Jory v. Martin , 153 Or. 278 ( 1936 )

Article XIII of the constitution of the state of Oregon is as follows:

"Article XIII Salaries. § 1. Salaries of the State Officers. — 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 1927, the legislature amended the statute concerning the salary of governor and other officers, which amendment, in so far as it applies to the officers named in the above quoted article XIII, is as follows:

"67-601. Salary of Governor, secretary of state, state treasurer and attorney-general. — The several officers of this state hereinafter mentioned shall, during their continuance in office, be entitled to receive the annual salaries hereinafter respectively set forth, which salaries and each of them shall be payable monthly, in the same manner as are salaries of other officers, as full compensation for all services performed by virtue of their respective offices, to wit:

"The governor, $7,500 per annum.

"The secretary of state, $5,400 per annum.

"The state treasurer, $5,400 per annum.

* * *."

The purpose of this suit is to determine whether or not the statute above quoted is a valid constitutional law or is invalid because in conflict with Article XIII of the constitution as above set out.

Five grounds have been urged in support of the validity of the statute in question.

That the amounts specified as salaries in the constitution are minimum sums only and are not the maximum amounts which may legally be fixed by the legislature.

That contemporary construction discloses that article XIII was not intended to be indefinitely effective to the extent of continually preventing legislative increases in such salaries.

That negative provisions and express limitations to specific amounts in other parts of the constitution show that no such limitation or restriction was intended by the language employed in Article XIII.

That subsequent enactments by the legislature comprise a practical construction to the effect that Article XIII is not now effective to restrain the legislature from prescribing such salaries as it deems appropriate.

That applying the doctrine ab inconvenienti, that is from inconvenience, it is manifest that such confusion, disarray and chaos would now result by enforcing the constitutional mandate that public policy demands that such constitutional restrictions be disregarded, ignored and declared to be ineffective.

Of these in their order —

Dealing first with the suggestion that Article XIII merely fixes a minimum compensation for the officers named. It is said that if a maximum amount had been intended, some such phrase would have been employed as "not exceeding", so that in the case of the governor's salary, Article XIII would have read, "The governor shall receive an annual salary", not exceeding "fifteen hundred dollars".

If such a rule of construction must be applied, it seems to the writer that in order to fix merely a minimum compensation, some such phrase as "not less than" would necessarily precede the amount named.

Applying it to the statute above set out, the secretary of state could not determine how to draw the salary warrants each month because the statute does not say that the several officers mentioned shall receive not less than and not more than the salaries therein set forth, which is an absurdity.

Chapter XXVIII, Oregon Code 1930, is devoted to salaries of county officers. The same construction we here give to Article XIII of the constitution should be given to these statutes. Unlike section 67-601, supra, most of these statutes do not contain the word "full" modifying the word "compensation". To the writer, therefore, it appears that to hold laws concerning official salaries to be doubtful, uncertain, or ambiguous, if and when they do not expressly apply some such restrictive modifying phrases as "not less than" and "not more than" to the respective amounts named therein, is to introduce a trouble inviting, rather than a chaos preventing, wedge of unwarranted, unsound and unjustified judicial construction where, heretofore, no one has thought or dreamed that there could possibly be any other meaning attributed to such laws than the one universally accepted to the effect that the salaries named therein are thereby definitely, specifically and exactly fixed. Let us think what the court would do, if a taxpayer would seek to enjoin the payment of county salaries prescribed in said chapter XXVIII on the ground that the statute is vague, indefinite, uncertain and to be understood only by recourse to extrinsic construction.

The only ground for giving effect to extraneous construction of any kind, whether contemporary, legislative, practical or judicial, is uncertainty or ambiguity in the language of the law so construed. If the article of the constitution named is not uncertain, doubtful or ambiguous, then defendant's salary is fixed therein. If it is so fixed, any attempted change therein by legislative enactment is ineffective because at variance with the fundamental, supreme, organic law of the state.

