The opinion
Mr. Justice Eakin
delivered the following concurring opinion:
7. I fully concur in the opinion of Mr. Justice McBride. Article VII of the Constitution must be considered as one utterance of the organic law, notwithstanding it is subdivided into sections. Section 10 must be read as a part of sections 2 and 8, because it relates to the same identical matter. Neither section 10 nbr section 2 creates the Supreme Court. That is accomplished by section 1. Section 2 provides for the number of justices, their qualifications, election, and duties. Section 10 provides that, when the population of the State has reached a *199 certain number, the legislature may provide for the election of three justices of the Supreme Court, who shall not perform circuit duties, and also provides for circuit judges. When these changes are effected, they supersede section 2 to that extent; but that section is not thereby rendered functus officio. It still provides for the qualifications of the justices of the Supreme Court and of the judges of the circuit court, namely, they must be citizens of the United States and must have resided in this State three years, and whether the clause to the effect that their number may be increased under certain conditions, up to a definite limit, is thereby annulled by the changes contemplated under section 10, it is not now necessary to decide. It is sufficient that section 10 does not in terms place a limit for the future on the number of justices of the Supreme Court. It is conceded that the legislature does not exercise the powers by virtue of the constitution; but, as said in Cooley’s Constitutional Limitations (7 ed.) 126:
“In creating a legislative department, and conferring upon it legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion.”
Authorities to this effect are numerous. The same author, quoted above, in fifth edition, p. 207, said:
“When a state law is attacked, * * it is presumably valid in any case, and this presumption is a conclusive one, unless in the Constitution of the United States or of the state we are able to discover that it is prohibited. We look * * in the Constitution of the State to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the *200 State was vested in its creation. Congress can pass no laws but such as the constitution authorizes either expressly or by clear implication; while the state legislature has jurisdiction of all subjects on which its legislation is not prohibited.”
In Bushnell v. Beloit, 10 Wis. 225 , the court says:
“We suppose it to be a well-settled political principle that the Constitution of the State is to be regarded, not as a grant of power, but rather as a limitation upon the powers of the legislature, and that it is competent for the legislature to exercise all legislative power not forbidden by the constitution or delegated to the general government, or prohibited by the Constitution of the United States.”
This clause of section 10, in question, places no limitation upon the legislative power after the change there provided for has been made. The same phraseology, as to the number of justices, is used in section 2, namely, “the Supreme Court shall consist of four justices”; but that language is followed by a limitation, “shall never exceed seven.” Section 10 provides that the Supreme Court “shall consist of three justices,” without any words of limitation. In fact, section 10 must be construed as a proviso to both sections 2 and 8, and in the changed conditions they are still controlled by sections 3, 4, and 5. State v. Ware, 13 Or. 389 ( 10 Pac. 885 ). If section 10 was intended to contain any restriction, or one different from that contained in section 2, the addition of the word “only” or the words “and no more” would have readily accomplished that end. Throughout the constitution, we find restrictions and prohibitions indicating that its framers recognized the necessity thereof. If such a condition as this were in the United States Constitution, which is a grant of power beyond which Congress cannot go, it might well be said that its power would be limited to three justices; but the reverse is the case under a state constitution. The legislature has all power not taken away by the constitution. Before *201 a statute is declared unconstitutional, its repugnancy should be clear and free from doubt. In Simon v. Northup, 27 Or. 495 ( 40 Pac. 561 : 30 L. R. A. 171) Mr. Chief Justice Bean says:
“The courts will never exercise the extraordinary power of declaring an act of the legislature unconstitutional unless there is a plain, palpable, and clear conflict between the statute and the constitution.”
In re Wellington, 16 Pick. (Mass.) 87 ( 26 Am. Dec. 631 ). In Sinking Fund Cases, 99 U. S. 718 (25 L. Ed, 496) it is said:
“Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.”
Every doubt must be resolved in favor of the legislative act. Every intendment must be given in favor of its constitutionality, and we are not justified in holding that the legislative act, increasing the number of justices of the Supreme Court to five, is unconstitutional.