Atty-Gen. v. Brown, 1 Wis. 513. Messrs. R. Williams, George H. Bennett and Joseph Simon, for respondent: Removals from office by the governor at discretion and without cause are contrary to the policy of law.

People v. Lord, 9 Mich. 232; People v. Ingham Co. Treas. 36 Mich. 419.

The governor's power of removal can only be exercised upon charges which shall specify the particular acts or neglect relied on to make out the cause alleged; and the officer sought to be removed must have notice of these charges and specific allegations, and reasonable notice for a hearing thereon, upon which he may produce proofs.

Dullam v. Willson, 53 Mich. 393.

The Legislature ascertains in its own way the facts on which it bases its action, and it is made the sole judge whether facts exist to authorize the immediate passage of a bill; and whatever facts or reasons it may give for such action must be held sufficient.

Day Land & Cattle Co. v. State, 68 Tex. 526. The governor in the exercise of the veto power acts, not as the executive, but as a component part of the Legislature, and an Act is passed and becomes a law upon his approval, or in default of that, upon its passage over his veto.

Logan v. State, 3 Heisk. 442.

Whether it receive the signature of the governor, or remains in his hands for ten days, or being vetoed is carried by two thirds of both Houses, its passage is dated from the time it ceased to be a mere proposition or bill, and passed into a law.

Wartman v. Phila. 33 Pa. 202.

Although the Act may not expressly state when it is to take effect, or that it is to take effect at once, yet the result may be reached constructively; and if that appears to be the intention of the Legislature, even impliedly, the law will take effect at once.

Standeford v. Wingate, 2 Duv. (Ky.) 440; Sicann v. Buck, 40 Miss. 268; People v. Lacombe, 99 N. Y. 43.

A strict and literal interpretation of a statute is not always to be adhered to.

Sedgw. Construction of Statutes, pp. 66, 67, note a; Endlich, Interpretation of Statutes, $421, 375.

the duly elected, qualified, and acting Secretary of State of the State of Oregon, and is, by virtue of said office, the auditor of public accounts; that your petitioner is one of the duly appointed, qualified, and acting railroad commissioners of the State of Oregon, constituting one of the members of the board of said railroad commissioners of said State, and has been such since the 21st day of February, 1889, at which time the appellant was duly appointed said railroad commissioner by Hon. S. Pennoyer, Governor of the State of Oregon, in pursuance of a law duly enacted and passed at the fourteenth regular session of the Legislative Assembly of said State, and which was approved the 18th of February, 1887; that, as such railroad commissioner, your petitioner, on the 31st day of March, 1889, became entitled to receive for his services as such officer the sum of $277.77, in United States gold coin, for the quarter ending March 31, 1889; that on the 1st day of April, 1889, your petitioner applied to said defendant at his office in the City of Salem, and requested and demanded that the defendant, as such Secretary of State and auditor of public accounts, should audit, allow, and issue his warrant upon the treasurer of the State for the payment of said $277.77, but that the defendant refused and neglected, and still does refuse and neglect, without lawful right or excuse, to either audit, allow, or issue his warrant upon said treasurer, for the payment of said claim, or any part thereof; that your petitioner has no plain, speedy, or adequate remedy at law for the recovery of said sum of $277.77, which became justly due and owing to the plaintiff on the 31st day of March, 1889. Prayer that the writ of mandamus be awarded,

etc.

The defendant demurred to the writ, upon the ground that the same did not state facts sufficient to entitle the plaintiff to the relief prayed for, or to any relief, which demurrer was sustained, and the writ dismissed, from which judgment this appeal was taken.

The appellant's notice of appeal specifies, in substance, the following grounds of error upon which he intends to rely upon the appeal: (1) The court erred in sustaining the defendant's demurrer. (2) The court erred in denying the writ of mandamus prayed for in said cause. (3) The court erred in dismissing plaintiff's cause at his costs.

ture.

Strahan, J., delivered the opinion of the

court:

This proceeding was instituted by the plaintiff, claiming to be one of the railroad commis sioners of the State, against the Secretary of State, to compel him by a writ of mandamus to draw a warrant upon the state treasury for the sum of $277.77, being the amount claimed as plaintiff's salary up to the date of the filing of the petition for the writ. The petition al

for and during the term of four years, or until their successors are appointed, as in said Act provided; and, if a vacancy occurs by resignation, death, or otherwise, the governor, in the manner thereinafter provided, was to appoint a commissioner to fill such vacancy for the residue of the term, and might in the same manner remove any commissioner, for cause. During the session of the Legislative Assembly next preceding the expiration of the term of office of the commissioners first appointed by this Act, and every four years thereafter, it

It is contended by the appellant that there is no emergency declared in the body of this law, and that, therefore, the Act did not take effect until ninety days after the adjournment of the Legislature. In the absence of a constitutional or statutory rule upon the subject, all statutes would take effect from the first day of the session at which they are passed; at least, that is the common-law rule. Cooley, Const. Lim. *156.

