people and the legislature to transfer to the circuit court the law and probate business of the county judge in counties where that can be done to good advantage; to simplify procedure on appeals to the supreme court and remove the pretext for new trials in those cases in which substantial justice is done by the verdict and judgment, but in which the trial court may have made a technical mistake; or if the verdict is just and the judgment is not, to make it the duty of the supreme court to enter the proper judgment, if that can be done, instead of sending the case back for a new trial; to allow the supreme court to take original jurisdiction in important cases of habeas corpus, mandamus and quo warranto, the latter being used principally to try the title to offices; to prevent mistrials and hung juries, by allowing three-fourths of a jury to render a verdict in civil cases. The amendment also removes the constitutional restrictions on the power of the people and the legislature over the offices of the county clerk, the sheriff, the county judge, and the district attorney.

"Many states now allow a majority of the jury in civil cases to render a verdict. Usually three-fourths of the jury is required to render a verdict. No state has gone back to the old system of unanimous verdict in civil cases, after having experience with the majority verdict. * * *

"Every voter knows of hung juries in civil cases, followed by new trials, appeals to the supreme court, reversals and another new trial, and perhaps yet another appeal to the supreme court. There have been such cases in the Oregon courts. One purpose of this amendment is to make that kind of injustice impossible in which the corporation or the rich man wins because of the longest purse."

Plaintiff contends that there is no ambiguity in the language: "The governor shall receive an annual salary of fifteen hundred dollars". The uncertainty, it will be noted, is not in the words or figures used in fixing the amount but as to whether, in fixing that amount, it was the intention to limit and restrict the power of the legislature to increase or decrease that amount. Had the constitution said: "fifteen hundred dollars, and no more", there would have been no question of intent and no room for construction, but it did not do so, and there is no express limitation on the power of the legislature and the question is: Is such a limitation to be implied from the language used when not that provision alone but all the provisions of the constitution as then adopted are considered and construed as a whole? When this is done, it will be seen that the question is not so much the amount of the salary but whether the constitution was intended to limit the power of the legislature. That the meaning of the words used was believed to be ambiguous and uncertain by a considerable number of the framers of the constitution clearly appears from the proceedings of the convention to which we have referred. Otherwise, what object could there have been to move to amend by adding the words that these salaries should not be increased or diminished or that that could be done only by an amendment to the constitution? It is also obvious that those favoring said motions believed that section 1 of Article XIII left the legislature free to increase or decrease these amounts, or otherwise there can be no reasonable explanation for their making or supporting such motions. It is also obvious that those opposing said motions were of the same opinion that these amounts could be increased or decreased by the legislature for otherwise there can be no reasonable explanation offered for their opposition. Hence, it is idle to now say that there is no uncertainty in the language used or that the words used are to be construed as in a contract of hire between private individuals where the compensation is fixed in a definite sum and such words are not qualified or limited by other provisions in the contract.

It is not reasonable to contend that that part of section 1 of Article XIII, which provides: "They shall receive no fees or perquisites whatever for the performance of any duties connected with their respective offices", or that part which provides: "the compensation of officers, if not fixed by this constitution, shall be provided by law", was intended in any way to limit the power of the legislature to increase the salaries of the officers named in said article. The first clause was intended merely to prohibit the acceptance of any fee or perquisite by any state officer as an inducement for the granting of official favors through the corrupt use of money, or, in other words, to prevent official corruption upon the part of any state officer in the performance of his duties. The last clause was intended merely to authorize the legislature to fix the salaries of officers created by the constitution for the payment of which no provision was made in the constitution, such as the superintendent of public instruction, circuit judges, district attorneys, county clerks, sheriffs, county coroners, county surveyors, county judges, county commissioners, and the like.

Nor is it reasonable to say that the compensation of the members of the legislature, when convened in extra session by the governor, is not limited to $3 per day. The language of section 29 of article IV is as follows:

"The members of the legislative assembly shall receive for their services a sum not exceeding $3 a day, from the commencement of the session; but such pay shall not exceed in the aggregate $120 for per diem allowance for any one session. When convened in extra session by the governor, they shall receive $3 per day; but no extra session shall continue for a longer period than 20 days. * * *"

The express limitation contained there is that the members of the legislative assembly shall receive for their services a sum not exceeding $3 a day "from the commencement of the session", and this limitation applies to extra sessions called by the governor as much as it does to regular sessions of the legislature.

If plaintiff's contentions could be sustained, it would not be for the public interest. It is a matter of common knowledge that the duties and responsibilities of the governor, secretary of state and state treasurer have increased enormously since the constitution was framed in 1857, and, if their salaries were limited to $1,500 for the governor and secretary of state and $800 for the state treasurer, manifestly it would be difficult to find persons who could afford to assume those responsibilities and perform those duties for such limited compensation. The records of the state treasurer's office show that approximately one hundred million dollars pass through his hands each year and that he is charged with the duty of protecting an average daily balance in his hands of about ten million dollars. No reasonable person would consider $800 a year adequate compensation for the assumption of such responsibilities and the performance of such duties. For this reason alone, the argument ab inconvenienti is entitled to serious consideration.

While we realize that this opinion has been extended to an almost unreasonable length, yet, because of the importance of the question, before closing our discussion, we deem it important to cite one additional authority. In Eddyv. Kincaid, 28 Or. 537 (41 P. 156), this court said:

"* * * We have thus for a series of years concurrent legislative exposition of the constitution to which the court ought to yield unless satisfied that it is repugnant to its plain words. Of course, the plain provisions of the constitution can not be broken down by practical exposition, but when, as here, such a practice is in violation of none of its express provisions, such an exposition is a very persuasive argument, and often of controlling force. In speaking of the effect of practical exposition it was said by an able court that ``It has always been regarded by the courts as equivalent to a positive law': Bruce v. Schuyler, 4 Gilman, 267, 46 Am.Dec. 447. And in Rogers v. Goodwin, 2 Mass. 477, in giving a reason for adhering to long continued exposition, it is said: ``We can not shake a principle which in practice has so long and extensively prevailed.' Indeed, harmony prevails throughout the whole scope of judicial opinion on this question: Cline v. Greenwood, 10 Or. 230; Hovey v. State, 119 Ind. 386, 21 N.E. 890, and authorities there cited. Independently, then, of judicial authority, we should hesitate to declare the act in question unconstitutional because of the practical exposition given to the constitution by the legislature, and acquiesced in by the other departments of government and the people."

Upon the other ground of demurrer, plaintiff's alleged want of capacity to sue, we think the question is foreclosed by McKinneyv. Watson, 74 Or. 220 (145 P. 266); Eastern Western LumberCo. v. Patterson, supra; and Jones v. Hoss, supra.

For the reasons stated, the decree appealed from is affirmed, but, since the question involved concerns a matter of great public importance, no costs shall be taxed in favor of either party in this or the court below.

CAMPBELL, C.J., BELT, ROSSMAN, BEAN and BAILEY, JJ., concur.

KELLY, J., dissents.