(concurring). This case is evidently here to obtain an advance decision of this court as to the constitutionality of a part of the act of 1878, which provides for the election of supreme and circuit judges in distinct classes. There seems to have heen a question raised by some parties as to whether the circuit judges elected at the last state election hold only until the first day of July, 1886, as provided in said act, or for four years thereafter, and this proceeding is devised to have this court express an opinion upon it. The appellant, as county clerk of Lane County, has refused to deliver a notice to the sheriff of that county naming the office of circuit judge of the second judicial district of the state, to be filled at the ensuing state election, to be held on the first Monday of June next; and the relator, who has no apparent interest in the matter beyond that of any other citizen in the community, has attempted to compel him to do so by mandamus, not because the refusal to deliver such notice will affect the right to proceed and elect a circuit judge, hut to ascertain who will be entitled to the office in case another should be elected in place of the present incumbent. It is a very summary mode of settling constitutional questions, and brushing away the provision of a statute liable to incommode some one unless removed. But for my own part, I am utterly opposed to making inquiry as to the constitutionality of a statute of the state under such a proceeding. I think it premature. Such matters are too grave to be trifled with, and should not he considered until the question arises that makes it necessary.
A statute duly enacted is the highest authority known to the law, and every legislative enactment adopted in accordance with the forms prescribed in the constitution is presumed to be an expression of sovereign will. Its validity should not be questioned, unless destructive of *396the rights of a party, or injurious to public interest, and should • never be declared invalid without mature deliberation, aided by all the light that can be shed upon the subject. This rushing a case into court through the means of special proceedings, and obtaining a hasty and ill-advised decision upon a matter of great magnitude, I cannot regard as proper, and am apprehensive that it will result in establishing damaging precedents. What security can the people have in the permanency of law if the solemn enactments of their legislative assembly can be so easily overthrown. Their endurance would be made to depend upon the mere caprice of the courts.
The legislature of this state, at the September session, in 1878, passed an act providing for the election of supreme and circuit judges in distinct classes, which contained the following provision: “ There shall be elected on the first Monday in June, 1880, a circuit judge in each of the judicial districts, as they now exist in this state, whose terms of office shall commence on the first Monday in July, 1880, and continue for six years, and until their successors are elected and qualified; and at the general election in 1886, and every six ye’ars thereafter, there shall be elected a circuit judge in each of the said judicial districts, whose terms of office shall commence on the first Monday in July thereafter, and continue for six years, until their successors are elected and qualified.” One of the''members of that body who enacted the provision, and another who had participated in the proceeding, are at present members of this court, and they are solicited, in the latter capacity, to nullify what they did in the former, because, I suppose, another construction can be given the constitution, under which the act was adopted, different from that they placed upon it, and possibly more acceptable to more acute minds, though not a particle better or more practical in any view. *397The legislature that adopted the act very likely construed section 4 of article 7 of that instrument, which reads: “ 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” — as applying to circuit judges as well. And there are cogent reasons in favor of that construction.
The constitution provided for one set of judges to perform in the outset Supreme and Circuit Court duties. They partook of the character of both, performed circuit duty the same as the present judges, and were elected in the several districts in the same manner circuit judges are elected, though they were termed in the constitution “justices of the Supreme Court,” and “judges of the Supreme Court,” and performed Supreme Court duty, but seem to be regarded in the constitution as circuit judges also, and the framers of it were evidently under the impression that whenever they referred therein to the class of judges who were to perform the several functions mentioned, that the term employed would apply to circuit judges when elected in a distinct class, and that the same rules applicable to one class in the beginning would apply to both when separated.
Section 10 of article 7 of the constitution provides as follows: “When the white population of the state shall amount to 200,000, 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.” Section 3 of article 7 of the constitution pro*398vides that “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 he chosen every two years to serve for the term of six years.” This is the only provision in the instrument in regard to allotting the terms of the judges, and that applied to the judges first chosen, or justices or judges of the Supreme Court. No one would suppose that the circuit judges would allot among themselves their terms of office in the absence of said section 3, nor if said section could not have applied to them, which it did not in terms, but the convention seemed to think it would, unless they were specially exempted therefrom, and it therefore, in section 10, provided in effect that they should hold “ full terms without allotment.”
Now, if section 3 would have applied to said circuit judges, then certainly section 4 would, and that was allowed to stand unqualified. Again, the language of section 10 clearly indicates that the convention supposed that the judges named in sections 3 and 4 included the circuit judges thereafter elected. The words “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,” imply that there were then supreme and circuit judges, but were elected in one class. It is reasonable that such an idea should have prevailed. Under the provisional system adopted, the functions of the two offices were blended in one. The same judge performed both, and was in fact both a supreme and circuit judge, and the convention would naturally suppose that the general provisions employed in the constitution, applicable to the justices or judges of the Supreme Court as they existed under the old regimen, would apply to both classes when formed *399out of the one, unless a negative provision was made;. The fact that the words “judge of the Supreme Court” are used in said section 4 signifies nothing when it is-understood that they also included “judge of the Circuit Court.” It is unimportant as to what the words of themselves would import; it is more important to ascertain, what the convention who framed the constitution intended by them. The legislature that passed the act in question evidently construed the constitution as indicated, else it would most probably have made provisions; for filling vacancies. By construing said section 4 as-mentioned, avoided the necessity.
