the will there in controversy, was not organized in conformity with the Constitution, in that the appointment of the members of the court by the Governor was in direct violation of section 10 of article 7 of the Constitution of the state. It will thus be seen that the proceedings there were in legal effect analogous to those taken here, except that here the collateral attack is made by motion in place of by suit, assailing the action of the alleged unconstitutional court. Until overruled that case is binding upon this court, and we do not entertain sufficient doubts, concerning the soundness of the course there pursued, to feel justified in disregarding or overruling the precedent thus established, and will therefore follow the method of procedure there adopted, and determine the points here presented on their merits.

he fills and such is the place or office filled | to set aside this decree, on the ground that by the person who acted as judge upon the the Supreme Court, before whom the cause trial of the petitioner." In conclusion the was tried and a decree entered, annulling learned jurist held that, whether the law under which the circuit court and supreme judges were acting was unconstitutional or not, such officials were de facto officers, and the court was therefore precluded from further inquiry in relation thereto in that proceeding, which, as in the case under consideration, was was a collateral attack only. Among other cases bearing upon and sustaining the rule thus announced by Judge Deady, see, Lang v. Bayonne, 74 N. J. Law, 455, 68 Atl. 90, 15 L. R. A. (N. S.) 93, 122 Am. St. Rep. 391; Walcott v. Wells, 21 Nev. 47, 24 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478; Leach v. People, 122 Ill. 420, 12 N. E. 726; State ex rel. v. Ely, 16 N. D. 569, 113 N. W. 711, 14 L. R. A. (N. S.) 638; Donough v. Dewey, 82 Mich. 309, 46 N. W. 782; Burt v. Winona & St. P. Ry. Co., 31 Minn. 472, 18 N. W. 285; State v. Gardner, 54 Ohio St. 24, 42 N. E. 999, 31 L. R. A. 660; Commonwealth v. McCombs, 56 Pa. 436; Parker v. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567.

This brings us to the inquiry presented by plaintiff's motion; that is to say, is the act of 1909, under which Justices King and Slater were appointed, constitutional, or had the Respectable authorities, however, are cited Legislature the power to increase the numby counsel for the plaintiff, holding to a dif- ber of supreme judges, constituting this ferent view to the last above considered, court, from three to five? But before enamong which is Norton v. Shelby County, tering upon a discussion of the various sec118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178; tions of our fundamental law, bearing upon but we deem it unnecessary to weigh them, this question, it is important that we call or to determine their applicability to the attention to the general rules of construccase at bar, or to ascertain which is the bet- tion under which Constitutions are universalter course to pursue, for a method of pro- ly interpreted. They may be summarized cedure, sufficient for this case, was adopted as follows: (1) The object and purpose of by the unanimous decision of this court in the law, whether fundamental or otherwise, Cline v. Greenwood, 10 Or. 230, in which the must be considered, and the Constitution constitutionality of the entire court was must not be interpreted on narrow or techchallenged collaterally. In that case, not- nical principles, but liberally and on broad withstanding no question was raised as to general lines, in order that it may accomthe judges of the court being de facto of- plish the objects intended by it and carry ficers, jurisdiction was entertained to de- out the principles of government. (2) The termine the constitutionality of the official whole Constitution must be construed topositions held by the members of the Su- gether. (3) When two constructions are pospreme Court as first appointed and the ques- sible, one of which raises a conflict or takes tion adjudicated, holding all proceedings per- away the meaning of a section, sentence, taining thereto regular and in conformity phrase, or word, and the other does not, the with the provisions of section 10, art. 7, of latter construction must be adopted, or the our Constitution. At the time of the deci- interpretation which harmonizes the Constision, Chief Justice Lord, and his associates, tution as a whole must prevail. In this conJustices Watson and Waldo, were the mem- nection it must also be kept in mind that bers of the court, while their predecessors, the Constitution of a state, unlike that of whose decree was brought into question, our national organic law, is one of limitawere Chief Justice Kelly and associates, tion, and not a grant, of powers, and that Justices Boise and Prim; but, notwithstanding this difference in the personnel of the court, it was, in law, the same court, and the fact remains that the attack was collateral. In that case an appeal was taken from the circuit court to the Supreme Court, The foregoing principles appear so well and there, as in the case under considera- settled by a unanimity of decisions, not only tion, the decision of the trial court was re- in other jurisdictions, but by the courts of versed. See Greenwood v. Cline, 7 Or. 17. this state, since its inception, that they may A decree was, accordingly, entered upon the be deemed elementary; but, since the conmandate of the Supreme Court. Later the struction so earnestly relied upon by the

any act adopted by the legislative department of the state, not prohibited by its fundamental laws, must be held valid; and this inhibition must expressly or impliedly be made to appear beyond a reasonable doubt.

