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About The Oregon statesman. (Salem, Or.) 1916-1980 | View Entire Issue (Jan. 22, 1920)
i 1 TIIE PRECOX STATESMAN; THraSitAV. JAXrAUV. 22. 10i0. . . TEXT OF OPINIONS BY SUPREME COURT JUSTICES IN THE CASE OF ROBERTS VS. OLCOTT Prevailing Opinion of Justice Charles A. Johns, Holding That Present Governor Holds Through Entire Unexpired Term of Late Governor Withycombe, Together With Concurrences and Dissents, Are Published in Full Court Stands Four to Three in Extending to Executive the Right to Serve Until 1923 ' V Below are printed In full the four opinions that were written by jus tices of the supreme court in the case of Roberts vs. Olcott, a test case, by i which It was determined that Gov ernor Olcott. tinder the state consti ' tutlon. has the right to serve as gov pernor through the entire unexpired term or the late Governor Withy combe. By virtue of his being secre tary of state Mr. Olcott succeeded to the governorship at the death of Governor Withycombe. In the supreme court test Justice Johns wrote the prevailing opinion, holding that Governor Olcott serves out the entire unexpired term, or un til 1923. . Justice Bennett wrote a separate opinion concurring with Justice Johns. Chief Justice Mc Brlde and Justice Bean concurred in the Johns opinion though they wrote no opinions. Justice Harris wrote an elaborate opinion dissenting from the opinion of Justice Johns. Justice Burnett' wrote a separate opinion concurring with- the dissenting opin ion of Justice Harris. Justice Ben son agreed with Justice Harris, but wrote no opinion. Thus the court stood 4 to 3 in' favor of Governor Olcott'' side of the case. "The case, instituted by G. M. Rob erts, district attorney for Jackson county, was an original proceeding in mandamus which sought to' com pel Mr. Olcott as secretary of state to include the office of governor In the list of offices certified to county clerks which are to be filled br the elections of this year. The supremejV court heard the case In banc. It was argued and submitted on demurrer to the petition for an alternative writ December 18, 19 19. Mr. Roberts ap peared in his own behalf and Attor ney General Brown represented Mr Olcott. Justice Johns' opinion sus tains the demurrer. The four opinions that were writ ten follow: Justice Johns Opinion -, . Demurrer sustained. ' This Is an original petition for a writ of mandamus, in which the re lator alleges that he is a natural born, ciUacn of the United States, over twenty-one years of age, has been district attorney and a resident of Jackson county for moro than one , year last past and Is now a resident and legal voter therein for all state and county offices, that the defend ant is the duly elected, Qualified and , v acting secretary pf state; that on No- J vember 6, 1918, James Withycombe was duly elected governor of the i state ot Oregon and duly qualified for that office an January 14, 1919? tbat the defendant was elected sec .and duty qualified on Detetu'ber 26. 1916; that on March 3, J919, James ! withycombe. the duly elected and , qualified governor, died; that tha office of governor and the duties thereof thwi devolved upon the soe letary of state and that on March 7. 1919, the defendant took the oath m or i ice ana assumed tne duties ot I governor. The relator contends that , - .... ....... MM U . X. hUV only until the first :ilonday in Jan . uary, 1921, and not tor the unex 1 pired term of the late Governor Withycombe: that under the laws and constitution of the state of Ore gon the office of governor will be come vacant on the first Monday in Janmrv that tha M nlfU ' should be filled at the general elec- lion to be held November 1. 1920. by the legal voters; that it Is a duty especially enjoined upon the defend ant ' to prepare' and furnish each county i clerk a statement showing - the several state offices' for which candidate are to be chosen In the ' f respective counties at the primary nominating, election to be held May ; 21, 1920; and that the defendant has neglected and refused to perform the said duty in this, that he has failed to name in such statement the office of governor of the btate of Oregon,; for which nomination should bo made at the coming primaries. , The petitioner ' demands that the ttatemcnts tent to the county clerks of the various counties cf the state ...:be corrected by naming therein tl.e office of governor of the state of Oregon, charging that the defendant lias refused to make such correc tion. He prays for an alteniative writ of mandamus directed to the defendant, compelling fclm to cor rect said statements . and Include .: therein ; the office of governor, or show cause why he should not do so A certified copy of the notice sent