State ex rel. Long v. Beveridge

• Decision Date: 09 April 1918
• Citation: 88 Or. 334,171 P. 1173
• Parties: STATE EX REL. LONG v. BEVERIDGE, COUNTY CLERK.
• Court: Oregon Supreme Court

171 P. 1173

88 Or. 334

STATE EX REL. LONG v. BEVERIDGE, COUNTY CLERK.

Supreme Court of Oregon

April 9, 1918

Department 1. Mandamus by the State, on the relation of P. M. Long against Jos. W. Beveridge, as County Clerk of Multnomah County. Writ dismissed.

The defendant Beveridge is county clerk of Multnomah county. The relator desired to become a candidate for the office of district judge in that county and presented to the county clerk his declaration of candidacy, which the officer refused to file. Thereupon the relator commenced in this court an original proceeding in mandamus to compel the clerk to receive his declaration and put his name on the primary ballot as a candidate for the judicial office in question. The defendant demurs to the writ.

Oliver M. Hickey, of Portland (Paul M. Long, of Portland, on the brief), for plaintiff. F. E. Swope and C. C Hindman, both of Portland (W. H. Evans, Dist. Atty., of Portland, on the brief), for defendant.

BURNETT J.

Prior to the act of February 28, 1913 (Laws 1913, p. 732), there were in the city of Portland two justices of the peace elected under the terms of section 3165 et seq., L. O. L., providing for justices of the peace in cities of the state having 100,000 or more inhabitants. At the November election in 1912, J. W. Bell was elected as one of such justices of the peace. His term of office, by virtue of article 7 of the Constitution as amended in 1910, automatically became the period of six years from and after the first Monday of January next following his election. By virtue of the act of February 28, 1913, entitled "An act to create district courts in cities of 100,000 population or more, defining their jurisdiction, providing districts over which their jurisdiction shall extend, providing a system of practice and procedure therefor, providing for appointment and election of judges therefor, and their salary, providing for a clerk and deputies therefor, and their salaries, and providing for the abolishment of justice's courts in such cities, and repealing sections 3164, 3165, 3166, 3167, 3168, 3169, 3170, 3172, 3173, 3174, 3175, 3176, 3177 and 3178 of Lord's Oregon Laws, and amending section 3164 of Lord's Oregon Laws, and repealing all acts and parts of acts in conflict herewith," the district court, composed of three judges, was created in cities of 100,000 population or more. The act appointed the two justices of the peace in such cities to be judges of the new court, and provided for the appointment of a third judge by the judges of the local circuit court. J. W. Bell accepted the new appointment and officiated therein until the November election of 1914, when he became a candidate and was elected to succeed himself as judge of the district court.

The relator claims that the legislative department could not abolish the office of justice of the peace to the detriment of the then incumbent, and that such legislation would be ineffective until the end of the term of the then holder of the office. This contention might be granted, if applicable but, while the legislative assembly could not forcibly oust Judge Bell from the office of justice of the peace, yet it could, and, as the circumstances disclose, did, toll him out of that office by giving him a better one, which he accepted. This worked a resignation of the former office. 29 Cyc. 1382. Besides this, it is said in our Constitution that no person shall hold more than one lucrative office at the same time, except as in...