foregoing principles, we deem it appropriate | opposition between the Constitution and the to call attention to a few declarations of law should be such that the people (judge) our courts upon the subject. Before doing feel a clear and strong conviction of their so, however, we quote from that eminent incompatibility with each other.'" In Crowtext-writer and jurist, Judge Cooley, who, ley v. State, 11 Or. 512, 6 Pac. 70, the same as an exponent of constitutional law, has no eminent jurist further remarked: "A statute superior. In his work on Constitutional Lim- will not be declared void, in whole or in itations ([7th Ed.] p. 241) he states the rule part, unless its invalidity is distinctly pointas follows: "It is to be borne in mind, how- ed out and made clearly manifest. The genever, that there is a broad difference be- eral rule is that every intendment must be tween the Constitution of the United States given in its favor." Soon afterwards this and the Constitution of the states as re- court, in passing upon the subject, in an gards the powers which may be exercised opinion by Mr. Justice Waldo, in Crawford under them. The government of the United v. Linn Co., 11 Or. 482, 486, 5 Pac. 738, 740, States is one of enumerated powers; the after observing that, where it appears that governments of the states are possessed of an act is in violation of either the state or all the general powers of legislation. When national Constitutions, it must be held ina law of Congress is assailed as void, we valid, observes: "But, beyond this, there lies look in the national Constitution to see if a vast field of power granted to the Legislathe grant of specified powers is broad enough ture by the general words of the Constituto embrace it; but, when a state law is at- tion, and not reserved, prohibited, or given tacked on the same ground, it is presumably away to others. Of this field the General valid in any case, and this presumption is Assembly is entitled to the full and uncona conclusive one, unless in the Constitution trolled possession. Their use of it can be of the United States or of the state we are limited only by their own discretion. "There able to discover that it is prohibited. We is nothing more easy than to imagine a look in the Constitution of the United States thousand tyrannical things, which the Legisfor grants of legislative power, but in the lature may do if its members forget all their Constitution of the state to ascertain if any duties, disregard utterly the obligations limitations have been imposed upon the com- which they owe to their constituents, and plete power with which the legislative de- recklessly determine to trample on right and partment of the state was vested in its crea- justice; but to take away the power from tion. Congress can pass no laws but such the Legislature because they may abuse it, as the Constitution authorizes either express- and give to the judges the right of conly or by clear implication, while the state trolling it, would not be advancing a single Legislature has jurisdiction of all subjects step, since the judges can be imagined to on which its legislation is not prohibited.' be as corrupt and wicked as legislators.'" In Cline v. Greenwood, 10 Or. 230, 240, In David v. Portland Water Committee, 14 241, Mr. Justice Lord, speaking for this Or. 98, 109, 12 Pac. 174, 178, Mr. Justice court, states the principles of the consti- Thayer says: "The people of this state postutionality of legislative enactments thus: sessed originally all legislative power sub"But, did we entertain any doubt whether ject to the restrictions contained in the Conthe Legislature had exercised its power in stitution of the United States, and they have the mode prescribed by the Constitution, we invested the legislative assembly with that should be compelled to dissolve that doubt power to the fullest extent, except so far as in favor of the constitutionality of the mode they expressly inhibited its exercise as bewhich the Legislature had adopted. Before fore suggested. The question in such cases a statute is declared void, in whole or in is not as to the extent of power that has part, its repugnancy to the Constitution been delegated by the people to the legislaought to be clear and palpable and free from tive assembly, but as to the limitations they all doubt. Every intendment must be given have imposed upon that body." In the rein favor of its constitutionality. Able and cent case of State v. Walton, 99 Pac. 431, it learned judges have, with great unanimity, was urged that the indictment was insuflaid down and adhered to a rigid rule on ficient for the reason that it was not signed this subject. Chief Justice Marshall, in by the district attorney, but by his deputy, Fletcher v. Peck, 6 Cranch, 128, 3 L. Ed. 162; in discussing which Mr. Justice Bean, for Chief Justice Parsons, in Kendall v. Kings- this court, held: "The office of the prosecutton, 5 Mass. 534; Chief Justice Tilghman, ing attorney is provided for, and its duties in Farmers' & Mechanics' Bank v. Smith, 3 defined, in part, by the Constitution, section Serg. & R. (Pa.) 72; Chief Justice Shaw, in 17, art. 7. The office therefore cannot be Inhabitants of Norwich v. Hampshire Coun- abolished or the constitutional duties thereof ty Com'rs, 13 Pick. (Mass.) 61; and Chief abridged by the Legislature; but there is Justice Savage, in Ex parte McCollum, 1 nothing in the Constitution which restricts Cow. (N. Y.) 564-have, with one voice, de- the Legislature or lawmaking power from clared that: 'It is not on slight implication and providing that such officer may have depuvague conjecture that the Legislature is to ties to act in his name and stead." It is be pronounced to have transcended its pow- then held that the office of deputy prose