to the coun'y clerk of Jackson coun ty with such omission Is attached to and made a part of the petition ' The attorney general appeared for . the defendant, tiling a general de murrer alleging that the petition "does not state facts sufficient to constitute a cause of action.' Johns J. In legal effect. th question now before us Ik, the one which was sought to-be presented In the case of Olcott v. Hoff, - Or. --,..lSl FaC 466. hut was not then decided, because some . members or this court did not think the question was legally .before it and . for such reason no four members could then agree upon an opinion. The contro versy 'now has to do. with whetler ; Mr. Olcott ceases to be governor when, his term of orrice as secretary ot state expires, or whether he shall , continue to hold that office for the remainder if the unexpired term of , the tate Governor Withycombe. The , uai quest'on to be determined is What mas legally decided in the case I of Chadwick v. Earhart. 11 Or. 3S9; ' and how far is that decision binding 1 !ion this court? r It was the intention of the 'tram mers of the original constlt utirm that all of the administrative otricers of the stat should be elected for the period of four years and at the same ,t election. Section 1 of Article V of the constitution provides , "The thbrf executive the elate shall be vested ernor. who shall hold his olficc ; for the term of four years; and no person shall be eligible to such office more than eight in any per iod of twelve years." and section 7 is as follows; "The official term of the gover nor shall be four years; and shall commence at such times as may be prescribed by this constitution, or prescribed by law." Section 16 or that article says: "When during a recess or the legislative assembly a vacancy shall happen in any office, the ap pointment to which is vested in the legislative assembly, or when at any lime a vacancy -shall have occurred m any other state office, or in the office of Judge of any court, the governor shell fill such vacancy by appointment, which shall expire when a successor shall have been elected and qualified.' In our first code, compiled by Hon. M. P. Deady, section 16 Is annotated by him to i tad, "Governor to fill va cancies by appointment." That con struction has been followed, and all appointments to state offices have been made by the governor, who alone is vested with that authority; but there is no provision' for the ap pointment of a governor and there has never been a vacancy in that of fice. To prevent that and to provide a line of succession section 8 ot Ar ticle V of the constitution was adop ted, reading thus: "In case of the removal of the governor" from office, or of his death, resignation, or inability to discharge the duties of hir office, ' the same shall devolve on -the secretary of state; and In case of the removal from office, death, resignation, or inability, both of T the governor and secretary of -state, the president of the senate shall act as governor, until the disability be removed or a gover nor be elected." Although it is true, as Mr. Jus tice Harrij has pointed out in his opinion in Olcott v. Hc.fr, that in annotating this section Judge Deady used the words, "Acting governor in case of vacancy or disability," it is also true that in the later code com piled by Deady and Lane the same section was annotated to read, ."In ! case of vacancy or disability." The decision in Chadwick v. Ear hart was rendered by a unanimous court in October, 1884. Hill's code was annotated and published in 1882, and in annotating section & of Article V of the constitution, Mr. Hill said: "Secretary as governor. Tha secretary pf state. entering upon the duties of governor, upon - the gov ernor's resignation, may continue to perform the functions of gov ernor for the remainder of the governor's term of office, though he ceases in the mean time to be (secretary of state: Chadwick v. Darhart, 11 Or. 389." Bellinger & Cotton's code was pub lished in 1902 and the compilers then made the following annotation to the section mentioned, citing Chad wick v.