Page:Oregon Historical Quarterly volume 11.djvu/122

 n6 Opinion of Wm. D. Fenton of a resolution of the legislative assembly of September 23, 1882, to show that there was no thought in the minds of the framers of the judicial department, or in the mind of any member of the constitutional convention that the number of justices of the Supreme Court should never exceed three, after the exercise of legislative authority under section 10. It should be clear to the mind of any candid man, as it seems to me, that instead of there being a restriction upon the legisla- tive power to increase the number of justices beyond the num- ber three, that it is manifest from article VII., taken in its entirety, that the Supreme Court originally should consist of four justices, chosen in districts, who should perform circuit duty; that while they were performing circuit duty the number should not exceed five, and that the number could be increased to five when the white population of the state amounted to 100,000; but that the number of justices constituting the Supreme Court should never exceed seven at any time or under any circumstances; that when the white population should amount to 200,000, the legislative assembly could provide for the election of supreme and circuit judges in distinct classes, one of which classes should then consist of three justices of the Supreme Court, who should not per- form circuit duty, and the other class should consist of the necessary number of circuit judges. To hold that the number of justices cannot be increased beyond three is to hold that when the legislative assembly exercised its authority under section 10, and provided for the election of the supreme and circuit judges in distinct classes, the provisions of section 2, which gave birth to the Supreme Court and are the only pro- visions under which it was originally authorized to exist or exists today — have been nullified, and that the inhibition that the number shall never exceed seven no longer has any mean- ing, effect or purpose. It is confidently asserted that if consideration be given to the record as shown by the journal, and the debates, as reported at the time, the words used in section 10, article VII.,