"Sec. 3. The judges first chosen under this Constitution shall allot among themselves their terms of office, so that the term of one of them shall expire in two years, one in four years, and two in six years, and thereafter one or more shall be chosen every two years, to serve for the term of six years.

legally created by legislative enactment. | judge from office, or require him to change Among numerous other adjudications in this his residence without his consent. state, holding to the same effect, are: Kadderly v. Portland, 44 Or., 118, 143, 74 Pac. 710, 75 Pac. 222; State ex rel. v. Steel, 39 Or. 419, 427, 65 Pac. 515; Cook v. Port of Portland, 20 Or. 580, 27 Pac. 263, 13 L. R. A. 533; Simon v. Northup, 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171; State v. Lord, 28 Or. 498, 530, 43 Pac. 471, 31 L. R. A. 473; Ellis v. Frazer, 38 Or. 462, 63 Pac. 642, 53 L. R. A. 454; Deane v. Bridge Co., 22 Or. 167, 29 Pac. 440, 15 L. R. A. 614; Cresap v. Gray, 10 Or. 342, 349. See, also, 6 Am. & Eng. Ency. L. 934; Cooley v. Board, 12 How. 315, 13 L. Ed. 996; State v. Harrison, 116 Ind. 300, 19 N. E. 146; Commonwealth v. Maxwell, 27 Pa. 444, 453; Bushnell v. Beloit, 10 Wis. 195, 225.

Bearing in mind the fundamental principles of constitutional construction, let us examine the provisions of our Constitution bearing upon the creation and perpetuity of our judicial system, for the purpose of ascertaining whether it is there disclosed that the number of justices to constitute the Supreme Court should be perpetually restricted to three, or whether, by express terms or clear implication, any provisions are disclosed inhibiting the lawmaking department of our state from providing that a greater number of justices may constitute the court. Section 10 of our Bill of Rights expressly declares that "justice shall be administered openly without purchase, completely and without delay, and that every man shall have remedy by due course of law for injury done him, in person, property or reputation." This, as one among other provisions, says the preamble, "is to the end that justice be established, order maintained, and liberty perpetuated." Keeping this object in view, the constitutional convention, which included many lawyers, a large number of whom have since ranked among the leading counsel of our state and nation, made provision for a judicial department. This provision comprises most of article 7, the first section of which declares that "the judicial power of the state shall be vested in a Supreme Court, circuit courts and county courts. Other sections on the subject, material to this controversy, are as follow:

"Sec. 4. Every vacancy in the office of judge of the Supreme Court shall be filled by election for the remainder of the vacant term, unless it would expire at the next election, and until so filled, or when it would so expire, the governor shall fill the vacancy by appointment.

"Sec. 5. The judge who has the shortest term to serve, or the oldest of several having such shortest term, and not holding by appointment, shall be the Chief Justice."

"Sec. 10. When the white population of the state shall amount to two hundred thousand, the legislative assembly may provide for the election of supreme and circuit judges in distinct classes, one of which classes shall consist of three justices of the Supreme Court, who shall not perform circuit duty, and the other class shall consist of the necessary number of circuit judges, who shall hold full terms without allotment, and who shall take the same oath as the supreme judges."

It will be observed that the Supreme Court is created by section 2, which first provides the number shall consist of four, and, until the population reaches a certain limit, shall not exceed five, but that after the population reaches 100,000 the number of justices of the Supreme Court may be further increased, but shall never exceed seven. While provision is made to the effect that the justices may be elected by districts and may perform circuit duty, they remain justices of the Supreme Court, and the judges of circuit courts are left to be provided for by section 10, which continues the subject by declaring that when the population reaches 200,000 the legislative assembly shall make provision for circuit judges and divide the judiciary into two distinct classes, one of which shall perform Supreme Court duties only, and the other circuit duties. Prior to the act of 1878 (Laws 1878, p. 31), there were no circuit judges. There were circuit courts; "Sec. 2. The Supreme Court shall consist but, under section 8, art. 7, each of these of four justices, to be chosen in districts by courts was presided over by a justice of the the electors thereof, who shall be citizens of Supreme Court. This is the effect of the the United States, and who shall have re- holding in State v. Ware, 13 Or. 380, 393, sided in the state at least three years next 394, 10 Pac. 885, 893, in which case Mr. preceding their election, and after their elec- Justice Lord says: "The truth is, when the tion to reside in their respective districts. act of 1878 made operative section 10 of the The number of justices and districts may be Constitution, the effect was to write into increased, but shall not exceed five, until these provisions, 'circuit judge.'" Applying the white population of the state shall the same reasoning here, when the act of amount to one hundred thousand, and shall 1878 provided there should be five circuit never exceed seven; and the boundaries of judges, it, in effect, wrote into section 10 the districts may be changed, but no change of words, "the white population having reached