This court having said in Jones v. Hoss, 132 Or. 175 (285 P. 205), that the legislature can not award more than the compensation mentioned in the constitution to members of the legislature for attendance upon its general sessions, it would likewise be absurd to say that it might award any amount without limit for attendance at its extra sessions, yet to hold that the constitutional compensation named for the governor is merely the minimum and may be increased at the pleasure of the legislature is tantamount to so holding with respect to the per diem compensation of legislators while serving in extra sessions. Section 29 of Article IV of the constitution contains this provision, "when convened in extra session by the governor, they shall receive three dollars per day". There is no other constitutional provision respecting pay of legislators for attending extra sessions of the legislature. Applying the rule invoked in behalf of defendant, the prescribed three dollars per diem for attendance at extra sessions is merely the minimum amount of compensation members of the legislature may be awarded by the legislature. The writer is not in accord with that view.

Let us suppose that A executes a contract with B whereby B enters the employment of A in a specified capacity and such contract contains these words, "B shall receive an annual salary of fifteen hundred dollars". Is there a court in the United States that would permit B to recover a greater sum than fifteen hundred dollars for a year's services in that specified capacity on the ground that the sum of fifteen hundred dollars was merely the minimum amount which A agreed to pay, and, the specified services being of greater value than that, A ought to pay a greater amount?

Neither would any court support A in the contention that the sum mentioned in the contract was merely the maximum amount possible for B to recover and, that, the specified services being of less value, B should be awarded only a less amount than the agreed price.

Every rule of law known to the writer would bind both A and B to the prescribed sum of fifteen hundred dollars. Fifteen hundred dollars would be neither a minimum nor a maximum, but it would be the exact amount fixed by the contract just as the various sums mentioned in Article XIII are the amounts fixed by the constitution, and the various sums mentioned in section 67-601, supra, are the amounts fixed by the statute.

If the compensation of the officers named in Article XIII is not fixed by the constitution, then the per diem of legislators at extra sessions is the only compensation of officers so fixed. The maximum compensation only for legislators in attendance at sessions other than extra sessions is fixed by said section 29 of Article IV. No attempt is made throughout the entire constitution to specify the compensation to be received by any other officer or officers than those mentioned in Article XIII except in section 29 of Article IV as above stated.

Noting that the provision, concerning compensation of officers being provided by law, if such compensation is not fixed by the constitution, is found only in Article XIII and is not found in Article IV, the conclusion is irresistible that the officers referred to as those whose compensation is fixed by the constitution includes the officers named in said Article XIII. If not, the only logical, orderly, intelligible place for such provision would be in, or immediately following, section 29 of Article IV. If the officers named in Article XIII were not meant as the excepted class, whose compensation should not be provided by law, then the only excepted class are the members of the legislature and it would have been the most natural thing in the world for the constitution makers merely to have said in effect, compensation of officers, except that of legislators as herein prescribed, shall be provided by law. This was not done. In a word, Article XIII may well be deemed to be complete in itself. It means what it says and says what it means.

From the oft-repeated use in the constitution of the term, "provided by law", no possible doubt can arise that it means, provided by enactment of the legislative branch of the state, as distinguished from constitutional mandate and from the action of the judicial and administrative or executive branches.

As to contemporary construction, we have no verbatim or stenographic report of the debates. All we have, aside from newspaper comment, is a report of some proposed amendments, which, at best merely disclose a dissatisfaction, on the part of a minority of the membership of the convention, with the present form of the constitutional clause under consideration. The writer thinks that it is to be assumed that the majority, who declined to adopt the proposed amendments, deemed the present constitutional provision clear and unambiguous.

The statements of members of the convention as to the construction of this perfectly plain provision of the constitution, which statements were made years after its adoption, when memory was bedimmed, and radically changed, personal, political and official relationships predominated, have far less weight with the writer "than a bird's egg blown". The point is that the ambiguity or uncertainty must appear in the constitution itself, not in the minds of members of the convention, or of legislators, or of jurists. No rule of construction known to the writer renders the clause in Article XIII fixing salaries uncertain, vague, indefinite, ambiguous or doubtful. Only when the instrument itself betrays uncertainty or ambiguity may recourse be had to what sages and supermen thought about it.

