Oregon Advisory Opinions February 16, 1955: OAG 55-14 (February 16, 1955)

Oregon Attorney General Opinions

1955.

OAG 55-14.

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This is to acknowledge your letter of January 27, 1955, requesting an opinion of this office as to the constitutionality of ORS 3.105 to 3.115. These sections of ORS were enacted into law by chapter 35, Oregon Laws 1953. This Act in substance provided for the appointment of circuit court judges pro tempore by the Chief Justice of the Supreme Court, prescribed their qualifications and compensation and imposed upon them certain powers and duties consonant with the circuit court judges of the State of Oregon.

It has always been an invariable rule of the office of the Attorney General, where the constitutionality of a duly enacted law is brought into question, to abide by the presumption of validity and leave the matter of invalidity for judicial determination. In other words, we are guided by the presumption that all enactments of the Legislative Assembly are constitutional and are controlling upon all executive and administrative officers until otherwise declared by a court of competent jurisdiction.

There is considerable authority holding Acts of a similar nature invalid. At the very outset it is important to note that a former pro tempore judge bill, prior to its enactment into law by the Legislative Assembly, was held unconstitutional by this office. See Opinions of the Attorney General, 1940-1942, p. 208. This opinion is not contrary to the general rule set out above, in that the Attorney General had before him for consideration a bill then pending in the Legislative Assembly. Distinction is made between proposed legislation and legislation duly enacted by the assembly. See Starr v. Laundry Union, 155 Or. 634.

The question presented brings into play two provisions of the Constitution of the State of Oregon. These are § 1, Article VII, and § 16, Article V. Section 1 of Article VII provides that:

"The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law. The judges of the supreme and other courts shall be elected by the legal voters of the state or of their respective districts for a term of six years, and shall receive such compensation as may be provided by law, which compensation shall not be diminished during the term for which they are elected." (Emphasis supplied)

Section 16, Article V, in part, provides:

"* * * when at any time a vacancy shall have occurred * * * 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; * * *"

I believe it is important at this time to recognize that the express limitations appearing in § 1, Article VII, as amended, are a consolidation of certain of the express limitations appearing in the subsections of the original Article VII, such as, vesting of judicial power by the Constitution, election of judges, fixing of term of office, and adding a new limitation in that the compensation of the judges shall not be diminished during the term for which they are elected; that in so far as these express limitations are concerned the reasoning of the courts in construing the former Articles and the construction placed thereon would be controlling; and that the amendment did not intend to do away with the operating force of the express limitations appearing in the Constitution. The substantive effect of the original Article VII was not changed by the amendment, in that the Constitution vested the judicial power of the state in the courts.

"The Constitution vests the judicial power in every instance, and the Legislature in none. The Legislature has no judicial power, and can confer none upon any person or tribunal. Under the Constitution it may establish courts, but it does not invest the courts it creates with judicial power; the Constitution alone can do that, for all judicial power comes from that instrument, and is vested by it in courts and judges. * * *

"It is the Constitution, and not the Legislature, which makes the investiture, and it is the courts and the judges who are invested with the judicial power. * * *" State ex rel. v. Noble, 21 N.E. 244, 4 L.R.A. 101, 109.

The court in this case was construing a section of the Constitution of Indiana very similar to present Article VII of the

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Oregon Constitution. See also Howell v. Howell, 208 S.W. (2d) 22.

By § 1, Article VII, the judicial power is vested in the supreme court and such other courts as may from time to time be created by law. The limitation expressly reserves the judicial power for the courts and such power only resides with the court upon its creation by a duly enacted law. This section specifically provides that "the judges of the supreme and other courts shall be elected by the legal voters of the state or of their respective districts for a term of six years."

Although this language is somewhat different in form from that appearing in the original Article as to the election of supreme and circuit court judges, it does not materially differ from § 11, Article VII, as to the election of county judges. In construing this latter section, the supreme court, at a very early date, in the case of State v. Johns, 3 Or. 533, 536, said as follows:

"* * * The people of Oregon by their constitution made their judiciary elective, and only gave the executive power to fill temporary vacancies, which should occur between elections. If the people had intended to part with this power of appointing county judges, they would have expressed it. It cannot be inferred. No inference or intendment is ever presumed against the sovereign. Such is the universal rule for construction of statutes, for they emanate from the sovereign power which, in this state, is the people. * * *"

In view of § 1, Article VII, as amended, and § 16, Article V, the people of the State of Oregon have expressed themselves through their ORGAnic law as to the time and manner in which judges of the courts of the state shall be chosen.

"In two methods and two only can judges be chosen; by the people and by the Chief Executive, and by the latter only where there is a vacancy. * * *" State ex rel. v. Noble, 21 N.E. 244, 4 L.R.A. 101, 109.

"The people are the source of government and the power of selecting persons for office belongs to them, and hence the power of appointment belongs where the people have chosen to place it by their Constitution or laws." Headnote No. 1, State ex rel. v. Mechem, 265 P. (2d) 336. See Tucker v. State, 35 N.E. (2d) 270.

This same proposition is well stated in a quotation appearing in a footnote of the case of Woods v. State, 119 N.E. (2d) 558, 561, wherein a number of Indiana cases are cited, including the above referred to case of State ex rel. v. Noble. It is there said:

" 'Courts are an integral part of the government, and entirely independent, deriving their powers directly from the constitution, in so far as such powers are not inherent in the very nature of the judiciary. A court of general jurisdiction, where named in the constitution or established pursuant to the provisions of the constitution, cannot be directed, controlled, or impeded in its functions by any of the other departments of the government. The security of human rights and the safety of free institutions require the absolute integrity and freedom of action of courts. * * *'"

The holding of the Johns and Noble cases, supra, has been sustained by many of the courts throughout the United States, but regardless of these holdings our supreme court in the case of Holman v. Lutz, 132 Or. 185, has reached a somewhat contrary result in allowing Circuit Court Judge Hamilton to sit as a member of the supreme court. Even in this case it must be recognized that Judge Hamilton was a duly elected circuit judge and the court found that no vacancy in the office of Justice of the Supreme Court existed. For a case reaching a similar result see People v. Tauchen, 112 N.E. (2d) 94, and cases cited in Anno. L.R.A. 1916E, 834.

In view of the holding of these cases, and our position of refusing to pass upon the constitutionality of an Act, I can no more than say that we are bound by the presumption of constitutionality, and in this opinion have attempted to point out to you the reasoning of certain other cases, not only from Oregon, but from other jurisdictions which have had occasion to pass directly upon the problem.

You are advised that the presumption of constitutionality is controlling and until otherwise restrained by a court of competent jurisdiction you are compelled to make payment upon properly audited claims for the salaries of judges pro tempore appointed pursuant to ORS 3.105 to 3.115.