Holman v. Lutz

• Citation: 284 P. 825,132 Or. 185
• Parties: HOLMAN ET AL. v. LUTZ ET AL.
• Decision Date: 18 February 1930
• Court: Supreme Court of Oregon

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.

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.

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. 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 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 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 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 he is filling two lucrative offices at the same time, which, if true, would be in violation of article 2, § 10, of the State Constitution. A lucrative office within the meaning of the Constitution is one whose pay is affixed to the performance of the duties of the office. State v. Slagle, 115 Tenn. 336, 89 S.W. 326. A constitutional provision prohibiting the holding of two lucrative offices does not prevent the assignment to one officer of the duties of another where there is no inconsistency between the two classes of duties. 29 Cyc. title, "Officers," p. 1384. Nor does such a provision apply to a temporary appointment for reasons of necessity. 46 C.J. title, "Officers," p. 945. Such provisions do not prohibit one of the judges of a court from serving as acting judge of another court created by statute. State v. Ritchie, 97 Ohio St. 41, 119 N.E. 124. Statutes conferring on judges already in office additional jurisdiction or imposing additional duties on them are not in violation of a constitutional provision that they shall hold no other office. 33 C.J. title, "Judges," § 17.

If it could be conceived that the temporary appointment of Judge Hamilton to assist this court, under the authority conferred by statute, during the temporary illness of Mr. Justice Brown, would constitute the holding by Judge Hamilton of the office of an associate justice of this court, it would necessarily follow that his appointment here would ipso facto vacate his previous office as circuit judge, and for that reason he could not be holding two offices at the same time. But his appointment here and his performance of the duties of an acting associate justice of this court does not have the effect of making him an associate justice of this court, but merely imposes upon him other duties than those performed by him while acting as a circuit judge. See State v. Wood, 175 N.C. 809, 820, 95 S.E. 1050. The statute fixes the emoluments of Judge Hamilton while temporarily performing the duties of an acting justice of this court by providing that his salary while so acting shall be the same as when discharging his duties as circuit judge, and that no additional salary or compensation shall be allowed except that, under another statute, he is entitled to receive the expenses of a circuit judge when sitting at a court which is held at a place outside of his place of residence.

For these reasons the motion to recall the mandate must be denied, and it is so ordered.

COSHOW, C.J., concurs in result.

HAMILTON, A. A. J., did not participate in this case.

COSHOW C.J. (concurring).

I concur in the conclusion of Mr. Justice RAND. I cannot concur with the reasons he gives for the decision. It is my opinion that the validity of the decree and...