In re McCormick's Estate

• Decision Date: 20 October 1914
• Parties: IN RE MCCORMICK'S ESTATE. BRANCH v. MCCORMICK'S ESTATE.
• Court: Oregon Supreme Court

144 P. 425

72 Or. 608

IN RE MCCORMICK'S ESTATE. BRANCH v. MCCORMICK'S ESTATE.

Supreme Court of Oregon

October 20, 1914

In Banc. On rehearing. Former decision affirmed, and judgment of the circuit court reversed.

For former decisions, see 143 P. 915.

McBride C.J., and Moore and McNary, JJ., dissenting.

A. T. Lewis, of Portland (Lewis & Lewis, of Portland and Dysart & Ellsbury, of Centralia, Wash., on the brief) for appellant. John McCourt, of Portland (Veazie, McCourt & Veazie, of Portland, on the brief), for respondent. C. W. Fulton, M. L. Pipes, Geo. S. Shepherd William Wallace McCredie, George Arthur Brown, George B. Cellars, Miller Murdock, and Virgil A. Crum, all of Portland, amici curiæ.

BURNETT J.

There is drawn in question in this case the constitutionality of chapter 378 of the Laws of 1913, entitled

"An act to provide an additional circuit judge for the Fourth judicial district of the state of Oregon; to abolish the office of county judge in Multnomah county, Oregon, and provide for the transfer to the circuit court of said Fourth judicial district of all the judicial business and jurisdiction of the said county court; providing that the present incumbent of said office of county judge shall be and shall serve as the additional circuit judge created by this act until his successor is elected and qualified, as herein provided."

The first section of the act provides for the election of one circuit judge in addition to the five circuit judges now provided by law for the Fourth judicial district of the state of Oregon comprising Multnomah county. Section 2 declares that:

"The duties, powers and jurisdiction of said circuit judge shall be such as are prescribed by law and the salary shall be the same as the salary now, or hereafter, received by the other circuit judges of said district and be paid in like manner. The circuit judge herein provided shall sit in a department to be named or designated as department No. 6."

Section 3 abolishes the office of county judge and installs the then incumbent of that office to be a circuit judge of the Fourth judicial district of the state "to exercise all the powers and jurisdiction of a circuit judge until his successor is elected and qualified as provided in section 1 of this act." Section 4 provides that:

"Upon the taking effect of this act all judicial jurisdiction, power and authority of the county judge and of the county court of said Multnomah county, as distinguished from such power and jurisdiction as is exercised in the transaction of county business, shall then, and thereafter, be vested in and exercised by the circuit court of the said Fourth judicial district, and all said matters, causes and proceedings pending in said county court shall be considered as transferred, continued, heard and disposed of in the said circuit court."

Section 5 provides substantially that as far as practicable all matters relating to probate shall be heard in department No. 6; and section 6 repeals all acts and parts of acts in conflict with the statute under consideration. This is an enactment of the legislative assembly of the state. It does not purport to create any new court. Both the title and the body of the act attempt to enlarge the number of circuit judges in a certain district. Its language could not well be plainer on that point. It attempts to destroy a county court and regulate the practice of a single circuit court so as to supply the deficiency.

Section 23 of article 4, Const. says that:

"The legislative assembly shall not pass special or local laws in any of the following enumerated cases, that is to say * * * 3. Regulating the practice in courts of justice."

It is plain that whatever the people at large may do by virtue of the initiative power reserved to themselves, the legislative assembly is subject to the restriction just mentioned respecting the enactment of special and local laws.

It is provided in section 935, L. O. L., that:

"The county court has jurisdiction, but not exclusive, of actions at law and all proceedings therein, and connected therewith, where

the claim or subject of the controversy does not exceed the value of $500, and exclusive jurisdiction of actions for forcible entry and detainer, without reference to the value of the property."

