Holman v. Lutz

CourtSupreme Court of Oregon
Writing for the Court[132 Or. 212] RAND, J.
Citation284 P. 825,132 Or. 185
Decision Date18 February 1930
PartiesHOLMAN ET AL. v. LUTZ ET AL.

284 P. 825

132 Or. 185

HOLMAN ET AL.
v.
LUTZ ET AL.

Supreme Court of Oregon

February 18, 1930


In Banc.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow, Judge.

Suit by Howard B. Holman and others against Iris Whitney Lutz and another, individually and as executrix and executor of the estate of Julia Holman, deceased, and others. Decree for plaintiffs was reversed and cause dismissed in 282 P. 241. On motion by plaintiffs to recall the mandate. Motion denied. [284 P. 826]

[132 Or. 187] Guy C. H. Corliss and Russell E. Sewall, both of Portland, for appellant Edward Guy Holman.

Leslie S. Parker, Dey, Hampson & Nelson, and McCamant & Thompson, all of Portland, for other appellants.

Joseph H. Page, C. Henri Labbe, Martin L. Pipes, J. M. Pipes, and G. A. Pipes, all of Portland, for the motion.

[132 Or. 212] RAND, J.

Plaintiffs have filed in this court and cause a motion to recall the mandate upon the ground that Hon. James W. Hamilton, a circuit judge who participated in the hearing and decision of the cause and wrote the opinion of the court therein, was not at the time a constitutional member of the court, and therefore the decision rendered is void. Their argument in support of the motion is that, under the Constitution of this state, the Supreme Court is constituted of seven members only, a Chief Justice and six associate justices, all of whom were living and they say were performing their judicial functions at the time this cause was heard and determined.

By reason of serious illness, Mr. Justice Brown, one of the regularly constituted justices of this court, has been unable to bear his part of the work for about eight months last past, and has been absent from the court during most of said time, and during all of the time that Mr. Acting Justice Hamilton has been sitting. [132 Or. 213] As is well known to the public generally, and particularly to those having business before the court, the work of this court has been congested for years, and until quite recently litigants have suffered because of the delay in having their cases tried and determined. That condition has been largely ameliorated, but it has not been entirely done away with. In order to relieve the situation, the Legislature in 1921 passed an enactment authorizing the Supreme Court, during the absence or inability of one of its members to do his part of the work, to designate any judge of the circuit court to sit temporarily as a member of the Supreme Court, and declared that the decisions and determinations of the court, while such circuit judge was so sitting, "shall be binding to the same effect as though no circuit judge were sitting or taking part." Chapter 338, L. 1921, p. 650, § 3. There was therefore full legislative authority for the selection and designation of Judge Hamilton to act as assistant associate justice of this court during the absence and inability of Mr. Justice Brown.

Plaintiffs say that this act is unconstitutional because it violates the provisions formerly contained in section 2 of article 7 of the State Constitution, which provided that the number of the justices of the Supreme Court "shall never exceed seven." It is true that Mr. Justice Brown is a regularly constituted associate justice of this court and is still in office, although, because of illness, unable at present to perform his judicial functions. It is also true that, in addition to Mr. Justice Brown, there are six [284 P. 827] other regularly constituted members of the court, and that Judge Hamilton is also temporarily acting as such. Whether this would be a violation of section 2 of article 7 of the [132 Or. 214] original Constitution, if that section were still in force as a part of the organic law of the state, is unnecessary for decision, for that section is no longer a part of the State Constitution. Section 2 of article 7 of the original Constitution was abrogated by the 1910 amendment (see Laws 1911, p. 7) of said article 7, but by virtue of section 2b of article 7, as amended, its provisions were to remain in full force and effect until changed by subsequent legislation. The effect of this was to withdraw the provisions of section 2 from the organic act of the state, but still to preserve its provisions as existing law until changed by some subsequent legislation and to render all of its provisions subject to change at any time by the legislative department of the state. The 1910 amendment, as adopted, provided that "article 7 of the Constitution of the State of Oregon shall be and the same is hereby amended to read as follows." This amendment when adopted had the effect of excluding from article 7 as amended all provisions formerly contained therein which were not included in the amendment, one of which was said section 2. But, as stated, the provisions of what had been formerly section 2 were preserved as existing law, subject, however, to change by the Legislature, by section 2b of article 7, as amended, which provides as follows: "The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law. * * *"

As we have attempted to point out, this saving clause, so written in the amendment and adopted as a part of it, had two effects: Every provision contained in article 7 of the original Constitution not included in article 7 as amended, unless conflicting with the [132 Or. 215] amendment, continues in force until changed by legislative act, but all such provisions are subject at all times to change by the Legislature. The former decisions of this court holding to this effect are so numerous and the holdings of the court have been so uniform that the citation of authorities would seem to be unnecessary. We cite, however, Jacobson v. Holt, 121 Or. 462, 255 P. 901, and State v. Farnham, 114 Or. 32, 234 P. 806, and authorities cited in the last case.