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Aside from this feature, however, it must be remembered that there are other provisions upon the subject, and, in order to ascertain upon what theory of construction the framers were acting at the time of the adoption of our organic law, the Constitution must be examined as a whole. As before stated, that memorable body was composed largely of eminent lawyers, several of whom afterwards sat on the federal, circuit, and supreme benches in this state. They were familiar with the rules of constitutional construction, among which is that the fundamental law of a state is a limitation and not a grant of powers, and, examining the Constitution as a whole, it is clear it was framed with this rule in view, and that wherever a limitation was intended it was so expressed. To illustrate: In article 2 we find numerous limitations. Section 2 places an express limitation upon the class that may be entitled to the privilege of an elector, supplemented by other limitations in each of the three sections following. Sections 10, 11, and 12 place limitations upon the class of persons entitled to hold offices there specified; section 13, that no elector shall be required to serve in the militia on election day; section 16, that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments be inflicted, etc. Similar limitations, with reference to various matters, are also found in each of the remaining 19 sections (except one) of the Bill of Rights. Section 24 thereof provides that "treason against the state shall consist only in levying war against it. * **" If the words "shall consist" import a prohibition or restraint, why was the word "only" used? Evidently upon the theory that where no restraint is indicated none exists.

circuit judges,' so that section 10, in ef- |struction insisted upon, limiting the memberfect, then read: the supreme and circuit ship of this court to three, is sound, a like judges are divided into distinct classes, one construction must be applied to the circuit of which shall consist of three justices of judges, and they would therefore be limited the Supreme Court, and the other of five to the number, which the Legislature found circuit judges. Had the section declared the to be necessary at the time the population number of circuit judges, which should be reached the required limit. selected when the population reached that stage, and then provided that thereafter provision be made for such additional number as might be deemed necessary, and remained silent as to the number of supreme judges that might be provided for in the future, there might be some merit, assuming section 2 could not be construed with section 10, in the contention that the number of supreme judges were, by section 10, intended to be limited to three. But it will be noted, in this connection, that section 2 provided the minimum number as four, of which, under section 6, on account of one of the number having tried the case appealed, but three justices could sit on an appeal; thus, so far as the hearing of appeals was concerned, beginning with but three (the number selected when section 2 became effective), and placing the maximum at seven, and if, when the 200,000 population mark was reached, section 10 eliminated all of section 2 (which we do not decide), it must necessarily follow that the limitation placed upon the number of supreme judges ceased when section 2 became inoperative and section 10 went into effect. This necessarily implies that, if the framers of the Constitution found it necessary to expressly state the limitation that should be in force until the population reached the limit specified in section 10, they would, had they deemed a limitation advisable, have also so expressly stated in the section supplanting section 2. However, we find them, in effect, providing that, the moment the state attains the required population, there shall be three supreme judges and as many circuit judges as may at that time be found advisable. The number, which the Legislature at that particular time found to be necessary "properly to perform circuit duty," was fixed at five, which, when read with section 10 of the Constitution, under which the law permitting the appointment of the five circuit judges was enacted, was equivalent to saying that, when the population reached 200,000, the Supreme Court should consist of three and the circuit court of five judges, and, as no reference is made to the number that may be provided for, in either office after that time, it would necessarily follow, if the contention of those appearing for the motion were tenable, that the number of circuit judges should never exceed five; yet we have never heard of any one suggesting that such a limitation was intended for the circuit courts. The absurdity of maintaining that such a limitation was intended for the circuit courts could and would not be entertained for a moment,

