The Albany register. [volume] (Albany, Or.) 1868-18??, 1870-09-03
JUDGE BOSSES DECISION IN THE
WHITNEY-JOHNS CASE.
State Of Oregon on the Relation Of John J.
Whifney as. Smith Il. Johns
OPINION OF THE COURT.


Statement of the Case-In June,
1866, one Morris was elected County
Judge of Linn county, and duly quali-
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. r. Geary to
fill the vacancy in the Office occasioned
by the death of Morris. At the gener-
al 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, aud
has continued in the cifce untia this
time
In June, 1870, John j. Whitney, the
relator in this case, was elected and now
claims that he is entitled to the Office
Plaintiff claims that Section IL, Art
Z. of the Constitution of this State fixes
the term of the Office of County Judge
at four years and that if the lncum-
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
entitled to hold the Office to the end of
such term. That is, that one term of
four years must be completed by lapse
of time before another can commence
1t is insisted by the council for the
plaintiff that elections for County
Judges in this State can only be held
quadrennially that when the electors
have chosen County Judge, at gen
eral election, they have no power to
choose again until the term of four years
has expired; that if a vacancy occurs
| during the continuance of the term, the
i Governor can fill the vacancy by ap-
pointment for the remainder Of the term,
even though such appointment shall ex-
! tend beyond general election.
| will first consider this question and
its determination depends on the con-
struction of certain clauses ia our State
/ Constitution. Section IL, Art. Z, pro-
vides: s.There shall be elected in each
county, for the term of four years, a
+! County Judge who shall hold the Coun-
ty Court, at times to be regulated By
law" This directs the manner of their
appointment. Section Is, Art. 5, pro-
vides: when during a recess of the
Legislative Assembly vacancy shall
happen in any office, the appointment to
which is vested in the Legislative AS
sembly; or when at any time vacancy
shall have occurred in any State Office,
or in the Office of Judge of any Court,
the Governor shall fill such vacancy by
appointment, which shall expire when a
successor shall have been elected and
qualified"
The question is: can successor be
elected and qualified during the term OF
four years for which Morris was elected
in 1866, or was Mr.. Geary, the appointee
/ Of Tho apfitfeI 10 Tho off
for the full unexpired term? In this
State, by Section Il, Art. 2, Of the Con
stitution, general elections shall be
held on the first Monday in June, ben
nially." A 'sgen,r ,ral election" provides
for filing 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 IA, Art 2,
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 two years, (the period be.
tween the general elections) and the Of.
fee to which he is elected becomes va
cant, the power to fill such vacancy de
wolves on the original appointing power
(the people, unless they have delegated
that power on some other authority II
this case it is claimed that the Governo,
has that power delegated to HIM by Sec
10, Art. 5, which provides: The Gov
ernor shall fill such vacancy by appoint
ment, which shall expire when success
or shall have been elected and qualified ,
Why are these words used, '.shall expir.
when successor shall have been elected
and qualified ?'' The term of the ap.
pointee of the Governor must, on tn,
theory of the plaintiff, expire at the enc
of the term of four years from the time
the deceased incumbent was elected, ane
they were not used to prevent an inter.
regnum after the expiration of sucf
term, for that is fully provided for II
Sec. l, Art 10.
These words have no significance il
this place in the Constitution, unles:
thev are intended to limit the term o.
the appointee of the Governor to suct
time as the vacancy in the Office can bt
filled by election.
The people of Oregon by their Con
stitution made their judiciary election
and only gave the executive power t.
fill temporary vacancies which shoule
occur between the general elections. Il
the people had intended to part witt
this power of appointing County judges
they would have so expressed it. l
cannot be inferred No inference or in
tendmeut is ever presumed against thu
sovereign Such is the universal rule
of construction of statutes, for the,
emanate from the sovereign power
which, in this State, is tho people.
They appoint the Executive and h
only acts by delegated authority, and thi
authority cannot be presumed beyond tb,
express words of the grant. And [ thinl
the power in this case only extends to tn
filing vacancy until the next genera
t election, when the people can regularl,,
exercise their authority in electipg officers
think it is not reasonable to presum
that, where the people have reserved :
themselves the appointment of an officer
they would confer on the Executive tn
ngNs L Al l-k <.,,1