State ex rel. Ricco v. Biggs

• Decision Date: 08 April 1953
• Parties: , 38 A.L.R.2d 720 STATE ex rel. RICCO v. BIGGS, Circuit Judge.
• Court: Oregon Supreme Court

Page 1055

255 P.2d 1055

198 Or. 413, 38 A.L.R.2d 720

STATE ex rel. RICCO v. BIGGS, Circuit Judge.

Supreme Court of Oregon.

Argued and Submitted Jan. 14, 1953.

Decided April 8, 1953.

Martin P. Gallagher, Ontario, for plaintiff. On the brief were Gallagher & Gallagher, Ontario.

Charles W. Swan, Dist. Atty., Vale, argued the cause and filed a brief for defendant.

Before LATOURETTE, C. J., and WARNER, ROSSMAN, LUSK, TOOZE and PERRY, JJ.

TOOZE, Justice.

This is an original proceeding in mandamus, instituted by the state of Oregon, ex rel. Marie Ricco, as plaintiff, against M. A. Biggs, as judge of the circuit court of the state of Oregon for the ninth judicial district, as defendant, to require the defendant to decide on the merits a motion for a change of venue in a criminal case involving an alleged misdemeanor.

On August 26, 1952, an indictment was returned by the grand jury for Malheur county, Oregon, charging the plaintiff Marie Ricco with the crime of keeping a bawdyhouse. Omitting formal parts, said indictment is as follows:

'Marie Ricco is accused by the Grand Jury of the County of Malheur by this Indictment of the crime of keeping a bawdyhouse committed as follows:

'The said Marie Ricco on the 20th day of April, A. D., 1952, in the said County of Malheur and State of Oregon, then and there being, did then and there willfully and unlawfully keep, set up, suffer and permit to be kept and set up in a house, to-wit: the East Side Hotel located at 120 S.E.2nd Street in the City of Ontario in said County and State, a house of ill fame, brothel and bawdyhouse for the purpose of prostitution, fornication and lewdness, the said Marie Ricco then and there being the owner, lessor and lessee of said establishment, and to the possession of which she, the said Marie Ricco, was then and there entitled, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'

Upon arraignment, plaintiff (defendant in the criminal action) entered a plea of 'not guilty'. Thereafter and on September 11, 1952, the plaintiff filed her motion for a change of venue in said criminal action, on the ground and for the reason, as she alleged, that she could not obtain a fair and impartial trial of said cause in Malheur county. Said motion was supported by affidavit, setting forth in detail the facts upon which it was based. The district attorney filed a counter-affidavit.

On September 13, 1952, the motion for change of venue came on regularly for hearing before the above-named defendant, M. A. Biggs, as judge of the circuit court for Malheur county. Upon the conclusion of said hearing, there was entered in said criminal proceeding an order which denied said motion on the ground and for the reason that 'under the provisions of Sections 26-311 and 26-312, O.C.L.A., and the case of State v. Swanson, 119 Ore. 522, 250 P. 216, this Court does not have jurisdiction and authority to change the place of trial to another County in a cause involving a misdemeanor.'

On October 31, 1952, plaintiff filed in this court her petition for a writ of mandamus to compel defendant 'to exercise his judicial discretion in either granting or denying the motion [for change of venue] upon its merits'. The petition set forth all the material facts.

Thereafter, on November 6, 1952, a hearing was held before this court, sitting in banc, to determine whether we should assume original jurisdiction in this proceeding. We assumed jurisdiction and entered an order directing the issuance of an alternative writ of mandamus. The writ, omitting formal parts, is as follows:

'The State of Oregon to the Honorable M. A. Biggs, Circuit Judge of the Ninth Judicial District of the State of Oregon.

'Whereas, it manifestly appears to this Court by the verified Petition of the above named plaintiff that:

'I

'You, the Honorable M. A. Biggs, at all times herein mentioned are the duly elected, qualified and acting Circuit Judge of the State of Oregon for the Ninth Judicial District, and at all times herein mentioned you were and are exercising all of the duties and perogatives [sic] of said office under common law adopted by the State of Oregon, and the Constitution of Oregon and the statutes of the State of Oregon.