In the opinion of the court, we are told:

"The uncertainty, it will be noted, is not in the words or figures used in fixing the amount."

With this statement, it would seem that there could be no difference between the concurring majority and the writer who dissents. The writer most emphatically insists that there is no uncertainty, doubt, ambiguity or vagueness in the words or figures used in fixing the amount. That being the case, why discuss other parts of the constitution such as section 29 of Article IV wherein the compensation of legislators is fixed? There is no uncertainty in either. The compensation is fixed in both cases. We are concerned only with Article XIII. There being no ambiguity, no uncertainty, no doubt, there is no occasion for any construction. The constitution speaks. All of us are agreed that the compensation of the officers named therein is thereby fixed.

In the case of the legislators, this court has said that, because the constitution has fixed their compensation, the legislature is without authority to change it. There is no express limitation, other than the clause fixing the amount of compensation for legislators which declares that such compensation may not be changed. The term, "not exceeding" sheds no light upon the authority of the legislature to change the compensation. It is the fact that the compensation is fixed by the constitution that stays legislative action thereon.

In the opinion of the writer, where the salary of an officer is definitely fixed by the constitution, only a constitutional amendment can legally change it.

The majority say that the ambiguity or uncertainty is as to whether it was the intention to restrict the power of the legislature to increase or decrease that amount. As stated, the writer thinks that definitely, certainly and unambiguously fixing the exact amount of an official salary in the constitution, as it seems to be conceded that our constitution has done, is itself an express, unequivocal, imperative restriction and inhibition upon the power of the legislature to speak at all on the subject, except in literal, absolute and complete compliance therewith.

Moreover, to the writer, nothing could be plainer than the following clause, "the compensation of officers, if not fixed by this constitution, shall be provided by law". The distinguished jurists, who were members of that convention, knew, all of the members must have known; in fact, the newest tyro in any high school class on civics knows, that the purpose of a constitutional provision, concerning the power of the legislature, is to inhibit and curb. Such a provision can have no other purpose, no other effect. This provision certainly can not be tortured into having the effect of a grant of power. It must have been in the minds of the members of the constitutional convention that the legislature of Oregon, like the legislatures of all other states, was to have plenary power except as restricted by the constitution of the state, the federal constitution, treaties or congressional enactments. "Expressio unius est exclusio alterius." When the officers, whose compensation is not fixed by the constitutional provision, are expressly included or mentioned as those whose compensation was deemed the proper subject of legislative action, the officers whose compensation is fixed by the constitution, were excluded from the realm or jurisdiction of legislative action. Thus understood, the constitutional clause just quoted meant, now means, and as long as the purpose of such constitutional provision remains as it is, that is merely to prohibit, to limit, the power of the legislature, it will continue to mean that the compensation of officers fixed by this constitution shall not be provided by law.

As to negative provisions in other parts of the constitution, the writer does not find it necessary to have recourse to them in order to find words of negation and express prohibition, for the reason that such words are no more impressively employed anywhere else in the entire constitution than in the following clause — "they shall receive no fees or perquisites whatever for the performance of any duties connected with their respective offices". Avoidance of iteration of that method of expression in the same section is to be commended rather than to be construed as introducing an ambiguity. To the writer, the use of words of negation and express prohibition in other parts of the constitution ought not to weaken the force of such words in the section under discussion. Neither do they aid in construing the section containing such words.

In considering the so-called practical or legislative construction of Article XIII of the constitution, we find that the clause containing the words of negation and express prohibition was the one first to be violated. The allowance of per diem and mileage to the governor and the appropriation of one thousand dollars therefor (Laws of Oregon, 1859-60, p. 52) evidences that fact.