Section 936, L. O. L. reads thus:

"The county court has the exclusive jurisdiction, in the first instance, pertaining to a court of probate; that is--1. To take proof of wills; 2. To grant and revoke letters testamentary of administration and of guardianship; 3. To direct and control the conduct and settle the accounts of executors, administrators, and guardians; 4. To direct the payment of debts and legacies, and the distribution of the estates of intestates; 5. To order the sale and disposal of the real and personal property of deceased persons; 6. To order the renting, sale, or other disposal of the real and personal property of minors; 7. To take the care and custody of the person and estate of a lunatic or habitual drunkard, and to appoint and remove guardians therefor; to direct and control the conduct of such guardians, and settle their accounts; 8. To direct the admeasurement of dower."

It is provided in section 1135, L. O. L., that in probate proceedings the county court exercises its powers by means of, among others, a citation to the party. Appeals are authorized from the county court to the circuit court in all matters triable in the county court whether in the actions at law mentioned in section 935, L. O. L., or in probate proceedings, and other kindred matter. In section 987, L. O. L., a trial jury is defined as a body of men, 12 in number in the circuit court, and 6 in number in the county court and courts of justice of the peace. All these matters relate to practice in the courts of justice within the meaning of the Constitution.

"Bouvier defines the word 'practice' as 'the form, manner, and order of conducting and carrying on suits or prosecutions in the courts, through their various stages, according to the principles of law and the rules laid down by the respective courts.' * * * The word 'practice' means those legal rules which direct the course of procedure to bring parties into court, and the course of the court after they are brought in. * * * 'Practice' is defined by Burrill as 'the course of procedure in the courts, which, in a general sense, includes pleadings.' Rapalje and Lawrence define practice as 'the law which regulates the formal steps in an action or other proceeding; which therefore deals with writs, summons, pleadings, affidavits, notices, motions, petitions, orders, trials, judgments, appeals, costs, and executions."' 6 Words and Phrases, p. 5486, and authorities there cited.

From these we deduce the principle that jurisdiction as applied to courts is power to hear and determine issues of law and fact, which means authority to perform any judicial function. Practice includes the formula by which that power is first asserted and afterwards exercised in respect to any litigation in all its phases, until the same is finally completed.

The situation presented is that, while in the different counties of the state outside of Multnomah county a suitor may bring an action in the county court where the value of the controversy does not exceed $500, and may appeal first to the circuit court and afterwards to the Supreme Court, in case of an adverse decision in the courts of first instance, if he should begin his litigation in Multnomah county, he would meet with a different practice, whereby he would be compelled to commence his action in the circuit court and be deprived of his right of appeal to that court which he would enjoy in other counties. In other counties in probate matters the county court would exercise its authority by means of citation. The method of obtaining jurisdiction in the circuit court is by service of summons, and this would necessarily be the rule in the circuit court in Multnomah county. A jury of six men would be unknown in that county except in justice's court, while in the county courts of all the other counties a jury of that number is the rule. These are but a few illustrations relating to matters of practice which would be swept away by the act of the legislative assembly in question which is made to apply solely to Multnomah county. The situation is not improved if we give any effect to the omnibus repealing clause. With an eye single to a particular locality, the legislative assembly has attempted to formulate a scheme of practice in the circuit court sitting there, and has said in so many words that all acts and parts of acts in conflict with that project are repealed. No exception is made as to any other county, although the jurisdiction and practice of their county courts depend upon laws inconsistent with the act under consideration. If this law is constitutional it is constitutional throughout the state, and we cannot refuse to give effect to its repealing clause, for it contains matter properly connected with the subject expressed in the title to the act, within the meaning of section 20 of article 4 of the Constitution. It is a question of whether the county court of Multnomah county shall be perpetuated as against its attempted abolition or whether the other county courts of the state have fallen with it under the all-devastating repeal.

It is argued that the section of the Constitution against special and local laws to which allusion has been made is overcome and superseded by section 1 of article 7 in its latest form, declaring that:

"The judicial power of the state shall be vested in one Supreme Court and in such other courts as may from time to time be created by law."

The contention seems to be that the lawmaking...