- Earn art: The secretary of Mate enter ing upon the duties of governor, "upon the governor's resignation, may continue to perform the func tions of governor or the remain der of the governor's term of of fice, though he ceases ?n the mean time to be secretary of state." lord's Oregon laws were published in 1910 ard the following annota tion therein is made to that section1: "Under this provision, when the governor resigns, the duties of tho governor oftice devolve upon the secretary of state, wh continue to perform them for the remain der of the term of the outgoing governor: Chadwick v. Earhart, 11 Or. 389, 4 Pac. 1180." Mr, Lord was one of the Jndges by whom the decision in, Chadwick v. Karhart was rendered in 188 4. While we respect Judge Deady for both his If arning and ability, any construction which he may bav9 placed upon section S was eiven be fore .the decision In the Chndwick rase was rendered. t must be con ceded that Judge Bellinger and W. W, Cotton were men of equal learn ing rnd lability, and their annotation was made after that cae wa de cided. Thj same Is true as to V Lair Hilt, who was recognized as one of the ablest lawyers in Oregon. Thu decision in the Chadwick case was rendered by a unanimous court then consisting of Chief Justice Waldo k. is. watsr.n and w. r. Lord. an: It Is significant that in compilin: his owh code, under section S of Articl V Mr. Lord trade the annotation above quo'ed. We have no record of the oral ar guments, but 'a? pointed out in our opinion in Olcott v. Hoff: two ques tions were raided in the respective briefs filed In the Chadwick case. Mr. Earhart. then secretary of state contended first that Mr. Chadwick was not entitled to the salaries of loth governor and secretary of state. after he had become governor by the resignation ot that office by Mr. Gro- ver. but to that of secretary of state only: and t-et-ond.. that be vaf n.t entitled to the salary ot the gover nor's of fice after he ceased to be sec .aetatry of state. Mil Chadwick claim- ft that ti Wl. onl it 'nH In t Hi ,.l9r. - " - - " ui isuiu uutCTS uurii.;, w li lit I- he was secretary of state and gover nor, and tot the salary of governor for the two days that h held that offhe after he censed to be secre tary of state. Both of Mr. Ched wick's contention1! were sustained by the unanimous decision of tho cou-t. Oh the second point, the liaht to the salary of srovernor after he ceased to be secretary of state, the court Leld: . ""fhu i;ucs1Ion must nlso be an swered in favor of the appellant Iand jiidsm in ply' By reason of and judgment be entered arcord- that decision Mr. Chad wick was paid the salary for the two nays that he held the orfice of gov vernor after ceasing to be secretary of state. The canse of action wp.s for a lump sum of money which in cluded both claims and for the rea son stated in the opinion each of his claims fwas allowed. The conclu sion is inevitable that the second claim could be allowed only upon the theory that Mr. Chadwick continued to be governor in fact after he ceas ed to be secretary of state. It is significant that since the ren dition of tbat opinion, without an exception the arnotators of the code. W. Lair Hill. C. B. Bellinger. W. W. Cotton and Wl P. Lord, all men of the highes: type In their profession, have construed the decision to near that now. under the existing facts. Mr. Olcott should hold the office of governor for the renfainder of the late Governor Withycombe's unex pired term. Such annotations will be found under section 8 of Article V of the ccnstltution in every code compiled and published since the rendition of that decision, which fo- thirty-five years has not been dis turbed. Three different "efforts have been made to change section 8 of Arti cle V of the organic law ot the state: the first oa November 5, 1912; the second on November 3. 1914. and the last at the special , election of June 3. 1919. On the last occasion a comntlttee composed fof Gus C. Moser. state senator, and Chris Schuebeland William G: Hare, rep resentatives, presented an argument in the voters' pamphlet in favor ofv tne proposed amendment, saying: "The cnties of the of ice of gov ernor will continue to be perform ed by" Governor Olcott for the re mainder of the term of office for which the late Governor Withj com'be was elected." To' this might be added that Arizona, Utah and Wyoming are the only other stats in the Union which have a constitution providing that in the event of the governor's death the secretary of state succeeds to his of fice or performs the duties thereof yet every attempt t ochange that sec tion of the constitution has been de feated by the vote of the people. It is vigorously contended that the people should have an opportunity of choosing their own governor. In the instant case they have had an1 exercised that right. Under the ex press provisions of the constitution when they elected Mr. Withycombe governor and Mr. Olcott secretary of state, they tlected Mr. Olcott to be come governor upon the death cf Governor Withycombe: and every voter who cast his ballot for Mr. Ol cott as secretary of state legally knew that upon the death of Govt-r- rpr With) combe the duties of ha office would devolve upon the sec retary of slate. There Is no such provision in the constitution as to any other state office. Section 16 of Article Wprovldes that in the event cf the death or resignation of the Incumbents, all