State ex inf. Evans v. Holman

• Decision Date: 24 October 1914
• Citation: 144 P. 429,73 Or. 18
• Parties: STATE EX INF. EVANS, DIST. ATTY., v. HOLMAN.
• Court: Oregon Supreme Court

144 P. 429

73 Or. 18

STATE EX INF. EVANS, DIST. ATTY., v. HOLMAN.

Supreme Court of Oregon

October 24, 1914

In Banc. Original proceeding by the State on the information of Walter H. Evans, District Attorney for Multnomah County against Rufus C. Holman. Demurrer to information sustained and action dismissed.

Walter H. Evans and Arthur A. Murphy, both of Portland for plaintiff. E. E. Coovert, of Portland, for defendant. Wallace McCamant and A. E. Clark, both of Portland, amici curiæ.

MOORE J.

This is an action analogous to quo warranto instituted in this court, in the name of the state, upon the information of Walter H. Evans, the proper prosecuting attorney, to ascertain the right of Rufus C. Holman to act as county commissioner of Multnomah county, Or.; to determine the efficacy of orders made, judgments given, and decrees rendered by Thomas J. Cleeton while acting as a circuit judge of that county and of other counties of the state; and also to decide the validity of orders, etc., made, given, and rendered in all probate matters in Multnomah county since chapter 378 of the General Laws of Oregon of 1913 purported to go into effect. A demurrer to the information presents the inquiries to be considered. Chapter 378 of the General Laws of Oregon of 1913 filed in the office of the Secretary of State March 4, 1913, reads:

"Section 1. That in addition to the five circuit judges now provided by law for the Fourth judicial district of the state of Oregon, comprising Multnomah county, there shall be elected on the first Tuesday after the first Monday in November, A. D. 1914, and at the general election every six years thereafter, one circuit judge in said district who shall possess the qualifications prescribed by law for circuit judges, and whose term shall commence on the first Monday of January, A. D. 1915, and who shall hold office for the term of six years and until his successor is elected and qualified.

"Sec. 2. 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 number 6.

"Sec. 3. The office of county judge for the county of Multnomah is hereby abolished and the present incumbent of said office is hereby created a circuit judge of the said Fourth judicial district to sit in department number 6 provided for in the preceding section of this act and to hold such office and 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.

"Sec. 4. 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 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.

"Sec. 5. As far as is practicable all matters relating to the administration of estates of decedents, minors and other legally incompetent persons and probate matters generally, shall be referred to and heard and considered in said department number 6.

"Sec. 6. All acts and parts of acts in conflict herewith are hereby repealed."

At the same time chapter 377 was also filed in the same manner and is as follows:

"Section 1. That in addition to the two county commissioners for Multnomah county, Oregon, now provided for by law, there shall be elected on the first Tuesday after the first Monday in November, A. D. 1914, and at the general election every four years thereafter, one county commissioner for said Multnomah county, who shall possess the qualifications prescribed by law for the office of county commissioner, whose term shall commence on the first Monday in January, A. D. 1915, and shall hold office for a period of four years and until his successor is elected and qualified. The said commissioner shall receive the same salary as now provided by law for county commissioners of Multnomah county, to be paid in like manner, and he shall have the same powers, perform the same duties and have the same obligations as the county commissioners of said county now provided for by law.

"Sec. 2. The vacancy created in the county court of Multnomah county, sitting as the board of county commissioners, by the act of the Legislative Assembly abolishing the office of county judge, shall be filled by Rufus C. Holman, who shall be known as a county commissioner of Multnomah county, as the present commissioners are designated, and shall hold office until the first Monday in January, 1915, and until his successor is elected and qualified as provided in section 1 of this act. His salary shall be in the amount and paid in the manner specified in Section 1.

"Sec. 3. Upon taking effect of this act, and thereafter, the county commissioners of Multnomah county shall be known as the board of county commissioners of Multnomah county. Said board shall have power to appoint a chairman from among their own number and remove him at pleasure, and shall have and possess, exercise and enjoy all the powers and jurisdiction now possessed, exercised and enjoyed by the county court of Multnomah county, sitting for the transaction of county business.

"Sec. 4. All acts and parts of acts in conflict herewith are hereby repealed."

Section 2 of the act last quoted assigns a reason for the appointment of Mr. Holman. It is wholly immaterial what cause prompted his selection, if the legislative assembly had power to create the board of county commissioners of that county and to name as a member thereof a qualified elector who should hold the office

until his successor could be elected.

It appears that pursuant to section 2944, L. O. L., that at the general election held in that county November, 1910, D. V Hart was elected a county commissioner thereof for the term of four years, and at the election held therein in November, 1912, W. L. Lightner was also elected a county commissioner thereof for a like term, each of whom was to sit with the county judge of that county for the transaction of county business. The organic act of the state empowers the legislative assembly to provide for the election of two commissioners to sit with the county judge while transacting county business in any or all of the counties of the state, or a separate board for transacting such business may be provided. Const. Or. art. 7, § 12. It will thus be seen that the legislative assembly had ample power to create the board of county commissioners of Multnomah county. That department of the state government also possessed authority to name the person who should constitute the third member of that board. Biggs v. McBride, 17 Or. 640, 21 P. 878, 5 L. R. A. 115; State ex rel. v. George, 22 Or. 142, 29 P. 356, 16 L. R. A. 737, 29 Am. St. Rep. 586; Eddy v. Kincaid, 28 Or. 537, 41 P. 156, 655; State ex rel. v. Compson,...