Page:Oregon Historical Quarterly volume 11.djvu/95

 On Power to Increase Supreme Court 89 never exceed seven, it would have occurred to any lawyer sit- ting in the convention that the provisions of Section 8 and Section 10 as to number of the justices of the Supreme Court when their duties were changed, ought not to be left in a state of doubt, and that if framers of the constitution intended to make a limitation upon the numbers composing the class other than that contained in Section 2, they would have written such limitation either in that section or in section 10. The mere fact that the justices, when the white population should amount to 200,000, and when the legislative assembly thereafter might authorize the election of the circuit and supreme justices in distinct classes, were only to perform appellate duties, does not, as it seems to me, imply that the constitutional convention intended to limit the number of justices in such class by the use of the words, "One of which classes shall consist of three justices of the Supreme Court;" and it seems to me clear that if they had intended to so limit the same, they would have used apt and appropriate words, such as, "Shall consist of three justices of the Supreme Court and no more, and shall never exceed three," in lieu of the expression in Section 2, "and shall never exceed seven," and in lieu of the words, "shall consist of three justices of the Supreme Court" used in Section 10. Judge Cooley says in his Constitutional Limitations, page 207, 5th Ed. : "That there is a broad difference between the constitution of the United States and the constitutions of the states as regards the powers which may be exercised under them. The government of the United States is one of enu- merated powers. The governments of the states are possessed of all the general powers of legislation. When a law of con- gress is assailed as void we look in the national constitution to see if the grant of specified powers is broad enough to embrace it; but when a state law is attacked on the same ground it is presumably valid in any case, and this presump- tion is a conclusive one, unless in the constitution of the United States or of the state we are able to discover that it is pro-