The act of 1859-60, supra, and four subsequent violations of this constitutional clause containing words of express inhibition and negation are cited in support of the proposition that, if the last clause of the section had expressly, that is, by words of negation and express prohibition, withheld from the legislature the powers to legislate, such final clause would have been effective. Such effectiveness does not even keep the promise to the ear. It failed in all the five instances mentioned.

As the writer views it, the implication on the final clause of section 1 of Article XIII, is so cogent and convincing that it was not until 1905, that is, more than 47 years after its adoption, that it was disregarded. Twice, since 1905, the legislature had passed salary legislation at variance with it.

Five violations of the clause expressly prohibiting payment of fees and perquisites and three violations of the clause which, by the strongest implication, withholds from the legislature any authority to change the salaries prescribed, are insufficient to persuade the writer that the constitutional provision under discussion is ambiguous. The writer does not attribute venality to any officer. What is here stated is that, in the opinion of the writer, Article XIII of the constitution is not ambiguous or doubtful.

"Where, * * * no ambiguity or doubt appears in the law, we think the same rule obtains here as in other cases, that the court should confine its attention to the law and not allow extrinsic circumstances to introduce a difficulty where the language is plain. To allow force to a practical construction in such a case would be to suffer manifest perversions to defeat the evident purpose of the law makers.

"`Contemporary construction * * * can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries.'" 1 Cooley's Const. Lim. (8th Ed.) p. 149, and authorities cited in note 1.

"The construction placed upon a provision of the constitution by the legislative and executive branches of the government will not be permitted to overturn and render nugatory a clear provision of the constitution." Amosv. Mosley, 74 Fla. 555 (77 So. 619, L.R.A. 1918C, 482).

The writer is in accord with Judge Cooley's opinion as thus expressed.

"We think we allow to contemporary and practical construction its full legitimate force when we suffer it, where it is clear and uniform, to solve in its own favor, the doubts which arise on reading the instrument to be construed." Ibid, pp. 150, 151.

The writer thinks no reasonable doubt can arise upon reading the instrument in suit and hence, recourse to contemporary or practical construction is both unnecessary and unwarranted.

The late Mr. Justice BURNETT in his specially concurring opinion in Evanhoff v. State Industrial Accident Commission,78 Or. 503, 504 (154 P. 106), expressed the view of the writer in saying that continued violations of a plain mandate of the constitution should not be dignified into contemporaneous construction.

In 1870, Governor Grover vetoed a bill to increase the salary of justices of the supreme court, because at that time such salary was fixed by Article XIII. This could well be considered as a practical construction of said article, especially when we have in mind that Governor Grover was a member of the constitutional convention.

In 1887, the legislature submitted to the people a proposed constitutional amendment changing Article XIII by omitting therefrom the provision fixing the amount of the salaries and providing that the officers therein named and other officers of the state should each receive an annual salary of such sum as the legislative assembly should thereafter by law for each of such officers provide: Laws of Oregon, 1887, p. 343.

This proposed amendment originated in 1885 as Senate Joint Resolution No. 12, and was then adopted by both houses. Laws of Oregon, 1885, pp. 487, 488. This action, approved by two legislative assemblies, might also well be deemed a practical construction of Article XIII to the effect that it limits the power of the legislature upon the matter of salaries to those of officers not named in said article.

On November 8, 1910, an initiative amendment of Article VII was adopted providing, among other things, that the compensation of judges may be provided by law.

As stated, originally Article XIII included judges of the supreme court among the officers whose compensation was therein fixed. Certainly, to impute a vain, unnecessary enactment to an entire electorate is unthinkable. Regardless of the campaign propaganda in favor of reformed appellate procedure, to provide, as in the amendment of Article VII adopted by the electorate, that the compensation of supreme judges might be provided by law, could have but one purpose and that purpose was to amend Article XIII in that regard. The electorate deemed it necessary to make such amendment. It would have been vain and useless to adopt the provision just mentioned in Article VII as amended, if the legislature had not been deprived by Article XIII of the power to legislate concerning such compensation. The mandate of all the voters, as expressed by a majority thereof, also might well be considered a practical construction of the constitutional provision affected.