other offices shall be filled by appointment by the governor. Further, there Is no pro vision in either statutes or constitu tion for an election to fill an unex pired term of the office of governor. Such a proceeding would have to be lead into He Constitution, mould be based upon implied construction on ly, and would-. overrule the precedent of Chadwick v. Earhart. Should the attorney general, for example, die, there would then be a vacancy in that office which could be filled by appointment by the gov ernor, under section 1U of Article V of the constitution. But when the governor dies, his office, under sec tion 8 ot the same article, "shall de volve upon "the secretary of state." That is to t-ay, this section provides a line of succession to the office of governor; and upon the death of the incumbent the secre'ary of state automaticclly becomes governor. lp on'the death of tho secretary of state while in the office of governor the president of the senato becomes act ing governor. There is. a marked distinction between the meaning, force and effect of section ;16 anl section 8 of Article v. Under" sec tion 16 a. vacancy octurF. which tht governor may fill by appointment. While thejine of succession remains unbroken, as we construe section 8, there is no such occurrence as a va cancy in the office of governor: and Fections 1 and 7 of Article V express ly i rovlde that the term of the gov erns shaft he four year? Thrre Is no provision by which anyone is au thorized to appoint a governor. ec- ion 8 . provides a line of automatic succession; it was adopted to pie vent a vacancy in the -'fice ot gov ernor. Therein lies the distinction between the instant controversy ann the state ex rel. v. Johns. 3 Or. 533. a ad State ex rel. v. Ware. 13 Or. I'nder our ronstitution the gover nor is the chief executive, officer of the state, in whom only tho power of appointment is rested, and !n tho very nature of things a vacancy in thut office would destroy the v:hol- plan of the Uale government. Kovernrr was elected in November, l.-lf. nd qauiified ir Januniy 1919. an I i c has besn elected and quali fied every four preceding years sinoe the adoption f the t-onstitutk)&. Un der fictions 1 and 7 of Arti'-f.j V of the organic law the-term f r wh'ch a governor is selected is absolutely fixed at four years and there is no provision in either the statvtes or constitution for . the eltrtion vi a M v'i-nnr for any portion of an un expired term. Hense. under the terms of those sections, 't a govor ixr should be elected at ho not gone tat elec-ion. he would hold t- fic not onl. for the remniner of the nm pired nn of "the late Hot; ernor Viihycombe . but for a full fon ys perio I frni January. 1'2I M January, i 2:.. Tbat would disar- range and destroy the whole plan of ! the framers of the constitution. The rule of stare decisis is well stated by Mr. Justice Purnett in dis senting opinion in Kallch v. Knpp, 73 Or. 587. 145 Pac. 27, thus: "Another doe'rine equally well settled that of stare decisis, to the effect that, when a decision has once been rendered, it amounts io an authoritative con struction of the law, and should not be disregarded or overturned, except for very cogtnt reasons f-howing beyond question that on principle it was wrongly decided. The principle is that laws axe largely conventional rules of ac tion, and it is more irrportant that the rule be settled as a guiding precept to the public than that by she actlt u of the courts t'-e law should be made to fluctuate like the tids." citing authorities. and It app.lWs with pecul'ar force to the decisions of courts on questions of constitutional law. The same doc-; trine is announced in re City of Se attle. 62 Wish. 218, 112 Pac. 762. where the supreme court of Wash ington said: "The rule of stare decisis is pe culiarly applicable to the construc tion of th constitution. The In terpretation of that document should not be made dependent up on every change in the personnel of the court. When one or it clnuses has beon construed, that construction should not be set aside except for the most cogent reasons. Certainly if the law is of first Importance." In Multnomah County v. Sliker. 10 Or. 65, Cf, Mr. Chief Justice Lord said: r "The matter here Is the cor etitutionallty of a statute, and the rule is said to be almost universal in construing statutes and the con stitution, to adhere to the doctrine of stare decisis." In State t. Frear, 142. Wis. 320. 