'II

'That the plaintiff herein was indicted by the Grand Jury of Malheur County, Oregon, of the crime of maintaining a house of ill fame. That said crime is an indictable misdemeanor. That thereafter she was arraigned in the Circuit Court of the State of Oregon for the County of Malheur and thereafter entered her plea to said charge of not guilty. That all of such proceedings were had in a certain criminal action pending in the Circuit Court of the State of Oregon for the County of Malheur, entitled The State of Oregon v. Marie Ricco, No. 827, that said cause is now pending in said Court.

'III

'That thereafter said plaintiff herein and the defendant in said criminal action filed with the Clerk of said Court a certain Motion seeking an order to change the place of trial of said cause from Malheur County to Harney County or any other County in the State of Oregon, on the grounds and for the reasons that she could not obtain a fair and impartial trial in Malheur County, Oregon. That said Motion was made in good faith and not for the purpose of delay and for the grounds therein stated.

'IV

'That thereafter said Motion came on for hearing and after argument of counsel you, the said Honorable M. A. Biggs, announced that you did not feel that you had the power or authority to entertain the Motion upon its merits upon the grounds and for the reasons that said charge was for a misdemeanor and that the Circuit Court did not have the authority to grant the change of place of trial of a crime involving only a misdemeanor.

'That said order provided among others 'It is Ordered and Adjudged that Defendant's Motion for Change of Place of Trial of the within cause be, and the same is hereby denied on the ground and for the reason that under the provisions of Sections 26-311 and 26-312, O.C.L.A., and the case of State v. Swan[son], 119 Ore. 522, 250 P. 216, this Court does not have jurisdiction and authority to change the place of trial to another County in a cause involving a misdemeanor.'

'V

'That unless the defendant, the said Honorable M. A. Biggs, as such Circuit Judge does not consider the Motion of the plaintiff filed in the criminal case on its merits and either deny the Motion for change of place of trial or grant the same after having exercised your discretion thereon, the plaintiff herein does not have a speedy, adequate, clear remedy at law for the determination of the question whether or not she, plaintiff herein, is entitled to a change in place of trial of said criminal action.

'Whereas, by an Order of this Court duly given and made in the above entitled suit on the 6th day of November, 1952, it was ordered that a Writ of Mandamus issue to you.

'Therefore:

'We Do Commend that you, after the receipt of this Writ, or within such time as may be allowed by this Court, that you shall hear said Motion for change of place of trial considering the evidence adduced for you, both for the plaintiff and defendant in the criminal action and that you do decide said Motion upon its merits, or that you show cause before this Court at the courtroom thereof at Salem, Oregon, on the 14th day of November, 1952, at the hour of 10 o'clock--M. on that day why you have not done so.'

The matter is now before us upon defendant's demurrer to the alternative writ on the ground that it fails to state a cause of action.

Defendant contends that it appears upon the face of the writ that this court is without jurisdiction to order the issuance of a peremptory writ of mandamus herein, because, if done, we would be controlling judicial discretion. He argues that his ruling and order upon the motion for change of venue were within his discretion, and that there was no abuse of discretion in making them. He maintains that he had jurisdiction to pass upon the motion; that this jurisdiction vested in him the power to decide erroneously as well as correctly; and that, for a mistake in judgment, it cannot be said that he abused his discretion.

Section 11-302, O.C.L.A., respecting the writ of mandamus, provides:

'It may be issued to any inferior court, corporation * * * to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; but though the writ may require such court, corporation * * * to exercise its or his judgment, or proceed to the discharge * * * of its or his functions, it shall not control judicial discretion. The writ shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law.' (Italics ours.)

In State ex rel. Bethke v. Bain, 193 Or. 688, 702, 240 P.2d 958, 964, we said:

"Judicial discretion', as used in the statute, means the option which a judge may exercise either to do or not to do that which is proposed to him that he shall do; it is the right to choose between the doing and not doing of a thing, the doing of which cannot be demanded as an absolute right of the party asking it to be done; it is the exercise of the right legally to determine between two or more courses of action.'

'Discretion' is defined in State v. Lewis, 113 Or. 359, 364, 230 P. 543, 544, 232 P. 1013, as follows:

'Discretion is the power exercised by courts to determine questions to which no strict rule of law is applicable, but which, from their nature and the circumstances of the case, are controlled by the personal judgment of the court. 1 Bouvier's Law Dict. p. 884. It cannot be exercised where a strict rule of law is applicable, as the term 'discretion' implies the absence of any such rule. Where there is a clearly-defined and well-settled applicable rule of law, the courts are bound to enforce the rule, and discretion is at an...