State ex rel. Madden v. Crawford

• Court: Supreme Court of Oregon
• Writing for the Court: TOOZE
• Citation: 295 P.2d 174,207 Or. 76
• Decision Date: 23 January 1956
• Parties: STATE of Oregon, on relation of John R. MADDEN, Plaintiff, v. James W. CRAWFORD, Defendant. . Argued and Submitted On Defendant's General Demurrer to Plaintiff's Complaint,

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295 P.2d 174 207 Or. 76 STATE of Oregon, on relation of John R. MADDEN, Plaintiff,
v.
James W. CRAWFORD, Defendant. Supreme Court of Oregon, En Banc. Argued and Submitted On Defendant's General Demurrer to
Plaintiff's Complaint, Jan. 23, 1956.
Decided March 14, 1956.

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[207 Or. 77] Roy F. Shields and Randall B. Kester, Portland, argued the cause for plaintiff. With them on the brief was Kenneth E. Brown, Dist. Atty., Salem.

Gunther F. Krause, Portland, argued the cause for defendant. With him on the brief was Charles A. Hart, Portland.

Charles R. Spackman, Jr., Portland, argued the cause for the Oregon State Bar as amicus curiae, in [207 Or. 78] support of the demurrer. With him on the brief was Robert A. Leedy, Portland.

TOOZE, Justice.

This is an original proceeding by quo warranto, Oregon Constitution, Art. VII, § 2; ORS 30.510, challenging the right of the

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defendant James W. Crawford, a duly elected, qualified, and acting circuit judge of the state of Oregon for the fourth judicial district (Multnomah county), to sit temporarily as a member of the Supreme Court of Oregon, pursuant to appointment by the Supreme Court, brought by the State of Oregon, ex rel. John R. Madden, as plaintiff, against the said James W. Crawford, as defendant. The matter is now before us upon the general demurrer of defendant to the complaint.

The only question for decision is the constitutionality of ORS 2.060, which provides as follows:

'Whenever the business of the Supreme Court is congested or any judge of that court is by reason of illness, or other good cause, absent or unable to bear his part of the work of the court, the Supreme Court may designate a circuit judge or judges to sit temporarily as a member or members of the Supreme Court while the work of the court may reasonably require the assistance of such circuit judge or judges.

'(2) Any circuit judge so called to assist the Supreme Court shall perform the service so required, and shall be entitled to receive from the state his actual expenses incurred thereby, to be audited and paid as provided by law for the payment of expenses of circuit judges designated for service outside of their respective districts. The salary of the judge shall be the same as when discharging[207 Or. 79] his duties as circuit judge, and no additional salary or compensation shall be allowed.

'(3) Any decision or determination of the Supreme Court while one or more circuit judges is serving on the court under this section shall be binding to the same effect as though all judges were regular members of the Supreme Court.'

Due to a large backlog of cases in this court that were undisposed of, resulting in a congested docket, we did on January 6, 1956, acting pursuant to the provisions of the foregoing statute, designate the defendant James W. Crawford, as such circuit judge, to sit temporarily as a member of this court, his service to begin as of the date of his acceptance of the assignment and to continue thereafter at the pleasure of the court. On January 7, 1956, defendant accepted such appointment. Defendant was then named as a member of a department of this court to hear cases set for hearing on January 11 and 12, 1956. One of those cases is that of Stout v. Madden, regularly set for hearing on January 12, the plaintiff in this proceeding being the defendant in that case.

On the morning of January 11, 1956, plaintiff presented to this court his complaint in quo warranto, by which he questioned the lawful right of defendant to sit as a member of the court, contending that ORS 2.060, supra, is unconstitutional and void. We assumed original jurisdiction of the cause, and an order was forthwith entered directing that defendant appear and answer the complaint within five days from the date of service upon him of the order and complaint. On January 17, 1956, defendant filed his general demurrer to the complaint, and the cause was orally argued and submitted to us on January 23, 1956. Upon the filing of the complaint, the defendant refrained from sitting [207 Or. 80] upon the court in hearing the case in question, and since then and pending a determination of the issue before us, has refrained from acting as a member of this court, but has been and is standing by ready immediately to assume and discharge the duties of a member of the Supreme Court should the legislation in question be held constitutional.

The question which we are called upon to determine has been presented exhaustively and with great ability, not only by counsel for the litigants but as well by counsel for the Oregon State Bar, which was granted permission to file a written brief and participate in the oral argument as amicus curiae. The question is an important and delicate one, because its decision will directly affect the problem of this court which gave rise to the enactment of the legislation involved. We cannot, however, take into account considerations of expediency in making our decision; our sole duty is to determine whether the statute

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squares with the Constitution and to render judgment accordingly.

ORS 30.510, in part provides:

'An action at law may be maintained in the name of the state, upon the information of the district attorney, or upon the relation of a private party against the person offending, in the following cases:

'(1) When any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state; or, * * *.' (Italics ours.)

This enactment is the statutory equivalent of the common-law writ of quo warranto, and an action commenced under it is generally referred to as a proceeding[207 Or. 81] in quo warranto. State ex rel. Anderson v. Port of Tillamook, 62 Or. 332, 124 P. 637; State v. Sengstacken, 61 Or. 455, 122 P. 292. It is the remedy or proceeding by which is determined the legality of a claim which a party asserts to the use or exercise of an office or franchise and ousts the holder from its enjoyment, if the claim is not well founded. It is the exclusive remedy for such a purpose. 44 Am.Jur. 94, Quo Warranto § 8; 44 Am.Jur. 100, Quo Warranto § 22. In 74 C.J.S. Quo Warranto, § 4, p. 179, the rule is stated thus:

'In the absence of constitutional or statutory regulations providing otherwise, quo warranto proceedings are the only proper remedy in cases in which they are available. Thus quo warranto, or a proceeding in the nature thereof, is the sole and exclusive remedy and method by which various matters may be tried and determined, as, for example, the right and title to office, * * *.' (Italics ours.)

The provisions of ORS 30.510 have been properly invoked in this case.

Plaintiff contends that ORS 2.060 is unconstitutional in the following respects:

1. That it violates § 1 of Art. VII of the Oregon Constitution, which requires judges of the Supreme Court to be elected by the legal voters of the state at large;

2. That it violates § 1 of Art. III of the Oregon Constitution, which separates the powers of government into three separate departments;

3. That it violates § 16 of Art. V of the Oregon Constitution, which empowers the governor to fill vacancies in judicial offices; and

4. That it violates § 1 of Art. XV of the Oregon Constitution, which provides that all officers shall hold office until their successors are elected.

[207 Or. 82] Section 1, Art. VII, Oregon Constitution, as amended in 1910, provides:

'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 judges of the supreme and other courts shall be elected by the legal votors of the state or of their respective districts for a term of six years, and shall receive such compensation as may be provided by law, * * *.'

Section 2, Art. VII of the Oregon Constitution, as amended in 1910, provides:

'The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law. But the supreme court may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings.'

Under § 1 of Art. VII, prior to the amendment of 1910, the judicial power of the state was vested in a supreme court, circuit courts, and county courts, but under the 1910 amendment, circuit courts and county courts were not mentioned. Hence, under § 1 of Art. VII, as amended in 1910, the Supreme Court is the only court created by the constitution itself; all other courts are to be created by legislative act. However, it was to prevent a hiatus in the administration of justice pending action by the legislature that the first portion of § 2 of Art. VII, as amended in 1910, was adopted. Under this

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