227. the supreme court ot that state said: "Decisions on the constitutional questions that have long been con sidered the settled law of the Mate should not be lightly set aside, although this court as pres ently constituted might reach a different conclusion if the propo sition were a original one." Black's Constitutional lav, 3d Ed.. page 81. subdivision 15, lays down the rule thus: "The principle ot stare decisis applies with special force tothe construction of constitutions, an,d nn interpretation . once deliberate ly put upon the provisions of such an instrument should, not tv de parted from .without grave rea- .OP.K." The authorities' are uniform . upon the force and effect of stare decisis in regard to a, constitutional qi.es t'cn. . Iu face of the decision in Chad wick v. Earhart. and with knowl edge of such collateral facts, the peo ple have always opposed any amend ment to section 8 of Article V of the constitution. That decision was upon the constitutional question and under the .facts it cannot be said that it Is not sustained by reason and authority. Whatever may ic our present opinions. It m".f.l now be held, under the principle of stare decisis, as binding upon t'i'a court. The- writ is denied and tho d'.nur rcr Is sustained. By Justice Bennett Bennett, J. (specially concurring). This case is fully stated in the opin ion of Mr. Justice Johns, to which w refer. The same Questions herein pre sented were discussed at graal length in Olcott v. Hofr, Or. . l. l lc 466. Those questions r.eei.1 no-v squarely before ur for decision. Ev er citizen is Interested In who shall bT governor of the state am iu th enforcement of the law by which the election of a governor Is s-u'm-.itud t the voters, at" the tln-i contem plated by the provisions of the con stitution or the state; and a man .limus proceeding may be i..ain- tained in a case like this at the re lation of such a Citizen. Otherwise, the rizhts cf tlto voters OJil be ij,- ncrtd entlrel;-. and the e'nn of a governor postponed from time to tim,?.. at tho will of the secretary of Btate. and there would be no rem edy. , State v. Ware. 13 Or. 380. After n.i:eh consideration and some hesitation I feel compelled to concur in the opinion ot Mr. Justice Johns upon the ground of stare de cisis only. U seems to me that tht case of Chadwick v. Karhart. 1 1 Or fS9. 4 Pac. 1180. is directly ;n poiut end is controlling. If it were not tor that case and If the question was here as a mattei" or first impression. I should be gov trncd by tne reasoning of Mr. Jus tice Harris, when the question was under consideration of Olcott v. Hofr. which seems to be to present, as a matter ot logic, the stronger considerations. ' The reasoning of the Chadwick case does not appeal to me as bein by any means, conclusive in Its log ic or even very rogent. The court in that case, seems to have concluded that the relation of secretary of state to the oftlc or governor, was exactly the same as the relation ot ice president to the office of pres ident in the federal government There .does not seem to me to be such analocy. The president of thv United States is elected to a four yoar term. There is no provision in the constitution or laws, by which in rase of death or resignation, his sue ccsspr could be elected at any in tervVning tiine. It follow as a mat- tot' of course that the vice president shall take his place in case of death. and hold h!. office for the full re mainder of tin orisina) term. be. ifBv there are no mean or provi sions- by hich a jmcocM-or can w Kited at any intcrvvnia, time. The caso of governor and secre tary or state under our constitution is different. Here we have general elections every two years over the entire state, when the people may (if the constitution is not construed to prohibit) elect a governor at the same time as the other general offi cers, and the members of the legis lative assembly. Neither does the reasoning of the court in that case, by which it was concluded that section 8 or Article V or the Oregon constitution, nvad-j the "office" of governor itself, de volve upon the secretary of state and entitle the occupant of the sec retary of state's office to take that office "personally, and hold It aUer he ceases to be secretary of state, seem to me altogether satisfactory. It seems to me a better construc tion of the constitution would have been, that the duties of the office. rather than the office itself, devolved upon the secretary of state, and that he exercised those duties only by virtue of his or flee and as long as bis office ot secretary of state con tinued. And that the office of gov- vernor itself, became vacant upon the death or resignation of the gover nor, and could be filled at the next general election. But we must accept some things as settled. Otherwise, there would be no end to controversy and litiga tion, and no one would know what his rights teally are or who is en titled to administer the laws under which he lives. While not entirely satisfied with the reasoning, I find myself unable to accept