Another objection urged by plaintiffs, coming within the same category and subject to the same ruling as the objection just considered, is that, under section 4 of article 7 of the former Constitution, which section is not contained in the amendment, every vacancy in the office of justice of the Supreme Court shall be filled by election or by appointment of the Governor. The answer to this objection is so obvious, and there are so many answers which could reasonably be made that it would seem hardly necessary to discuss them. In the first place, there has been no vacancy in the office of justice of the Supreme Court by reason of the disability of Mr. Justice Brown and the temporary appointment of Judge Hamilton as acting justice. Judge Hamilton is not filling a vacancy within the meaning of the former constitutional provision referred to. He is not an associate justice of the Supreme Court. He is only temporarily performing duties as such under authority conferred by the statute. He is still a regularly constituted circuit judge, and is performing other and not inconsistent judicial duties imposed upon him by law. Nor is there anything in the contention made that...

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8 practice notes
  • Carey v. Lincoln Loan Co., 9706-04753; A117696.
    • United States
    • Supreme Court of Oregon
    • December 28, 2005
    ...(1887); see also State ex rel Madden, 207 Or. at 89-90, 295 P.2d 174 (discussing acts of judge de facto); Holman et al. v. Lutz et al., 132 Or. 185, 217-22, 284 P. 825 (1930) (Coshaw, J., concurring) Defendant also challenges Benson's status as Secretary of State, arguing that, when he beca......
  • State v. Endsley
    • United States
    • Supreme Court of Oregon
    • November 5, 1958
    ...Article VII in 1910, has been in effect only as law, State ex rel. Madden v. Crawford, 207 Or. 76, 82-83, 295 P.2d 174; Holman v. Lutz, 132 Or. 185, 214, 282 P. 241, 284 P. 825), was seventy years ago construed as conferring jurisdiction upon the Supreme [214 Or. 546] Court to revise all fi......
  • Dep't of Human Servs. v. J. H. (In re E. H.), A177299
    • United States
    • Court of Appeals of Oregon
    • June 8, 2022
    ...accordingly, his authority could not be challenged by collateral attack in habeas corpus proceeding); Holman et al. v. Lutz et al. , 132 Or. 185, 219-20, 284 P. 825 (1930) (Coshow, C. J., concurring) (" ‘The acts of an officer de facto are as valid and effectual where they concern the ......
  • Willbanks v. Goodwin
    • United States
    • Supreme Court of Oregon
    • December 17, 1985
    ...to make a will devising real property must be proved by clear, concise and convincing evidence."). Holman et al v. Lutz et al, 132 Or. 185, 208, 282 P. 241, 284 P. 825 (1930) (proof of irrevocable contract must be established by "the most clear and satisfactory evidence"). A ......
  • Request a trial to view additional results
8 cases
  • Carey v. Lincoln Loan Co., 9706-04753; A117696.
    • United States
    • Supreme Court of Oregon
    • December 28, 2005
    ...(1887); see also State ex rel Madden, 207 Or. at 89-90, 295 P.2d 174 (discussing acts of judge de facto); Holman et al. v. Lutz et al., 132 Or. 185, 217-22, 284 P. 825 (1930) (Coshaw, J., concurring) Defendant also challenges Benson's status as Secretary of State, arguing that, when he beca......
  • State v. Endsley
    • United States
    • Supreme Court of Oregon
    • November 5, 1958
    ...Article VII in 1910, has been in effect only as law, State ex rel. Madden v. Crawford, 207 Or. 76, 82-83, 295 P.2d 174; Holman v. Lutz, 132 Or. 185, 214, 282 P. 241, 284 P. 825), was seventy years ago construed as conferring jurisdiction upon the Supreme [214 Or. 546] Court to revise all fi......
  • Dep't of Human Servs. v. J. H. (In re E. H.), A177299
    • United States
    • Court of Appeals of Oregon
    • June 8, 2022
    ...accordingly, his authority could not be challenged by collateral attack in habeas corpus proceeding); Holman et al. v. Lutz et al. , 132 Or. 185, 219-20, 284 P. 825 (1930) (Coshow, C. J., concurring) (" ‘The acts of an officer de facto are as valid and effectual where they concern the ......
  • Willbanks v. Goodwin
    • United States
    • Supreme Court of Oregon
    • December 17, 1985
    ...to make a will devising real property must be proved by clear, concise and convincing evidence."). Holman et al v. Lutz et al, 132 Or. 185, 208, 282 P. 241, 284 P. 825 (1930) (proof of irrevocable contract must be established by "the most clear and satisfactory evidence"). A ......
  • Request a trial to view additional results

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