State Capitol Commission v. McMahan

• Decision Date: 07 October 1938
• Citation: 160 Or. 83,83 P.2d 482
• Parties: STATE CAPITOL RECONSTRUCTION COMMISSION ET AL. <I>v.</I> McMAHAN
• Court: Oregon Supreme Court

160 Or. 83

83 P.2d 482

STATE CAPITOL RECONSTRUCTION COMMISSION ET AL.

v. McMAHAN

Supreme Court of Oregon.

Argued on merits October 7, 1938.

Demurrer overruled September 9, 1938.

Peremptory writ of mandamus granted October 25, 1938.

Judges — Affidavit of prejudice

1. Where motion for change of judge and accompanying affidavit of prejudice were filed within one day after condemnation proceedings was put at issue on a question of fact by the filing of defendant's answer and trial judge had not theretofore passed upon any motion in the proceeding and provisions of statute relating to change of judges for prejudice were complied with, movants were entitled to change of judge, notwithstanding that motion was made on the day of trial when the judge, jurors, court reporter, attorneys, and parties had assembled for the purpose of trying the case.

Judges — Change of judge

2. Motion for change of judge, requesting "that the presiding judge or the judge of the above entitled court call in a judge from some other court or apply to the Chief Justice of the Supreme Court to send a judge to try" condemnation proceeding, was not defective in failing to include all alternatives mentioned by the statute and was sufficient if it manifested party's desire for change of judge supported by statutory affidavit.

Judges — Change of judge

3. Where State Capitol Reconstruction Commission, a quasi corporation, in condemnation proceeding filed motion for change of judge supported by affidavit of prejudice by the assistant attorney general, affidavit was proper since corporation must act through duly authorized agents.

Judges — Affidavit of prejudice

4. In condemnation proceeding by State Capitol Reconstruction Commission, affidavit of prejudice by assistant attorney general, alleging that members of the commission "believe they cannot have a fair and impartial trial," was sufficient where affidavit contained categorical statement that judge was prejudiced against members of the commission and affidavit was in no respect an affidavit based on belief.

Judges — Affidavit of prejudice

5. In condemnation proceeding by State Capitol Reconstruction Commission, affidavit of prejudige sworn to by assistant attorney general in support of motion for change of judge filed by attorney general was not open to objection that state was not one of the petitioners in the proceeding, where statute creating the commission authorized it to bring an action in its own name on behalf of the state.

Mandamus — Change of judge

6. Under the statute creating the State Capitol Reconstruction Commission and authorizing it to bring condemnation actions in its own name on behalf of the state, commission has implied authority to maintain mandamus for change of judge in condemnation proceeding in aid of the principal authority conferred upon it by the statute.

                  Waiver of disqualification of judge, note, 57 A.L.R. 292. See
                also, 15 R.C.L. 540 (6 Perm. Supp., 3953)
                  33 C.J. Judges, § 180
                

In Banc.

Original mandamus proceeding by the State Capitol Reconstruction Commission and others to compel L.H. McMahan, as judge of the circuit court for Marion county, to grant a change of judge in a case pending before him.

WRIT GRANTED.

J.M. Devers and Rex Kimmell, Assistant Attorneys General (I.H. Van Winkle, Attorney General, on the brief), for petitioners.

Wallace P. Carson, of Salem (Carson & Carson, of Salem, on the brief), for defendant.

LUSK, J.

This is an original proceeding in mandamus brought by the State Capitol Reconstruction Commission to compel the defendant, L.H. McMahan, circuit judge for Marion county, to grant a motion for a change of judge in a case pending before him. A demurrer to the alternative writ was filed by the defendant, and after argument thereon was overruled by the court without opinion on September 9, 1938. Thereafter, the defendant filed an answer and the petitioners their reply, and the case was heard on the merits.

The material facts, as gathered from the pleadings and a stipulation of counsel, are that on the 10th day of May, 1938, the State of Oregon, acting through the Capitol Reconstruction Commission, filed a complaint in the circuit court for Marion county against Arthur Charles Boeschen and others in a proceeding to condemn certain real property of the defendants located in Salem, Marion county, Oregon. The defendants in the condemnation action made their first appearance therein by filing an answer on July 13, 1938, at 4:30 p.m. On July 14, at 9:12 a.m., and before any motion had been passed on by the trial judge, the following motion and accompanying affidavit were filed, and within a few minutes thereafter called to the attention of the defendant herein:

"Comes now the above named plaintiff by its attorneys and moves that the presiding judge or the judge of the above entitled court call in a judge from some other court or apply to the Chief Justice of the Supreme Court to send a judge to try the above entitled cause.