the contention ot the re lator, that the opinion .of the. court in the Chadwick case was mere dic tum: or to follow the reasoning of Mr. Justice I. arris by Which that ease ls distinguished from the case at bar. It is plain . there were two inde pendent questions presented in the Chadwick case. First, whether the duties of the office ot governor de volved upon the secretary of state and gave hfm the right to the salary of the office while he was such sec retary. ' Second. vhether he continued to; periorm tne duties ot ttie ornce or gOTernor after bis Office as secretary expired and during the term from which the outgoing governor had re signed; and was he therefore entitled loathe salary of governor during the remainder of that term. It is plain that what was said by the court in relation to the first question has no. bearing upon this rase. If we strip the opinion down to what is strictly pertinent here it will be short and I think clear and will read as follows; "Two questions are submitted in this case. The. first and prin cipal one is. whether, when, under section 8 ot article V of the con stitution of Oregon, the duties of the ofric of governor derolve up on the Kccretary of state, he has a right to the salary of the office. Second. If this question be an swered In the arrirmative, wheth er he shill continue to perform the duties of the office for the re mainder of the term of the outgo ing governor, or shall he perform those duties only as long as he shall continue to be secretary of state. "The principle on uHch the sec on('( question is to be decided name ly, whether the appellant shaM cease to be governor when he ceases to be secretary of state, weem to be this: -,Jf n office be appendant, as the' expression Is in 1 Leon., 321. to anotner orfice, the determination ot the first of fice will detenu ice the second. "On the contraiy. If the nomi nation or appointment to an of fice be by descriplio poronarum of one who holds some of rice by the title ot v hlch he is described, and who on tome contingency is to enter and fill another office, the answering the description at the time the contingency arises desig nates him as the person who is to enter and till the office, and when, as thus designated, he enters into the office, he holds it in his natur al, and not in his official capacity. "This iuetiot. therefore, most also be answered in favor of the appellant, and judgment be en tered accordingly." I have emphasized such words in the foregoing ax seem to me to be particularly pertinent. It seemn clear to ne that the court by this language, intended to pass in a broad way upon the whole ques tion, and to hold that the orfice of governor, which had been resigned by Governor Grover. passe-d to Chad wick personally, and carried with it all thes Attribute of that office. In eluding the right to hold it for th en tire remainder of the term, which unquesionably belonged to the pre vious outgoing governor. If this view needs any further sup port than the mere language of the opinion itself already quoted, it N found in the fact that the cour: reached this conclusion on account ot the analogy which It assumed to exist between the of rice of gover nor of the state or Oregon and sec retary ot state on the one hand, and the office of president and vice pres ident ot tho United States upon the otner: and tne court reasoned that the orriee of governor passed to the secretary of state hi the samr way and for the name remainder ef th term that the omce of president of the United States passe to the vie? president. Part of the opinion reads: "The constitution of the United States, providing for the contin gency of a vacancy in the ofriee or president. Is nearlv the same with tht provisions f our stat .constitution rrovidins for a va- cancy In the office of governor. The vice president holds the office of president until-the successor to the deceased presi dent comes to assume the office at the ?xplratio of the term for which the dec eased president and the vice president were elected." We may doubt whether the sup posed analogy was as complete and perfect as the court assumed, and Indeed as to whether there was anjr analogy at all. but we cannot very well doubt that the court In the Chadwick ease Intended to hold that the secretary of state, held the of fice of governor of Oregon, in the same way that the rice president holds the office of president of the United States upon the deceaje of the president. ember further that Wlben we rem the court held that the -afflce" de volved upon the secretary of state. nd when we consider the term "of fice" when used thus without limi tation, has reterence to the duration of the position and the term of its occupancy, as well as the duties to be performed, the pnrpo ot the court becomes still plainer. In Peopie v. Amern. 