But the Constitution of this State has prescribed the rule by which every department of the government is bound; and the only duty the court has to perform is to determine whether or not it has been complied with in this particular case. The emergency is declared in these words: "Inasmuch as the amendments herein proposed would greatly tend to benefit the people of this State, and there is urgent necessity therefor," etc. I do not think that the latter member of the sentence adds anything to the first. It declares no emergency. It is the fact of the existence of any event or occasional combination of circumstances, which calls for immediate action or remedy, or the fact that some pressing necessity or exigency exists which enables the Legislature, by declaring the same in the preamble or body of the Act, to put the same in force sooner than the time prescribed in the Constitution in cases where there is no such emergency, or the same is not so declared; but, in all such cases it is for the Legislature to ascertain and declare the fact of the existence of the emergency, and their determination is not reviewable elsewhere. The Constitution has vested the law-making department of the government with the power to determine that question (Carpenter v. Montgomery, 7 Blackf. 415; Gentile v. State, 29 Ind. 409); and such determination is not made reviewable in the courts. No doubt the emergency must be declared in the body or preamble of the Act; but, if there is no fact, event or state or condition of affairs mentioned which the Legislature determines creates an emergency, no difference how strongly or directly it may be asserted in the Act that it is necessary that it should go into effect immediately, the legislative declaration must fail, for the reason the Constitution is not complied with.

By the Act under consideration, it is declared that the amendments proposed therein "would greatly tend to benefit the people of this State. "Benefit to the people" is the object and purpose of all government; and, where the result is manifest, no doubt the Legislature ought to resort to unusual, and even extraordinary, ends to attain it. It is true, in this case, we may be unable to perceive in what manner the proposed benefit is to accrue; but, the Legislature having declared that the people will be benefited, we must assume that such determination is proper, and, so far as the court is concerned, final. Such determination is in its nature political, and not judicial; and for such errors, if they be errors, the remedy must be found in the virtue and intelligence of the people. The ballot-box is

3. The third question remains to be considered. It has been argued, in effect, on the part of the appellant, that, under the Constitution of this State, the Legislature cannot create a new office,-one not provided for by the Constitution,-and fill it by an election in joint convention of the two Houses; that, while it is competent for the Legislature to create such additional offices as the public necessities may require, still, when created, if an election by the people is not provided for, the right to fill the same by appointment is devolved upon the governor by the Constitution. In other words, that the right to fill a vacant office belongs to the executive as one of the duties pertaining to his office, and that the assumption on the part of the Legislature to fill the office of railroad commissioners by persons of their own selection is an usurpation, by that department of government, of powers that are vested by the Constitution in the executive.

By art. 3, § 1, of the Constitution, it is provided: "The powers of the government shall be divided into three separate departments,the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided." For most practical purposes the line of demarcation which separates the three departments of government, the one from the other, is obvious enough; and there is but little probability that one department will assume to exercise functions which properly belong to one of the others. It is only where the power in question lies near the border line that any serious question can arise, and then it must be determined on its own particular facts.

In Wynehamer v. People, 13 N. Y. 391, the court of appeals pointed out the difficulty of attempting any general definition of this distribution of powers. Speaking through Comstock, J., the court said: "I entertain no doubt that, aside from the special limitations of the Constitution, the Legislature cannot exercise powers which are in their nature essentially judicial or executive. They are, by the Constitution, distributed to other departments of the government. It is only the legislative power' which is vested in the Senate and Assembly; but, where the Constitution is silent, and there is no clear usurpation of the powers distributed to other departments, I think there would be great difficulty and great danger in attempting to define the limits of this power. Chief Justice Marshall said: 'How far the power of giving the law may involve every other power, in cases where the Constitution is silent, never has been, and perhaps never can be, definitely stated.' That very eminent judge felt the dif ficulty; but the danger was less apparent then than it is now, when theories, alleged to be founded in natural reason or inalienable rights, but subversive of the just and necessary powers of government, attract the belief of considerable classes of men, and when too much reverence for government and law is certainly among the least of the perils to which our in

stitutions are exposed. I am reluctant to enter upon this field of inquiry, satisfied, as I am, that no rule can be laid down in terms which may not contain the germ of great mischief to society, by giving to private opinion and speculation a license to oppose themselves to the just and legitimate powers of government."