"This motion is based upon the affidavit accompanying the same and on Sections 1-405 and 1-406, Oregon Code 1930, as amended.

                                         I.H. VAN WINKLE
                                         Attorney-General of Oregon
                                         REX KIMMELL
                                         Assistant Attorney-General
                                         J.M. DEVERS
                                         Assistant Attorney-General
                  "STATE OF OREGON, |
                                     > SS
                  COUNTY OF MARION, |
                

"I, J.M. Devers, being first duly sworn, depose and say that I am one of the attorneys for the above-named plaintiff; that L.H. McMahan, Judge of the above entitled court, is prejudiced against the above members of the Capitol Reconstruction Commission, or some of them, and that the State and the Commission cannot, and believe they cannot, have a fair and impartial trial before said judge; that this affidavit is made in good faith and not for the purpose of delay.

J.M. DEVERS"

(Jurat omitted)

At 4:20 p.m. of the same day the defendant made and filed an order in the condemnation case denying the foregoing motion.

Sometime later on the same day, namely July 14, 1938, another motion for change of judge and accompanying affidavit of prejudice were filed by the petitioner, Rex Kimmell, assistant attorney-general for the state of Oregon. The affidavit alleged that the defendant was prejudiced against the said petitioner.

The parties are agreed on all facts that the court deems material.

The constitutionality of the Oregon affidavit of prejudice statute was sustained in the case of U'Ren v. Bagley, 118 Or. 77 (245 P. 1074, 46 A.L.R. 1173), against the challenge that the legislature had, by the enactment of this law, presumed to exercise judicial power. In the instant case the defendant's answer does not allege that the act is unconstitutional, nor was it contended on the oral argument that it offends against any constitutional provision. So far, therefore, as the present case is concerned, the validity of the act must be taken as settled. In the U'Ren case, also, the act was construed and held to be absolute and mandatory. The court said:

"No discretion is vested in the judge against whom the affidavit is filed as to his recusation. When an affidavit is timely made and in substantial compliance with the statute, the disqualification of the judge is accomplished so far as proceeding further in that particular cause is concerned. There is no issue of law or fact to determine. The course that the judge must pursue is fixed by statute."

The provisions in question are section 1-405, Oregon Code 1930, and section 1-406, Oregon Code 1930, as amended by Oregon Laws 1935, chapter 106.

Section 1-405 provides in part as follows:

"No judge of a circuit court of the state of Oregon shall sit to hear or try any suit, action or proceeding when it shall be established, as hereinafter provided, that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. In such case the presiding judge shall forthwith transfer the suit or action to another department of the same court, or call in a judge from some other court, or apply to the chief justice of the supreme court to send a judge to try the case; * * *"

Section 1-406, as amended by Oregon Laws 1935, chapter 106, reads:

"Any party to or any attorney appearing in any action, suit or proceeding in a circuit court may establish such prejudice by motion supported by affidavit that the judge before whom the action or suit is pending is prejudiced against such party or attorney, so that such party or attorney can not, or believes that he can not, have a fair and impartial trial before such judge, and that it is made in good faith and not for the purpose of delay, and shall be filed with such motion at any time prior thereto or within one day after such action, suit or proceeding is at issue upon a question of fact; provided, however, no such motion and affidavit shall be filed against any judge after such judge has passed upon any motion, except a motion to extend time or demurrer in any such action, suit or proceeding, except that such judge may allow such further time for the filing of such motion and affidavit, and except that in judicial districts having a population of one hundred thousand [100,000] or more, the affidavit and motion for change of judges shall be made at the time and in the manner prescribed in section 1-407, Oregon Code 1930. No party or attorney shall be permitted to make more than one [1] application in any action or proceeding under this act."

The parties agree that this case is governed by the provisions of section 1-406 (as amended in 1935) and that section 1-407 has no application to Marion county.

From the facts stated it appears that the first motion for change of judge and accompanying affidavit of prejudice were filed and presented to the court on the morning of July 14, 1938, within one day after the action...