The writer finds nothing ambiguous or doubtful in the constitutional provision under discussion and hence, gives no weight to such or any practical construction thereof.

The sharp difference between the views of the majority on the question here involved and those of the writer is most distinctly shown by the statement in the opinion of the court to the effect that a vote in favor of a general appropriation bill containing an item, supported only by a former unconstitutional statute, may be deemed to be a practical construction of the constitution to the effect that the constitution is uncertain, doubtful and ambiguous and that its real meaning is to be found in the statute rather than in the constitution itself.

The writer has found no case where a vote in favor of a general appropriation bill has been held to be a legislative construction of a concededly uncertain, doubtful and ambiguous constitutional provision pertaining to but one item in such appropriation measure, much less where such a vote has been given the miraculous effect of transforming plain, clear, distinct and certain language in a constitution into vagueness, indefiniteness, doubt and ambiguity.

Any one at all familiar with the procedure attendant upon the consideration of the items of a general appropriation bill knows that such consideration usually is given in the committee of the whole of each house. No record of the discussions in such committee is made. Those who believe that the ultimate result of the committee's deliberations is the best that can be secured, and who appreciate that the orderly process of government under the law requires means to defray operating expenses usually vote in favor of the bill which the committee approves; but many times those who so vote are not in accord with the basis for some of the items included in the bill. Their vote may be explained by the suggestion that the defeat of the bill in its entirety was not advisable for fear that it might be followed by the passage of one much worse, and they may have so expressed themselves in the committee. To the writer, it appears like a drowning man clutching at a straw to seek support from such a strained, and unprecedented contention as that which gives such remarkable and hitherto unheard of vitality, force and distinctiveness to a single item in a general appropriation bill.

One argument advanced to show that the provision concerning salaries, as set forth in said Article XIII, was intended to be effective only during the babyhood of the state, is that the framers of the constitution were far-seeing men, who must have visioned that there would be a great future increase in population, and that the time would soon come when these salaries would be wholly insufficient to compensate the officers named. They were the same men who immutably fixed the per diem of legislators at not more than $3 per day. In the opinion of the court, we are told that five of the present members of this court were glad to perform the services of legislators. Repeatedly, the ablest men in public life perform that service. This court has held that any attempt by the legislature to increase their compensation beyond the amount fixed by the constitution is futile. The writer finds no distinction between the gravely responsible and exceedingly onerous service of a legislator and that of a governor or other officer. The writer thinks that the framers of the constitution did not give the sauce of ambiguity, indefiniteness and uncertainty to the provision fixing the salary of the governor, secretary of state and treasurer in order that a new and different service would be forthcoming, and at the same time serve as legislative compensation the sauce of immutability, exactitude and certainty in order that no other service could be effected except by a constitutional amendment. Without intending to impute fowl characteristics either to the officers named in Article XIII or to the honorable members of the legislature, the writer thinks that the framers of the constitution were actuated by that well known maxim of Gellius, "Idem Accio quod Titio jus esto". (The same for Accius as that which may be right for Titius.) Or, in other words, "What is sauce for the goose is sauce for the gander". If $1500 per year is altogether too small for the services of a governor, certainly, three dollars a day is likewise pitiably inadequate as compensation for the able and distinguished members of the legislature. In a word, the makers of the constitution placed public service before private emolument.

Moreover, provision was elsewhere made for changes in other respects based upon the state's attainment of a given population. If such a thought had affected the fixing of official salaries, it would have been expressly made applicable thereto.

As to the doctrine, ab inconvenienti, the writer ventures to quote an expression found in a footnote of Cooley's Constitutional Limitations (8th Ed.), Vol. 1, p. 152.