Article 2 of the Constitution relates to suffrages and elections. Section 2 of this article provides that every white male citizen of the United States of the age of 21 years and upwards, who shall have resided in the state during the six months immediately preceding such election, and every white male of foreign birth, who shall have declared his intention to become a citizen, shall be entitled to vote at all elections. Now, under the construction here contended for by plaintiff, this language would exclude from the benefits of suffrage every person other than white males, but, recognizing that an express limitation was necessary to exclude negroes and Chinamen, section 6 was added, as follows: "No negro, Chinaman, or mulatto shall be entitled to suffrage." See, also, sections

ing other classes. Further examination of the Constitution discloses that provisions restricting and prohibiting are to be found in sections 3, 4, 5, 7, 9, 10, 11, and 13, art. 2; sections 2, 8, 22, 23, 24, 27, 28, 29 and 30, art. 4; sections 2, 3, and 15, art. 5; sections 1 and 8, art. 6. Other restrictions may be enumerated; but the above should be sufficient to illustrate the fallacy of plaintiff's position. It is sufficient to say that, wherever in the Constitution a restriction or prohibition was intended, it was either expressed or so strongly implied as to be free from reasonable doubt, and this was manifestly done in the light of the then well-settled doctrine of constitutional construction that every power not prohibited may be exercised by the Legislature. We will call attention, however, to one or two more limitations, which we deem distinctly denote that when a limitation was intended by the Constitution it was there clearly indicated.

the shortest term to serve, or the oldest of several having such shortest term, and not holding by appointment, shall be the Chief Justice." It requires but a moment's reflection (after comparing this section with section 3) to see that, so long as there are but three justices, there cannot be two holding terms of equal length. It is no answer to say that this had reference only to those who might be selected under section 2, for there are not only no qualifying words or exceptions in the section to indicate such limitation, but if, as contended, when the act of 1878 brought section 10 into operation, it blotted out all trace of section 2, such annihilation, if it had that effect, would also have carried with it section 5. This court, however, by its continous selection and recognition of Chief Justices under section 5, at all times since the act of 1878, as well as before, has impliedly at least, interpreted this section to be in full force and effect.

If the maxim, "expressio unius est exclusio alterius," so much relied upon by counsel for the motion, is pertinent in this cause, its application must be general to all similar clauses where state or district officers are specified. For example, section 17 of the article under consideration provides for prosecuting attorneys, and defines, generally, their powers and duties. They are the prosecuting officers of the state, yet the office of deputy prosecuting attorney is provided for, and, by virtue of the act authorizing such appointments, the able deputy district attorney from Multnomah county appears on the motion in this contention. The Constitution also provides for certain state officers, but nowhere provides for the office of Attorney General, and expressly declares (section 17, art. 7) that the prosecuting attorneys shall be the law officers of the state. If the designation, or enumeration, of certain officers takes from the Legislature the power to provide for others as the growing needs of public business demand, then the official positions of both the distinguished counsel, who subscrib

Article 4 of the Constitution relates to the legislative department, section 2 of which provides: "The Senate shall consist of 16 and the House of Representatives of 34 members, which number shall not be increased until the year 1860. * * * "" It will be noticed that notwithstanding the first two clauses say the Senate shall consist of 16 and the House of Representatives of 34 members, and although this language is similar to that language employed with reference to the number to constitute the Supreme Court, clearly the framers were not of the opinion that this language imposed a restriction against an increase, and hence, although the number to constitute the two bodies was enumerated, added an express declaration that this number should not be increased until a given time. And section 29 of article 4, in fixing the compensation of the members of the Legislature, expressly states that they "shall receive for their services a sum not exceeding $3 a day from the commencement of the session; but such pay shall not exceed in the aggregate $120 for per diem allowance for any one session." Why employ these re-ed to the motion, are shriveled to nothingness strictions, if it were sufficient merely to say that the Senate shall consist of a certain number of members and the House of a certain number, and their compensation shall be $3 per day? It is manifest that these restrictive words were employed because the constitutional convention knew that every restriction and prohibition in a state Constitution must be clearly stated, and that the lawmaking department has plenary power, except as restrained, either expressly or by clear implication by constitutional prohibitions. There is one other section, included with those quoted in the beginning of this opinion, which is very indicative of a full realization on the part of the framers that there would in time, under the Constitution, be more than three justices. Section 5, art. 7, makes provision as to who shall be Chief

in the fires of their own logic, and they stand here mere intruders in the alleged offices which they assume to hold, and by virtue of which they assume the right to appear for plaintiff in support of this motion. Years ago, however, this court took a common-sense view of these provisions of the Constitution, and, as already shown, so far as the office of deputy district attorney is concerned, held that, as the Constitution did not prohibit the creation of that office, the Legislature had the right to make provision therefor, and, as hereinbefore stated, upheld an information filed by such officer in place of the principal. State v. Walton, 99 Pac. 431.

If the Constitution had merely said the judicial power of the state shall be vested in a supreme judge, and contained no other provision bearing on the subject, the above