196 N. Y. 21. it is said in relation to the word, ofrice, "It means a right to hold tne place and perforin the duty for the terra and by the ten ure prescribed by law " In Kendall v. Raybould. 13 Utah, 226, 4 4 Pac; 1034. it is said: "An olfice embraces the idea of tenure, duration, emoluments and duty, and these ideas or ele ments cannot be separated - and each considered abstractly. All taken together constitute the of fice." To the same effect see Tanner t. Edwards. 31 Utah. 80. SC Pac. 75. In Stats v. Rose. 74 Kan., 262. 86 Pac 296. It is said: "An 'office' is a trukt conferred by public authority i for a public purpose and for a definite term." In United States v. McCrory. 91 Fed. 295. the court define the wori clflce' as follows: "An office is a public station or employn-ent conferred by the ap pointment of governor, the term embracing the idea of. tenure. duration, employment ' and du ties." To the same effect see rurrell'a law Dictionary title "off'ce la U. S. t. llartwell. fi W-.ll. the supreme court of the Lnitod States say of the term "office. "The term embraces the idea of tenure, duration, emolument and duties . .. . . , In Peonle v. DuaneVYil " X '"V. 375. It Is said of a public of rice that it means, among other, things, the right "to hold the place and perform the duty for the term and by the tenure prescribed by law It seems plain to me that the court used the word in this sense in Chadwick r. Earhart. when it said in efrect that the "orfice" or gover nor devolved vpn the secretary of state for the remainder of the gover nor's term, and tbat it intended to place its decision upon, the broad principle, that the ofrice ot gover nor. with all its attributes, included the duration of the terra, devolved upon the person who was then sec retary ot state, who continued to hold it for the entire remainder of the term, the sane as the rice pres ident holds the office of president. -It remains to be considered, whe ther or not the question which the court did decide and which it Intend ed to decide, in the case of Chad wick v. Earhart. and especially thr question as to whether or not the secretary of state took the office personally and held the office ot gov ernor for th entire term, or onlv a portion thereof, was fairly wlthlc the issue made in that care, or whe ther, on the other hand, the princi ples that the court announced ir that case were outside of the Issuer end mere dictum, which settled nolh ing and binds nobody. In considering this question wo mist. t seeris to rrve. remember tbat this is a great consMtnMona! qu lion in which the whole people of the state are deeply Interested. They are Interested 'to know, now and at til times hereafter, who is in truth their governor, and Who Is entitled to administer their laws. And when that question had once been settled they are irterested in having that settlement remain undisturbed. It is far more important that the peo ple shall know for a surety who If t.t right their governor at a given time, and who is entitled to perform the duties of the highest office of he state, than it is that any one person shall be governor at a given period It Is not so very Intportar.t to the people of the state of Oregon, wh iner .ir. lucou or some otner com petent person shall act as governor for the ensuing two years: -But It if important exceedingly Important that whoever does aet as gover nor shall have undoubted and un questioned authority so that, his acts may l.e valid and the peopl may know them to be va'id. and that their validity is bevond doubt or cavil. We do not want any pos sibility ot two governors in the Hate; or two persons claiming to be roTernor. eat n wun some shadow of authority and with a divided fealty J behind hi ra. It is because or such possibilities no dount. that the authorities rec ocnize that the doctrine of stare de- c.sts rest with peculiar nd exop uonai lorce. upon such groat . con suiutionaj questions. 'Mr. Black, in his work on Judl ciai rreceoents. p. 222. says: "The principle of stare dcciui applies with especial force to the construction of constitutions, and an interpretation once deliberate ly put u;tn the provisions of nrh en instrument, should not be dc- parted from without grave rra tons." Andat another place, p. 223: "Korr..er decisions should not be departed from merely bee arse the court, as at present consti tuted, entertains a .different opinion as to the meaning or ap plication of a given provision of the conFlltutloa from tbat ai . nounced by Its predecr ors. And again, on p. 224: "It is said that the principle of stare decisis, as applied to - lb construction and interpretation of the constitution. Is especially Im perative, when the former deri sions were rendered at an early day and hare long been consid ered as settling the law." In lrwis' Sutherland on Slat. 