It was not claimed at the argument that there is any express provision of the Constitution which authorized the governor in direct terms to make the appointment in question, but that it is included in the grant contained in § 1, art. 5, of the Constitution. That section declares: The chief executive power of the State shall be vested in a governor," etc.

Now, if it could be shown that the power to appoint all officers which are not expressly made elective by the people is a part of "the chief executive power of the State," the appellant's contention would be sustained; but no authority whatever has been cited to sustain this view, nor is it believed that any exists; on the contrary, the provisions of the fifth article of the Constitution, which relates to the executive department, all seem at variance with this view. The framers of this instrument evidently designed that no prerogative powers should be left lurking in any of its provisions. No doubt they remembered something of the history of the conflicts with prerogative in that country from which we inherited the common law. They therefore defined the powers of the chief executive of the State so clearly and distinctly that there ought to be no controversy concerning the method of filling the same, or, in some cases, of changing the method of filling an existing office. In 1870 the Legislature, by an Act, created a vacancy in the office of clerk of this court, and provided for filling the same by an election in joint convention of the two Houses. Acts 1870, p. 58.

A clerk was elected under this Act by the Legislature, and served by virtue of such election until the law was repealed, and the power to appoint vested in the court. The librarian has always been selected by the Legislature since the office was created, and so have the pilot and fish commissioners, and, when the office of state geologist was created, the Legislature named the officer in the body of the Act. Acts 1872, p. 105.

The power exercised by the Legislature in the appointment of some of these officers is almost coeval with the Constitution. The power thus exercised has never been called in question, but has been acquiesced in by every department of the government, and is, in itself, a contemporaneous construction of the Constitution which, if the question were doubtful, might be sufficient to turn the scale in its favor. Under any view, such construction is entitled to great weight, and could not be lightly regarded.

4. Thus far, nothing has been said on the subject of the power of the governor to remove 5 L. R. A.

the railroad commissioners. The Act under which they were appointed provided that he might remove them for cause. This clearly implied that they could not be removed at the mere will of the governor, or without cause. Whether such a power is so far judicial in its nature that it cannot constitutionally be vested in the chief executive, as many authorities hold (Page v. Hardin, 8 B. Mon. 648; Curry v. Stewart, 8 Bush, 560; Hyde v. State, 52 Miss. 665; State v. Pritchard, 36 N. J. L. 101; Honey v. Graham, 39 Tex. 1; Dullam v. Willson, 53 Mich. 392), or whether it is in its nature executive, and therefore properly belongs to the governor, we do not at this time undertake to determine. But it is believed, under either view, and by whomsoever the power of removal for cause may be exercised, it must be done upon notice to the delinquent of the particular charges against him, and an opportunity be given him to be heard in his defense. Dullam v. Willson, supra; State v. Hawkins, 44 Ohio St. 98, 3 West. Rep. 125; People v. N. Y. Fire Comrs. 72 N. Y. 445; People v. New York, 19 Hun, 441.

But we do not decide this question now, and we only refer to it to avoid misconception.

5. There is another question, I think, proper to mention for the same reason. The ostensible object of this proceeding is to obtain payment from the state treasury of the salary plaintiff claims as railroad commissioner, but we cannot shut our eyes to the fact that its real object is to try the plaintiff's title to that office, and that is the question discussed; but no objection was made by the respondent, and, on account of the public importance of the questions involved, we deem it best to indicate an opinion on them. The better view is that this is not the proper proceeding to try the title to an office. High, Extr. Legal Rem. § 49; Moses, Mand. 150; People v. Olds, 3 Cal. 167; Meredith v. Sacramento Co. 50 Cal. 433; Warner v. Myers, 4 Or. 72; People v. New York, 3 Johns. Cas. 79; People v. Sterens, 5 Hill, 616; Re Gardner, 68 N. Y. 467; State v. Moseley, 34 Mo. 375; State v. Thompson, 36 Mo. 70; People v. Detroit, 18 Mich. 338.

Something was said at the argument in relation to a stipulation that this question should not be insisted upon by the respondent. The stipulation does not appear of record, and, if it did, it would not affect the result. Such a stipulation would be contrary to law, and could not be enforced. The law has fixed the extent and uses to which the writ of mandamus may be applied, and the stipulation or agreement of the parties can neither enlarge nor lessen the same.

The judgment of the court below must therefore be affirmed.

A petition for a rehearing was denied in this case July 1, 1889.