State ex rel. Johnson v. Circuit Court for Deschutes County

• Decision Date: 24 February 1925
• Parties: STATE EX REL. JOHNSON v. CIRCUIT COURT FOR DESCHUTES COUNTY. [*]
• Court: Oregon Supreme Court

233 P. 563

114 Or. 6

STATE EX REL. JOHNSON v. CIRCUIT COURT FOR DESCHUTES COUNTY. ^[*]

Supreme Court of Oregon

February 24, 1925

In Banc.

Original proceeding by the State of Oregon, on the relation of J. E Johnson, for writ of mandamus to be directed to T. E. J Duffy, Judge of the Circuit Court on the State of Oregon for Deschutes County. Petition and writ dismissed.

R. B. Parsons, of Bend (R. B. Parsons, of Bend, and John K. Kollock, of Portland, on the brief), for plaintiff.

F. S. Senn, of Portland (H. H. De Armond and Jay H Upton, both of Bend, and Frank S. Senn, of Portland, on the brief), for defendant.

BURNETT J.

This is an original proceeding in this court against the judge of the circuit court for Deschutes county, wherein it is sought by mandamus to compel him to call in a circuit judge from some other court, or to apply to the Chief Justice of this court to send a judge to try a case then pending in the circuit court of that county. Sections 45--1 and 45--2, Oregon Laws read 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; or, if the convenience of witnesses or the ends of justice will not be interfered with by such course, and the action or suit is of such a character that a change of venue thereof may be ordered, he may send the case for trial to the most convenient court.

"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 cannot, or believes that he cannot, have a fair * * * trial before such judge."

From the writ issued out of this court it appears that a civil action was pending in the circuit court which had been tried resulting in a verdict for the plaintiff and a consequent judgment which the circuit court set aside and ordered a new trial. At this stage of the proceedings, the plaintiff filed an affidavit of prejudice in conformity with the sections of the Code above set out. The writ has been answered and the cause heard, and much has been said for and against the constitutionality of the law.

In passing, it seems apropos to quote a comment by Mr. Justice Van Valkenburgh in Conn v. Chadwick & Co., 17 Fla. 428, concerning a similar statute:

"Until now it has been, as I supposed, universally conceded that the Constitution had vested the judicial power in the courts. Now, it seems to be claimed that the Legislature has the power to invest a party to a suit, or his attorney, with the judicial function to determine the disqualification of the justices."

In that case, however, the learned justice declined to pass upon the constitutionality of the statute and determined the issue on other grounds. Neither will we decide this case upon the constitutional question, for as said by Mr. Justice Brown in Davis v. Smith, In re Roedler's Estate, 110 Or. 147, 222 P. 301:

"This court will not decide a case upon the question of the constitutionality of a legislative act, whenever there appear of record other grounds sufficient to sustain a proper disposition of the case in judgment. Elliott v. Oliver, 22 Or. 44, 29 P. 1. Also see Briedwell v. Henderson, 99 Or. 506, 195 P. 575, and the Oregon cases there cited."

State v. Stilwell, 100 Or. 637, 198 P. 559, cited by the petitioner, is authority for the principle that--

"When a statute is copied from the laws of another state, it is usually assumed that it is taken with the construction placed upon it by the courts in which it originated."

In State ex rel. v. Clifford, 65 Wash. 313, 118 P. 40 the Supreme Court of that state...