'Const. (2d Ed.) Bee. 473. It Is said: When a Judicial Interpreta tion has once been put upon a clause, expressed In a vague man ner and difflcalt to be under stood, that ought of itself to be sufficient authority for adopting' the same construction." It is true that questions not fairly within the issue made by the plead- ngs and presented to the court, can not be authoritatively .passed upoi In any case, and If the court goes outside of these questions and de cides others which are not before It. its utterance is a mere dictum which binds no one: and we must always assume that the court enly Intended to pass upon the questions that were, reatiy presented in any case ror de cision. But I do not understattd. that in order to make the decision In one case a controlling precedent in an other, the two oases mast be in a'.I respects exactly identical. ,s On the other hand, as J understand the rule, if the doctrines announced in one case are necessary to the de, cision necessary to the conclusion vhlch the court reached in that case, and a part of the reasoning noon w&Ich the .court reached that con clusion, they become, established principles NrJiIch govern all other rases, which come within them. "Whecever a question fairly arises la the course of a trial, and there Is a distinct decision there- ' on, the courts ruling in relation thereto, can In no sense be regard ed as mere dictum." R. E. Co. t. Price. 159 Fed. 332. "No matter what the situation may appear to br. a? to the un just operation zt a law. courts should net struggle J.o change It as it ha been one et stood to ex ist and has been, plainly written Into Its decisions for years, by fine dlatincUons- between eases, and by rejecting the reasons upon which they were ' grounded as biter. Lewis' Sutherland - oa Stat. ConsL (2d Ed.) Sec. 484. "A Judicial decision is. to be re garded as 'conclusive.' not only of the point presented in argument, but of every other proposition nee essarily involved in reaching thej conclusion ' expressed." Id. Sec. Our own court has gone farther than most courts farther than It has'seemed to me sometimes it ought to go in extending the doctrine of sure decisis. Jn the case of Wilcox r. WTarren Construction Co.. decided at this term, the majority of the court held that a previous decision that a mother took to the exclusion ot a. father under the Employers' Lia bility Jaw. upon the death of a child. was controlling as to the relative tight of the widow and children un Jer the same law on the death of the husband and father, although the court in the previous decision had not even attempted to deride the rights of theIatter in anv way. and mere was a very broad ? round for tistlnguishijg between the two. In Olcott v. Hoft. already cited, he majority of the court held that in authoritative and controlling de cision could be made, as to how Ions and for what term the secretary ot tate could hold the office of gov ernor; and even as to whether hn uld resisn the office of secretary of state and still-hold the orrice of governor, although neither of these luestions wore at all presented in the pleadings. and the only question really at rssoe. was whether or not the state treasurer should have hon ored a warrant drawn of his salary, while he was still secretary of state, tnd while the office of governor wa till unquestionably vacant except for his incumbency. In that case Mr. Justice Harri. In an opinion In which Mr. Justice Benson concurs, says: f "We can with propriety discu4 and determine the question as to' how long Ben W. Olcott is en titled to bold the office of gov. emor and thus decide the right t the petitioner upon the xm hanTnd the duties of the defen dantNm the other." ' And tha. . .'The petitioner can resign a secretary of stale and continue to occupy the office of governor." If a decision, as between th righCs of the mother and father t damages under the liability law. I.t to be held conclusive and controlling between the widow and children, whose rights were in no way in queit tlon. and If we could properly deter mine the right of the secretary of state to retijrn and still hold th office or governor, and the risht of the secretary or state to hold th orrice or governor arter the election in 1920 in Olcott v. Hotr. when thes questions were in no way presented by the pleadings: then it wenis to me. that -.it would be goins a In way to hold that we are not bound, by the unanimous decision or a,pre vious supreme court, when It vu panning properly and necessarily up on the verv question as to wheth.-r such secretary ot Male. acMng a , governor, held for the full remain-