"* * * We agree with the supreme court of Indiana, that, in construing constitutions, courts have nothing to do with the argument ab inconvenienti and should not `bend the constitution to suit the law of the hour.' Greencastle Tp. v. Black,5 Ind. 557, 565, and with Bronson, C.J. in what he says in Oakley v. Aspinwall, 3 N.Y. 547, 568: `It is highly probable that inconveniences will result from following the constitution as it is written. But that consideration can have no force with me. It is not for us, but for those who made the instrument, to supply its defects. If the legislature or the courts may take that office upon themselves, or if under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set any boundary to the powers of government. Written constitutions will be more than useless. Believing, as I do, that the success of free institutions depends upon a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausible reason for latitudinarian constructions which are resorted to for the purpose of acquiring power; some evil to be avoided or some good to be attained by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined and finally overthrown. My rule has ever been to follow the fundamental law as it is written regardless of consequences. If the law does not work well, the people can amend it; and inconveniences can be borne long enough to await that process. But if the legislature or the courts undertake to cure defects by forced and unnatural construction, they inflict a wound upon the constitution which nothing can heal. One step taken by the legislature or the judiciary in enlarging the powers of the government, opens the door for another which will be sure to follow; and so the process goes on until all respect for the fundamental law is lost and the powers of the government are just what those in authority please to call them.'"

All of the authorities coming to the attention of the writer based upon the doctrine, ab inconvenienti, involve matters of much graver concern than merely conforming official compensation to the amount prescribed by the constitution. The three officers here affected are most estimable gentlemen; and, personally, it is anything but pleasant to indicate that their official emoluments should be restricted to the constitutional salaries. Such a ruling, however, involves no confusion to the public, no disarray of numerous and diverse interests, no far spread ruin.

If the statute creating the state industrial accident commission had been declared unconstitutional upon the ground urged before this court, it would have thrown the Irrigation Code, the Minimum Wage Act, the Public Utilities Act and much other legislation into hopeless disarray: Evanhoff v. StateIndustrial Accident Commission, 78 Or. 503 (154 P. 106).

Most serious confusion would have ensued if the federal supreme court had declared the work of the circuit courts unauthorized because the supreme court judges serving as circuit judges had no right to do so: Stuart v. Laird, 1 Cranch (U.S.) 299 (2 L. Ed. 115).

The same comment is applicable to the holding of the Ohio court refusing to declare legislative divorces invalid. There, the court say:

"To deny this long-exercised power, and declare all the consequences resulting from it void, is pregnant with fearful consequences. If it affected only the rights of property, we should not hesitate; but second marriages have been contracted, and children born, and it would bastardize all these, although born under the sanction of apparent wedlock, authorized by an act of the legislature before they were born, and in consequence of which the relation was formed which gave them birth." Bingham v.Miller, 17 Ohio 445, 449 (49 Am. Dec. 471).

The same observation applied to the Illinois case upholding the validity of special statutes creating non-municipal corporations not possessing banking powers. The following is an excerpt from the opinion in that case:

"Special acts have been so long the order of the day, * * * until their acts of this description fill a huge and misshapen volume, and important and valuable rights claimed under them. * * * it would now produce far spread ruin to declare such acts unconstitutional and void." Johnson v. Jolich and ChicagoRailroad Co., 23 Ill. 202, 207.

The writer is free to say that, in his opinion, the constitutional salaries of governor, secretary of state and treasurer are not commensurate with the value of the services now being performed by those officers. If he could convince himself that the court has, or that the legislature had, the authority to amend the constitution, the problem would be solved; but a judge can only declare the law as he thinks it is, not necessarily as he thinks it ought to be.

As well stated by Mr. Justice BELT in Jones v. Hoss, supra, "* * * the inadequacy of compensation is a political and not a judicial question."

Where, as in the case at bar, the constitutional limitation is plain, unambiguous and certain, mere contemporary or practical construction can not avail to annul it. Where, as in the instant case, no great confusion will attend its enforcement, the argument from inconvenience (ab inconvenienti) is entitled to no consideration. The sole duty of the court is to declare ita lex scripta est. To the extent the amounts prescribed in the statute as salaries for the officers named exceed the amounts fixed by the constitution, the writer thinks that the statute in question is unconstitutional.

For these reasons the writer dissents.