Page:Oregon Historical Quarterly volume 11.djvu/94

 88 Opinion of Wm. D. Fenton shall hold full terms without allotment and who shall take the same oaths as the supreme judges." It is contended, and by those who favor a strict construc- tion of the constitution and who regard the same as a grant of, and not as a limitation upon the powers of the people, that the use of the words in Section 10 before quoted, to wit: "One of which classes shall consist of three justices of the Supreme Court," is by implication an inhibition against the legislative increase of the number of justices of which the class so created shall consist. While those who contend that the legislative power exists to increase the number that shall constitute the class believe in the rule that constitutions, being limitations upon sovereign power and not grants of power, should be strictly and narrowly construed and ought not be held to deny the sovereign right reserved to the people, unless or by neces- sary implication that result must follow. You will observe by reference to Section 2, supra, that the framers of the con- stitution created a Supreme Court consisting of four justices and made express provision that such number might be increased, but should not exceed five until the white population of the state amounted to 100,000, and should never exceed seven. It seems to me that if it was in the framers' mind to limit the number of justices that should compose the class authorized to be created by Section 10, there would have been a limitation in Section 2 expressly providing that the pro- vision, "and shall never exceed seven" should be modified by adding thereto the words, "until the white population of the state shall amount to 200,000," when the supreme justices might be constituted a distinct class, but whose numbers should not exceed three thereafter. It may be presumed that the provisions of section 2, article 7, were framed by the lawyers who were members of the con- stitutional convention, and that in a matter where the con- vention expressly authorized the first Supreme Court to consist of four justices and not exceed five until the population of the state should amount to 100,000, and that thereafter it should