Page:Oregon Historical Quarterly volume 11.djvu/99

On Power to Increase Supreme Court 93 Judge Kelly in his opinion declares the rule of construction to be that the constitution of a state is a limitation upon and not a grant of power, and that "We are not to ascertain whether the power to do a certain act of legislation is given to a legislature in a state constitution, but whether it is pro- hibited, and if not prohibited it can be exercised by the legis- lative body." Speaking of article 13, section 1, supra, he says: "There is here no restriction upon the power of the legislative assembly to increase the salaries of the judges. If the words, 'and no more,' had been added to that clause of the constitution, then clearly there would have been no legislative power to increase the salary over $2,000, or if the framers of the constitution had employed the restrictive words which they did in regard to the compensation to be paid to members of the legislative assembly, then it would be an unconstitutional act to increase the salary." He calls attention to the fact that under article 4, section 29, the compensation of the mem- bers of the legislative assembly is restricted by negative words to "Not exceed $3.00 per day." Judge Kelly also quotes the minutes of the constitutional convention, pages 92-3, as follows: "Mr. Peebles, a member of that body, moved to amend Section 1 on salaries as follows: 'Provided, further, that the salaries of the judges shall not be subject to increase and the salaries of the governor and secretary of state shall never exceed $2,000, nor the treasurer exceed $1,200/" On this proposed amendment the yeas and nays were called and resulted as follows: Yeas, fifteen; nays, thirty-five. So the proposed amendment was lost. Commenting upon the same he says : "This vote, it seems to me, would indicate that the constitutional convention did not intend to restrict legislative action in regard to increasing the salaries of the officers men- tioned in article 13, and that the only limitation on the action of the legislative assembly was that such salaries should not be less than the amounts therein provided." In support of this contention he cites Purcell v. Schmidt, 21 la. 543, 544; People v. Rogers, 13 Cal. 159.