The state rights democrat. [volume] (Albany, Linn County, Oregon) 1865-1900, 1870-09-02
JUDGE BoISE'S DECISION IN THE
o WHITNEY-J0HNs CASE.
Slate cf O,~yon on lie Relation IF John =.
WAitaey o.. Smith n. JoL,sy
OPINION OF THE rouRr -

State IF Ossgon on lie Relation of John T.
Whitaey cs.s Sadkh1A. Jol,sy
OPINION or TnE COURT. @
- .S,otcnent of the Came-In June.
1866, one Morris was elected County
Jndpeof Linn county. aud duly qrali.
fed, and entered On the discharge OF the
duties Of the Office. In September, fol-
lowing his election, Morris died. and
The Governor appointed Il. H. Geary 70
ill the vacancy in the o ce oecasioned
by the death Of Morris. At the rgener.
nj election in June. 1868, Smith A..
johns, the defendant in this case, was
elected and qualified and entered on the
discharge Of the duties of the Office. and
has continued in the Office until this
time.
In June, 1870, John J. Whitney, the
rclator in this case, was elected and DOW
claims that he il entitled 10 the Office
Plaintiff claims that Section IL. Arr.
7. Of tho Constitution of this State fixes
,hc term Of the Office of County Judge
at four years aud that if the incum-
bent dies or the Office become vacant by
any means, that the person appointed or
elected, during the said term (of four
years. TO fill such vacancy. can only be
cntmled TO hold the Office TO the end Of
such term. That il, that one term of
four years must be completed by lapse
pf time before another can commence
II is insisted by the council for the
plaiutf that cleciions for County
Judges in this State can only be held
qaadrcnuially; that when the electors
havo chosen county judge. at gen.
erai clcctiun, they have 40 power to
choose again until the term Of four years
has expired; that If vacancy occurs
during the Continuance of the term, the
Governor can fiji the vacancy by ap-
p p,iu.ment for the remainder Of the term,
eycu though such appointment shall cx-
tend beyond general election. go.
will FIRST consider this question and
its determination depends on the con-
s'ruction oi certain clauges IN our State
Constitution. Section IL. Art. Z, pro-
y'des There shall Le elected in each
county. for the rerm Of four years, .
Cpuuty Judge who shall hold the Coun-
~ Court, ut times TO DC regulated by
law" This directs the manner of their
appointment. Section l6. Art. 5, pro-
yidcs: When darlug = recess oi The
Legislative Assembly a vacancy shall
happen in any Office. The appointment, to
Which Is vested in the Legislative As.
IsembIy; or whcu at amy time 4 vacancy
shall have occurred 'n any State office,
or 10 the Office of Judge of asy Court,
the Governor ,haii fill snch vacancy by
appointment, which shall expire when a
successor shall have been elected aud
qualified.
The question Is: can successor be
elected aud qualified during the term Of
four years for which Morris was elected
IN 1866. or was Mr.. Geary, the appointed
of The Governor, entitled to the Office
TOR the full unexpired term? In this
State. by Section IL, Art. =, of the Con
st'tution, general elections shall be
held on the first Monday iu June, bien
uiaily." 4 "gen raj cleciiou" provides
for iilins all offices which the people
may fill by election. and embraces every
elective office in the State not otherwise
provided for by the Constitution or laws
consistent Herewith. Sec. IL, ART Z,
provides for the appointment OF County
Judges by election. Section II, Art =,
fixes the time when such election shall
be held. And when any officer is elect
ed for term of years. which term ex.
tends beyond ,w. years, (ihe period be.
twccu the general ielcc'ioiis) aud the of.
flee tu which he is elected becomes Va.
cant. the power to fill such vacancy dc.
wolves ON the original appointing power
uhc people) unless they have delegated
that power ou some other thoriry Iu
this case il is claimed that the. .GpverDos
has that power delegated TO hun by Sec.
l6, Art. 5, which provides: The Gov.
crnor shall ill such vacancy by appoint
ment. which shall expire when success.
or shall have been elected and qualified.
Why are these words used. ..shall expire
when u successor shall have been elected
aud aual,ti.d?" The term of the ap-
pointee of the Governor must, ON the
theory of the pIaintiff. expire at the end
OF the term ut four years from the time
the deceased incumbent was elected. and
they were not used to prevent an inter-
reynum after the expiration Of such
term, for chat is fully provided for 10
Sec. /, Art l5. e. sss
These words have no significance in
this place in the Constitution, unless
they are intended to limit the term Of
the appoiatee Of the Governor TO such
time as the vacancy in the office can be
filed by election.
The people of Oregon by their Con-
stitution made their judiciary election
aud only gave the executive power to
fill Temporary vacancies which should
nccur teiwecn the general elections. 1T
the people hadsinended to part with
Ibis poweriot appointing County Judges
they would have So expressed it. Ii
cailno, be inferred. No Inference or IN.
tcndment is ever presumed against the
soperc,gu. i Suchsis the universal rule
OF construction !. OF statutes, for, they
emapa,e from the sovereign power,
which. in this State, is The people.
They appoint the Executive and he
only acts by delegated authority, and this
|anthority cannot be presumed beyond the
express words of the grant. And | think
the power in this case only extends to the
filing vutancg until the next general
election, when the people can re2uhrly