This construction may not, possibly, be the correct one,, but it is reasonable and has received the sanction of able-members of the bar. Messrs. Chapman & Hewitt have-kindly submitted a brief in the case in which they indorse this view, and their reasoning in support of it is. very thorough and convincing. The counsel for the-respondent, who argued the case at the hearing, have-presented strong proofs in its favor; and I cannot see any necessity nor good policy in giving it a different construction. Courts must be conservative or they will do* more harm than benefit. Nor should they set themselves-up as the embodiment of all the wisdom in the land. What is to be gained by rejecting the evident legislative-construction in question, and adopting the one contended for by the appellant’s counsel? The former is certainly reasonable, while the latter leads to an apparent absurdity.. They contend that the constitution accords to the circuit judges an absolute six-years term, and when inquired off as to wherein the constitution provides such term, they refer to said section, article 7; but that-section does not. mention circuit judges eo nomine. It says: “The judges first chosen under this constitution,” and the “one or-more” thereafter chosen. The judges first chosen were-*400“the four justices” of which the Supreme Court consisted, as provided by section 2 of said article 7. The counsel cannot appropriate the term provided for “the four justices,” and “the one or more” thereafter chosen, and apply it to the circuit judges elected in a distinct class, unless they assume the construction the legislature adopted, that is, that “the judges first chosen” were “circuit” as well as “ supreme” judges, and that will upset their claim entirely. They will get too much, for when they concede that the original judges occupied the dual capacity before referred to, and that the term given to them extended to circuit judges that should thereafter be elected in a distinct class, they tacitly admit that every provision applicable to the former judges applies to the latter, unless inhibited by some other provision in the constitution, and the result unavoidably follows that if said section 3 applies to circuit judges, as suggested, then said section 4 unquestionably does. It is not a case where “one shall be taken and another left.” Both sections must be taken or not either. Upon the other hand, if it be conceded that the legislature is authorized to provide the term of those judges, it must also be conceded that the provision of the statute referred to merely does that by providing when the election of circuit judges shall take place. It did not provide that any election should be had intermediate the six years, but it put an end to every term at certain dates beyond which an incumbent, whether holding by appointment or under an intermediate election, must be superseded.
When the legislature has a right to provide a term of office for a class of officials, it certainly has the right to make it uniform. It has done that in this case by providing particular time at which they must all be elected and enter upon their duties. It seems very evident to my mind that whichever horn of this dilemma the ap*401pellant’s counsel may take, they must fail to establish the unconstitutionality of the act in question. If they attempt to maintain that the term of office of the circuit judges is provided for in the constitution, they must admit that when the framers of the constitution used the words “ justices of the Supreme Court,” they intended “ circuit judges ” as well; and that their mode of selection, qualification, and tenure of office, and the manner of filling vacancies that would apply to the former, after the two should be chosen in distinct classes, would apply to the latter unless expressly negatived by some provision of that instrument. And if, on the other hand, they admit that the term of office of circuit judges may be provided by the act of the legislature, they must necessarily fail in showing that the legislature, in adopting the act in question, exceeded its authority.
It will be noticed that the language of said section 10 of article 7 of the constitution empowered the legislature to provide for the election of the two sets of judges in distinct classes. It is a “ class ” of judges the election of which is to be provided for. The act to be adopted should properly apply to them collectively. A provision, therefore, that they should hold their term of office for the period of six years, that they should be elected at the general election in June, 1880, and in June of 1886, and every six years thereafter, that their term of office should begin on the first day of July of the several years at which the election takes place, seems to me to be within the power conferred; that it comes fairly within the authority vested in the legislature by the section of the constitution referred to, unless the other view suggested be the correct one. If it had been provided in the constitution by a direct clause that there should be elected in each judicial district in the state, for the term of six years, a circuit judge, at times to be regulated by *402the law, and there was no other “ constitutional or statutory provision on the subject,” as said in State v. Johns, 3 Or. 533, it might be claimed with some reason that whenever an election occurred at which such judge could properly be elected, his election would be for a full term. But in the present case the legislature provides for the election of circuit judges as a class, and to fix the particular years in which to be elected is clearly within its power; and whether in the absence of a legislative provision, a vacancy, occasioned by the death, resignation, or removal of a predecessor, can be filled by election for the unexpired term, depends upon whether said section 4 of article 7 of the constitution is applicable or not.
Much has been said by some of the counsel on both sides in regard to “ the term attaching to the office,” and “ attaching to the person of the judge,” but I must say that I do not understand what is meant by it. That expression has been used in cases, and possibly it conveys a meaning to- the minds of others, but to me it is meaningless. Under our theory of government, a civil office is simply a public trust, belongs to the public, and is instituted for public benefit, and the time a person is entitled to discharge its duties and receive its emoluments depends upon the terms of the law under which he holds it. And that can be changed by the power which enacted it, and cut off the official in the very prime of his career. I repudiate the expression as anti-republican. I have carefully considered the question before the court, and while my mind is not altogether unbiased, as I entertain a lurking notion that the proceeding was set on foot to promote personal ends, yet I have tried to view it fairly, and am of the opinion that' the said part of the act is valid. Our constitution upon the subject is sui generis, and must be interpreted in view of its various *403provisions and general scope and design. I am satisfied that the proceedings upon the mandamus should be enforced.