Page:Oregon Historical Quarterly volume 11.djvu/106

 ioo Opinion of Wm. D. Fenton that the number of districts shall never exceed seven, we have two (now four) judicial districts in this state that are entirely unauthorized and judges of the Circuit Court who are deter- mining cases involving life and property whose tenure of office depends upon an unconstitutional statute. It is only because of the fundamental rule of construction that the power remains in the people unless taken by express limitation in the constitution that the creation of the eighth and ninth (now also the tenth and eleventh) circuits can be justified under sections 2 and 10, article VII. There are other illustrations of the exercise of legislative power which give force to the views we have suggested. This is not a case where property rights or the personal rights of any citizen are involved. It is admitted that the form of relief sought is desirable if it can be granted. The objection is founded upon a sentiment. It does not infringe upon any substantial right of any person whatever. The question is political and governmental, and legislative action on this subject is final and not reviewable, excepting possibly by direct attack upon the title to the office, by quo warranto. The court is composed of a number of justices. It is a branch of the state government. The consti- tution distinctly recognizes that it must consist of more than one. When the constitution was framed the Supreme Court at the time consisted of four, with provision for its increase, but it should never exceed seven at any time. There might be five when the population of the state reached 100,000. The justices of the Supreme Court might be placed in a separate class and circuit duty cast upon another class when the state had a white population of 200,000. In the judgment of the constitutional convention, it was thought that when the state had such a population and when the legislative assembly saw proper to confer upon circuit judges elected in separate class the sole duty of the trial of cases at nisi prius, and upon the Supreme Court appellate duty only, that then and at that time three justices would be sufficient to transact the business. It is not intimated in the section, nor does it anywhere appear