# State ex rel. Shaw v. Ware

> Oregon Supreme Court · April 26, 1886 · 13 Or. 380

URL: https://www.frixlaw.com/law-library/cases/6894785

## Case

- **Full name:** STATE ex rel. WILLIAM S. SHAW v. JOEL WARE, County Clerk
- **Court:** Oregon Supreme Court
- **Decided:** April 26, 1886
- **Citations:** 13 Or. 380; 10 P. 885; 1886 Ore. LEXIS 32
- **Precedential status:** Published
- **Opinion:** Dissent by Waldo
- **Judges:** Lord, Thayer, Waldo
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6894785

## Opinion text

Waldo, C. J.
(dissenting). It is an invariable rule of the common law that when an office granted for years reverts to the people before the expiration of the term for which it was granted, and the office is granted anew, the new' incumbent takes the office without reference to the unexpired term of his predecessor, unless there be a contrary intent expressed in the grant itself, or there be some limitation imposed on the granting power. It is conceded that this rule governs the tenure of office of the circuit judges of this state; for there is not only no limitation of the rule as applied to the one in the constitution, but in fact the framers of that instrument have used affirmative language which forbids a contrary interpretation.
It will be conceded that the office of circuit judge is a constitutional office; that is, an office created by the constitution. That it was not only created by, but that it came into existence with, the constitution as an office distinct from the office of supreme judge; for two offices may be distinct though the officer be the same person. (Crow v. Ramsay, T. Jones, 11.) The supreme judges, however, formerly performed the duties of the office of circuit judge. They were, by virtue of their offices as supreme judges, judges also of the Circuit Courts. They held both offices under one title, that of judge of the Supreme Court. A full term of a judge of the Supreme Court was six years. He was ex officio judge of the Circuit Court for the same period. The constitution gave the legislature power, in' section 10, article 7, of the constitution, to establish circuit judges as a distinct class, but without power to change the term for which the *404 office had been held, except that circuit judges should hold full terms without allotment. The word “term" in this connection has a precise signification. It is said in Wright v. Cartwright, 1 Burr. 285, that the word “term " in the phrase “term of years ” may signify “not only the limits and limitations of time, but also the estate and interest which passeth for that time." Counsel seem to have had some sort of idea that the word had some such double signification in the constitutional provision in question. But such is not the fact. When applied to office, “the word 'term’ is invariably used to designate a fixed and definite period of time.” (Speed v. Crawford, 3 Met. (Ky.) 263.) The only question, therefore, open is, What is the duration of the term referred to? If it be eight, six, or any other number of years, then the plain reading of the constitution is that the circuit judges shall hold full terms for such number of years without allotment. If there were any room for construction of language apparently so plain and unambiguous, we have in State v. Johns, 3 Or. 533 , a case exactly in point. This was so evident to some of the counsel that the force of that case was attempted to be avoided by a distinction supposed to exist between the two cases in this, that in our case we have an act of the legislature declaring that unexpired terms shall be filled for the remainder of the vacant term, whereas in that case there was no such act. That decision went upon the ground that Johns held a commission from the people which entitled him, under the constitution, to hold for the term of four years. The legislature could not therefore limit such holding to the remainder of the unexpired term, without thereby regulating the tenure of office fixed by the constitution itself. And such is the view of all the authorities.
Supreme judges took their offices originally by allot *405 ment. Now, if the system which the allotment was intended to introduce shall not be, in course of time, disarranged and destroyed, it is absolutely necessary that in every case in which an office shall be vacated before the expiration of the time for which the incunrbent shall have been elected, that the office shall be filled, not for a full term, but for the remainder of the term remaining unexpired of the predecessor. The reason for this is plain to all. But there is no reason why circuit judges, who like county judges are the sole judges of their courts, should take their offices by allotment, or consequently, why they should take for unexpired terms. And it would seem impossible for the English language to express briefly and yet in clearer terms the intention of the framers of the constitution that circuit judges should not take by allotment and should not take for unexpired terms, when it is declared in so many words that they should take full terms without allotment. They seem to have added ex majore cautela the word “ full ” to the sentence, thereby expressly excluding the terms which were not full. No circuit judge should ever take a term which was not full, which he must do were he to take for the unexpired term of a predecessor.
Therefore, if the word “ term ” signified, as we have seen that it does, duration merely, and not the quality or interest in the office, there can be no ambiguity whatever in the declaration that circuit judges. shall hold full terms without allotment except the duration of the term which they shall hold. If the duration of the term be ascertained and fixed at a certain number of years, as we have seen that it is fixed at six years by the strongest implication, all ambiguity is removed. Circuit judges shall hold full terms of office of the duration of six years without allotment. This construction is not only that of the letter and the spirit of the *406 constitution, but is that which is authorized by the universal current of authority. (See Opinion of the Justices, 16 Fla. 841 ; Opinion of the Justices, 61 Me. 601 ; Opinion of Lewis, J., Burks v. Hinton, 77 Va. 41 ; Sansbury v. Middleton, 11 Md. 296 ; People v. Burbank, 12 Cal. 378 ; Hughes v. Buckingham, 5 Smed. & M. 832; Attorney-General v. Brunst, 3 Wis. 687 ; State v. Johns, 3 Or. 533 , and cases cited.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6894785. Public record. Not legal advice.